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EXHIBIT 10.40
EXECUTION COPY
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INVESTMENT ADVISORY AND
ASSET MANAGEMENT AGREEMENT
BY AND BETWEEN
AGAR INTERNATIONAL HOLDINGS LTD.
AND
LEXINGTON REALTY ADVISORS, INC.
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TABLE OF CONTENTS
ARTICLE I. APPOINTMENT, DUTIES AND SHARI' A COMPLIANCE; AUTHORITY;
ADVISOR'S REPRESENTATIONS AND WARRANTIES; AGAR'S REPRESENTATION.......2
Section 1.1 Appointment, Duties and Shari'a Compliance. .........................2
Section 1.2 Authority. ..........................................................2
Section 1.3 Advisor's Representations, Warranties and Certain Agreements of
Advisor. ..........................................................2
Section 1.4 AGAR's Representations. .............................................5
ARTICLE II. TERM..................................................................6
ARTICLE III. DESCRIPTION OF SERVICES...............................................6
Section 3.1 Investment Advisory Services. .......................................6
Section 3.2 Asset Management Services. .........................................10
ARTICLE IV. COMPENSATION FOR SERVICES............................................16
Section 4.1 General. ...........................................................16
Section 4.2 Invoices. ..........................................................16
Section 4.3 Payment of Expenses. ...............................................16
ARTICLE V. INDEPENDENT CONTRACTORS STATUS.......................................17
ARTICLE VI. INDEMNITY............................................................17
ARTICLE VII. INFORMATION..........................................................18
ARTICLE VIII. NO CONFLICTS ALLOCATION OF INVESTMENT OPPORTUNITIES..................18
ARTICLE IX. AFFILIATED ENTITIES..................................................19
ARTICLE X. NO WARRANTY AS TO VALUE OR PROFITABILITY.............................19
ARTICLE XI. MISCELLANEOUS........................................................19
Section 11.1 Assignment. ........................................................19
Section 11.2 Modification and Amendment. ........................................20
Section 11.3 Licenses; Compliance with Law........................................20
Section 11.4 Severability. ......................................................20
Section 11.5 Resolution of Disputes. ............................................20
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Section 11.6 Governing Law; Certain Construction Rules. .........................21
Section 11.7 Notice. ............................................................21
Section 11.8 Termination. .......................................................24
Section 11.9 Shari'a Requirements. ..............................................24
Section 11.10 Integration, Incorporation by Reference. ...........................24
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Exhibit A - Investment Criteria
Exhibit B - Hold/Sell Decision Analysis
Exhibit C - Investment Proposal Summary
Exhibit D - Summary of Financial Analysis and Due Diligence
Exhibit E - Cash Management Procedures To Be Followed, As Permitted By Shari'a
Rules
Exhibit F - Form of Quarterly Reports
Exhibit G - Advisor Fees
Exhibit H - Authorized Persons For Agar
Exhibit I - List of Consultants
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INVESTMENT ADVISORY AND
ASSET MANAGEMENT AGREEMENT
This Investment Advisory and Asset Management Agreement (this
"AGREEMENT"), made and entered into as of the ____ day of August, 2000, by and
between AGAR INTERNATIONAL HOLDINGS LTD., a corporation organized under the laws
of the British Virgin Islands ("AGAR"), and LEXINGTON REALTY ADVISORS, INC., a
corporation organized under the laws of Delaware ("ADVISOR").
WITNESSETH THAT:
WHEREAS, AGAR desires to invest in and finance real estate
projects in the United States in conformity with the rules and principles of the
Glorious Shari'a, as such rules and principles are determined and interpreted
through advice provided to AGAR by Shari'a scholars and communicated in writing
to Advisor by AGAR (such rules and principles, as thus determined, interpreted
and communicated, being hereinafter called the "SHARI'A") and in accordance with
the "INVESTMENT CRITERIA", as hereinafter defined;
WHEREAS, AGAR desires to contract with one or more investment
managers who shall have the power to acquire, manage, finance or dispose of
AGAR's real estate assets as AGAR shall approve from time to time;
WHEREAS, AGAR desires to advise certain United States entities
(hereinafter collectively called the "USCos" and individually called a "USCo")
and to procure for the USCos the benefit of this Agreement with respect to the
USCos' investment in, and financing of, real estate projects in the United
States, likewise in conformity with the Shari'a;
WHEREAS, The Townsend Group ("TOWNSEND") provides consultant
services to AGAR with respect to certain of AGAR's investments in the United
States, and AGAR desires that Townsend act as its consultant in connection with
the provision by Advisor of investment advisory services to AGAR pursuant to
this Agreement; and
WHEREAS, Advisor has represented that it is experienced in the
real estate investment advisory and asset management business;
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NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, and for other good and valuable consideration,
receipt of which is hereby acknowledged, AGAR and Advisor, intending to be
legally bound, agree as provided herein.
ARTICLE I.
APPOINTMENT, DUTIES AND SHARI' A COMPLIANCE;
AUTHORITY; ADVISOR'S REPRESENTATIONS AND
WARRANTIES; AGAR'S REPRESENTATION
SECTION 1.1 APPOINTMENT, DUTIES AND SHARI'A COMPLIANCE. On the terms
and subject to the conditions hereof, AGAR hereby appoints Advisor as its
investment advisor and asset manager as to certain of AGAR's prospective
investments in United States real property; and Advisor, on said terms and
subject to such conditions, hereby accepts such appointment and agrees, as
provided herein, to provide (a) advice and investment services to AGAR with
respect to the investment of certain assets of AGAR in real estate projects in
the United States, and (b) asset management services with respect to investments
in real estate projects in the United States made hereunder or otherwise by AGAR
(hereinafter referred to as an "INVESTMENT" or the "INVESTMENTS" or a "PROPERTY"
or the "PROPERTIES", as the context dictates).
With respect to all Investments and leases for space in the
Properties (including, with respect to leases, modifications, renewals and
extensions thereof), proposed to AGAR by Advisor or entered into on AGAR's
behalf by Advisor, Advisor will use best efforts to ensure compliance with the
Shari'a. Such best efforts shall include identifying factors which violate or
are inconsistent (or which Advisor believes would violate or be inconsistent)
with Shari'a principles, based on a description of such principles communicated,
in writing, to Advisor by AGAR.
SECTION 1.2 AUTHORITY. Advisor hereby accepts the foregoing
appointment and agrees that it shall seek out and recommend to AGAR United
States real estate investments which Advisor believes are advisable as
Investments hereunder by AGAR and which comply with the Investment Criteria as
set forth on EXHIBIT A. Advisor shall not make any Investment on behalf of AGAR
unless Advisor is authorized to do so, as more fully provided hereafter.
SECTION 1.3 ADVISOR'S REPRESENTATIONS, WARRANTIES AND CERTAIN
AGREEMENTS OF ADVISOR. Advisor represents, warrants and agrees that:
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1.3.1 STANDARDS OF CARE. Advisor shall perform its duties hereunder in
a good, efficient manner using such care and diligence as real estate investment
advisers of portfolios similar to the portfolio proposed to be acquired by AGAR
are expected to use within the industry.
1.3.2 COMPLIANCE WITH LAWS; FIDUCIARY UNDERTAKING. Advisor shall become
a registered investment advisor under the New York General Business Law (the
"ACT") and is in compliance in all material respects, and will continue to be in
compliance during the entire term of this Agreement, with the Act. Advisor is
not required by such Act to register as an investment adviser under the
provisions of the U.S. Investment Advisers Act of 1940, as amended (the "1940
Act"). However, Advisor agrees that, in addition to the other standards of
performance provided herein for Advisor and Advisor's other fiduciary duties
hereunder, Advisor shall act as a "fiduciary" with respect to the conduct of its
investment advisory responsibilities to AGAR hereunder as fully and to the same
extent as Advisor would be required to do so if Advisor were registered as an
investment adviser under the 1940 Act.
1.3.3 EXPERIENCE OF PERSONNEL. The personnel of Advisor who will be
responsible for carrying out this Agreement are individuals experienced in the
making of real estate investments of the nature contemplated by this Agreement
and, specifically, the Investment Criteria, and are also experienced in the
performance of the various functions contemplated by this Agreement.
1.3.4 CHANGE IN CONTROL. Advisor shall promptly give AGAR "NOTICE"
(as defined in Section 11.7 hereof) in the event of any change in control of
Advisor. Change in control is defined as a change of greater than 33% in the
ownership of Advisor or the death, incapacity, resignation or removal of either
E. Robert Roskind or T. Wilson Eglin as executives of Advisor. Advisor shall
also give AGAR Notice of any proposed change in the personnel primarily
responsible for the performance of the duties of Advisor specified in this
Agreement. The personnel initially primarily responsible for the performance of
Advisor's duties under this Agreement are T. Wilson Eglin and Richard J. Rouse.
1.3.5 ADVISOR'S INSURANCE. Advisor has procured and shall maintain at
all times at its expense during the term of this Agreement Errors and
Omissions/Professional Liability Insurance and Financial Institutional Bond
Insurance in the amount of $5,000,000 per claims made and in the aggregate. If
requested to do so, Advisor shall furnish to AGAR on an annual basis a
certificate evidencing such insurance setting forth (i) the amount(s) and types
of coverage, (ii) policy number(s), (iii) expiration date(s), (iv) carrier
name(s), and (v) deductibles. Furthermore, Advisor shall promptly provide Notice
to AGAR of any termination or reduction in the amount or scope of coverage.
Advisor shall be permitted to maintain the foregoing coverage on a "blanket" or
"umbrella" basis;
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provided that in no event shall less than the full amount of coverage required
by this Agreement be available for claims arising hereunder or in connection
herewith. The maintenance of Errors and Omission/Professional Liability
Insurance or Financial Institutional Bond Insurance shall not release Advisor
from any obligations or liabilities under this Agreement.
1.3.6 ADVISOR NOTICE REQUIREMENT. Advisor shall promptly give AGAR and
Townsend Notice in the event that any of the foregoing acknowledgments,
representations, warranties or agreements shall no longer be true. In addition,
Advisor shall promptly (but in no event later than ten days after Advisor
receives notice thereof) give AGAR and Townsend Notice of any event or
circumstance respecting any Property or Investment which has resulted in, or
reasonably can be expected to result in, (a) material physical damage to a
Property, (b) any legal action, suit, investigation, examination or other legal
proceeding commenced for, by or against AGAR, any USCo, Townsend, Advisor or any
third-party managing agent or tenant relating to the ownership, operation,
management or occupancy of any Property or Investment or (c) a reduction in
aggregate revenues or an increase in aggregate expenditures of three percent
(3%) or more from the amounts shown in the applicable Annual Budget as to such
Property or Investment.
1.3.7 INVESTMENT EXCLUSIVE. AGAR shall have an exclusive right of
first offer with respect to all investment opportunities identified by Advisor,
with a sale price of less than U.S.$20 million in the following categories: (i)
Properties dedicated to retail sales; (ii) Properties with a lease due to expire
within 10 years of the date the Investment Proposal Summary is provided to AGAR;
(iii) Properties under construction, with construction completion targeted for
no sooner than 90 days after the date the Investment Proposal Summary is
provided to AGAR; and (iv) Properties that this Agreement permits to be offered
first to the New York Common Retirement Fund (the "New York Fund") and which
have been offered to and rejected by the New York Fund. In addition, AGAR shall
have an exclusive right of first offer with respect to all investment
opportunities identified by Advisor with a sale price of less than U.S.$10
million.
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AGAR shall have an alternating right of first offer with the New York
Fund with respect to any Property with a tenant whose credit rating is less than
investment grade and the sale price is less than U.S. $20 million and greater
than U.S. $10 million. Advisor shall offer AGAR sufficient Properties for AGAR
to fill its allocation prior to making any new acquisitions for the portfolio
held by Lexington Corporate Properties Trust ("LXP").
Notwithstanding any provision in this Section 1.3.7 save for the next
sentence of this paragraph, Advisor, on behalf of LXP, shall have a right of
first offer with respect to investment opportunities when such investment is
required by Advisor and/or LXP in order to complete an exchange pursuant to
Section 1031 of the Internal Revenue Code of 1986, as amended" (a "1031 EXCHANGE
TRANSACTION") within the required time periods, provided, however, that, if
there are more than two 1031 Exchange Transactions during any 12 month period,
Advisor shall first obtain AGAR's consent prior to consummating any additional
1031 Exchange Transactions in said 12 month period. Notwithstanding the next
preceding sentence, neither Advisor nor LXP shall have the right in any calendar
year during the term hereof to effect a 1031 Exchange Transaction free of the
first offer rights of AGAR specified above unless and until Advisor shall have
given AGAR an opportunity to make at least one Investment in a Property
qualifying hereunder in such year. Advisor shall provide notice to AGAR at the
earliest practical time after determining to pursue a 1031 Exchange Transaction.
