MacKenzie Realty Capital, Inc 8-K, filed Jan 27, 2021
MacKenzie Realty Capital, Inc. (MKZR)
8-K
2021-01-27
For: 2021-01-27
View Original
Added on
April 12, 2026
About this 8-K
MacKenzie Realty Capital, Inc filed this 8-K on January 27, 2021.
Items reported
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported)
January 26, 2021
MACKENZIE REALTY CAPITAL, INC.
(Exact name of registrant as specified in its charter)
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Maryland
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000-55006
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45-4355424
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(State of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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89 Davis Road, Suite 100
Orinda, California
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94563
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(Address of principal executive offices)
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(Zip Code)
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(925) 631-9100
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01 Entry into a Material Definitive Agreement.
On January 26, 2021, the Board of Directors of Mackenzie Realty Capital, Inc. (the “Company”) approved, effective January 1, 2021, two advisory agreements,
an Advisory Management Agreement with MacKenzie Real Estate Advisers, LP (the “Real Estate Adviser”) and an amended and restated Investment Advisory Agreement with MCM Advisers, LP (the “Investment Adviser”).
The terms of the Advisory Management Agreement with the Real Estate Adviser provide that the Company will continue to pay an Asset Management Fee on
essentially the same terms as it was previously paying the Investment Adviser, namely based upon a percentage of Invested Capital (3% of the first $20 million, 2% of the next $80 million, and 1.5% over $100 million), not including any leverage
employed to purchase assets. Now that the Company is no longer a business development company, the Advisory agreement no longer provides for a 3% Portfolio Structuring Fee, but instead provides for a 2.5% Acquisition Fee on new (non-security)
purchases. The new Advisory Agreement also provides for an incentive management fee that is equal to 15% of all distributions once shareholders have received cumulative distributions equal to 6% from the effective date of the Agreement (instead of
20% of Capital Gains and 20% of Investment Income after a 7% return). Unlike many other non-traded REITs, the Company will not pay any Property Management Fees, Debt Financing Fees, or Disposition Fees to the Real Estate Adviser.
The amended and restated Investment Advisory Agreement provides that the Investment Adviser will receive an annual fee equal to $100 for providing the
investment advice to the Company as to its securities portfolio.
A copy of the Advisory Management Agreement and a copy of the Amended and Restated Investment Advisory Agreement are attached as Exhibits 10.14 and 10.15 to this Current Report on Form 8-K.
Item 9.01 Financial Statements and Exhibits.
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(d)
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Exhibits
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10.14
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Advisory Management Agreement with MacKenzie Real Estate Advisers, LP
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10.15
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Amended and Restated Investment Advisory Agreement with MCM Advisers, LP
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
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MACKENZIE REALTY CAPITAL, INC.
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(Registrant)
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Date: January 27, 2021
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By:
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/s/ Robert Dixon
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Robert Dixon
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President
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ADVISORY MANAGEMENT AGREEMENT
This ADVISORY MANAGEMENT AGREEMENT (this “Agreement”) is entered into on January 1, 2021 (the “Effective Date”), by and between MacKenzie Realty Capital, Inc., a Maryland corporation (the “Company”), together with its operating partnership, MacKenzie Realty Operating Partnership (the “Partnership”),
and MacKenzie Real Estate Advisers, LP (f/k/a Lemon Creek Advisers, LP), a California limited partnership (the “Adviser”).
BACKGROUND
The Company is taxed as a real estate investment trust and invests its funds in investments permitted by the terms of
the Company’s Articles of Incorporation and the Internal Revenue Code. To facilitate the achievement of these objectives, the Company wishes to avail itself of the experience, sources of information, advice, assistance and certain facilities
available to the Adviser and to have the Adviser undertake the duties and responsibilities set forth in this Agreement, subject to the supervision of the Company’s Board of Directors. The Adviser is willing to undertake such services, subject to the
supervision of the Board of Directors, on the terms and conditions set forth in this Agreement. Therefore, the parties agree as follows:
1.1.1
DEFINITIONS
DEFINITIONS
The following defined terms used in this Agreement shall have the meanings specified below:
Acquisition Expenses. Any
and all expenses incurred in connection with the selection and acquisition of any Asset, whether or not acquired, including, without limitation, legal fees and expenses, travel and communications expenses, costs of appraisals, nonrefundable option
payments on property not acquired, accounting fees and expenses, title insurance premiums, other closing costs, but excluding the fees payable to the Adviser pursuant to Section 3.1(b)..
Acquisition Fees. Any and
all fees and commissions, exclusive of Acquisition Expenses but including the fees payable to the Adviser pursuant to Section 3.1(b), paid by any Person to the Adviser or its Affiliates in connection with making or investing in Assets or the
purchase, development or construction of an Asset, including, without limitation, real estate commissions, selection fees, fees for packaging an Asset, fees for negotiating or approving plans, fees for assistance in obtaining zoning and variances,
construction management or general contractor fees for the supervision or coordination of major repairs or rehabilitations on a Property, loan fees, points or any other fees of a similar nature.
Administration Agreement. The Agreement between the Company and MacKenzie Capital Management, LP to provide
administrative and support services.
Adviser. MacKenzie Real
Estate Advisers, LP (f/k/a Lemon Creek Advisers, LP), a California limited partnership, any successor Adviser to the Company, or any Person to which MacKenzie Real Estate Advisers, LP or any successor Adviser subcontracts all or substantially all of
its functions.
Affiliate or Affiliated. As to any Person, (i) 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; (ii) 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; (iii) any Person, directly or indirectly,
controlling, controlled by, or under common control with such other Person; (iv) any executive officer, director, trustee or general partner of such other Person; and (v) any legal entity for which such Person acts as an executive officer, director,
trustee or general partner.
Articles of Incorporation.
The Articles of Incorporation of the Company filed with the Maryland State Department of Assessments and Taxation in accordance with the Maryland General Corporation Law, as amended from time to time.
Assets. Properties,
Mortgages, loans and other direct or indirect investments (other than investments in bank accounts, money market funds or other current assets) owned by the Company, directly or indirectly through one or more of its Affiliates or Joint Ventures.
Asset Purchase Price. The
amount (i) actually paid or allocated in respect of the purchase, development, construction or improvement of an Asset, (ii) of funds advanced with respect to a Mortgage or other loan or (iii) actually paid or allocated in respect to the purchase of
other Assets, in each case exclusive of Acquisition Fees and Acquisition Expenses but including any debt attributable or Shares or Partnership Units issued to such acquired Assets.
Board. The Board of
Directors of the Company.
Bylaws. The bylaws of the
Company, as the same are in effect from time to time.
Code. Internal Revenue
Code of 1986, as amended from time to time, or any successor statute thereto. Reference to any provision of the Code shall mean such provision as in effect from time to time, as the same may be amended, and any successor provision thereto, as
interpreted by any applicable regulations as in effect from time to time.
