Exhibit 10(n)
ADVISORY AGREEMENT
THIS AGREEMENT is made this 1st day of November between MAIN PLACE REAL
ESTATE INVESTMENT TRUST, a Maryland real estate investment trust (the "Trust"),
and NATIONSBANK, N.A., a national banking association (the "Advisor").
Capitalized terms used herein shall have the meanings set forth in Section 1 of
this Agreement.
WHEREAS, the Trust intends to qualify as a "real estate investment
trust" ("REIT") under the Internal Revenue Code of 1986, as amended (the
"Code"); and
WHEREAS, the Trust desires to avail itself of the experience and
assistance of the Advisor and to have the Advisor undertake, on the Trust's
behalf, the duties and responsibilities hereinafter set forth, subject to the
control and supervision of the Board of Trustees of the Trust (the "Board of
Trustees") as provided for herein; and
WHEREAS, the Advisor desires to render such services for the Trust
subject to the control and supervision of the Board of Trustees, on the terms
and conditions hereinafter set forth.
NOW THEREFORE, the parties hereto agree as follows:
Section 1.
Definitions. As used herein, the following terms shall have the
respective meanings set forth below:
"Advisor" has the meaning set forth in the recitals of this Agreement.
"Advisor Termination Date" means the date on which this Agreement
terminates.
"Agreement" means this Advisory Agreement, as amended, modified and
supplemented from time to time.
"Board of Trustees" has the meaning set forth in the forepart of this
Agreement.
"Code" has the meaning set forth in the recitals of this Agreement.
"Independent Trustee" means the member or members of the Board of
Trustees of the Trust who are not current employees of the Trust, NationsBank
Corporation, the Advisor or any affiliate of the Advisor, provided that the
Independent Trustee may be an officer of the Trust.
"Person" means and includes individuals, corporations, limited
partnerships, general partnerships, joint stock companies or associations,
limited liability companies, joint ventures, associations, consortia, companies,
trusts, banks, trust companies, land trusts, common law trusts, business trusts
or other entities, governments and agencies and political subdivisions thereof.
"REIT" has the meaning set forth in the recitals of this Agreement.
"Trust" has the meaning set forth in the recitals of this Agreement.
Section 2.
Duties of Advisor. The Advisor shall consult with the Board of
Trustees and the officers of the Trust and shall, at the request of the Board of
Trustees or the officers of the Trust, furnish advice and recommendations with
respect to all aspects of the business and affairs of the Trust. Subject to the
control and sole discretion and at the request of the Board of Trustees, the
Advisor shall:
(a) administer the day-to-day operations and affairs
of the Trust, including without limitation, the performance or
supervision of the functions described in this Section 2;
(b) monitor the credit quality of the mortgage loans
and other real estate mortgage assets held by the Trust;
(c) advise the Trust with respect to the acquisition,
management, financing and disposition of the Trust's mortgage loans and
other real estate mortgage assets;
(d) represent the Trust in its day-to-day dealings
with Persons with whom the Trust interacts, including without
limitation, securityholders of the Trust, transfer agents, consultants,
accountants, attorneys, servicers of the Trust's mortgage loans,
custodians, insurers and banks;
(e) establish and provide necessary services for the
Trust, including executive, administrative, accounting, shareholder
relations, secretarial, recordkeeping, copying, telephone, mailing and
distribution facilities;
(f) provide the Trust with office space, conference
room facilities, office equipment and personnel necessary for the
services to be performed by the Advisor hereunder at a reasonable
market price;
(g) arrange, schedule and coordinate the regular and
special meetings of the Board of Trustees required to conduct the
affairs of the Trust or for timely action on any matters the Trust is
required to act upon to implement all decisions of the Board of
Trustees, unless otherwise instructed, with regard to the Trust and its
assets;
(h) maintain communications and relations with the
securityholders of the Trust, including but not limited to, responding
to inquiries, proxy and consent solicitations, providing reports to
securityholders and arranging and coordinating all meetings of
securityholders;
(i) arrange for the investment and management of any
short-term investments of the Trust;
(j) arrange for the services of third parties,
including but not limited to mortgage loan servicers who may be the
Advisor or affiliates of the Advisor, to collect and distribute funds
of the Trust and to perform such functions as the Board of Trustees
shall from time to time require;
(k) monitor and supervise the performance of all
parties who have contracts to perform services for the Trust, provided
that the Advisor shall have no duty to assume the obligations or
guarantee the performance of such parties under such contracts;
(l) establish and maintain such bank accounts in the
name of the Trust as may be required by the Trust and approved by the
Board of Trustees and ensure that all funds collected by the Advisor in
the name or on behalf of the Trust shall be held in trust and shall not