SECTION 1.4 AGAR'S REPRESENTATIONS. AGAR represents that:
1.4.1 ERISA APPLICABILITY. Funds used in conjunction with the
transactions contemplated by this Agreement will not be plan assets of any
employee benefit plan or its related trust (as such terms are defined by the
U.S. Employee Retirement Income Security Act of 1974 as amended "ERISA") and as
such are not subject to ERISA or the regulations promulgated thereunder; and
1.4.2 DUE ORGANIZATION AND AUTHORITY. AGAR is a company that
has been duly organized, validly exists and is in good standing under the laws
of its jurisdiction of incorporation; AGAR is authorized to undertake the
business contemplated by the Agreement; the person signing this Agreement on
behalf of AGAR has the authority to sign the agreement and bind AGAR; and this
Agreement does not conflict with any other agreements of AGAR or conflict with
its Articles of Incorporation or By-laws.
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ARTICLE II.
TERM
This Agreement, and the rights, duties and obligations of the
parties hereunder, shall commence as of the date first above written (the
"COMMENCEMENT DATE") and, subject to the provisions of Section 11.8 hereof,
shall continue until the third (3rd) anniversary of the Commencement Date.
Thereafter, this Agreement shall be automatically renewed for successive one (1)
year periods on each anniversary of the Commencement Date unless either AGAR or
Advisor shall have given the other at least thirty (30) days' Notice of its
desire not to renew this Agreement.
ARTICLE III.
DESCRIPTION OF SERVICES
SECTION 3.1 INVESTMENT ADVISORY SERVICES. Advisor shall provide the
following investment advisory services to AGAR with respect to prospective
Investments by AGAR:
3.1.1 INVESTMENT CRITERIA. The criteria (the "INVESTMENT
CRITERIA") that will be used in seeking Investments for AGAR are
attached to this Agreement as EXHIBIT A. The Investment Criteria may be
amended from time to time by Notice in Section 11.7 hereof from AGAR to
Advisor as AGAR, in its discretion, redefines and refines its investment
and portfolio objectives and policies. However, AGAR acknowledges that,
if the Investment Criteria are broadened at any future time, Advisor may
be obligated under then existing contractual arrangements with other
clients to present certain Investment opportunities to such other
clients.
3.1.2 ANNUAL BUSINESS PLAN. Advisor shall prepare for AGAR's
approval an Annual Business Plan for each calendar year setting forth
the general and specific criteria for its investment allocation and
approach for the ensuing year (once approved, herein the "ANNUAL
BUSINESS PLAN" for the ensuing year); provided however, Advisor shall
prepare an Annual Business Plan within forty-five (45) days after
acquisition of any Property if a Property is acquired (or Advisor
otherwise assumes management of a Property at AGAR's request) during the
course of any calendar year; and, provided further, that Advisor shall
prepare and provide to AGAR an Annual Business Plan for the remainder of
the 2000 calendar year within 30 days after the execution of this
Agreement. The investment criteria set forth therein shall be consistent
with the Investment Criteria and shall include diversification criteria
and risk/return expectations. A
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preliminary draft of each proposed annual business plan shall be
submitted for AGAR's approval no later than October 1 for AGAR's review
or approval on or before November 15. As part of each annual business
plan, Advisor shall include a proposed annual budget and business plan
for AGAR's portfolio and for each individual Property as more
specifically described in Section 3.2.3 hereof. The proposed annual
business plan shall also include a narrative description of Advisor's
proposed investment strategy for the ensuing year for each Property and
for the portfolio as a whole (including leasing, operations and capital
programs) and an estimated income and cash flow statement for the
ensuing year, including gross revenues, expenses, percentage rent,
additional interest, property management fees, net operating income,
tenant improvements, leasing commissions, capital expenditures, cash
flow before and after debt service, tenant expiration schedules,
quarterly distribution projections, an internal (Advisor) opinion of
value for each Property and a hold/sell decision evaluation (with a
comparison to the exit strategy described in the Investment Proposal
Notice, as hereinafter defined, and the prior year's Annual Business
Plan and including the analysis described on EXHIBIT B, attached
hereto.)
3.1.3 INVESTMENT SEARCH; PERIOD FOR APPROVAL BY AGAR. Advisor
shall identify and recommend to AGAR and Townsend real estate investment
opportunities that are consistent with the Investment Criteria and the
Annual Business Plan and that Advisor believes would constitute prudent
investments if made. Immediately upon identifying such investments,
Advisor shall proceed to negotiate on behalf of AGAR, and in conjunction
with Townsend and legal counsel (as selected by AGAR), a non-binding
letter of intent, which shall provide for the preparation of a formal
contract of purchase and sale, which contract shall provide for a
reasonable opportunity (typically not less than thirty (30) days) for
due diligence investigation and inspection. Each non-binding letter of
intent shall expressly state that the final terms of the transaction,
and the form and content of the final, binding legal documentation,
shall be subject to the approval of AGAR.
For each such investment, Advisor will present in writing to
AGAR and Townsend by Notice, together with a copy of the executed letter
of intent, an "INVESTMENT PROPOSAL SUMMARY" containing at least those
items of information set forth on EXHIBIT C, attached hereto, and such
other information as Advisor, AGAR or Townsend determines is relevant
and material (each such Notice transmitting an Investment Proposal
Summary being hereafter called an "INVESTMENT PROPOSAL NOTICE"). To the
extent practicable, Advisor shall orally inform AGAR and Townsend of the
essential details of the investment opportunity prior to delivery of an
Investment Proposal Notice. Simultaneously with the delivery of each
Investment Proposal Notice, Advisor shall confirm in writing to AGAR if
Advisor or any affiliate of Advisor (i) has any direct or indirect
interest in the proposed Property or if its purchase by AGAR will
benefit Advisor or any
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affiliate of Advisor, except as provided herein with respect to payment
of certain fees by AGAR to Advisor; (ii) has any business relationship
with the seller of the Property attendant to the proposed transaction;
and (iii) has any knowledge of any other potential conflicts of interest
arising out of the proposed transaction. Within seven (7) days after the
date on which an Investment Proposal Notice is received by AGAR, AGAR
will, in its sole discretion, determine and give Notice (a "PRELIMINARY
INTEREST NOTICE") to Advisor if AGAR has a preliminary interest in
proceeding with respect to the particular Investment opportunity;
provided, however, that such seven (7) day period will be extended by
two (2) days if the Investment Proposal Notice is received by AGAR on a
Thursday or Friday, which are non-business days in Saudi Arabia. If AGAR
fails to give a Preliminary Interest Notice to Advisor within such
period, AGAR will be deemed to have rejected the particular Investment
Proposal, and Advisor will notify the third party Seller and terminate
the letter of intent. If AGAR gives a Preliminary Interest Notice that
indicates preliminary interest in an Investment, AGAR shall be deemed to
have authorized Advisor to pursue the acquisition of the Property in
question on behalf of AGAR, as described more fully below.
3.1.4 CONTRACT NEGOTIATION. If AGAR gives a Preliminary
Interest Notice as to an Investment opportunity recommended by Advisor
in an Investment Proposal Notice, then, upon receipt of AGAR's
Preliminary Interest Notice, which shall be followed within seven (7)
days thereafter by a money deposit of up to 3% of the Investment asking
price in accordance with the instructions given in the Investment
Proposal Notice, Advisor, in cooperation with Townsend, AGAR's appointed
legal and tax counsel and other approved consultants, shall conduct
negotiations regarding a formal, binding contract of purchase and sale.
The money deposit shall be held in a non-interest bearing account in
accordance with the instructions given in the Investment Proposal
Notice. Each contract of purchase and sale shall: (i) require AGAR to
place in escrow a good faith deposit not exceeding 3% of the purchase
price under such contract (it being understood that Advisor will use
best efforts to negotiate the lowest deposit possible); (ii) be
contingent upon AGAR's complete satisfaction with the results of the due
diligence and any inspection and satisfaction of all conditions to
AGAR's obligation to effect the purchase; and (iii) specify that all
good faith deposits will be refundable until the expiration of the due
diligence period and satisfaction of all conditions to AGAR's
obligations to effect the purchase and thereafter will be credited
toward the purchase price.
3.1.5 DUE DILIGENCE AND CLOSING. During the due diligence
period, Advisor, shall perform a financial analysis of such Investment
and shall conduct a due diligence investigation with respect to the
physical condition of the Property, working, as appropriate, with
Townsend, legal counsel and other professional consultants selected by
Advisor and approved and employed by AGAR. Advisor's due diligence
investigation shall at a minimum include the review and analysis set
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forth on EXHIBIT D, attached hereto. AGAR may determine that it is
desirable to employ outside experts and consultants to review the
physical components of any improvements which constitute a part of a
prospective Investment and other aspects of the proposed Investment,
including environmental specialists, market consultants, appraisers,
engineers, tax certiorari specialists, construction consultants,
insurance consultants, architects, and accountants. In any such case,
Advisor shall identify such firms as, in its judgment, are appropriate
to the investigation and analysis of the prospective Investment under
consideration and shall provide a cost estimate to AGAR for the proposed
services to be performed by each such firm. Advisor will, upon receiving
AGAR's prior written approval, engage such firms on behalf of AGAR and
at AGAR's expense. Attached hereto as Exhibit I is a list of
pre-approved vendors that may be used by Advisor; any other vendor shall
be used only after AGAR's approval. Thereafter, Advisor will monitor the
activities and performance of such outside consultants and will deliver
to AGAR, upon request, copies of all reports or conclusions made or
reached by such consultants. If at any time during the investment
process, AGAR advises Advisor that it or Townsend wishes to visit and
inspect the subject Property, then Advisor shall arrange for AGAR's or
Townsend's representatives (or representatives of both) to have an
opportunity to inspect the Property and to have their reasonable
questions answered by the Advisor's outside consultants and
representatives of the third party seller. During the due diligence
period Advisor, usually working with third party mortgage brokers, will
identify the most attractive financing available and provide analysis of
such financing, as well as financings proposed by AGAR, provided,
however, Advisor will not incur any costs associated therewith until
after such Investment has been approved. All Property or portfolio
financings shall be structured so as to comply with the Shari'a.
At least seven (7) days prior to the conclusion of the described
financial analysis and due diligence, Advisor shall prepare and furnish
to AGAR and Townsend by Notice a final report (the "RECOMMENDATION
REPORT NOTICE") containing the conclusions and recommendations of
Advisor with respect to the proposed Investment, highlighting risks and
deviations from the Investment Proposal Summary and giving Advisor's
advice and recommendations concerning the results of third party
consultant's reports. AGAR shall be deemed to have disapproved the
Investment unless AGAR gives Notice to Advisor within seven (7) days
after a Recommendation Report Notice is received by AGAR that AGAR
approves the Investment in question; provided, however, that such seven
(7) day period will be extended by two (2) days if the Recommendation
Report Notice is received by AGAR on a Thursday or Friday, which are
non-business days in Saudi Arabia.
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If AGAR approves an Investment opportunity recommended by Advisor
in a Recommendation Report Notice, then Advisor, in cooperation with
Townsend, AGAR's appointed legal and tax counsel and other approved
consultants, shall supervise the closing of the transaction (the
"CLOSING").
At least ten (10) days prior to the proposed date for signing the
binding legal documentation pertaining to a particular Investment,
Advisor shall prepare and give to AGAR and Townsend by Notice a summary
of the transaction and a summary of all material terms of the legal
documentation and, in particular, shall highlight any terms that differ
from those set forth in the applicable non-binding letter of intent and
the Recommendation Report Notice. All binding legal documents as to each
Investment shall be executed and delivered only by an authorized officer
of AGAR, unless AGAR, acting in its sole discretion, shall authorize
another party to execute such documents on AGAR's behalf.
SECTION 3.2 ASSET MANAGEMENT SERVICES. With respect to AGAR's
Investments, Advisor shall provide the following asset management services:
3.2.1 RENTAL OF PROPERTY. It is not expected that there will
be any significant leasing activity at the Properties; however, to the
extent leasing is necessary, Advisor shall supervise all such leasing
and all occupancy matters with respect to the Investments, subject to
the final approval of AGAR and any leasing restrictions or limitations
included in any restrictive covenant or other instrument or document
affecting any particular Property of which Advisor is aware. All leasing
of a particular Property and any modifications, renewals or extensions
thereof shall be in conformity with the investment guidelines for such
Property (if necessary) proposed by Advisor and approved by AGAR. AGAR
shall designate from time to time those individuals who shall have
signature authority for all leases of Properties owned by AGAR.
3.2.2 MANAGEMENT OF PROPERTY. Advisor shall monitor the
tenants' compliance with the terms of the applicable leases, including
terms regarding maintenance of each Property. It is not generally
expected that net lease assets require property managers. To the extent
it becomes necessary, and subject to prior written approval by Notice
from AGAR, Advisor shall select, arrange for, supervise and, if
appropriate, replace third-party managing and leasing agents (selected
for their expertise in the local market area), mortgage brokers and
agents engaged to assist with debt financing and independent contractors
with respect to the maintenance, repair, operation and leasing of each
Property, pursuant to contracts ("SERVICE CONTRACTS") containing such
terms as Advisor has recommended to AGAR. Except as otherwise provided
herein, such Service Contracts shall be subject to the prior written
approval, given by Notice of AGAR and shall be entered into by Advisor
in the name of and on behalf of AGAR. Property management fees shall be
competitive in the relevant local market, and
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Advisor shall review each property management arrangement no less
frequently than once every two (2) years to confirm that the fees
payable thereunder are competitive in the local market area. Payments
for services rendered under the Service Contracts shall be the
obligation of AGAR. Advisor shall supervise the administration of and
performance of all work done under all Service Contracts and shall
monitor compliance of all service-providers with the terms and
conditions of their respective Service Contracts, regardless of whether
expenditures therefor are set forth in the applicable "ANNUAL BUDGET",
as hereafter defined. In furtherance of the foregoing, AGAR must by
Notice approve in writing and in advance all third party engagements for
services which are not identified in previously approved Annual Budgets
and/or which provide for payments in an amount which may exceed the
approved guidelines in each Property's Annual Budget, it being agreed
that the Annual Budget for each Property will contain cost and
expenditure guidelines under which Advisor may enter into third-party
service arrangements and Service Contracts without the further approval
of AGAR.