Company. MacKenzie Realty
Capital, Inc., a corporation organized under the laws of the State of Maryland. Unless the context clearly indicates otherwise, references to the Company shall include its direct and indirect subsidiaries, including the Partnership.
Company Value. The actual
value of the Company as a going concern based on the difference between (a) the actual value of all of its assets as determined in good faith by the Board, and (b) all of its liabilities as set forth on its then current balance sheet.
Cost of Properties. The
Asset Purchase Price of Properties (exclusive of closing costs), plus the amount actually paid for the development, construction or improvement of Properties, inclusive of expenses related thereto, plus the amount of any outstanding debt attributable
to such Properties.
Director. A member of the
Board.
Distributions. Any
dividends or other distributions of money or other property by the Company to Stockholders, including distributions that may constitute a return of capital for federal income tax purposes but excluding distributions that constitute the redemption of
any Shares and excluding distributions on any Shares before their redemption.
Intellectual Property Rights.
All rights, titles and interests, whether foreign or domestic, in and to any and all trade secrets, confidential information rights, patents, invention rights, copyrights, service marks, trademarks, know-how, or similar intellectual property rights
and all applications and rights to apply for such rights, as well as any and all moral rights, rights of privacy, publicity and similar rights and license rights of any type under the laws or regulations of any governmental, regulatory, or judicial
authority, foreign or domestic and all renewals and extensions thereof.
Invested Capital. The
amount calculated by multiplying the total number of Shares, Preferred Shares, and Partnership Units issued by the Company by the price paid for each or the value ascribed to each in connection with their issuance, reduced by an amount equal to the
total number of Shares, Partnership Units, or Preferred Shares repurchased from Stockholders by the Company (pursuant to the Company’s repurchase plan ) multiplied by the price initially paid or the value ascribed to each such redeemed Share,
Partnership Unit, or Preferred Share when initially acquired from the Company.
Investor Services Agreement.
The agreement between the Company and MacKenzie Capital Management, LP to provide investor services and transfer agent services to the Company.
Joint Ventures. A legal
organization formed to provide for the sharing of the risks and rewards in an enterprise co-owned and operated for mutual benefit by two or more business partners and established to acquire or hold Assets.
Mortgages. In connection
with mortgage financing provided, invested in or purchased by the Company, all of the notes, deeds of trust, security interests or other evidence of indebtedness or obligations, which are secured or collateralized by real estate owned by the
borrowers under such notes, deeds of trust, security interests or other evidence of indebtedness or obligations.
Net Sales Proceeds. In the
case of a transaction described in clause (i)(A) of the definition of Sale, the proceeds of any such transaction less the amount of selling expenses incurred by or on behalf of the Company, including all real estate commissions, closing costs and
legal fees and expenses. In the case of a transaction described in clause (i)(B) of such definition, Net Sales Proceeds means the proceeds of any such transaction less the amount of selling expenses incurred by or on behalf of the Company, including
any legal fees and expenses and other selling expenses incurred in connection with such transaction. In the case of a transaction described in clause (i)(C) of such definition, Net Sales Proceeds means the proceeds of any such transaction distributed
to the Company from the Joint Venture less the amount of any selling expenses, including legal fees and expenses incurred by or on behalf of the Company (other than those paid by the Joint Venture). In the case of a transaction or series of
transactions described in clause (i)(D) of the definition of Sale, Net Sales Proceeds means the proceeds of any such transaction (including the aggregate of all payments under a Mortgage or other loan or in satisfaction thereof other than regularly
scheduled interest payments) less the amount of selling expenses incurred by or on behalf of the Company, including all commissions, closing costs and legal fees and expenses. In the case of a transaction described in clause (i)(E) of such
definition, Net Sales Proceeds means the proceeds of any such transaction less the amount of selling expenses incurred by or on behalf of the Company, including any legal fees and expenses and other selling expenses incurred in connection with such
transaction. Net Sales Proceeds shall also include any consideration (including non-cash consideration such as stock, notes, or other property or securities) that the Company determines, in its discretion, to be economically equivalent to proceeds
of a Sale, valued in the reasonable determination of the Company. Net Sales Proceeds shall not include any reserves established by the Company in its sole discretion.
Offering. Any public
offering of Shares or Preferred Shares pursuant to an effective registration statement filed under the Securities Act, or any private offering exempt from registration under the Securities Act.
Organization and Offering Expenses.
Any and all costs and expenses incurred by and to be paid by the Company in connection with an Offering, including the qualification and registration of the Offering and the marketing and distribution of its Shares, including, without limitation:
total underwriting and brokerage discounts and commissions (including fees of the underwriters’ attorneys); expenses for printing, engraving, amending registration statements and supplementing prospectuses; mailing and distribution costs; salaries of
employees while engaged in sales activity, such as preparing supplemental sales literature; telephone and other telecommunication costs; all advertising and marketing expenses, including the costs related to investor and broker-dealer meetings;
charges of transfer agents, registrars, trustees, escrow holders, depositories and experts; filing, registration and qualification fees and taxes relating to the Offering under federal and state laws; and accountants’ and attorneys’ fees.
Partnership. MacKenzie
Realty Operating Partnership LP, a California limited partnership, through which the Company may own Assets.
Partnership Units.
Operating partnership units issued by the Partnership to partners other than the Company.
Person. An individual,
corporation, association, business trust, estate, trust, partnership, limited liability company or other legal entity.
Preferred Shares. Any
shares of preferred stock issued by the Company from time to time.
Property or Properties. As the context requires, any, or all of the land, rights in land
(including leasehold interests), and any buildings, structures, improvements, furnishings, fixtures and equipment located on or used in connection with land and rights or interests in land acquired by the Company, either directly or
indirectly (whether through Joint Ventures or other means).
Proprietary Property. All
modeling algorithms, tools, computer programs, know-how, methodologies, processes, technologies, ideas, concepts, skills, routines, subroutines, operating instructions and other materials and aides used in performing the duties set forth in
Section 2.2 that relate to investment advice regarding current and potential Assets, and all modifications, enhancements and derivative works of the foregoing.
REIT. A corporation,
trust, association or other legal entity (other than a real estate syndication) that is engaged primarily in investing in equity interests in real estate (including fee ownership and leasehold interests) or in loans secured by real estate or both in
accordance with Sections 856 through 860 of the Code.
