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Title: |
Advisory Agreement |
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Date: |
2006 |
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Size: |
Preview shows 23KB of 67KB total |
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$42 |
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ID: |
#2632962 |
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ADVISORY AGREEMENT
between
KBS REAL ESTATE INVESTMENT TRUST, INC.
and
KBS CAPITAL ADVISORS LLC
November 8, 2006
TABLE OF CONTENTS
| Page | ||
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ARTICLE 1 - DEFINITIONS |
1 | |
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ARTICLE 2 - APPOINTMENT |
8 | |
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ARTICLE 3 - DUTIES OF THE ADVISOR |
8 | |
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3.01 Organizational and Offering Services |
8 | |
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3.02 Acquisition Services |
9 | |
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3.03 Asset Management Services |
9 | |
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3.04 Stockholder Services |
12 | |
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3.05 Other Services |
12 | |
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ARTICLE 4 - AUTHORITY OF ADVISOR |
12 | |
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4.01 General |
12 | |
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4.02 Powers of the Advisor |
13 | |
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4.03 Approval by the Board of Directors |
13 | |
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4.04 Modification or Revocation of Authority of Advisor |
13 | |
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ARTICLE 5 - BANK ACCOUNTS |
13 | |
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ARTICLE 6 - RECORDS AND FINANCIAL STATEMENTS |
13 | |
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ARTICLE 7 - LIMITATION ON ACTIVITIES |
14 | |
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ARTICLE 8 - FEES |
14 | |
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8.01 Acquisition Fees |
14 | |
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8.02 Asset Management Fees |
15 | |
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8.03 Disposition Fees |
15 | |
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8.04 Subordinated Share of Cash Flows |
16 | |
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8.05 Subordinated Incentive Fee |
16 | |
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8.06 Changes to Fee Structure |
16 | |
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ARTICLE 9 - EXPENSES |
17 | |
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9.01 General |
17 | |
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9.02 Timing of and Limitations on Reimbursements |
19 | |
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ARTICLE 10 - VOTING AGREEMENT |
19 | |
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ARTICLE 11 - RELATIONSHIP OF ADVISOR AND COMPANY; OTHER ACTIVITIES OF THE ADVISOR |
19 | |
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11.01 Relationship |
19 | |
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11.02 Time Commitment |
19 | |
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11.03 Investment Opportunities and Allocation |
20 | |
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ARTICLE 12 - THE KBS NAME |
20 | |
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ARTICLE 13 - TERM AND TERMINATION OF THE AGREEMENT |
20 | |
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13.01 Term |
20 | |
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13.02 Termination by Either Party |
21 | |
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13.03 Payments on Termination and Survival of Certain Rights and Obligations |
21 | |
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ARTICLE 14 - ASSIGNMENT |
22 | |
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ARTICLE 15 - INDEMNIFICATION AND LIMITATION OF LIABILITY |
22 | |
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ARTICLE 16 - ADVANCE |
22 | |
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ARTICLE 17 - MISCELLANEOUS |
23 |
i
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17.01 Notices |
23 | |
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17.02 Modification |
23 | |
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17.03 Severability |
23 | |
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17.04 Construction |
23 | |
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17.05 Entire Agreement |
23 | |
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17.06 Waiver |
24 | |
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17.07 Gender |
24 | |
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17.08 Titles Not to Affect Interpretation |
24 | |
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17.09 Counterparts |
24 |
ii
ADVISORY AGREEMENT
This Advisory Agreement, dated as of November 8, 2006 (the Agreement), is between KBS Real Estate Investment Trust, Inc., a Maryland corporation (the Company), and KBS Capital Advisors LLC, a Delaware limited liability company (the Advisor).
W I T N E S S E T H
WHEREAS, the Company desires to avail itself of the knowledge, experience, sources of information, advice, assistance and certain facilities available to the Advisor and to have the Advisor undertake the duties and responsibilities hereinafter set forth, on behalf of, and subject to the supervision of, the Board of Directors of the Company, all as provided herein; and
WHEREAS, the Advisor is willing to undertake to render such services, subject to the supervision of the Board of Directors of the Company, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
The following defined terms used in this Agreement shall have the meanings specified below:
Acquisition Expenses means any and all expenses, excluding the fee payable to the Advisor pursuant to Section 8.01, incurred by the Company, the Advisor or any Affiliate of either in connection with the selection, acquisition or development of any property or other potential investment, whether or not acquired, including, without limitation, legal fees and expenses, travel and communications expenses, costs of appraisals, nonrefundable option payments on properties or other investments not acquired, accounting fees and expenses, and title insurance premiums.
Acquisition Fees means the fee payable to the Advisor pursuant to Section 8.01 plus all other fees and commissions paid by any Person to any Person in connection with making or investing in any Property, Loan or other Permitted Investment or the purchase, development or construction of Property by the Company. Included in the computation of such fees or commissions shall be any real estate commission, selection fee, Development Fee, Construction Fee, nonrecurring management fee, loan fees or points or any fee of a similar nature, however designated. Excluded shall be Development Fees and Construction Fees paid to Persons not Affiliated with the Advisor in connection with the actual development and construction of a Property.
1
Advance shall have the meaning set forth in Article 16.
Advisor means (i) KBS Capital Advisors LLC, a Delaware limited liability company, or (ii) any successor advisor to the Company.
Affiliate or Affiliated. An Affiliate of another Person includes any of the following: (i) any Person directly or indirectly controlling, controlled by, or under common control with such other Person; (ii) any Person directly or indirectly owning, controlling, or holding with the power to vote 10% or more of the outstanding voting securities of such other Person; (iii) any legal entity for which such Person acts as an executive officer, director, trustee, or general partner; (iv) any Person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held, with power to vote, by such other Person; and (v) any executive officer, director, trustee, or general partner of such other Person. An entity shall not be deemed to control or be under common control with an Advisor-sponsored program unless (i) the entity owns 10% or more of the voting equity interests of such program or (ii) a majority of the board (or equivalent governing body) of such program is comprised of Affiliates of the entity.
Appraised Value means the value according to an appraisal made by an Independent Appraiser.
Articles of Incorporation means the Articles of Incorporation of the Company under Title 2 of the Corporations and Associations Article of the Annotated Code of Maryland, as amended from time to time.
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