3.2.3 ANNUAL BUDGET. Advisor will oversee the annual budgeting
process with respect to each Property. Advisor shall prepare a draft
annual budget (including both operating and capital budget
considerations) and business plan for each Property for the ensuing
calendar year and submit such draft budgets to AGAR and Townsend no
later than October 1 for AGAR's review and approval on or prior to
November 15. The Annual Budget may include a reasonable reserve for
emergency expenses. Once approved by AGAR, the annual budget for a
Property shall be its "Annual Budget" for the ensuing calendar year.
Until AGAR approves an Annual Budget for a particular Property, the
Property shall continue to be operated under the Annual Budget
applicable thereto for the prior year and previously approved by AGAR
with each expense line item increased by no more than 3%. At or before
the time of the Closing of the acquisition of any Property, Advisor
shall propose to AGAR and Townsend, and Advisor and AGAR shall agree
upon, a budget for the Property to be acquired for the remainder of the
calendar year in which the Closing date will occur, and such budget
shall be the Annual Budget for that Property for such period. Advisor
shall oversee the management and operation of each Property in
accordance with the applicable Annual Business Plan and the applicable
Annual Budget and shall review and approve all operating and capital
expenditures at the Properties to ensure compliance with the applicable
Annual Business Plan and the applicable Annual Budget.
3.2.4 EMERGENCY EXPENDITURES. In addition to any contingency
and reserve items contained in the Annual Budget applicable to a
particular Property, Advisor shall be authorized to make emergency
expenditures with respect to a Property not contemplated by the said
Annual Budget and without the prior
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approval of AGAR (a) if Advisor believes such expenditure to be
necessary to correct any condition that eminently threatens loss of life
or serious personal injury or property damage or that constitutes a
violation of law the sanction for which is imprisonment or a material
fine or civil penalty and (b) if Advisor reasonably believes that, given
the urgent and emergency nature of the condition in question, it would
not be prudent to take the time necessary to seek the approval of AGAR
for such expenditures. If any expenditures are made under this Section
3.2.4, Advisor shall immediately thereafter advise AGAR and Townsend
thereof by Notice, which Notice shall also explain why the conditions in
question could not reasonably be expected to be contemplated by the
applicable Annual Budget and why it was necessary to make such
expenditure without obtaining the prior approval of AGAR.
3.2.5 PROCUREMENT OF INSURANCE. Advisor will recommend whether
to obtain and maintain for AGAR, at AGAR's expense, public liability and
extended coverage casualty insurance. If such insurance is obtained, it
shall be from reputable, independent insurance companies as contemplated
by the Annual Budget for each Property and as, in the reasonable opinion
of Advisor, may be necessary and appropriate for the protection of the
Properties and the interests of AGAR and Advisor. Advisor shall seek to
obtain such insurance at the lowest available cost and, with the prior
approval of AGAR, may employ at the expense of AGAR an insurance
consultant to advise in that regard. Any cost savings as to insurance
which Advisor may derive by including AGAR and its Properties in an
"umbrella" or "package" policy(ies) also covering other assets under
management by Advisor on behalf of other clients shall be passed along
to AGAR.
3.2.6 COLLECTION OF RENT AND OTHER SUMS. Advisor shall collect
(or supervise the collection by any third-party managing agents engaged
pursuant to Section 3.2.2 hereof) all fixed rent, percentage rent,
additional rent and other sums payable by tenants of the Properties or
portions thereof and shall review the accounts of any third-party
managing agents in respect of all items of income and expense of each
Property. All rents and other funds received with respect to the
Properties shall be deposited in an account opened in the name of AGAR
or an affiliate thereof at a financial institution approved by AGAR, and
such rent and other funds shall not be commingled with Advisor's funds
or the funds of any other client of Advisor. Advisor agrees (and shall
instruct any third-party managing agents engaged) that no sums collected
from the Properties shall be deposited in interest-bearing accounts, and
all cash management activities for the Properties, whether handled by
Advisor or by a third-party managing agent, shall be conducted in
compliance with the provisions of EXHIBIT E hereto (which EXHIBIT
describes cash management procedures which AGAR is satisfied will be in
compliance with the rules and principles of the Shari'a). Advisor shall
use its best efforts to ensure that all necessary steps are taken with
respect to the
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enforcement on behalf of AGAR of any and all rights and remedies of AGAR
under any leases, including, but not limited to, the giving of all
notices, whether of default or of intention to end the term of a lease
or otherwise, which in the judgment of Advisor are desirable or proper
for the protection of the interests of AGAR. Advisor shall not commence,
or cause any third-party property manager to commence, any legal action
or to take any step to terminate any lease, that, if such lease were
being entered as a new lease, would require AGAR's prior approval,
without first obtaining the written approval of AGAR.
3.2.7 REPORTS TO AGAR AND TOWNSEND. Advisor shall provide to
AGAR and Townsend quarterly and, to the extent not already provided in
the Annual Business Plan, annual reports in narrative form with respect
to each of the Investments and the portfolio as a whole and shall
provide other reports at such other times as AGAR or Townsend may
reasonably request. Such quarterly and annual reports shall be in the
format attached hereto as EXHIBIT F and shall describe the nature,
status and progress of the Investments and shall be delivered to AGAR
and Townsend no later than (i) forty-five (45) days after the end of
each calendar quarter, in the case of the quarterly reports and (ii)
sixty (60) days after the end of each calendar year, in the case of the
annual reports. In addition, Advisor shall prepare and deliver to AGAR
and Townsend no later than twenty (20) days after the end of each
calendar quarter a "flash report" with respect to each Investment
summarizing (in a preliminary manner) the financial performance of each
Investment during the prior calendar quarter and any material
developments regarding such Investments. Such "flash report" shall also
contain a description of any and all deposits of rental and other income
made to AGAR's account pursuant to Section 3.2.6 hereof. Advisor shall
prepare and maintain, or cause to be prepared and maintained, complete
and accurate books and records relating to each Investment and each
Property, showing all receipts, disbursements and other transactions.
Such books and records shall be the property of AGAR and shall be open
to inspection by AGAR or its authorized representatives (including
Townsend) on, reasonable notice to Advisor, at the office of Advisor
during normal business hours. Using an independent firm of certified
public accountants approved in writing by AGAR, Advisor shall cause
annual financial statements of the corporations (including USCos holding
the Properties) to be prepared and audited at AGAR's request in
compliance with U.S. generally accepted accounting principles,
consistently applied ("GAAP"), using the historical cost basis method,
and shall deliver such audited financial statements to AGAR or to any
other corporation (such as a USCo) thus audited. The fee and expense
charges of the firm of independent certified public accountants which
conducts the audit(s) shall be borne by AGAR (or the respective USCo),
and AGAR's obligation to pay such charges shall survive the termination
of this Agreement.
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3.2.8 TAX MATTERS. Advisor, without incurring any
responsibility or liability to AGAR for the payment of any taxes, or
interest, penalties or other required payments thereon, shall cooperate
with AGAR's U.S. tax consultants who are responsible for the preparation
of all U.S. federal, state and local income tax returns for AGAR.
Advisor shall fully cooperate with any AGAR consultants, lawyers and
accountants with respect to minimizing AGAR's taxes and structuring
investments, including making all books and records with respect to a
Property available upon reasonable notice to such consultants and
exploring with them various alternatives with respect to the
Investments, it being understood that the responsibility for the
accurate preparation of such tax returns and for such tax planning and
structuring, based on information and materials presented to such
consultants, shall lie with AGAR's U.S. tax consultants.
3.2.9 PERIODIC MEETINGS. At times mutually agreed upon by
Advisor and AGAR, representatives of Advisor generally prepared to
discuss AGAR's Investments shall meet with representatives of AGAR (in
Saudi Arabia once a year), at Advisor's expense, to discuss the general
operation of the Investments and/or to review any matter pertaining to
Advisor's duties or performance hereunder.
3.2.10 SALE OR OTHER DISPOSITION OF INVESTMENTS. As described
in Section 3.1.2 hereof, Advisor shall review each of the Investments
with respect to AGAR's continued ownership, sale or other disposition
thereof on an annual basis and shall make recommendations in those
regards to AGAR and Townsend in the proposed Annual Business Plan. If
AGAR gives Notice to Advisor that it wishes to sell or otherwise dispose
of any Investment, Advisor shall provide the following services with
respect thereto:
(a) prepare (or cause to be prepared) and appropriately
distribute basic marketing materials and sales brochures
relating to the Investment;
(b) screen prospective purchasers of, or other parties
that may wish to acquire an interest in, the Investment;
(c) analyze, and consult with AGAR and Townsend regarding
any offers received to purchase or otherwise invest in
the Investment (whether using equity or otherwise), and
make recommendations in writing containing such
information and detail as AGAR shall need to make a
reasoned decision as to whether to proceed with the
proposed transaction;
(d) upon receiving the written approval of AGAR to proceed
with a sale or other disposition, negotiate with
prospective purchaser(s) or
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other investor(s) a non-binding letter of intent
containing the material business terms and conditions of
such sale or other disposition of the Investment;
(e) negotiate the final legal documentation with respect
to such sale or disposition, consistent with the
business terms and conditions previously approved by
AGAR, and supervise the Closing thereof (provided AGAR
approves in writing going forward with the Closing);
(f) generally, consult with and advise AGAR and Townsend
as to all aspects of the transaction; and
(g) hire as necessary, with AGAR's written consent and at
AGAR's expense, any professionals and/or consultants
necessary to assist in the sale and marketing process.
At least ten (10) days prior to the proposed date of signing of
the binding legal documentation pertaining to a particular sale or other
disposition, Advisor shall prepare and deliver to AGAR and Townsend a
summary of the transaction and a summary of the material terms of all
legal documentation and, in particular, shall highlight any terms that
differ in any material respect from those of the applicable non-binding
letter of intent. All binding legal documents as to the sale or other
disposition of any interest in any Investment shall be executed and
delivered only by an authorized officer of AGAR, unless AGAR, acting in
its sole discretion, shall authorize another party to execute such
documents on behalf of AGAR.
In the event Advisor determines (as is probable) that the
services of an independent real estate broker would be useful to
facilitate or otherwise arrange for the sale of an Investment, Advisor
shall so advise AGAR and Townsend and, as and to the extent approved in
writing by AGAR, Advisor shall arrange for and negotiate contracts with
a broker or brokers whose fees shall be AGAR's responsibility.
3.2.11 GOVERNMENT REGULATIONS. Advisor shall use its best
efforts to insure that each Property is managed in compliance with all
laws and regulations of any U.S. federal, state, county or municipal
authority having jurisdiction over such Property.
3.2.12 RENTAL COMMISSIONS. It is not expected that there will
be any significant leasing activity at the Properties. However, to the
extent leasing is necessary, neither Advisor nor any affiliate thereof
shall charge leasing commissions with respect to leasing any Property,
and, to the extent necessary, Advisor shall use its best efforts to have
the applicable on-site property manager
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(i.e., the third-party managing agent if one is engaged) lease the
Properties whenever practical. To the extent necessary and subject to
the prior written approval of AGAR, and in accordance with the leasing
criteria and guidelines approved by AGAR, Advisor may employ the
services of outside leasing brokers and/or agents, the payment of whose
commissions shall be the responsibility of AGAR.
3.2.13 CORPORATE MATTERS. Upon the request of AGAR, Advisor, or
an affiliate thereof, shall, in cooperation with legal counsel to the
respective USCos, provide administrative services for such USCos,
including maintaining corporate and/or other records, preparing
corporate resolutions and preparing and making required governmental
filings. Any franchise taxes, incorporation fees or other charges of
such nature relating to the USCos shall be paid by the respective USCo,
as shall the fees and expenses of legal counsel to such USCos.
ARTICLE IV.
COMPENSATION FOR SERVICES
SECTION 4.1 GENERAL. AGAR shall pay to Advisor the fees described on
EXHIBIT G, attached hereto.
SECTION 4.2 INVOICES. Advisor's invoices for each of the fees due
Advisor pursuant to EXHIBIT G of this Agreement shall include a detailed
analysis showing how such fee was computed by Advisor, which analysis shall set
forth the purchase price, Closing costs and brokerage commissions and other
fees, capital expenditures, leasing fees, tenant improvement allowances and
concessions and any other items which form the basis upon and from which the fee
was computed. Fees shall be determined using GAAP on an accrual basis.