Sale or Sales. (i) Any
transaction or series of transactions whereby: (A) the Company or the Partnership directly or indirectly sells, grants, transfers, conveys, or relinquishes its ownership of any Property or portion thereof, including the lease of any Property, and
including any event with respect to any Property which gives rise to a significant amount of insurance proceeds or condemnation awards; (B) the Company or the Partnership directly or indirectly sells, grants, transfers, conveys, or relinquishes its
ownership of all or substantially all of the interest of the Company or the Partnership in any Joint Venture in which it is a co-venturer or partner; (C) any Joint Venture directly or indirectly in which the Company or the Partnership as a
co-venturer or partner sells, grants, transfers, conveys, or relinquishes its ownership of any Property or portion thereof, including any event with respect to any Property which gives rise to insurance claims or condemnation awards; (D) the Company
or the Partnership directly or indirectly sells, grants, conveys or relinquishes its interest in any Mortgage or other loan or portion thereof (including with respect to any Mortgage or other loan, all payments thereunder or in satisfaction thereof
other than regularly scheduled interest payments of amounts owed pursuant to such Mortgage or other loan) and any event with respect to a Mortgage or other loan which gives rise to a significant amount of insurance proceeds or similar awards; or
(E) the Company or the Partnership directly or indirectly sells, grants, transfers, conveys, or relinquishes its ownership of any other Asset not previously described in this definition or any portion thereof, but (ii) not including any transaction
or series of transactions specified in clause (i) (A) through (E) above to the extent the net proceeds of such transaction or series of transactions are reinvested in one or more Assets within 180 days thereafter.
Securities Act. The
Securities Act of 1933, as amended from time to time, or any successor statute thereto. Reference to any provision of the Securities Act shall mean such provision as in effect from time to time, as the same may be amended, and any successor
provision thereto, as interpreted by any applicable regulations as in effect from time to time.
Shares. Any shares of the
Company’s common stock, par value $.0001 per share.
Stockholders. The record
holders of the Company’s Shares or Preferred Shares as maintained in the books and records of the Company or its transfer agent.
Stockholders’ 6% Return.
As of any date, an aggregate amount of distributions paid equal to a 6% cumulative, noncompounded, annual return on Invested Capital from the issuance of Shares from and after the Effective Date (calculated like simple interest based on a 365-day
year); provided, however, that for purposes of calculating the Stockholders’ 6% Return, Invested Capital shall be determined net of Distributions of (i) Net Sales Proceeds or (ii) proceeds from refinancings, either of which are determined by the
Board to be original capital, but (consistent with the second clause of the definition of Invested Capital) shall always exclude an amount equal to the total number of Shares repurchased from Stockholders by the Company (pursuant to the Company’s
plan for the repurchase of Shares) multiplied by the price initially paid for or the value ascribed to such redeemed Shares when initially acquired from the Company.
1.1.2
THE ADVISER
THE ADVISER
(a) Appointment. The Company hereby appoints the Adviser to serve as its Adviser on the
terms and conditions set forth in this Agreement, and the Adviser hereby accepts such appointment.
(b) Duties of the Adviser. The Adviser shall be deemed to be in a fiduciary relationship
with the Company and its Stockholders. The Adviser undertakes to use its best efforts to present to the Company potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment
objectives and policies of the Company as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Company’s Articles of
Incorporation and Bylaws, the Adviser shall, either directly or by engaging an Affiliate of the Adviser or other Person (it being acknowledged that MacKenzie Capital Management, LP will provide many of these services under the Administration
Agreement and Investor Services Agreement):
(1) serve as the Company’s investment and financial adviser and provide research and economic and statistical data in connection with
the Assets and investment policies;
(2) provide the daily management of the Company and perform and supervise the various administrative functions reasonably necessary for
the management and operations of the Company;
(3) maintain and preserve the books and records of the Company, including stock books and records reflecting a record of the
Stockholders and their ownership of the Company’s Shares or Preferred Shares, if any, and acting as transfer agent for the Company’s Shares and Preferred Shares;
(4) investigate, select, and, on behalf of the Company, engage and conduct business with such Persons as the Adviser deems necessary to
the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisers, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries,
custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, mortgagors, property management companies, transfer agents and any and all agents for any of the foregoing, including Affiliates of the
Adviser, and Persons acting in any other capacity deemed by the Adviser necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Company with any of the
foregoing;
(5) consult with the officers and the Board and assist the Board in the formulation and implementation of the Company’s financial
policies, and, as necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Company and in connection with any borrowings proposed or
undertaken by the Company;
(6) subject to the provisions of Sections 2.2(h) and 2.3 hereof, (i) locate, analyze and select potential investments in Assets,
(ii) structure and negotiate the terms and conditions of transactions pursuant to which investment in Assets will be made; (iii) make investments in Assets on behalf of the Company or the Partnership in compliance with the investment objectives and
policies of the Company; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with the investments in, Assets; and
(v) enter into leases of Property and service contracts for Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Assets, including the servicing of Mortgages;
(7) provide the Board with periodic reports regarding prospective investments in Assets;
(8) obtain the prior approval of the Board for any and all investments in Assets for which the Asset Purchase Price exceeds 30% of
Invested Capital;
(9) negotiate on behalf of the Company with banks or lenders for loans to be made to the Company, negotiate on behalf of the Company
with investment banking firms and broker-dealers, and negotiate private sales of Shares or obtain loans for the Company, as and when appropriate, but in no event in such a way so that the Adviser shall be acting as broker-dealer or underwriter; and
provided, further, that any fees and costs payable to third parties incurred by the Adviser in connection with the foregoing shall be the responsibility of the Company;
(10) obtain reports (which may be prepared by or for the Adviser or its Affiliates), where appropriate, concerning the value of
investments or contemplated investments of the Company in Assets;
(11) from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to
the Company under this Agreement;
(12) provide the Company with all necessary cash management services;
(13) deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the investments in Assets;
(14) upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making,
requiring and disposing of Assets, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Company and handling, prosecuting and settling any claims of the Company, including foreclosing and otherwise enforcing
mortgage and other liens and security interests comprising any of the Assets;
(15) supervise the preparation and filing and distribution of returns and reports to governmental agencies and to Stockholders and act
on behalf of the Company in connection with investor relations;
(16) provide office space, equipment and personnel as required for the performance of the foregoing services as Adviser;
(17) prepare on behalf of the Company all reports and returns required by the Securities and Exchange Commission, Internal Revenue
Service and other state or federal governmental agencies; and
(18) do all things necessary to assure its ability to render the services described in this Agreement.
(c) Authority of Adviser.
(1) Pursuant to the terms of this Agreement (including the restrictions included in this Section 2.3 and in Section 2.6), and subject
to the continuing and exclusive authority of the Board over the management of the Company, the Board hereby delegates to the Adviser the authority to (i) locate, analyze and select investment opportunities, (ii) structure the terms and conditions
of transactions pursuant to which investments will be made or acquired for the Company or the Partnership, (iii) acquire Properties, make and acquire Mortgages and other loans and invest in other Assets in compliance with the investment objectives
and policies of the Company, (iv) arrange for financing or refinancing of Assets, (v) enter into leases for the Properties and service contracts for the Assets, including oversight of Affiliated companies that perform property management or other
services for the Company, (vi) oversee non-Affiliated and Affiliated property managers and other non-Affiliated and Affiliated Persons who perform services for the Company, and (vii) undertake accounting and other record-keeping functions at the
Asset level.