be commingled with the Advisor's own funds or accounts;
(m) arrange for the execution and delivery of such
documents and instruments by the officers of the Trust as may be
required in order to perform the functions herein described and to take
any other required action;
(n) arrange for insurance for the Trust to be paid for
by Trust, including liability insurance, errors and omissions policies
and officers and directors policies which shall cover and insure the
Trust, members of the Board of Trustees and the officers of the Trust
in amounts and with deductibles and insurers approved by the Board of
Trustees;
(o) maintain proper books and records of the Trust's
affairs and furnish or cause to be furnished to the Board of Trustees
such periodic reports and accounting information as may be required
from time to time by the Board of Trustees, including, but not limited
to quarterly reports of all income and expenses of and distributions of
the Trust;
(p) consult and work with legal counsel for the Trust to
implement Trust decisions and undertake measures consistent with all
pertinent Federal, state and local laws and rules or regulations of
governmental or quasi-governmental agencies, including, but not limited
to, Federal and state securities laws, the Code, as it relates to the
Trust's qualification as a REIT, a REMIC or a FASIT, and the
regulations promulgated under each of the foregoing;
(q) consult and work with accountants for the Trust in
connection with the preparation of financial statements, annual reports
and tax returns;
(r) arrange for an annual audit of the books and records
of the Trust by the accounting firm designated for such purposes by the
Board of Trustees;
(s) prepare and distribute in consultation with the
accountants for the Trust, annual reports to securityholders, the
trustee under any indenture of trust to which the Trust is a party or
the Securities and Exchange Commission, which will contain audited
financial statements;
(t) furnish reports to the Board of Trustees and provide
research, economical and statistical data in connection with the
Trust's investments; and
(u) as reasonably requested by the Trust, make reports to
the Trust of its performance of the foregoing services and furnish
advice and recommendations with respect to other aspects of the
business of the Trust.
Section 3. Compensation. The Trust shall pay to the Advisor, for
services rendered by the Advisor hereunder, a management fee payable annually in
an amount equal to $500,000 per year, subject to adjustment upon 90 days' notice
by the Advisor to the Trust of the proposed change and the Trust's consent
thereto.
Expenses of the Advisor. (a) Without regard to the compensation
received pursuant to Section 3, the Advisor will bear the following expenses:
(i) employment expenses of the personnel
employed by the Advisor, including without limitation,
salaries, wages, payroll taxes and the cost of employee
benefit plans; and
(ii) rent, telephone equipment, utilities,
office furniture and equipment and machinery and other office
expenses of the Advisor incurred in connection with the
maintenance of any office facility of the Advisor.
(b) The Trust shall reimburse the Advisor within 30 days of a
written request by the Advisor for any expenses referenced in (a)
above. All other expenses shall be paid by the party receiving the
benefit of the services rendered.
Section 5. Records. The Advisor shall maintain appropriate books of
account and records relating to services performed hereunder, and such books of
account and records shall be accessible for inspection by the Board of Trustees
or representatives of the Trust at all times.
Section 6. REIT Qualification and Compliance. The Advisor shall
consult and work with the Trust's legal counsel in maintaining the Trust's
qualification as a REIT. Notwith-standing any other provisions of this Agreement
to the contrary, the Advisor shall refrain from any action which, in its
reasonable judgment or in the judgment of the Board of Trustees (of which the
Advisor has received written notice), would adversely affect the qualification
of the Trust as a REIT or which would violate any law, rule or regulation of any
governmental body or agency having jurisdiction over the Trust or its
securities, or which would otherwise not be permitted by the declaration of
trust or bylaws of the Trust. Furthermore, the Advisor shall take any action
which, in its judgment or the judgment of the Board of Trustees (of which the
Advisor has received written notice), may be necessary to maintain the
qualification of the Trust as a REIT or prevent the violation of any law or
regulation of any governmental body or agency having jurisdiction over the Trust
or its securities.
Section 7. Term; Termination. This Agreement shall be in full force
and effect for a term beginning on the date hereof with an initial term of five
years, and will be renewed automatically for additional five year periods unless
the Trust delivers a notice of nonrenewal to the Advisor not less than 90 days
prior to the expiration of the initial term of this Agreement or 90 days prior
to the expiration of any renewal term. Notwithstanding the foregoing, at any
time after the initial term, the Trust may terminate this Agreement, in its sole
discretion, upon 90 days' prior notice.
Section 8. Other Activities of the Advisor.