SECTION 4.3 PAYMENT OF EXPENSES. AGAR shall be responsible for all
fees and expenses paid to third party consultants engaged on behalf of AGAR
(provided said engagement is permitted hereunder or approved by Notice in
writing from AGAR) in conjunction with the transactions contemplated by this
Agreement. Such fees shall be paid by AGAR to the extent feasible, as an
acquisition expense at Closing. If payment at Closing is not feasible and
Advisor is holding funds to be distributed to AGAR, Advisor may make
disbursements from said funds, after having given prior Notice to AGAR. In the
event that payment at Closing is not feasible and Advisor is not holding
sufficient funds to make such disbursement, Advisor shall submit, in a timely
manner (so as to avoid penalties and interest) invoices to AGAR for payment.
Such fees and expenses shall include (i) lawyers' fees; (ii) accountants' fees;
(iii) engineers' fees; and (iv) third party appraisal costs. In connection with
the investigation of any proposed Property acquisition pursuant to Section 3.1.4
hereof, such fees shall be payable irrespective of
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whether such proposed acquisition is consummated; provided, however, that where
a proposed acquisition is not consummated by AGAR and is subsequently
consummated by another of Advisor's clients, said fees shall only be
reimbursable to the extent such other client of Advisor does not utilize the
services, etc., for which such fees were incurred.
ARTICLE V.
INDEPENDENT CONTRACTORS STATUS
Advisor is an independent contractor and not an employee,
partner or joint venturer of AGAR for any purpose whatsoever. Advisor is acting
solely as AGAR's investment advisor and asset manager on the terms and subject
to the conditions hereof and solely for AGAR's account and upon AGAR's credit.
ARTICLE VI.
INDEMNITY
Except as otherwise provided in this Agreement or applicable
law, AGAR shall hold Advisor harmless from and indemnify Advisor against any and
all liability, loss, damage, court costs and reasonable expense (including
reasonable lawyers' fees) which Advisor may incur or suffer as a result of any
claim against Advisor arising out of any action taken, omitted, or suffered to
be taken by it in good faith in accordance with the rights or powers conferred
on it by this Agreement or instructions from AGAR written in accordance with
this Agreement, except where such liability, loss, damage, court costs or
expense results from the negligence, bad faith, fraud, willful misconduct,
violation of law or violation or breach of obligations or responsibilities of
Advisor under this Agreement on the part of Advisor or any of its officers,
directors or employees. Advisor hereby waives its right of subrogation with
respect to any and all losses indemnified hereby, it being the intention of the
parties that Advisor shall only seek recovery from AGAR of its actual loss, net
of any of AGAR's insurance proceeds which Advisor receives as a result of such
event.
Except as otherwise provided in this Agreement or applicable
law, Advisor shall hold AGAR harmless from and indemnify AGAR against any and
all liability, loss, damage, court costs and reasonable expense (including
reasonable lawyers' fees) which AGAR may incur or suffer as a result of any
claim against AGAR arising out of any action taken, omitted, or suffered to be
taken by Advisor that is not in good faith or which is not in accordance with
the rights or powers conferred on Advisor by this Agreement or instructions from
AGAR written in accordance with this Agreement or where such liability, loss,
damage, court costs or expense result from the negligence, bad faith, fraud,
willful misconduct, or violation of law or violation or breach of obligations or
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responsibilities of Advisor under this Agreement on the part of Advisor or any
of its officers, directors or employees. AGAR hereby waives its right of
subrogation with respect to any and all losses indemnified hereby, it being the
intention of the parties that AGAR shall only seek recovery from Advisor of its
actual loss, net of any of Advisor's or AGAR's insurance proceeds which AGAR
receives as a result of such event.
Except as otherwise provided in this Agreement or applicable law, AGAR
shall have a claim or cause of action hereunder against Advisor for any
liability, loss, damage, expenses (including reasonable lawyers' fees) or court
costs which AGAR may incur or suffer arising out of any action taken, omitted,
or suffered to be taken by Advisor only if the action taken, omitted or suffered
to be taken by Advisor (acting by or through any of its directors, officers, or
employees) (a) was not in accordance with the rights or powers conferred on
Advisor by this Agreement or pursuant to written instructions given by AGAR to
Advisor in accordance with this Agreement, (b) resulted from the negligence, bad
faith, fraud, wilful misconduct or violation of law of or by Advisor or (c)
resulted from a violation or breach by Advisor of any of the obligations or
responsibilities of Advisor under this Agreement.
ARTICLE VII.
INFORMATION
Advisor will provide information hereunder to Townsend and AGAR which
will be based upon representations and other data supplied to Advisor by other
parties to prospective transactions. Although Advisor will use reasonable
efforts to verify the accuracy of such representations and other data, Advisor
shall not be liable to AGAR if such information shall prove to have been
inaccurate, false, or misleading in any respect, provided Advisor's attempted
verification did not involve negligence, bad faith, willful misconduct,
violation of law or violation or breach of obligations or responsibilities of
Advisor under this Agreement, on the part of Advisor or any of its officers,
directors or employees.
ARTICLE VIII.
NO CONFLICTS ALLOCATION OF INVESTMENT OPPORTUNITIES
AGAR acknowledges and agrees that Advisor is and will be engaged by
other, unrelated investors to perform services similar to the investment
advisory and asset management services provided to AGAR hereunder and that such
engagement and the provision of said services shall not be deemed to create a
conflict of interest with respect to, or a breach of, Advisor's obligations and
duties hereunder; provided that Advisor shall comply with the provisions of
Section 1.3.7 hereof and otherwise shall allocate all investment opportunities
among its clients, including AGAR, in a fair and impartial
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manner, taking into account each client's individual investment guidelines,
criteria and objectives. Subject to its obligations under Section 1.3.7 hereof,
Advisor shall allocate investment opportunities which are suitable for more than
one client among its clients on an established basis which is fair and
reasonable. In each quarterly report provided to AGAR and Townsend under Section
3.2.7 hereof, Advisor shall list all investment opportunities which are
consistent with AGAR's Investment Criteria which were not recommended to AGAR
but which were recommended to another client of Advisor during the previous
calendar quarter. At AGAR's or Townsend's request, Advisor will provide AGAR and
Townsend with a copy of its internal policies regarding the allocation among its
clients of investment opportunities, and any changes therein will promptly be
communicated to AGAR and Townsend by Advisor.
It is the intention of the parties, that, if an Investment opportunity
is rejected (or deemed rejected) by AGAR, Advisor may either purchase or
otherwise acquire the Property for the account of a client or for its own
account.
ARTICLE IX.
AFFILIATED ENTITIES
Advisor shall not enter into any contract, agreement or other
arrangement in connection with any Investment with any party with respect to
which Advisor or any person or entity related to or affiliated with Advisor has
any direct or indirect ownership or control unless such contract, agreement or
arrangement and the nature of the affiliation and/or common ownership between
Advisor and such related person or entity has been fully disclosed to and
approved in advance and in writing by AGAR.
ARTICLE X.
NO WARRANTY AS TO VALUE OR PROFITABILITY
Notwithstanding any provision of this Agreement to the
contrary, Advisor makes no representation or warranty as to the performance of
any Investment or that any Investment recommended or managed by Advisor will be
profitable.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.1 ASSIGNMENT. No assignment or delegation of this
Agreement or of any of its rights or duties hereunder shall be made by Advisor
without the consent of AGAR. Except as provided in this Section 11.1, AGAR may
not assign this Agreement without the prior written consent of Advisor.
Notwithstanding anything in this Agreement to the contrary, upon Notice to
Advisor, AGAR shall have the right to assign
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to (i) any USCo the rights of AGAR hereunder (including, without limitation, the
right to purchase at a Closing an Investment previously approved by AGAR) and to
delegate to such USCo the duties of AGAR hereunder with respect to any
Investment acquired by such USCo (including, without limitation, the obligation
of AGAR to pay to Advisor any fees that would have been payable hereunder to
Advisor with respect to the acquisition, management and disposition of such
Investment if AGAR had acquired the Investment, itself); and (ii) any entity
that controls, is controlled by or is under common control with AGAR. In the
event of such an assignment and delegation by AGAR to a USCo, (a) the USCo shall
assume in writing all of the duties and obligations hereunder of AGAR to
Advisor, and (b) AGAR shall remain primarily liable to Advisor in the event the
USCo fails to perform any such duties or obligations.
SECTION 11.2 MODIFICATION AND AMENDMENT. This Agreement may not be
modified or amended or any provision hereof waived, unless such modification or
amendment or waiver is in writing and signed by all parties to this Agreement.
SECTION 11.3 LICENSES; COMPLIANCE WITH LAW. Advisor shall, at its own
expense, qualify to do business and obtain and maintain such licenses or
authorizations as may be required by applicable law for the performance by
Advisor of its services hereunder.
SECTION 11.4 SEVERABILITY. No determination by any governmental,
judicial, regulatory or other authority that any provision in this Agreement is
invalid, illegal or unenforceable in any instance shall affect the validity,
legality or enforceability of (a) any other provision hereof or (b) such
provision in any circumstance not controlled by such determination. Each such
provision shall be valid and enforceable to the fullest extent allowed by, and
shall be construed wherever possible as being consistent with, law.
SECTION 11.5 RESOLUTION OF DISPUTES. The parties shall attempt to
settle any dispute between them under this Agreement in an amicable fashion. To
this end, the parties shall confer and negotiate in an effort to reach a
solution on any disputed issue. However, either party hereto may give Notice to
the other (an "ARBITRATION NOTICE") if such party believes that a particular
dispute cannot be resolved by negotiation. Any dispute, controversy or claim
arising under this Agreement as to which an Arbitration Notice is given shall be
finally settled by arbitration conducted in New York City pursuant to the U.S.
Federal Arbitration Act and under the Rules of the American Arbitration
Association as presently in force, except as otherwise provided in this Section
11.5. The arbitration shall be conducted before a tribunal composed of three
arbitrators. Each party shall appoint an arbitrator who has no financial,
fiduciary or other relationship to such party and who has national standing in
the United States in the field of real estate investment and management, obtain
its appointee's acceptance of such appointment, and give Notice of such
appointment and acceptance to the other party within ten (10) days after a
Notice of Arbitration is given. The two (2)
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party-appointed arbitrators shall jointly appoint the third arbitrator, who
shall be unrelated to either of the parties and who also shall be a person of
national standing in the United States in the field of real estate investment
and management, shall obtain the appointee's acceptance of such appointment and
shall give Notice to the parties of such appointment and acceptance within
twenty (20) days after the latter of the two party-appointed arbitrators has
been appointed and has accepted. All decisions of the arbitral tribunal shall be
made by majority vote of the three arbitrators comprising the tribunal. The
arbitration shall be conducted in the English language. The parties shall be
entitled to engage in reasonable discovery, including requests for the
production of relevant documents. Depositions may be ordered by the arbitral
panel upon a showing of need. The arbitral panel shall not be empowered to grant
exemplary, punitive or other damages in excess of compensatory damages, and the
parties hereby waive any claim to any such damages in excess of compensatory
damages. The party prevailing on substantially all of its claims in an
arbitration hereunder shall be entitled to recover its costs, including
reasonable lawyers' fees, for the arbitration proceedings, as well as for any
ancillary proceeding, including a proceeding to compel or enjoin arbitration, to
request interim measures or to confirm or set aside an award. Judgment on an
arbitration award hereunder may be entered in any federal or state court in the
State of New York.
SECTION 11.6 GOVERNING LAW; CERTAIN CONSTRUCTION RULES. This
Agreement shall be governed and applied in accordance with the laws of the State
of New York. The word "including" when used herein shall be deemed to mean
"including, without limitation" except where the context expressly requires the
contrary construction. The various headings and sub-headings in this Agreement
are included for convenience of reference only and shall not be considered part
of, or be deemed to affect the meaning of, any part of this Agreement.
SECTION 11.7 NOTICE. Each notice, approval, consent or other
communication required or permitted to be given or made hereunder or pursuant to
any Exhibit hereto ("NOTICE") shall be in writing and shall be delivered
personally or by courier or sent by telefax. A Notice shall be deemed given when
delivered personally, when delivered by a courier or one day after being
transmitted by telefax, (a) provided the day after the transmission of a telefax
to AGAR is not a Thursday or a Friday, in which case such telefax Notice shall
be deemed given to AGAR on the first Saturday thereafter; (b) provided the day
after the transmission of a telefax to the Advisor is not a Saturday or Sunday,
in which case such telefax Notice shall be deemed given to the Advisor on the
first Monday thereafter and, (c) provided further, that, if such Notice is
transmitted by telefax, such Notice shall not be deemed effectively given until
and unless the recipient either acknowledges that such telefax has been received
in fully legible condition or responds to such telefax without indicating that
it was received in garbled or illegible form. Notice shall also be deemed to
have been given at the time of such refusal if a party hereto refuses to accept
personal or courier delivery of a Notice. Until
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further Notice, given pursuant to the provisions of this Section 11.7, Notices
shall be delivered or transmitted as follows:
If to AGAR:
Sh. Saleh Bin Mahfouz
Real Estate Managing Director
P.O. Box 4384
Jeddah 21491
Kingdom of Saudi Arabia
Facsimile: 9662-683-2229
Eng. Aidarous Albar
USA Regional Coordinator
P.O. Box 4384
Jeddah 21491
Kingdom of Saudi Arabia
Facsimile: 9662-650-1119
with required copies being sent at the same time and by the same means to:
King & Spalding
Attn: W. Donald Knight, Jr., Esq.