(2) Notwithstanding the foregoing, the Asset Purchase Price of any investment by the Company or the Partnership of over 30% of the
Company’s Invested Capital will require the approval of the Board.
(3) If a transaction requires approval by the Board, the Adviser will deliver to the Directors all documents required by them to
properly evaluate the proposed transaction.
The Board may, at any time upon the giving of notice to the Adviser, modify or revoke the authority set forth in this
Section 2.3. If and to the extent the Board so modifies or revokes the authority contained herein, the Adviser shall henceforth submit to the Board for prior approval such proposed transactions involving investments in Assets as thereafter require
prior approval, provided however, that such modification or revocation shall be effective upon receipt by the Adviser and shall not be applicable to investment transactions to which the Adviser has committed the Company prior to the date of receipt
by the Adviser of such notification.
(d) Bank Accounts. The Adviser may establish and maintain one or more bank accounts in
its own name for the account of the Company or in the name of the Company and may collect and deposit into any such account or accounts, and disburse from any such account or accounts, any money on behalf of the Company, under such terms and
conditions as the Board may approve, provided that no funds of the Company or the Partnership shall be commingled nor shall any of such funds be commingled with the funds of the Adviser; and the Adviser shall from time to time render appropriate
accountings of such collections and payments to the Board, its Audit Committee and the auditors of the Company.
(e) Records; Access. The Adviser shall maintain appropriate records of its activities
hereunder and make such records available for inspection by the Board and by counsel, auditors and authorized agents of the Company, at any time or from time to time during normal business hours. The Adviser shall at all reasonable times have
access to the books and records of the Company.
(f) Limitations on Activities. Anything else in this Agreement to the contrary
notwithstanding, the Adviser shall refrain from taking any action which, in its sole judgment made in good faith, would (a) adversely affect the status of the Company as a REIT, (b) subject the Company to regulation under the Investment Company Act
of 1940, as amended, or (c) violate any law, rule, regulation or statement of policy of any governmental body or agency having jurisdiction over the Company, the Shares, or otherwise not be permitted by the Articles of Incorporation or Bylaws,
except if such action shall be ordered by the Board, in which case the Adviser shall notify promptly the Board of the Adviser’s judgment of the potential impact of such action and shall refrain from taking such action until it receives further
clarification or instructions from the Board. In such event the Adviser shall have no liability for acting in accordance with the specific instructions of the Board so given. The Adviser, its directors, officers, employees and stockholders, and
the directors, officers, employees and stockholders of the Adviser’s Affiliates shall not be liable to the Company or to the Board or Stockholders for any good faith act or omission by the Adviser, its directors, officers, employees or
stockholders, or for any act or omission of any Affiliate of the Adviser, its directors, officers or employees or stockholders except as provided in Section 5.2 of this Agreement.
(g) Relationship with Directors. Directors, officers and employees of the Adviser or an
Affiliate of the Adviser may serve as Directors, officers or employees of the Company, except that no director, officer or employee of the Adviser or its Affiliates who also is a Director shall receive any compensation from the Company for serving
as a Director other than reasonable reimbursement for travel and related expenses incurred in attending meetings of the Board.
(h) Other Activities of the Adviser. Nothing herein contained shall prevent the Adviser
or its Affiliates from engaging in other activities, including, without limitation, the rendering of advice to other Persons (including other REITs) and the management of other programs advised, sponsored or organized by the Adviser or its
Affiliates; nor shall this Agreement limit or restrict the right of any director, officer, employee, or stockholder of the Adviser or its Affiliates to engage in any other business or to render services of any kind to any other Person. The Adviser
may, with respect to any investment in which the Company is a participant, also render advice and service to each and every other participant therein. The Adviser shall report to the Board the existence of any condition or circumstance, existing or
anticipated, of which it has knowledge, which creates or could create a conflict of interest between the Adviser’s obligations to the Company and its obligations to or its interest in any other Person. The Adviser or its Affiliates shall promptly
disclose to the Board knowledge of such condition or circumstance. If the Adviser, Director or Affiliates thereof have sponsored other investment programs with similar investment objectives which have investment funds available at the same time as
the Company, it shall be the duty of the Board to adopt a reasonable method by which investments are to be allocated to the competing investment entities and to use their best efforts to apply such method fairly to the Company.
1.1.3
COMPENSATION AND REIMBURSEMENT OF SPECIFIED COSTS
COMPENSATION AND REIMBURSEMENT OF SPECIFIED COSTS
(a) Fees. The following fees shall be paid to the Adviser pursuant to the sections below.
(1) Asset Management Fee. The Company shall
pay the Adviser a monthly fee for day-to-day professional management services in connection with the Company and its investments in Assets on or before the 15th day of each calendar month in an amount equal to 1/12th of
(i) 3.0% of the first $20 million of Invested Capital, (ii) 2% of the next $80 million in Invested Capital, and (iii) 1.5% of the Invested Capital greater than $100 million.
(2) Acquisition Fees. The Company shall pay
the Adviser a fee in the amount of 2.5% of the Asset Purchase Price of each Asset as an Acquisition Fee, payable at the time funds are expended, or Shares or Partnership Units issued, for the acquisition or making of the Asset. An Asset will be
considered acquired for the purpose hereof on the date it becomes a majority owned subsidiary such that the Company or the Partnership consolidates (or could consolidate) the Asset’s operations into its financial statements from an accounting
perspective. Notwithstanding the foregoing, if the acquisition that would otherwise generate a fee hereunder is made anytime after the sale of an Asset by the Company that was owned by the Company for fewer than five years, using any proceeds from
such sale, then the amount of the Acquisition Fee hereunder shall be reduced by multiplying such fee by a fraction, the numerator of which is the number of years such sold Asset was held and the denominator of which is five.
(3) [deleted].
(4) [deleted].
(5) Subordinated Incentive Fee. Once
Stockholders have received distributions equal to the Stockholders’ 6% Return, the Adviser shall be paid a “catch-up” fee equal to the amount that results in the Adviser having received payments under this subparagraph (e) from the Effective Date
through the date of determination equal to 15% of the Stockholders’ 6% Return calculated as of the date of the determination; thereafter, the Adviser will receive an incentive fee equal to 15% of all distributions paid to Shareholders that would be
considered in calculating the Stockholders’ 6% Return (i.e., not including either (a) Net Sales Proceeds or (b) proceeds from refinancings, that are considered return of capital) so long as distributions to Stockholders continue to exceed the
Stockholders’ 6% Return. If the Adviser so chooses in the future, the fee paid hereunder may be converted into an equivalent right to receive distributions under the Partnership as a special limited partner or from a specially designated series of
preferred stock.
