Advisory Agreement (2006)Full Document 

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Advisory Agreement

between

Institutional REIT, Inc.

and

Wells Capital, Inc.

                    , 2006


Table of Contents

 

     Page

Section 1 – Definitions

   1

Section 2 – Appointment

   7

Section 3 – Duties Of The Advisor

   7

3.1 Organizational and Offering Services

   7

3.2 Acquisition Services

   7

3.3 Asset Management Services

   8

3.4 Stockholder Services

   11

3.5 Other Services

   11

Section 4 – Authority of Advisor

   11

4.1 General

   11

4.2 Powers of the Advisor

   11

4.3 Approval by the Board of Directors

   11

4.4 Modification or Revocation of Authority of Advisor

   11

Section 5 – Bank Accounts

   12

Section 6 – Records; Financial Statements; and SEC Reporting

   12

Section 7 – Limitation on Activities

   12

Section 8 – Fees

   13

8.1 Acquisition Fees

   13

8.2 Asset Management Fees

   13

8.3 Disposition Fees

   14

8.4 Subordinated Share of Net Sales Proceeds

   14

8.5 Subordinated Incentive Fee

   14

8.6 Changes to Fee Structure

   15

Section 9 – Expenses

   15

9.1 General

   15

9.2 Other Services

   17

9.3 Timing of and Limitations on Reimbursements

   17

Section 10 – Relationship of Advisor and Company; Other Activities of the Advisor

   17

10.1 Relationship

   17

10.2 Time Commitment

   17

10.3 Investment Opportunities and Allocation

   17

Section 11 – Representations and Warranties

   18

11.1 Of the Company

   18

11.2 Of the Advisor

   18

Section 12 – Term and Termination of the Agreement

   19

12.1 Term

   19

12.2 Termination by Either Party

   19

12.3 Payments on Termination and Survival of Certain Rights and Obligations

   19

Section 13 – Assignment

   20

Section 14 – Indemnification and Limitation of Liability

   20

Section 15 – Non-Solicitation

   20

 

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15.1 By Company

   20

15.2 By Advisor

   21

15.3 Reasonableness; Interpretation

   21

15.4 Injunctive Relief

   21

Section 16 – Miscellaneous

   21

16.1 Notices

   21

16.2 Modification

   22

16.3 Severability

   22

16.4 Construction

   22

16.5 Entire Agreement

   22

16.6 Waiver

   22

16.7 Gender

   22

16.8 Titles Not to Affect Interpretation

   23

16.9 Counterparts

   23

 

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Advisory Agreement

This Advisory Agreement, dated as of                     , 2006 (the “Agreement”), is between Institutional REIT, Inc., a Maryland corporation (the “Company”), and Wells Capital, Inc., a Georgia corporation (the “Advisor”).

Background

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 set forth in this Agreement on behalf of, and subject to the supervision of, the Board of Directors of the Company, all as provided in this Agreement. 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 of this Agreement.

Agreement

Now, Therefore, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the parties hereto agree as follows:

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 8.1, incurred by the Company, the Advisor or any Affiliate of either in connection with the selection, acquisition or development of any Property, Loan or other potential Permitted 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 8.1 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 including 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.

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