191 Peachtree Street
Atlanta, Georgia 30303-1763
Facsimile: 404-572-5145
and
Camille A. Chebeir
c/o SEDCO Services Inc.
33 East 67th Street
New York, NY 10021
Facsimile: 212-805-2526
and
The Townsend Group
c/o Terrence Ahern
M.K. Ferguson Plaza
1500 West Third Street
Suite 410
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Cleveland, Ohio 44113
Facsimile: 216-781-1407
If to Townsend:
The Townsend Group
c/o Terrence Ahern
M.K. Ferguson Plaza
1500 West Third Street
Suite 410
Cleveland, Ohio 44113
Facsimile: 216-781-1407
If to Advisor:
Lexington Realty Advisors, Inc.
Attn: T. Wilson Eglin
355 Lexington Avenue
New York, New York 10017-6603
Facsimile: 212- 986-6972
with a required copy being sent at the same time and by the same means to:
Paul, Hastings, Janofsky & Walker LLP
Attn: Barry A. Brooks, Esq.
399 Park Avenue
New York, New York 10022
Facsimile: 212-319-4090
SECTION 11.8 TERMINATION. Notwithstanding the provisions of Section
2, this Agreement may be terminated by AGAR (a) at any time, with or without
cause, upon thirty (30) days' prior Notice to Advisor, and (b) immediately, upon
Notice to Advisor, in the event Advisor engages in negligence, bad faith or
willful misconduct hereunder, or if Advisor breaches this Agreement and such
breach is not cured within thirty (30) days after Notice thereof to Advisor.
This Agreement may be terminated by Advisor (A) at any time, with or without
cause, upon one hundred twenty (120) days' prior Notice to AGAR and (B)
immediately upon Notice to AGAR if AGAR breaches this Agreement and such breach
is not cured within thirty (30) days after Notice thereof to AGAR. Upon
termination of this Agreement, whether at the expiration of its term or
otherwise, the parties shall have no further obligation to each other except as
follows: (i) If AGAR selected a new advisor within one hundred twenty (120) days
after termination of this Agreement, Advisor shall ensure that the transfer of
its duties to such new advisor with
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respect to the Investments then under its management is completed in an orderly,
effective and timely fashion during such one hundred twenty (120) day period;
(ii) AGAR shall remain obligated hereunder to pay the fees and expenses of all
third-party consultants and managers engaged in accordance herewith on behalf of
AGAR prior to the termination hereof (regardless of whether this Agreement
previously stated that such obligation would survive said termination) subject
only to Section 4.3 hereof; (iii) AGAR shall remain obligated to pay all fees
and expenses due to Advisor under this Agreement which accrued, but were unpaid,
prior to the termination hereof; (iv) AGAR and Advisor shall each remain
obligated to perform their respective obligations under Article VI hereof; (v)
Advisor shall remain obligated to pay all amounts due to third parties or to
AGAR as provided in this Agreement which arose or accrued prior to the
termination hereof; (vi)Advisor shall complete the investment process with
respect to any proposed Investment under any letter of intent or purchase
agreement which was executed prior to the termination, provided AGAR shall
remain obligated to pay to Advisor fees related to the acquisition as per this
Agreement; (vii) except for proposed Investments under an executed letter of
intent or purchase agreement, Advisor may terminate acquisition activities upon
thirty (30) days' notice in the event Advisor terminates this Agreement under
subsection (a) of this Section 11.8; and (viii) each party hereto shall remain
liable for any breach of this Agreement, or any other liability or obligation
hereunder of such party, which occurred or accrued prior to termination hereof.
In addition, the provisions of Section 11.5 shall survive the termination of
this Agreement.
SECTION 11.9 SHARI'A REQUIREMENTS. Advisor acknowledges, understands
and agrees that all Investments must be made, financed or refinanced, held and
disposed of hereunder in accordance with the rules and principles of the Shari'a
which have been provided to Advisor in writing; provided, however, that,
notwithstanding any provision hereof to the contrary, Advisor shall have no
obligation or responsibility with respect to Shari'a compliance except to act
hereunder as directed, in writing, by AGAR. It is understood that, if AGAR
realizes any profits or income as a result of an activity that is in violation
of the Shari'a, it is the intention of AGAR that such profits or income will be
contributed by AGAR to a charity selected by AGAR. If AGAR engaged in the
activity as a result of Advisor's having taken action directly in violation of
specific written instructions given to Advisor under the terms hereof by AGAR,
then Advisor shall compensate AGAR and make it whole for the loss of such
profits or income that have been contributed to charity, as indicated above.
SECTION 11.10 INTEGRATION, INCORPORATION BY REFERENCE. This Agreement
embodies the entire understanding of the parties with respect to the subject
matter hereof, and, save where expressly referred to herein, there are no
further or other agreements or understandings, written or oral, in effect
between or among the parties relating to the subject matter hereof. All Exhibits
hereto shall be deemed incorporated herein by the references thereto made
herein.
[BALANCE OF THE PAGE INTENTIONALLY LEFT BLANK.]
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29
IN WITNESS WHEREOF, the parties have executed this Investment Advisory
and Asset Management Agreement the day and year first above written.
AGAR:
AGAR INTERNATIONAL HOLDINGS LTD.
By:
-----------------------------
Its:
-----------------------
ADVISOR:
LEXINGTON REALTY ADVISORS, INC.
By:
-----------------------------
Its:
-----------------------
GUARANTY
In consideration of AGAR's entering into the above Investment Advisory
and Asset Management Agreement (the "Agreement") with Advisor, an affiliate of
the undersigned, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned hereby
unconditionally and absolutely guarantees the full and timely performance by
Advisor of all of Advisor's obligations and responsibilities to AGAR under the
Agreement. This is a guaranty of payment and performance and not of collection,
and it shall not be necessary for AGAR to take any action to enforce the
Agreement against Advisor before proceeding against the undersigned under this
guaranty. This guaranty shall continue in full effect in the event of any
amendment of the Agreement or waiver granted thereunder, regardless of whether
the undersigned has notice of such amendment or waiver or has agreed or
consented thereto; and this guaranty shall apply fully to the obligations of
Advisor under the Agreement, as amended or affected by waiver.
Any dispute under this guaranty shall be resolved by the method provided
in Section 11.5 of the Agreement.
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30
Capitalized terms not defined in this guaranty shall have the meanings
ascribed to them in the Agreement.
The rights of AGAR under this guaranty may be assigned by AGAR, in whole
or in part, as fully, to the same extent and to the same party(ies) as specified
with respect to AGAR in Section 11.1 of the Agreement. The undersigned agrees
that it may not delegate any of its duties under this guaranty.
IN WITNESS WHEREOF, the undersigned has caused this guaranty to be
signed on its behalf by its duly authorized officers, as of the date of the
Agreement.
LEXINGTON CORPORATE
PROPERTIES TRUST
By:
----------------------------------------
Name:
---------------------------------
Office:
-------------------------------
By:
----------------------------------------
Name:
---------------------------------
Office:
-------------------------------
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EXHIBIT A
INVESTMENT CRITERIA
Investment Criteria
LEXINGTON REALTY ADVISORS, INC.
THIS ATTACHMENT is subject to the terms and conditions set forth
in the INVESTMENT ADVISORY AND ASSET MANAGEMENT AGREEMENT ("AGREEMENT") entered
into on the day of August, 2000 by and between the AGAR International Holdings
Ltd. ("AGAR") and LEXINGTON REALTY ADVISORS, INC. (the "ADVISOR")
Set forth below are the investment criteria to be utilized by
Advisor in acquiring net leased investment properties located in the United
States on behalf of AGAR.
As used herein, the term "Consultant" means The Townsend Group,
AGAR's real estate consultant. AGAR, with the advice of Consultant, retains the
discretion to approve or reject any proposed real estate purchase or sale and
the authority to engage or terminate the Advisor.
I. PROPERTY INVESTMENT CRITERIA
These criteria establish required attributes of the investments,
minimum numerical thresholds relating to certain elements of the investments,
and preferred, but not necessarily required, characteristics of the investments.
Advisor shall acquire properties which possess the required attributes and meet
or exceed the minimum numerical thresholds. Whenever possible, Advisor shall
select properties which have the preferred characteristics set forth below.
Advisor shall only consider Investments in Properties having tenants with a
credit rating of "BB-" and higher.
Any deviation or noncompliance with required investment criteria
must be approved by AGAR in writing in advance of any acquisition's being
effected by Advisor.
32
AGAR INTERNATIONAL HOLDINGS LTD. INVESTMENT GUIDELINES
LEXINGTON REALTY ADVISORS, INC.
A. GLOBAL REQUIRED CRITERIA
Unless otherwise specified, the required criteria set forth below
applies to all investments made by Advisor on behalf of AGAR for this
separate account.
Allocation: $50 million
Investment Strategy: Subject to the terms of Section 3.1 of the main body of
this Agreement, Advisor will on behalf of AGAR and/or a
particular USCo, invest in institutional quality
single-tenant net-leased ("net lease") properties. To
assure preservation of capital and appreciation
potential, the primary underwriting focus will be the
real estate attributes of the properties. All properties
should exhibit strong current income returns and
potential for future appreciation
Ownership Structure: Advisor shall execute acquisitions on behalf
of AGAR, or at its direction, utilizing such
corporations or other legal entities as AGAR shall direct,
including corporations organized under the
laws of states of the United States
(USCos").
Acquisition Prices: Acquisition prices per property are anticipated to be no
more than $20 million, with an average anticipated
equity investment size of $8 million to $15 million.
Annual Cash Returns: Properties shall be expected to generate a first year
unleveraged distributable cash return (after fees) of no
less than 7%.
Total Returns (IRR): Advisor acknowledges, as of the date of this Agreement,
that the returns, for these types of properties, when
underwritten on a conservative basis, are approximately
9% - 10% per annum, unleveraged and net of fees.
Therefore, minimum total returns projected over the
specified holding period shall not be less than 9% per
annum, unleveraged, net of fees (when evaluated on a
conservative basis) and should exceed the yield on the
lessee's corporate bonds by at least 150 basis points
and the yield on 10-year U.S.
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33
AGAR INTERNATIONAL HOLDINGS LTD. INVESTMENT GUIDELINES
LEXINGTON REALTY ADVISORS, INC.
Treasuries by at least 250 basis points.
Appraisals: Advisor shall have each property appraised by an
independent MAI appraiser approved by the Consultant
during the fourth, seventh and tenth year after the date
the first Property is acquired for the Client Account
and then every two years thereafter, except that a
Property purchased during any 12 month period prior to
any of such scheduled appraisal dates shall not be
appraised as scheduled hereunder, but shall be valued at
its purchase price until the next succeeding scheduled
appraisal. Advisor shall provide an internal opinion of
value of each property annually.
Compliance with Advisor may consider only property investments
Environmental which comply fully with all local, state federal govern-
Regulations: mental regulations regarding exposure to hazardous
substances or other contaminants which may jeopardize
the public's safety. Prior to any acquisition, evidence
must be supplied to AGAR and Consultant, in the form of
engineering reports or certifications attesting to the
absence of asbestos, hazardous waste materials, and any
other hazardous substances on the property or the
property site, or specifying that the contaminants have
been contained and managed historically in accordance
with all relevant local, state and U.S. federal
governmental statutes, laws, regulations, and
standards. To the extent that any such contaminant has
not been properly contained or managed, or otherwise is
present on the property in unacceptable levels requiring
remediation, Advisor shall not proceed with acquisition
of the property, notwithstanding the potential for
remediation.
Leverage: Shari'a compliant nonrecourse leverage may
be used in order to increase portfolio level
diversification and/or if the interest rate
on the debt is at or below prevailing market
rates and lower than the projected net
unleveraged total return (IRR) for the
investment. Leverage may not exceed 75% on
any individual property.
A-3
34
AGAR INTERNATIONAL HOLDINGS LTD. INVESTMENT GUIDELINES
LEXINGTON REALTY ADVISORS, INC.
Net Lease Tenant Credit Requirements: Tenant selection shall be an
integral part of the investment process, and no
investment shall be made without either an executed
lease or a tenant's binding letter of intent. No
tenant shall be considered unless it has achieved the
required investment grade credit rating (or,
alternatively, has compiled a credit history which is
equivalent to such investment grade rating, if the
tenant's credit is not rated), or unless such tenant's
lease obligations are guaranteed unconditionally by an
entity whose credit rating or history meets that minimum
criterion. Guarantees and other credit enhancements
shall be obtained whenever possible.
Lease Terms: Lease terms shall have a minimum of seven years
remaining. Leases shall be triple-net with possible
exclusions for roof and other structural
responsibility. Leases with 10 year terms or longer
shall be preferred. Leases shall be CPI indexed or have
structured rent increases, generally every two to five
years, with increases averaging 2% to 3% per year on a
portfolio basis.
B. GLOBAL PREFERRED CRITERIA
Unless otherwise specified, the preferred criteria set forth below apply
to all investments made by Advisor on behalf of AGAR for this separate
account.
Generally: Assets will be located in diverse, growing economies in
supply-constrained locations. Properties will have
functional layouts, good visibility/identity and a clear
management and exit strategy.