(6) Non-Exclusivity of Fees. The fees
payable to the Adviser, as described above, may be payable in addition to real estate commissions paid for the purchase or sale of a Property that are reasonable, customary, and competitive in light of the size, type and location of the Property
(as determined by the Board).
(b) Expenses.
(1) In addition to the compensation paid to the Adviser pursuant to Section 3.1 hereof, the Company shall pay directly or reimburse the
Adviser and/or its Affiliates for all of the costs and expenses paid or incurred by the Adviser that are in any way related to the operations of the Company or the business of the Company or the services the Adviser provides to the Company pursuant
to this Agreement, including, but not limited to:
a. Organization and Offering Expenses;
b. Acquisition Fees and Acquisition Expenses incurred in connection with the selection and acquisition of Assets, including such
expenses incurred related to assets pursued or considered but not ultimately acquired by the Company;
c. the actual cost of goods, services (including brokerage fees) and materials used by the Company and obtained from Persons not
Affiliated with the Adviser, other than Acquisition Expenses;
d. interest and other costs for borrowed money, including discounts, points and other similar fees;
e. taxes and assessments on income or property and taxes as an expense of doing business;
f. costs associated with insurance required in connection with the business of the Company or by the Board;
g. expenses of managing and operating Assets owned by the Company, whether payable to an Affiliate of the Company or a non-Affiliated
Person;
h. all expenses in connection with payments to the Board for attendance at meetings of the Board and Stockholders;
i. expenses associated with an Offering or the related issuance and distribution of securities of the Company, such as selling
commissions and fees, advertising expenses, taxes, legal and accounting fees, listing and registration fees, and other Organization and Offering Expenses;
j. expenses connected with payments of Distributions in cash or otherwise made or caused to be made by the Company to the
Stockholders;
k. expenses of organizing, reorganizing, liquidating or dissolving the Company and the expenses of filing or amending the Articles of
Incorporation;
l. transfer agent expenses for the Shares and of maintaining communications with Stockholders, including the cost of preparation,
printing, and mailing annual reports and other Stockholder reports, proxy statements and other reports required by governmental entities;
m. administrative service expenses (including personnel and overhead costs of Affiliates, as approved by Board); and
n. audit, accounting, and legal fees.
(2) Expenses incurred by the Adviser on behalf of the Company and payable pursuant to this Section 3.2 shall be reimbursed no less than
quarterly to the Adviser within 60 days after the end of each quarter. The Adviser shall prepare a statement documenting the expenses of the Company during each quarter, and shall deliver such statement to the Company within 45 days after the end
of each quarter.
c. To the extent the expenses enumerated herein are paid to MacKenzie Capital Management, LP under the Administrative
Agreement, they will not be reimbursed to Adviser under this Agreement.
(c) Other Services. Should the Board request that the Adviser or any director, officer or
employee thereof render services for the Company other than set forth in Section 2.2, such services shall be separately compensated at such rates and in such amounts as are agreed by the Adviser and the Board, subject to the limitations contained
in the Articles of Incorporation, and shall not be deemed to be services pursuant to the terms of this Agreement.
1.1.4
TERM AND TERMINATION
TERM AND TERMINATION
(a) Term; Renewal. This Agreement shall continue in force until the first anniversary of
the date hereof. Thereafter, this Agreement shall automatically be renewed for an unlimited number of successive one-year terms unless either party provides notice of termination at least 90 days prior to the expiration of the initial term or any
renewal term.
(b) Payments to and Duties of Adviser upon Termination.
(1) After this Agreement is terminated, the Adviser shall not be entitled to compensation for further services hereunder except it
shall be entitled to and receive from the Company promptly all unpaid reimbursements of expenses 30 days after the effective date of such termination and all fees earned by the Adviser prior to termination of this Agreement.
(2) The Adviser shall promptly upon termination:
a. pay over to the Company all money collected and held for the account of the Company pursuant to this Agreement, after deducting any
accrued compensation and reimbursement for its expenses to which it is then entitled;
b. deliver to the Board a full accounting, including a statement showing all payments collected by it and a statement of all money
held by it, covering the period following the date of the last accounting furnished to the Board;
c. deliver to the Board all assets, including the Assets, and documents of the Company then in the custody of the Adviser; and
d. cooperate with the Company and take all reasonable actions requested by the Company to provide an orderly transition to any
replacement adviser selected by the Board.
1.1.5
INDEMNIFICATION
INDEMNIFICATION
(a) Indemnification by the Company.
(1) The Company shall indemnify and hold harmless the Adviser and its Affiliates, including their respective officers, directors,
partners and employees, from all liability, claims, damages or losses arising in the performance of their duties hereunder, and related expenses, including reasonable attorneys’ fees, to the extent such liability, claims, damages or losses and
related expenses are not fully reimbursed by insurance, subject to any limitations imposed by the laws of the State of Maryland and the Articles of Incorporation. Notwithstanding the foregoing, the Company shall not indemnify or hold harmless the
Adviser or its Affiliates, including their respective officers, directors, partners and employees, for any liability or loss suffered by the Adviser or its Affiliates, including their respective officers, directors, partners and employees, nor
shall it provide that the Adviser or its Affiliates, including their respective officers, directors, partners and employees, be held harmless for any loss or liability suffered by the Company, unless all of the following conditions are met:
(i) the Adviser or its Affiliates, including their respective officers, directors, partners and employees, have determined, in good faith, that the course of conduct which caused the loss or liability was in the best interests of the Company;
(ii) the Adviser or its Affiliates, including their respective officers, directors, partners and employees, were acting on behalf of or performing services of the Company; (iii) such liability or loss was not the result of negligence or misconduct
by the Adviser or its Affiliates, including their respective officers, directors, partners and employees; and (iv) such indemnification or agreement to hold harmless is recoverable only out of the Company’s Assets and not from Stockholders.
(2) The Company shall advance to the Adviser or its Affiliates, including their respective officers, directors, partners and employees,
funds for legal expenses and other costs incurred as a result of any legal action for which indemnification is being sought if all of the following conditions are satisfied: (i) the legal action relates to acts or omissions with respect to the
performance of duties or services on behalf of the Company; (ii) the legal action is initiated by a third-party who is not a Stockholder or the legal action is initiated by a Stockholder acting in his or her capacity as such and a court of
competent jurisdiction specifically approves such advancement; (iii) the Adviser or its Affiliates, including their respective officers, directors, partners and employees, undertake to repay the advanced funds to the Company together with the
applicable legal rate of interest thereon, in cases in which such Adviser or its Affiliates, including their respective officers, directors, partners and employees, are found not to be entitled to indemnification.
(3) The indemnity provided for pursuant to this Section 5.1 shall extend, without limitation, to any results, outcomes or risks
associated with the business and investment objectives of the Company. Notwithstanding the provisions of this Section 5.1, the Adviser shall not be entitled to indemnification or be held harmless pursuant to this Section 5.1 for any activity which
the Adviser shall be required to indemnify or hold harmless the Company pursuant to Section 5.2.