(a) Nothing herein contained shall prevent the Advisor, an
affiliate of the Advisor or an officer, a director, employee or
stockholder of the Advisor from engaging in any activity, including
without limitation, originating, purchasing and managing mortgage loans
and other real estate assets, rendering of services and investment
advice with respect to real estate investment opportunities to any
other Person (including other REITs) and managing other investments
(including the investments of the Advisor and its affiliates);
(b) Trustees, officers, stockholders, employees and agents
of the Advisor or of the affiliates of the Advisor may serve as
directors, officers, employees or agents of the Trust but shall receive
no
compensation (other than reimbursement for expenses) from the Trust for
such service.
Section 9. Binding Effect; Assignment. This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their respective
successors and assigns. Neither party may assign this Agreement or any of its
respective rights hereunder (other than an assignment to a successor
organization which acquires substantially all of the property of such party or,
in the case of the Advisor, to an affiliate of the Advisor) without the prior
written consent of the other party to this Agreement.
Section 10. Subcontracting. The Advisor may at any time subcontract
all or a portion of its obligations under this Agreement to any affiliate of the
Advisor without the consent of the Trust. The Advisor shall not subcontract, and
shall not permit any of its affiliates to subcontract, any of its obligations
under this Agreement to Persons who are not affiliates of the Advisor.
Notwithstanding the foregoing, the Advisor will not, in connection with
subcontracting any of its obligations under this Agreement, be relieved or
discharged in any respect from its obligations under this Agreement.
Section 11. Liability and Indemnity of the Advisor. The Advisor
assumes no responsibilities under this Agreement other than to perform the
services called for hereunder in good faith. Neither the Advisor nor any of its
affiliates, stockholders, directors, officers or employees will have any
liability to the Trust, or shareholders of the Trust, or others except by reason
of acts or omissions constituting gross negligence or wilful breach of any of
its material obligations under this agreement. The Trust shall indemnify and
reimburse (if necessary) the Advisor, its stockholders, directors, officers,
employees and agents for any and all expenses, including without limitation,
attorneys' fees, losses, damages, liabilities, demands and charges of any nature
whatsoever in respect of or arising from any acts or omissions by the Advisor
pursuant to this Agreement, provided that the conduct against which the claim is
made was determined by such person, in good faith, to be in the best interest of
the Trust and was not the result of gross negligence by such person or willful
breach of any of such person's material obligations by such person. The Advisor
agrees that any such indemnification is recoverable only from the assets of the
Trust and not from the shareholders.
Section 12. Action Upon Notice of Non-Renewal or Termination.
Forthwith upon giving of notice of non-renewal of this Agreement by the Trust or
of termination of this Agreement by the Trust, the Advisor shall not be entitled
to compensation after the Advisor Termination Date for further services under
this Agreement but shall be paid all compensation accruing to the Advisor
Termination Date and shall be reimbursed for all expenses of the Trust paid or
incurred by the Advisor as of the Advisor Termination Date which are
reimbursable by the Trust under this Agreement. The Advisor shall promptly after
the Advisor Termination Date:
(i) deliver to the Trust all assets and documents of the
Trust then in the custody of the Advisor; and
(ii) cooperate with the Trust and take all reasonable steps
requested to assist the Board of Trustees in making an orderly transfer
of the administrative functions of the Trust.
Section 13. No Joint Venture or Partnership. Nothing in this
Agreement shall be deemed to create a partnership or joint venture between the
parties, whether for purposes of taxation or otherwise.
Section 14. Notices. Unless expressly provided otherwise herein, all
notices, request, demands and other communications required or permitted under
this Agreement shall be in writing and shall be made by hand delivery, certified
mail, overnight courier service, fax, telex or telecopier. Any notice shall be
duly addressed to the parties as follows:
If to the Trust:
Main Place Real Estate
Investment Trust
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Attention: ▇▇▇▇ ▇. ▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Advisor:
NationsBank, N.A.
c/o NationsBank Corporation, Legal Department
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may alter the address to which communications or copies
are to be sent by giving notice of such change of address in conformity with the
provisions of this Section 14 for the giving of notice.
Section 15. Severability. If any term or provision of this Agreement
or the application thereof with respect to any Person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Agreement, or the
application of that term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.
Section 16. Governing Law. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement shall be governed
by and construed, interpreted and enforced in accordance with the laws of the
State of New York.
Section 17. Amendments. This Agreement shall not be amended,
changed, modified, terminated or discharged in whole or in part except by an
instrument in writing signed by both parties hereto or their respective
successors or assigns, or otherwise as provided herein.
Section 18. Headings. The section headings herein have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers thereunto duly authorized as of the day and year
first above written.
MAIN PLACE REAL ESTATE INVESTMENT
TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
NATIONSBANK, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President