Target Markets: Target markets preferably will have a minimum population
of 750,000 and exhibit strong economic growth
prospects. Tenant credit considerations may supersede
geographical target preferences.
Diversification: Preferably, no more than 40% of the
portfolio will be located in any economic
region (Northeast, Mideast, East North
Central, West North Central, Southeast,
Southwest, Mountain, Pacific). Tenant credit
A-4
35
AGAR INTERNATIONAL HOLDINGS LTD. INVESTMENT GUIDELINES
LEXINGTON REALTY ADVISORS, INC.
considerations will supersede
diversification objectives.
C. OFFICE CRITERIA
Generally: Office investments shall be low to mid-rise
institutional quality assets in prominent Class "A"
locations. Properties will be post-1980 construction, or
significantly rehabilitated within the past ten years.
Lease Terms: Minimum remaining lease term of 7 years.
Property Age/Life Cycle: Advisor will concentrate on suburban office structures where
construction is completed. Forward commitments will be
considered so long as AGAR does not bear development risk or
any excessive capital market risk.
Physical Characteristics Office buildings shall be of high quality con-
Generally: struction. Commercial parks or suburban settings shall
be preferred. Urban/downtown locations will be
permitted. Special purpose features or operations shall
not be considered. The following characteristics also
are preferred:
- proximity to commercial amenities for tenant
convenience;
- location in geographical areas demonstrating
sustained growth over the previous five years and
projected continued growth;
- simple building configurations with five floors
or fewer;
- total square footage between 50,000
and 200,000 square feet. Three to
four parking spaces per thousand
square feet of building area and,
depending upon tenant requirements,
ample visitor parking;
- attractive landscaping features, either existing
A-5
36
AGAR INTERNATIONAL HOLDINGS LTD. INVESTMENT GUIDELINES
LEXINGTON REALTY ADVISORS, INC.
or designed;
- simple interior build-outs; and
- proximity to major highways or interstates.
D. RETAIL CRITERIA
Generally: Retail investments shall be single-story institutional
quality assets in prominent Class "A" locations.
Properties will be post-1980 construction, or
significantly rehabilitated within the past ten years.
Property Age/Life Cycle: Advisor will concentrate on properties where construction
is completed. Forward commitments will be considered so
long as AGAR does not bear development risk
or any excessive capital market risk.
Physical Characteristics
Generally: Retail structures shall be of high quality
construction. Structures shall contain a minimum of
30,000 square feet of interior space. The following
characteristics are also preferred:
- rectangular building footprints with ceiling
heights of no less than 18 feet;
- location in or proximate to existing
retail centers with strong
performance histories or, in the
case of a new development, a
location in geographical areas
exhibiting strong retail growth
patterns in the previous five-year
period;
- proximity to major highways or interstates;
- excellent access;
- five parking spaces per thousand square feet of
building area; and
- adequate signage.
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AGAR INTERNATIONAL HOLDINGS LTD. INVESTMENT GUIDELINES
LEXINGTON REALTY ADVISORS, INC.
E. INDUSTRIAL CRITERIA
Property Age/Life Cycle: Advisor will concentrate primarily on industrial
properties ten years of age or less. Bulk
warehouse/distribution properties are preferred. While
it is not expected that Advisor will acquire properties
prior to the completion of construction, Advisor may
enter into forward commitments to purchase properties on
behalf of AGAR upon the completion of construction,
provided that AGAR does not bear development risk or any
excessive capital market risk.
Property Profiles: Buildings shall be of high quality construction with a
physical layout that accommodates multiple tenants and
facilitates easy traffic flow. Clear heights should be
at least 22 (but preferably 24 to 30) feet for
distribution and manufacturing facilities and at least
14 (but preferably 18 to 30) feet for business park
properties. Special purpose facilities should be
avoided. The following characteristics also are
preferred:
- minimum interior square footage of the structure
or structures of 100,000 square feet;
- well located in primary industrial
corridors within target markets;
target markets shall exhibit a
strong logical relationship to
regional or national distribution
trends;
- rectangular building footprints with building
depths no greater than 240 feet unless
cross-docked;
- adequate dock and/or grade level doors (one per
7,000 square feet);
- proximity to major highways or interstates;
- no more than 10-15% office build-out for
distribution and manufacturing buildings;
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AGAR INTERNATIONAL HOLDINGS LTD. INVESTMENT GUIDELINES
LEXINGTON REALTY ADVISORS, INC.
- tilt-up concrete or masonry construction;
- 6" concrete floors; Fibermesh preferred;
- truck turning area of approximately 120 feet from
the edge of building to the edge of the parking
lot for distribution and manufacturing buildings;
- approximately one parking space per 1,000 square
feet of building area for
distribution/manufacturing buildings;
- two to three parking spaces per 1,000 square feet
of building area for business park properties;
- sprinklered.
A-8
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AGAR INTERNATIONAL HOLDINGS LTD. INVESTMENT GUIDELINES
LEXINGTON REALTY ADVISORS, INC.
II. ISLAMIC INVESTMENT GUIDELINES
Property Types: All property types are acceptable,
except those from which more than
"negligible" lease income is derived from
tenants involved in the following
"Non-permissible" activities:
- alcohol, tobacco, pork, and pornography;
- establishments which serve liquor; and
- gambling casinos or the manufacture of gambling
paraphernalia.
In addition, properties should not
derive the majority of lease income
from "doubtful activities" from
tenants which engage in:
- movies theaters (non-pornographic);
and
- financial institutions such as banks, brokerage
firms, investment funds and insurance companies.
Property Locations: There are no specific restrictions, but locations
established largely for the purposes of supporting
Non-permissible activities should be excluded from
investment consideration. Examples of such restricted
locations may include places such as Las Vegas, Nevada,
and Atlantic City, New Jersey.
Financing: All property and/or portfolio financings
will adhere to the principals of Shari'a as
provided to Advisor in writing. Economics
and prudent thinking will dictate
limitations on the financing amounts. It is
anticipated that financing amounts will not
exceed 75% of the asset value.
Handling Excess Cash: Cash management procedures shall conform to
the guidelines set forth in EXHIBIT E of
the Investment
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AGAR INTERNATIONAL HOLDINGS LTD. INVESTMENT GUIDELINES
LEXINGTON REALTY ADVISORS, INC.
Advisory and Asset Management Agreement of which
this EXHIBIT A is a part.
Review and Approvals: AGAR will review and approve
Shari'a compliance for each investment
proposal.
A-10
41
EXHIBIT B
HOLD/SELL DECISION ANALYSIS
The hold/sell decision analysis with respect to each Property contained in each
proposed Annual Business Plan shall include the following:
REASONABLENESS OF VALUATION; LIQUIDITY
- - Review of the ability, given market conditions, to divest or liquidate
each Property, and determination of the current market value of each
Property, i.e., the value at which a Property can be sold within a
reasonable time (the "DISPOSITION Value").This analysis shall include a
discussion of material assumptions on which any recommendation is based,
including terms and conditions of any projected disposition and the
estimated time frame within which such a disposition could be affected.
STRATEGIC EVALUATION
- - Review of each Investment's investment objectives and actual
performance.
- - Review of each Investment's compliance (e.g., projected returns) with
AGAR's Investment Criteria and the prior year's Annual Business Plan.
- - Review of market trends relevant to the Investment (such as comparable
sales, capitalization rates, discount rates and growth rates) and the
Investment's competitive advantages and disadvantages in its markets.
OPPORTUNITY COST ANALYSIS
- - Review of each Investment's current rate of return and its projected
short term and long term rates of return, all on a net of Advisor's fees
basis.
- - Review of an Investment's internal rate of return, assuming a sale at
the Disposition Value.
- - Review of an Investment's internal rate of return, assuming a sale at
future points in time at an Investment's then projected Disposition
Value.
- - A review of projected returns of alternative real estate Investments
exhibiting comparable risk.
42
REINVESTMENT OPPORTUNITIES
- - If Advisor recommends the disposition of any Investment, the disposition
review shall include an analysis of available real estate investment
opportunities for the proceeds of such disposition, consistent with the
applicable Investment Criteria set forth herein and in the Advisor's
Annual Business Plan, including an estimate of the cost and time
required to effectuate such investment.
B-2
43
EXHIBIT C
INVESTMENT PROPOSAL SUMMARY
Property Identification:
Property Location:
Property Description (Including Land and Building Area):
Proposed Ownership Share to Be Acquired:
Investment Description:
Asking Price:
Current Owner/Seller:
Copy of Proposed Letter of Intent:
Joint Venture Partner (if any):
Broker (if any):
Debt - current & proposed (subject to Shari'a rules and principles):
Ground lease (if any):
Estimate of needed / recommended capital expenditures and detail of same:
Projected annual cash on cash return:
Appropriate DCF & IRR analysis:
Tenancies (including nature of tenant businesses):
Rent Roll:
Lease Expiration Schedule:
Vacancy:
Property Age:
Environmental Issues (if any):
Parking:
Basic Property Area Demographics: population, unemployment, employment growth:
Preliminary Local Market and Demographic Information:
Transaction Timing:
Estimated Contract Date:
Earnest Money Deposit Amount and Estimated Due Date:
Estimated Closing Date:
Closing Funds Amount:
Letter of Intent Signing Date:
Due Diligence Period:
Exit Strategy (including timing):
Advisor Comments and Recommendation (including negotiation strategy, investment
strategy, purchase price and proposed investment's impact on portfolio
diversification):
44
Attachments: Photographs, location maps, charts, floor plates, site plans,
stacking plans and other available graphics
C-2
45
EXHIBIT D
SUMMARY OF FINANCIAL ANALYSIS
AND DUE DILIGENCE
A. FINANCIAL ANALYSIS
- - Complete financial review of historical operating statements, if
applicable.
- - Discounted cash flow projections will be performed subsequent to
individual lease and operating expense reviews. All underlying
assumptions will be clearly defined.
- - Yield sensitivity analysis will be conducted indicating annual dividends
and internal rates of return.
- - Individual tenant credit review will be conducted, as appropriate.
- - A real estate tax and assessment analysis will be conducted, which will
include the anticipated impact from sale.
- - Conclusion regarding value and pricing.
B. MARKET ANALYSIS
- - Comprehensive market review will be conducted, including review of
competitive product; supply and demand factors; current zoning; local,
regional and national factors which may affect the performance of the
asset under investigation.
- - Historical market data will be gathered and analyzed. Future trends will
be forecasted.
- - Macro-market and micro-market observations will be summarized in order
to determine the subject property's ability to compete effectively in
its marketplace, both currently and in the future over the projected
holding period.
- - Sublease and prime space availability, net and gross absorption review,
as appropriate.
46
C. FINANCIAL CONTROLS AND ASSET MANAGEMENT
- - When appropriate, matters relating to current and future on-site
operations will be examined.
- - When appropriate, operational changes will be recommended and efficiency
increases will be examined.
- - When appropriate, property management and leasing recommendations will
be made relating to on-site personnel, contractual services and leasing
strategies. An understanding of the accounting systems will be gained
prior to closing.
- - When appropriate, property accounting records and financial audits will
be reviewed together with accounts receivable and accounts payable.
- - When appropriate, individual tenant files will be examined, including
rental payment histories.
- - A construction and design review will be conducted
- - Physical aspects of the property will be examined and described.
- - Mechanical, electrical, HVAC, vertical transportation, roofing and
plumbing systems will be reviewed. Cost estimates relating to deferred
maintenance and/or upgrades will be given when appropriate.
- - The quality of existing tenant improvements and significant special use
improvements or features of the building will be assessed.
- - Hazardous materials on or affecting the site will be identified and
treatment recommendations set forth.
- - Local zoning and building codes will be reviewed to insure compliance.
- - If appropriate, review of plans and specifications to determine the
accuracy of space measurements relating to rentable and usable areas.
D. SUMMARY REPORT
Advisor will issue to AGAR and Townsend a comprehensive report including
graphics which will define and address all matters examined during the
due diligence period, together with conclusions and recommendations
relating thereto.
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EXHIBIT E
CASH MANAGEMENT PROCEDURES TO BE FOLLOWED,
AS PERMITTED BY SHARI'A RULES
All rents, lease charges and other monies received from any Property shall be
deposited in non-interest bearing accounts approved by AGAR. Monies from the
accounts shall be disbursed only to pay approved expenditures in compliance with
the Annual Budget. Authorized signatories for each such account shall be
approved in advance by Advisor and AGAR. On a monthly basis, excess cash above
approved budgeted monthly expenses and reserves shall be distributed to AGAR
pursuant to AGAR's written instructions. Advisor shall provide a monthly written
bank reconciliation for each account as soon as practicable after the end of
each month.
Proceeds from the sale of any Property shall be handled in accordance with
escrow instructions prepared by Advisor and approved by AGAR prior to the
Property's disposition.