(b) Indemnification by Adviser. The Adviser shall indemnify and hold harmless the Company
from contract or other liability, claims, damages, taxes or losses and related expenses including attorneys’ fees, to the extent that such liability, claims, damages, taxes or losses and related expenses are not fully reimbursed by insurance and
are incurred by reason of the Adviser’s bad faith, fraud, misfeasance, misconduct, gross negligence or reckless disregard of its duties, but the Adviser shall not be held responsible for any action of the Board in following or declining to follow
any advice or recommendation given by the Adviser.
1.1.6
MISCELLANEOUS
MISCELLANEOUS
(a) Assignment to an Affiliate. This Agreement may be assigned by the Adviser to an
Affiliate of the Adviser with the approval of a majority of the Board. The Adviser may assign any rights to receive fees or other payments under this Agreement without obtaining the approval of the Board. This Agreement shall not be assigned by
the Company without the consent of the Adviser, except in the case of an assignment by the Company to a corporation or other organization which is a successor to all of the assets, rights and obligations of the Company, in which case such successor
organization shall be bound hereunder and by the terms of said assignment in the same manner as the Company is bound by this Agreement. This Agreement shall be binding on successors to the Company, and shall likewise be binding upon any successor
to the Adviser.
(b) Relationship of Adviser and Company. The Company and the Adviser are not partners or
joint venturers with each other, and nothing in this Agreement shall be construed to make them such partners or joint venturers or impose any liability as such on either of them.
(c) Notices. Any notice, report or other communication required or permitted to be given
hereunder shall be in writing unless some other method of giving such notice, report or other communication is required by the Articles of Incorporation, the Bylaws, or accepted by the party to whom it is given, and shall be given by being
delivered by hand or by overnight mail or other overnight delivery service to the addresses set forth herein:
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To the Directors and to the Company:
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MacKenzie Realty Capital, Inc.
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89 Davis Road, Suite 100
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Orinda, CA 94563
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To the Adviser:
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MacKenzie Real Estate Advisers, LP
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89 Davis Road, Suite 100
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Orinda, CA 94563
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Either party shall, as soon as reasonably practicable, give notice in writing to the other party of a change in its address for the
purposes of this Section 6.3.
(d) Modification. This Agreement shall not be changed, modified, or amended, in whole or
in part, except by an instrument in writing signed by both parties hereto, or their respective successors or assignees.
(e) Severability. The provisions of this Agreement are independent of and severable from
each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
(f) Choice of Law; Venue. The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the State of California, and venue for any action brought with respect to any claims arising out of this Agreement shall be brought exclusively in Contra Costa County, California.
(g) Entire Agreement. This Agreement contains the entire agreement and understanding
among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to
the subject matter hereof. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement may not be modified or amended other than by an agreement in
writing signed by each of the parties hereto.
(h) Waiver. Neither the failure nor any delay on the part of a party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party asserted to have granted such waiver.
(i) Headings. The titles and headings of sections and subsections contained in this
Agreement are for convenience only, and they neither form a part of this Agreement nor are they to be used in the construction or interpretation hereof.
(j) Execution in Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. This Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories.
(k) Ownership of Proprietary Property. The Adviser retains ownership of and reserves all
Intellectual Property Rights in the Proprietary Property. To the extent that the Company has or obtains any claim to any right, title or interest in the Proprietary Property, including without limitation in any suggestions, enhancements or
contributions that Company may provide regarding the Proprietary Property, the Company hereby assigns and transfers exclusively to the Adviser all right, title and interest, including without limitation all Intellectual Property Rights, free and
clear of any liens, encumbrances or licenses in favor of the Company or any other party, in and to the Proprietary Property. In addition, at the Adviser’s expense, the Company will perform any acts that may be deemed desirable by the Adviser to
evidence more fully the transfer of ownership of right, title and interest in the Proprietary Property to the Adviser, including but not limited to the execution of any instruments or documents now or hereafter requested by the Adviser to perfect,
defend or confirm the assignment described herein, in a form determined by the Adviser.
[remainder of page intentionally blank – signatures appear on following page]
IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the date and year first above written.
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MACKENZIE REALTY CAPITAL, INC.
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By:
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Robert Dixon, President
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MACKENZIE REAL ESTATE ADVISERS, LP
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By:
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LCA-GP, LLC,
its General Partner
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By:
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Glen Fuller, Managing Director
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AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
THIS AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT (“Agreement”) is effective as of the 1st day of January, 2021 (the “Effective Date”) by and between MacKenzie Realty
Capital, Inc., a Maryland corporation having its principal place of business in Orinda, California (the “Company”), and MCM Advisers, LP, a California limited
partnership having its principal place of business in Orinda, California (the “Adviser”).
WHEREAS, the Company is a real estate investment trust with a small portfolio of securities exempt from
registration under Section 3(c)(5) of the Investment Company Act of 1940, as amended (the “1940 Act”);
WHEREAS, the Adviser is registered under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), as an investment adviser and engages in the business of acting as an investment adviser; and
WHEREAS, the Company and the Adviser desire to enter into this Agreement to provide for investment advisory
services to the Company upon the terms and conditions provided below.
NOW THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties agree as follows:
1. Appointment of Adviser.
The Company appoints the Adviser to act as investment adviser to the Company for the period and on the terms
provided herein. The Adviser accepts such appointment and agrees to render the services provided herein, for the compensation herein provided.
2. Duties of the Adviser.
Subject to the overall supervision and review of the Board of Directors of the Company (“Board”), the Adviser will regularly provide the Company with investment research, advice and supervision and will furnish continuously an investment program for the Company,
consistent with the investment objective and policies of the Company, as to the securities portfolio of the Company. The Adviser will determine from time to time what securities shall be purchased for the Company, what securities shall be held or
sold by the Company, subject always to the provisions of the Company’s Articles of Incorporation, Bylaws, and to the investment objectives of the Company, as each of the same shall be from time to time in effect, and subject, further, to such
policies and instructions as the Board may from time to time establish. To carry out such determinations, the Adviser will exercise full discretion and act for the Company in the same manner and with the same force and effect as the Company itself
might or could do with respect to purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions. Without limiting the
generality of the foregoing, the Adviser shall, during the term and subject to the provisions of this Agreement, (i) determine the composition of the securities portfolio of the Company, the nature and timing of the changes therein and the manner of
implementing such changes; (ii) identify, evaluate and negotiate the structure of the securities investments made by the Company; (iii) perform due diligence on prospective securities; (iv) close and monitor the Company’s securities; (v) provide the
Company with such other investment advisory, research and related services as the Company may, from time to time, reasonably require for the investment of its funds.
3. Administrative Duties of the Adviser.
The Adviser agrees to furnish administrative services necessary to the operation of the Company, other than
services provided by the Company’s custodian, accounting agent, administrator, dividend and interest paying agent, transfer agent, and other service providers. The Adviser is authorized to conduct relations with custodians, depositaries,
underwriters, brokers, dealers, placement agents, banks, insurers, accountants, attorneys, pricing agents, and other persons as may be deemed necessary or desirable. To the extent requested by the Company and not provided by the Company’s
administrator, the Adviser shall (i) oversee the performance of, and payment of the fees to, the Company’s service providers, and make such reports and recommendations to the Board concerning such matters as the parties deem desirable; (ii) respond
to inquiries and otherwise assist such service providers in the preparation and filing of regulatory reports, proxy statements, shareholder communications and the preparation of Board materials and reports; (iii) establish and oversee the
implementation of borrowing facilities or other forms of leverage authorized by the Board; and (iv) supervise any other aspect of the Company’s administration as may be agreed upon by the Company and the Adviser. The Company shall reimburse the
Adviser or its affiliate for all out-of-pocket expenses incurred in providing the services set forth in this Section 3.
4. [reserved]
5. Independent Contractors.
The Adviser shall for all purposes herein be deemed to be an independent contractor and shall, unless otherwise
expressly provided or authorized, have no authority to act for or represent the Company in any way or otherwise be deemed to be an agent of the Company.
6. Compliance with Applicable Requirements.
In carrying out its obligations under this Agreement, the Adviser shall at all times conform to:
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a.
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all applicable provisions of the Advisers Act and any applicable rules and regulations adopted thereunder;
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b.
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the provisions of any registration statement of the Company, as the same may be amended from time to time under the 1933
Act, including without limitation, the investment objectives set forth therein;
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c.
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the provisions of the Company’s Articles of Incorporation, as the same may be amended from time to time;
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d.
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the provisions of the Bylaws of the Company, as the same may be amended from time to time;
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e.
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all policies, procedures and directives adopted by the Board; and
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f.
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any other applicable provisions of state, federal or foreign law.
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7. Policies and Procedures.
The Adviser shall adopt and implement written policies and procedures reasonably designed to prevent violation of
the Federal Securities Laws (as that term is used in Rule 38a-1 under the 1940 Act) by the Adviser. The Adviser shall provide the Company, at such times as the Company shall reasonably request, with a copy of such policies and procedures and a report
of such policies and procedures.
8. Brokerage.
The Adviser is responsible for decisions to buy and sell securities for the Company, broker-dealer selection, and
negotiation of brokerage commission rates. The Adviser’s primary consideration in effecting a security transaction will be to obtain the best execution. In selecting a broker-dealer to execute a particular transaction, the Adviser will take the
following into consideration: the best net price available; the reliability, integrity and financial condition of the broker-dealer; the size of and the difficulty in executing the order; and the value of the expected contribution of the
broker-dealer to the investment performance of the Company on a continuing basis. Accordingly, the price to the Company in any transaction may be less favorable than that available from another broker-dealer if the difference is reasonably justified
by other aspects of the execution services offered.
Subject to such policies as the Board may from time to time determine, the Adviser shall not be deemed to have
acted unlawfully, or to have breached any duty created by this Agreement or otherwise, solely by reason of its having caused the Company to pay a broker or dealer that provides brokerage and research services to the Adviser an amount of commission
for effecting a Company investment transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction, if the Adviser determines in good faith that such amount of commission was reasonable in
relation to the value of the brokerage and research services provided by such broker or dealer, viewed in terms of either that particular transaction or the Adviser’s overall responsibilities with respect to the Company and to other clients of the
Adviser as to which the Adviser exercises investment discretion. The Adviser is further authorized to allocate the orders placed by it on behalf of the Company to such brokers and dealers who also provide research or statistical material or other
services to the Company, the Adviser or to any sub-Adviser. Such allocation shall be in such amounts and proportions as the Adviser shall determine and the Adviser will report on said allocations regularly to the Board indicating the brokers to whom
such allocations have been made and the basis therefore.
9. Books and Records.
The Adviser will maintain complete and accurate records in respect of all transactions relating to the Company’s
portfolio. The Adviser will keep or will cause to be kept records in respect of all such securities transactions executed on behalf of the Company. To the extent permitted by applicable law, the Adviser shall provide such access to its books and
records relating to the Company as the Company may reasonably request. The Adviser shall have access at all reasonable times to books and records maintained for the Company to the extent necessary for the Adviser to comply with all applicable
securities or other laws to which it is subject, and further provided that the Company shall produce copies of such records and books whenever reasonably required to do so by the Adviser for the purpose of legal proceedings or dealings with any
governmental or regulatory authorities or for its internal compliance procedures.
10. Compensation.
For the services and payments (including Company expenses paid by the Adviser under Section 12) furnished to the
Company hereunder by the Adviser, the Adviser shall receive from the Company an annual fee equal to $100.
The Adviser may, from time to time, waive or defer all or any part of the compensation described in this Section 10. The parties do
hereby expressly authorize and instruct the Company’s administrator, or its successors, to calculate the fee payable hereunder and to remit all payments specified herein to the Adviser.
11. Expenses of the Adviser.
The compensation and allocable routine overhead expenses of all investment professionals of the Adviser and its
staff, when and to the extent engaged in providing investment advisory services required to be provided by the Adviser under Section 2 hereof, will be provided and paid for by the Adviser and not by the Company. It is understood that the Company will
pay all expenses other than those expressly stated to be payable by the Adviser hereunder, which expenses payable by the Company shall include, without limitation the following, subject to Section 12:
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a.
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other than as set forth in the first sentence of this Section 11 above, expenses of maintaining the Company and continuing
its existence and related overhead, including office space and facilities and personnel compensation, training and benefits for personnel not employed by the Adviser,
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b.
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commissions, spreads, fees and other expenses connected with the acquisition, holding and disposition of securities and
other investments,
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c.
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auditing, accounting and legal expenses,
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d.
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taxes and interest,
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e.
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governmental fees,
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f.
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expenses of listing shares of the Company with a stock exchange, and expenses of issue, sale, repurchase and redemption (if
any) of securities of the Company, including expenses of conducting tender offers for the purpose of repurchasing Company securities,
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g.
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expenses of registering and qualifying the Company and its securities under federal and state securities laws and of
preparing and filing registration statements and amendments for such purposes,
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h.
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expenses of communicating with shareholders, including website expenses and the expenses of preparing, printing, and mailing
press releases, reports and other notices to shareholders and of meetings of shareholders and proxy solicitations therefor,
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i.
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expenses of reports to and communications with governmental officers and commissions,
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j.
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insurance expenses,
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k.
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association membership dues,
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l.
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fees, expenses and disbursements of custodians and subcustodians for all services to the Company (including without
limitation safekeeping of funds, securities and other investments, keeping of books, accounts and records, and determination of net asset values),
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m.