E-1
48
EXHIBIT F
FORM OF
QUARTERLY REPORTS
Advisor shall submit quarterly reports detailing the performance of AGAR's
Investments on a property-by-property and portfolio basis, substantially in the
form attached hereto. Such quarterly report shall include, at a minimum, a
description of returns generated by the Investments, occupancy percentages, and
a description of any significant event in connection with any Investment. In
addition, Advisor shall transmit the following information electronically to
Townsend and, if requested by AGAR, to AGAR:
Previous quarter's market value
Contributions received from AGAR during the quarter
Withdrawals paid to AGAR during the quarter
Distributions paid to AGAR during the quarter
Current net income
Appreciation (change in market value during the quarter)
Total advisory fees
Total investment amount committed by AGAR
Total uninvested commitment
Gross real estate assets
Mortgage(s) payable
Cash & short term investments
Other assets
Other liabilities
Property types (apartment, office, industrial, retail, hotel, other)
Geographic diversification (Northeast, Mideast, East North Central, West
North Central, Southeast, Southwest, Mountain, Pacific)
Cash-on-cash return
Relevant information for the quarter pertaining to the market and each Property
F-1
49
FORM OF
ANNUAL REPORTS
Each Annual Report shall contain the following information with respect to each
Property and for the portfolio of Properties managed:
- - A current performance summary, including an investment summary, income
summary, total returns, real rate of return, cash-on-cash return and a
funded investment summary, including an investment description
- - Date of acquisition
- - Acquisition costs
- - Property value
- - Appreciation analysis
- - Leasing status
- - Lease expirations for current year
- - Comparative performance for the prior year and as projected for the year
going forward
- - Disposition analysis on a Property-by-Property basis
- - Significant changes in Advisor's organization, key personnel, investment
strategy or philosophy, clients and assets managed during the year
F-2
50
EXHIBIT G
ADVISOR FEES
(LEXINGTON REALTY ADVISORS, INC)
A. COMPENSATION.
In consideration of the services to be provided under this Agreement, Advisor
shall be paid an Acquisition Fee, an Asset Management Fee and an Incentive Fee,
as set forth in this EXHIBIT G. Capitalized terms shall have the definitions set
forth in this EXHIBIT G, or, if not specifically defined herein, then as set
forth in the body of the Agreement. All fees provided herein shall be calculated
on a pre-income tax basis.
1. ACQUISITION FEE. The "Acquisition Fee", payable out of the closing
escrow account at the time of closing of the acquisition of a Property, shall
equal 0.9% (90 basis points) of the total "Acquisition Cost" of the Property;
provided, however, that in no case shall the Acquisition Fee plus any mortgage
broker fee for a Property exceed $400,000.
2. ASSET MANAGEMENT FEE. The "ASSET MANAGEMENT FEE" shall be 0.3% (30 basis
points) of the Gross Asset Value of the Client Account on an annual basis,
payable one fourth each quarter in arrears. An invoice for the Asset Management
Fee shall be submitted by Advisor within thirty (30) days after the end of each
quarter, together with appropriate supporting documentation. Advisor may deduct
the Asset Management Fee from receipts of Property rentals otherwise due to be
deposited to the account of AGAR or a USCo, as applicable, under Section 3.2.6
of this Agreement. In the event AGAR objects to any such deduction for Asset
Management Fees within a reasonable time period after receipt of Advisor's
invoice, then Advisor shall deposit the amount of the fees to which AGAR objects
into an escrow account maintained at a bank or other financial institution
selected by AGAR and located in the City of New York, New York, until such time
as the dispute over such fees is resolved as provided in this Agreement. The
failure of AGAR (or a USCo) to object under this paragraph 2 as to the payment
of all or part of the Asset Management Fee shall not preclude AGAR (or such
USCo) from objecting thereto in the context of an audit review under paragraph 5
below.
3. INCENTIVE FEE. The "INCENTIVE FEE" shall be calculated as set forth
below in paragraph 3(a) and shall be equal to 16% of the Disposition Proceeds
actually received from the sale of each Property that are in excess of the
amount of Disposition Proceeds needed to provide AGAR or a USCo, as the case may
be, with an annual pre-tax internal rate of return of 10% (as defined below),
after payment of all fees and expenses, on the Beginning Investment Value of
such Property. As more particularly provided in the paragraphs below, full
payment of the Incentive Fee with respect to any Property will be subject to
AGAR's (or a USCo's, as the case may be) receiving an annual pre-tax internal
G-1
51
rate of return of 10%.
Until the tenth anniversary of the date the first Property is acquired for the
Client Account, as provided in the following paragraphs (a) through (c), AGAR or
the respective USCo shall pay the Advisor any Incentive Fee due with respect to
each Property sold or otherwise removed from the Client Account, including
Properties removed as a result of the termination of this Agreement. Subject to
Holdback Amounts, payment of Incentive Fees for Properties sold or removed as of
each Incentive Compensation Date shall be made on the Incentive Compensation
Date. If the Client Account acquires a partial interest in a Property through a
joint venture, partnership, corporation or trust, only the Client Account's
interest in such Property shall be taken into account in calculating the
Incentive Fee.
(a) FEE AMOUNT. The Incentive Fee for each Property shall be
calculated as of its respective Disposition Date, and AGAR and Advisor shall
seek to agree on the calculation of the amount of the Incentive Fee for a
Property at least five (5) days prior to the date of its sale or removal, with
any dispute to be resolved as provided in this Agreement.
(i) PROPERTIES SOLD. The Incentive Fee for each Property sold
shall equal 16% of the amount by which the Disposition Proceeds received
for the Property exceeds the Return Base of the Property as of the
Disposition Date, calculated using the Benchmark Rate of Return.
(ii) PROPERTIES REMOVED/AGREEMENT TERMINATED. The Incentive Fee
for any Property removed from the Client Account or held in the Client
Account at such time as the Agreement is terminated shall be calculated
as provided in paragraph 3(a)(i) above as if the Disposition Value were
the Disposition Proceeds of the Property.
(b) FEE PAYMENT. On each Incentive Compensation Date, 75% of any
Incentive Fee earned for Properties sold or removed during the quarter of which
the Incentive Compensation Date is the last day will be paid to the Advisor. The
remaining 25% of any Incentive Fee earned during such quarter (the "HOLDBACK
AMOUNT") shall be deposited in an interest bearing escrow account with a
financial institution mutually acceptable to AGAR and the Advisor (the "HOLDBACK
ACCOUNT"). The Holdback Amount, if any, that is standing in the Holdback Account
as of an Incentive Compensation Date and is not attributable to sales or
removals of Properties during the quarter of which the Incentive Compensation
Date is the last day together with all interest earned thereon, (in the
aggregate, the "Available Holdback Amount") shall be fully disbursed to the
Advisor or AGAR within ninety (90) days after the next succeeding Incentive
Compensation Date, in accordance with paragraph 3(c) below.
G-2
52
(c) HOLDBACK ACCOUNT DISBURSEMENTS. For each Incentive
Compensation Date on which there is an Available Holdback Amount in the Holdback
Account, the Portfolio Return Value will be calculated as of such Incentive
Compensation Date and the amount thereof will be agreed upon by AGAR and the
Advisor, with any dispute to be resolved as provided in this Agreement. Based
upon the Portfolio Return Value, Available Holdback Amount then in the Holdback
Account shall be disbursed as follows:
(iii) NO DEFICIENCY. If the Portfolio Return Value is an
amount equal to or greater than zero (0), the entire Available
Holdback Amount shall be paid to the Advisor.
(iv) DEFICIENCY. If the Portfolio Return Value is a
negative amount (the "DEFICIENCY AMOUNT"), then AGAR shall be
paid from the Available Holdback Amount then in the Holdback
Account the lesser of: (i) the absolute amount of the Deficiency
Amount; or (ii) the entire balance of the Available Holdback
Amount then in the Holdback Account. Any portion of the Available
Holdback Amount remaining in the Holdback Account after the
payment to AGAR shall be paid to the Advisor.
(d) Provided that this Agreement has not previously been
terminated, beginning on the tenth anniversary of the date the first Property is
acquired for the Client Account, Advisor's Incentive Fee shall be calculated and
payable based upon the appraised fair market value of the Remaining Properties.
Such tenth anniversary, and the same calendar date every two years thereafter
shall be an "INCENTIVE CALCULATION DATE". On each Incentive Calculation Date,
the Advisor's Incentive Fee shall be equal to sixteen percent (16%) of the
amount by which (i) the aggregate Fair Market Value of the Portfolio on the
Incentive Calculation Date exceeds (ii) the aggregate Return Base of the
Portfolio on the Incentive Calculation Date, subject to a Holdback Amount of 25%
of the Incentive Fee payable, provided, however, that upon the sale and/or
liquidation of the final Property no Holdback Amount shall be withheld. The
Available Holdback Amount of 25% shall be payable on the next Incentive
Compensation Date in accordance with paragraph 3(c) above. Fair market value
shall be determined in accordance with the procedures outlined in Section B(o)
below. No Incentive Fee shall be paid with respect to the sale of any Property
or the removal of any Property from the Client Account which occurs on or after
the said tenth anniversary, but each such sale or removal shall be taken into
account in calculating the Return Base of the Portfolio on the applicable
Incentive Calculation Date.
4. MOST FAVORED NATIONS. The Advisor agrees that the Acquisition Fee, the
Asset Management Fee and the Incentive Fee established under this Agreement
shall not exceed those agreed by it with respect to similar services provided to
any other client of Advisor. If, during the term of this Agreement, Advisor
agrees to a lower fee for similar
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services involving any other client under similar terms and conditions, Advisor
shall so notify AGAR promptly of the existence of such more favorable fees, and
effective immediately upon such notification, this Agreement shall be amended so
that thereafter such more favorable fee amounts shall apply hereunder, in lieu
of the fee arrangements provided herein.
5. TERMINATION. In the event this Agreement is terminated, the Advisor
shall be compensated as provided in paragraphs 1 through 3 of this EXHIBIT G for
all services rendered to AGAR in conformity with the Agreement through the date
of termination. In such event, the Incentive Fee shall be calculated as if the
date of termination were an Incentive Compensation Date, and the Holdback
Account shall be settled and distributed to Advisor or AGAR as if all Properties
in the Client Account had been sold.
6. ADJUSTMENTS. AGAR shall have the right retroactively to contest any fee
payment to Advisor, if, after an audit of any acquisition, any Property or any
corporation (including, without limitation, AGAR or any USCo), a discrepancy
exists as to the appropriate fee payable to Advisor relative to any Property.
AGAR will give Advisor prompt Notice of any discrepancies which may result in
such fee adjustment no later than thirty (30) days after receipt of the audit by
AGAR. In this regard, AGAR may deposit amounts due Advisor under the then
current invoice into an escrow account maintained at a bank or other financial
institution selected by AGAR and located in the City of New York, New York,
until such time as the dispute over such fees is resolved as provided in this
Agreement.
B. DEFINITIONS.
As used herein, the following terms shall have the meanings set forth below. The
meaning of any singular term includes the plural and the meaning of any plural
term includes the singular.
(a) "ACQUISITION COST" with respect to a specific Property owned
by AGAR or by one of the USCos, shall mean the contract purchase price of the
Property.
(b) "ADVISOR" shall mean LEXINGTON REALTY ADVISORS, INC.
(c) "AFFILIATE" shall mean, as to any person, (ix) any other
person directly or indirectly controlling, controlled by or under common control
with such person, (x) any other person who owns beneficially, directly or
indirectly, five percent (5%) or more of the outstanding capital stock, shares
of equity interests of such person or of any other person which controls, is
controlled by or is under common control with such person, or (xi) any officer,
director, employee, partner or trustee of such person or of any person
controlling, controlled by or under common control with such person. An
"AFFILIATED" person means an Affiliate.
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(d) "AGAR" shall mean AGAR International Holdings Ltd.
(e) "AGREEMENT" shall mean the Investment Advisory and Asset
Management Agreement between AGAR and LEXINGTON REALTY ADVISORS, INC., to which
this EXHIBIT G is attached and of which it is a part.
(f) "ALLOCABLE INDEBTEDNESS" for a Property shall mean the amount
of any debt secured solely by the Property or borrowed specifically for the
Property from a person unrelated to AGAR or a USCo, as applicable, and/or the
pro rata share of portfolio debt or debt secured by more than one Property and
all accrued interest thereon. The pro rata share of such portfolio debt or debt
secured by more than one Property shall be calculated based on (i) the relative
amount of the contract purchase price of each Property, without regard to such
portfolio debt, or debt secured by more than one Property, or (ii) any other
reasonable method mutually agreed upon by AGAR and the Advisor at the time such
financing is secured.
(g) "BEGINNING INVESTMENT VALUE" shall mean, for a Property, the
total amount capitalizable by AGAR or a USCo, as applicable, upon the
acquisition of a Property at the closing of the acquisition, including the
Acquisition Cost, closing costs and the Acquisition Fee. For the Portfolio, the
term shall mean the total amount capitalizable by AGAR and all USCos with
respect to the acquisition of Properties pursuant to this Agreement.
(h) "BENCHMARK RATE OF RETURN" or "BRR" shall mean a total
pre-tax net rate of return of ten percent (10%) per annum.
(i) "CLIENT ACCOUNT" shall mean all Properties held by AGAR and
all the Properties held by USCos and managed by Advisor in accordance with the
Agreement.
(j) "CONSULTANT" shall mean the Townsend Group.
(k) "DISPOSITION DATE" shall mean, for a Property, the last day
of the quarter in which the Property is sold, or otherwise removed from the
Client Account, including by termination of this Agreement.