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fees, expenses and disbursements of transfer agents, dividend and interest paying agents, shareholder servicing agents and
registrars for all services to the Company,
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n.
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compensation and expenses of directors of the Company who are not members of the Adviser’s organization,
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o.
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pricing, valuation, and other consulting or analytical services employed in considering and valuing the actual or
prospective investments of the Company,
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p.
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all expenses incurred in leveraging of the Company’s assets through a line of credit or other indebtedness or issuing and
maintaining preferred shares,
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q.
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all expenses incurred in connection with the organization of the Company, and
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r.
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such non-recurring items as may arise, including expenses incurred in litigation, proceedings and claims and the obligation
of the Company to indemnify its directors, officers and shareholders with respect thereto.
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12. [deleted]
13. Covenants of the Adviser.
The Adviser covenants that it is registered as an investment adviser under the Advisers Act. The Adviser agrees
that its activities will at all times be in compliance in all material respects with all applicable federal and state laws governing its operations and investments.
14. Non-Exclusivity.
The Company understands that the persons employed by the Adviser to assist in the performance of the Adviser’s
duties under this Agreement may not devote their full time to such service and nothing contained in this Agreement shall be deemed to limit or restrict the right of the Adviser or any affiliate of the Adviser to engage in and devote time and
attention to other businesses or to render services of whatever kind or nature, so long as the Adviser’s services to the Company are not impaired by the provision of such services to others. The Company further understands and agrees that managers of
the Adviser may serve as officers or directors of the Company, and that officers or directors of the Company may serve as managers of the Adviser to the extent permitted by law; and that the managers of the Adviser are not prohibited from engaging in
any other business activity or from rendering services to any other person, or from serving as partners, officers or directors of any other firm or company, including other investment advisory companies.
15. Effective Date, Term and Approval.
This Agreement shall become binding against the Company as of the Effective Date. This Agreement shall continue in
force and effect for one year from the Effective Date, and may be continued from year to year thereafter, provided that the continuation of the Agreement is specifically approved at least annually by the Board or by the vote of a majority of the securities present at a shareholder meeting of the Company.
16. Term; Renewal.
This Agreement shall continue in force until the first anniversary of the date hereof. Thereafter, this Agreement
shall automatically be renewed for an unlimited number of successive one-year terms unless either party provides notice of termination at least 90 days prior to the expiration of the initial term or any renewal term.
17. Amendment.
No amendment of this Agreement shall be effective unless it is in writing and signed by the party against which
enforcement of the amendment is sought.
18. Liability of Adviser.
The Adviser will not be liable in any way for any default, failure or defect in any of the securities comprising
the Company’s portfolio if it has satisfied the duties and the standard of care, diligence and skill set forth in this Agreement. However, the Adviser shall be liable to the Company for any loss, damage, claim, cost, charge, expense or liability
resulting from the Adviser’s willful misconduct, bad faith or gross negligence or disregard by the Adviser of the Adviser’s duties or standard of care, diligence and skill set forth in this Agreement or a material breach or default of the Adviser’s
obligations under this Agreement.
19. Indemnification.
The Company (“Indemnifying Party”) shall
indemnify the Adviser, each of the Adviser’s officers, employees, partners, managers and agents (collectively, the “Indemnified Parties”) and hold the
Indemnified Parties harmless from and against any expense, loss, cost, liability or damage, including reasonable attorneys’ fees (collectively, “Expenses”),
arising out of any claim asserted or threatened to be asserted in connection with the Adviser’s services or performance hereunder or otherwise as an investment adviser of the Company; provided, however, that no Indemnified Party shall be entitled to any such indemnification with respect to any Expense to the
extent caused by any Indemnified Party’s own gross negligence, bad faith, breach of fiduciary duty, willful misconduct or reckless disregard with respect to any of its obligations under this Agreement (as the same shall be determined in accordance
with the 1940 Act and any interpretations or guidance by the Commission or its staff thereunder), and provided, further, that the satisfaction of any such indemnification shall be from and limited to the assets of the Company.
With respect to any claim made or threatened against an Indemnified Party, or compulsory process or request or other notice of any loss,
claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 19, such Indemnified Party shall:
a. give written notice to the Indemnifying Parties of such claim within ten (10) days after such claim is made or threatened, which notice shall specify in reasonable detail the
nature of the claim and the amount (or an estimate of the amount) of the claim; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Parties shall not relieve the Indemnifying Party of its obligations under this Section 18 except to the extent the each
Indemnifying Party is materially prejudiced or otherwise forfeits rights to defenses by reason of such failure;
b. provide the Indemnifying Parties such information and cooperation with respect to such claim as the Indemnifying Parties may reasonably require, including, but not limited to,
making appropriate personnel available to the Indemnifying Parties at such reasonable times as the Indemnifying Parties may request;
c. cooperate and take any such steps as the Indemnifying Parties may reasonably request to preserve and protect any defense to such claim;
d. in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Parties may exercise in
their sole discretion and at their expense, to participate in the investigation, defense and settlement of such claim;
e. neither incur any material expense to defend against any such claim (unless the Indemnifying Parties refuse to assume the defense as provided below) or make any admission with
respect thereto (other than routine or incontestable admissions or factual admissions the failure to make which would expose such Indemnified Party to unindemnified liability) nor permit a default or consent to the entry of any judgment in respect
thereof, in each case without the prior written consent of the Indemnifying Parties; and
f. upon reasonable prior notice, afford to such Indemnifying Party the right, in its sole discretion and at its sole expense, to assume
the defense of such claim, including the right to designate counsel reasonably acceptable to such Indemnified Party and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided, that if such Indemnifying Party assumes the defense of such claim, it shall not be liable for any fees and expenses of counsel for any Indemnified
Party incurred thereafter in connection with such claim except that if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest representing (A) such Indemnified Party and (B) the
Indemnifying Party, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; and provided, further, that the Indemnifying Parties shall not enter into any final settlement or compromise, without the prior written consent of such Indemnified Party (which consent shall
not be unreasonably withheld or delayed) unless such settlement or compromise provides for an absolute and unconditional release of such Indemnified Party from liability.
In the event that any Indemnified Party waives its right to indemnification hereunder, the
Indemnifying Parties shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Parties reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
20. Notices.
Any notices under this Agreement shall be in writing, addressed and delivered, telecopied or mailed postage paid,
to the other party entitled to receipt thereof at such address as such party may designate for the receipt of such notice. Until further notice to the other party, it is agreed that the address of the Company and that of the Adviser shall be 89
Davis Road, Suite 100, Orinda, CA 94563.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate by their respective duly authorized
officers on the day and year first written above.
MACKENZIE REALTY CAPITAL, INC.
By: ____________________________
Name: Chip Patterson
Title: Secretary
MCM ADVISERS, LP
By: _____________________________
Name: Chip Patterson
Title: Managing Director