(l) "DISPOSITION PROCEEDS" with respect to a Property means the
net pre-tax proceeds from the sale of the Property available to AGAR or the USCo
which owns the Property, as applicable, after paying all Allocable Indebtedness
as to the Property and all expenses related to the sale, but before the payment
of any Incentive Fee related to the sale.
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(m) "DISPOSITION VALUE" with respect to a Property, shall mean
the Fair Market Value of the Property reduced by: (i) an assumed selling cost
equal to two and one-half percent (2.5%) of its Fair Market Value; (ii) a
reasonable estimate of any applicable real estate transfer taxes that would
customarily be paid by AGAR (or by any USCo which owns the Property, as
applicable) upon a sale of the Property; and (iii) the unpaid principal balance
of, and all accrued interest on, any Allocable Indebtedness.
(n) "FAIR MARKET VALUE" shall mean fair market value of the
Property, as the Appraisal Institute defines such term. As used with respect to
an Incentive Compensation Date, if a Property has been acquired less than twelve
(12) months before the Incentive Compensation Date, the Property shall not be
appraised (unless the Property has already been the subject of an appraisal by
an independent outside appraiser in connection with its acquisition), and Fair
Market Value shall mean the contract purchase price of the Property plus (i)
closing costs, (ii) the Acquisition Fee paid to the Advisor, and (iii) the cost
of any capital improvements and other items added to the basis of the Property,
determined in accordance with GAAP for market value accounting, consistently
applied.
(o) "FAIR MARKET VALUE UPON TERMINATION OF THE AGREEMENT." The
following procedures shall apply whenever the Fair Market Value of a Property or
Properties is to be determined in connection with the termination of the
Agreement or if there is a dispute concerning a valuation.
(v) Whenever the Fair Market Value of a Property is to be
determined in connection with the termination of the Agreement,
AGAR shall have the right to approve an independent appraiser
recommended by Advisor to determine such Fair Market Value.
Advisor and AGAR shall attempt to agree on the selection of an
independent appraiser within thirty (30) days of the date of
termination. If Advisor and AGAR have not agreed on such
selection within such thirty (30) day period, Consultant shall
select an independent appraiser by Notice to Advisor within
forty-five (45) days following the termination of the Agreement.
By no later than forty-five (45) days following the selection of
the appraiser, such appraiser shall submit a draft written
appraisal setting forth such person's determination of the Fair
Market Value of the Property.
(vi) Advisor shall have fifteen (15) days to review the
draft written appraisal and submit written comments on such draft
to AGAR, Consultant and the appraiser. The appraiser shall, in
such person's discretion, duly consider these comments, if any,
and shall within ten (10) days of the receipt of such comments,
if any, or if Advisor has not responded within such 15-day
period, at the expiration of such period, submit a final written
appraisal. Advisor shall have ten (10) days to object
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to such final written appraisal in writing by notice to AGAR and
Consultant. If notice of Advisor's objection is not given by
Advisor within said ten (10) day period, such written appraisal
shall be deemed binding upon AGAR and Advisor. If, however,
Advisor submits Notice of its objections to such final written
appraisal within said ten (10) day period, Advisor shall then
select an independent appraiser which Advisor reasonably
believes AGAR would find acceptable who shall submit a written
appraisal of the Fair Market Value of the Property within
forty-five (45) days. If the higher appraisal differs by five
percent (5%) or less from the lower appraisal, then the two
appraisals shall be averaged, and such averaged sum shall
constitute the appraised Fair Market Value of the Property,
which determination shall be binding upon AGAR and Advisor. If
the higher appraisal differs by more than five percent (5%) from
the lower appraisal, the two appraisers shall, within twenty
(20) days of the date of issuance of the second written
appraisal, select a third appraiser who shall attempt to
reconcile the different appraisals. Within forty-five (45) days
of such third appraiser's selection, the third appraiser shall
render a final written appraisal of that appraiser's
determination of the Fair Market Value of the Property. If the
three appraisers are unable to agree upon the Fair Market Value,
then the Fair Market Value of the Property shall be deemed to be
the average of the two appraisals which are closest in dollar
amount to each other, which determination shall be binding upon
AGAR and Advisor.
(vii) Any appraiser agreed to or designated hereunder
shall be disinterested, shall not be an Affiliate of AGAR,
Consultant or Advisor, shall be qualified to appraise real estate
of the type covered by this Agreement and to be appraised, shall
have received the Member Appraisal Institute (or any successor
organization of comparable standing if such organization is not
then in existence) designation (MAI), and shall have been
actively engaged in the appraisal of such real estate in the real
estate market in which a subject Property is located for at least
five (5) years immediately preceding his designation.
(viii) If any appraiser is unable or unwilling to act,
such person's successor shall be designated in the same manner as
he was designated.
(ix) AGAR shall pay the fees and expenses of the first
appraiser, and Advisor shall pay the fees and expenses of the
second appraiser, if any. Each party shall pay one-half (1/2) of
the fees and expenses of the third appraiser, if any.
(p) "GROSS ASSET VALUE" shall mean the aggregate Fair Market
Value as
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of the date in question of all Properties in the Client Account.
(q) "HOLDBACK ACCOUNT" shall mean the account maintained by AGAR
in which 25% of the amount of the Incentive Fee shall be retained and disbursed
in accordance with the provisions of paragraphs 3(b), 3 (c) or 3(d).
(r) "HOLDBACK AMOUNT" shall mean 25% of the amount of the
Incentive Fee that is to be retained in the Holdback Account pursuant to
paragraphs 3(b), 3(c) 3(d).
(s) "INCENTIVE COMPENSATION DATE" shall mean the last day of each
quarter until the tenth anniversary of the date the first Property is acquired
for the Client Account in which a Property is sold or otherwise removed from the
Client Account. The Final Incentive Compensation Date shall be the last day of
the quarter in which occurs the termination of the Agreement or the sale of the
final Property in the Client Account, provided that such termination or sale
occurs prior to or on the said tenth anniversary.
(t) "INVESTMENT PERIOD" shall mean (i) for a Property, the period
of time commencing on the last day of the quarter in which AGAR or a USCo
advanced the Beginning Investment Value and ending on the last day of the
quarter in which the Property is sold or the last day of the quarter in which
the Agreement is terminated, as applicable; and (ii) for the Portfolio, the
period of time commencing on the last day of the quarter in which AGAR or a USCo
effected the acquisition of a Property and ending on the Incentive Compensation
Date on which the Portfolio Return Value is being calculated.
(u) "PORTFOLIO" shall have the meaning given it in paragraph
B(x).
(v) "PORTFOLIO CASH FLOW" shall mean for any quarter the sum of
all Property Cash Flow from all Properties in the Client Account.
(w) "PORTFOLIO RETURN VALUE" shall mean (i) the Disposition Value
of the Remaining Properties, minus (ii) the Return Base of the Portfolio, on a
given Incentive Compensation Date.
(x) "PROPERTY" shall mean a fee estate or other real property
interest owned by AGAR or any USCo directly or indirectly through a partnership,
joint venture or otherwise which was acquired pursuant to the advice of Advisor
and under the procedures set forth in this Agreement. All Properties acquired
pursuant to the advice of Advisor and under the procedures set forth in this
Agreement and held by AGAR or by any USCo shall constitute the "CLIENT ACCOUNT"
or the "PORTFOLIO."
(y) "PROPERTY CASH FLOW" shall mean for each Property the net
amount (positive or negative) of all cash inflows minus all cash outflows with
respect to the
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Property which occur during a particular calendar quarter. Cash inflows include
the rent from the Property, proceeds of Allocable Indebtedness, insurance,
condemnations, or sales; and any other receipts related to the acquisition,
improvement, leasing, operation, maintenance, protection or disposition of the
Property. Cash outflows include the Beginning Investment Value, plus any
additional equity advances toward the purchase price of the Property;
acquisition, financing and improvement costs of the Property; interest and
principal payments on Allocable Indebtedness; Acquisition Fees, Asset Management
Fees, audit and appraisal fees assessed against AGAR or any USCo on account of
the Property; and any other expenditure related to the acquisition, improvement,
leasing, operation, maintenance, protection or disposition of the Property, but
shall exclude any applicable Incentive Fee. Cash outflows for this purpose shall
not include any payments made to any taxing authority with respect to any income
or gain realized by AGAR or any USCo owning a Property. All outflows and inflows
shall be deemed to have been made or received, as the case may be, as of the
last day of the applicable calendar quarter. Property Cash Flow for the last
quarter of an Investment Period shall be increased or decreased, as applicable,
by the net amount of any accrued income, minus any accrued expenses.
(z) " RATE OF RETURN FACTOR" shall mean the factor used to
calculate the Return Base needed to achieve the BRR each quarter during the
Investment Period. The Rate of Return Factor for a quarter shall be 1.0241137.
(aa) " RETURN BASE" is the amount derived by the methodology
described below. The Return Base of a Property or the Portfolio shall be
calculated by calendar quarter over the Investment Period of the Property or the
Portfolio, as applicable, in the following manner:
(x) The Return Base at the end of the previous quarter
(using the Beginning Investment Value of the Property, or the
Portfolio, as applicable, for the calculation of the first
quarter), multiplied by the Rate of Return Factor for the
quarter, minus
(xi) The Property Cash Flow, or the Portfolio Cash Flow,
as applicable, during the current quarter.
(bb) "REMAINING PROPERTIES" shall mean all Properties then
currently in the Client Account on an Incentive Compensation Date.
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EXHIBIT H
AUTHORIZED PERSONS FOR AGAR
We hereby confirm Advisor's authority to accept instructions on behalf of AGAR
pertaining to the Investments described in the foregoing Investment Advisory and
Asset Management Agreement to which this EXHIBIT H is attached and forms a part,
as follows:
Advisor may accept and rely upon all instructions in writing, orally or by
telephone or other teleprocess given on behalf of AGAR by any person whom
Advisor in good faith believes to be any of the persons designated below:
Name Signature
----- ---------
Sh. Saleh Bin Mahfouz
---------------------------
Aidarous Albar
---------------------------
Notwithstanding anything herein to the contrary, if instructions by AGAR are
provided in a form other than written, Advisor will provide to AGAR and
Townsend, prior to acting on such instruction, a letter confirming its
understanding of such instructions in reasonable detail. Such letter shall be
sent via facsimile in accordance with the provisions of Section 11.7 hereof.
AGAR shall advise Advisor in writing of any change in the persons designated
above and, until Advisor has actually received such written notice and had a
reasonable opportunity to act upon it, Advisor is authorized to act upon
instructions which Advisor in good faith believes to have been given by any
person designated above.
Provided Advisor has faithfully and accurately carried out such instructions,
Advisor shall be fully protected in, and shall incur no liability to AGAR for
acting upon any instructions given in writing or transmitted by telefax or
verbally given and confirmed in writing by Advisor as stated above, which
Advisor in good faith believes to have been given by any person designated
above.
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In addition, AGAR agrees to hold Advisor and its agents harmless from any and
all liability, loss and expense arising directly or indirectly out of Advisor's
following AGAR's instructions from any such designated person regarding the
Investments.
AGAR:
Date: By:
---------------- ---------------------------------
Title:
------------------
CERTIFICATION:
I, the undersigned, duly elected, qualified and acting
___________________ ("Officer") of AGAR, a corporation organized and existing
under the laws of [____________] , hereby certify that:
1. The Officer, _________________, signing this EXHIBIT H and agreement has
appropriate authority to do so and the signature is genuine.
2. The agents listed in this EXHIBIT H are duly authorized to give
instructions to Advisor and their signatures are genuine.
IN WITNESS WHEREOF, I have hereunto set by hand and affixed the seal of
this _________________ this ____ day of ____________________, 2000.
(Seal) Officer:
--------------------------
Other Officer*:
-----------------------
* If the Officer is authorized to deliver instructions pursuant to this
EXHIBIT H, the above certification must also be signed by an additional
officer of the corporation.
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EXHIBIT I
PREFERRED LIST OF ENGINEERS, ENVIRONMENTAL
CONSULTANTS AND ROOF CONSULTANTS
ENGINEERS
Asset Advisory Services, Inc.
7000 Central Parkway
Suite 250
Atlanta, GA 30328
Attn: George Latham
(404) 367-0220
Property Condition Assessments, LLC
16 N. Marengo Avenue
Suite 510
Pasadena, CA 91101
Attn: John Luna
(626) 685-9560
ENVIRONMENTAL CONSULTANTS
BEM Systems, Inc.
100 Passaic Avenue
Chatham, NJ 07928
Attn: Sharon Stecker
(908) 598-2600
Dames & Moore
5540 Falmouth Street
Suite 201
Richmond, VA 23239
Attn: John Spangler
(804) 285-6726
Arcadis, Geraghty & Miller, Inc.
8222 South 48th Street
Suite 140
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Phoenix, AZ 85044
Attn: Katy Brantingham
(602) 438-0883
ROOFING CONSULTANTS
CRS, Inc.
3810 Monroe-Ansonville Road
Monroe, NC 28110
Attn: Dick Baxter
(704) 283-8556
Alsan and Associates of Madison
710 No. Meadow Lane
Madison, WI
Attn: David Wandel
(608) 238-6850
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