exv10w4






Exhibit 10.4




EXECUTION COPY



 

 


SERVICES AGREEMENT




by and between



CARE INVESTMENT TRUST INC.



and



TREIT MANAGEMENT LLC



Dated as of November 4, 2010





 

 




 









 








Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 1.
	 	Definitions	 	 	1	 
	Section 2.
	 	Appointment and Duties of TREIT	 	 	5	 
	Section 3.
	 	Additional Activities of TREIT	 	 	7	 
	Section 4.
	 	[Reserved]	 	 	8	 
	Section 5.
	 	Confidentiality	 	 	8	 
	Section 6.
	 	Compensation	 	 	9	 
	Section 7.
	 	Expenses of the Company	 	 	12	 
	Section 8.
	 	Limits of TREIT’s Responsibility	 	 	15	 
	Section 9.
	 	No Joint Venture	 	 	16	 
	Section 10.
	 	Term; Renewal	 	 	16	 
	Section 11.
	 	Assignments	 	 	18	 
	Section 12.
	 	Termination of TREIT for Cause	 	 	18	 
	Section 13.
	 	Action Upon Termination	 	 	19	 
	Section 14.
	 	[Reserved]	 	 	19	 
	Section 15.
	 	Representations and Warranties	 	 	19	 
	Section 16.
	 	Miscellaneous	 	 	21	 






 









 





          SERVICES AGREEMENT, dated as of November 4, 2010 and effective as of the date on which
termination of the Amended and Restated Management Agreement by and between Care Investment Trust
Inc., a Maryland corporation (the “Company”) and CIT Healthcare LLC becomes effective (the
“Effective Date”) by and between the Company and TREIT MANAGEMENT LLC, a Delaware limited liability
company (together with its successors and assigns, “TREIT”).




WITNESSETH:




          WHEREAS, the Company invests primarily in a diversified portfolio of healthcare-related
commercial mortgage investments, commercial real estate and other related products and intends to
continue to qualify as a real estate investment trust for federal income tax purposes and will
elect to continue to receive the tax benefits accorded by Sections 856 through 860 of the Internal
Revenue Code of 1986, as amended (the “Code”); and




          WHEREAS, the Company desires to retain TREIT to provide certain advisory services regarding
the business and operations of the Company and its Subsidiaries in the manner and on the terms set
forth herein and TREIT wishes to be retained to provide such services.




          NOW THEREFORE, in consideration of the premises and agreements hereinafter set forth, the
parties hereto hereby agree as follows:




     Section 1. Definitions. (a) The following terms shall have the meanings set forth in this Section
1(a):




     “Adjusted Equity” means for the purpose of calculating the Incentive Fee for any given
quarter, Equity at the beginning of such quarter adjusted by (a) subtracting the aggregate
amount of any cash dividends declared by the Company during such quarter and (b) adding the
product of (i) net cash proceeds received by the Company as a result Equity Offerings, if
any, completed in such quarter and (ii) one half of a fraction, the numerator of which is the
number of days remaining in such quarter after the date on which such Equity Offering is
consummated and the denominator of which is the total number of days in such quarter. For
the avoidance of doubt, multiple Equity Offerings in a given quarter would be handled by
applying the formula in (b) above individually to each Equity Offering.




     “Affiliate” means with respect to any Person (i) any other Person directly or indirectly
controlling, controlled by, or under common control with such Person, (ii) any executive
officer or general partner of such Person, and (iii) any legal entity for which such Person
acts as an executive officer or general partner. For purposes of this Agreement, the Company
and its Subsidiaries shall not be deemed to be Affiliates of TREIT.




     “AFFO Plus Gain (Loss) On Sale” means the Company’s net income (computed in accordance
with GAAP) including gains (losses) from sales of real estate-related assets before
depreciation and amortization of such assets after the Base Services Fee and before any
Incentive Fees and adjusted to exclude: (i) depreciation and amortization; (ii) gains
(losses) from debt restructuring, (iii) non-cash equity compensation expense; (iv) the
effects of straight lining lease revenue; (v) normalized recurring capital expenditures; (vi)



 









 







non-cash allocations from unconsolidated partnerships and joint ventures; (vi) one-time
events pursuant to changes in GAAP; (viii) net amortization/accretion of premiums/discounts
and (ix) subject to approval of an Independent Committee, other non-cash charges incurred in
the current or prior periods; provided, however, that the amount of any gains (losses) from
the sale, prior to June 30, 2011, of any real estate-related assets owned by the Company on
the Effective Date to be included in AFFO Plus Gain (Loss) on Sale for purposes of
calculating the Incentive Fee shall be determined by the Independent Committee.




     “Agreement” means this Services Agreement, as amended, supplemented or otherwise
modified from time to time.




     “Automatic Renewal Term” has the meaning set forth in Section 10(b) hereof.




     “Base Services Fee” means the base services fee, calculated and payable monthly in
arrears, in an amount equal to one-twelfth, except for partial months, if any, which shall be
pro-rated, of 0.5% of Equity as adjusted to account for Equity Offerings as set forth in
Section 6 hereof .




     “Board of Directors” means the board of directors of the Company.




     “Business Day” means any day except a Saturday, a Sunday or a day on which banking
institutions in New York, New York are not required to be open.




     “Claim” has the meaning set forth in Section 8(c) hereof.




     “CNG Committee” means the Compensation Nominating and Corporate Governance Committee of
the Board of Directors or such successor committee or committees.




     “Code” has the meaning set forth in the Recitals.




     “Common Stock” means the common stock, par value $0.001, of the Company.




     “Company Indemnified Party” has meaning set forth in Section 8(b) hereof.




     “Company Permitted Disclosure Parties” has the meaning set forth in Section 5(b) hereof.




     “Conduct Policies” has the meaning set forth in Section 2(h) hereof.




     “Confidential Information” has the meaning set forth in Section 5(a) hereof.




     “Conflicts of Interest Policy” means the conflicts of interest policy for the Company
with respect to TREIT, a copy of which is attached hereto as Exhibit A, as the same
may be amended, restated, modified, supplemented or waived by the Board of Directors as
specified therein.




     “Effective Termination Date” has the meaning set forth in Section 10(c) hereof.




     “Equity” means the value of the Company’s stockholders’ equity computed in accordance
with GAAP (including common stock and preferred stock) before depreciation and amortization
and adjusted to exclude gains (losses) from debt restructuring, the effects of straight
lining lease revenue, normalized recurring capital expenditures, non-cash allocations from
unconsolidated partnerships and joint ventures, one-time events pursuant to changes in GAAP,
non-cash equity compensation expenses, net amortization/accretion



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of premiums/discounts, and, subject to approval of an Independent Committee, other
non-cash charges incurred in the current or prior periods.




     “Equity Offering” means any offering of capital stock of the Company (whether common
stock, preferred stock or any security convertible into common or preferred stock and whether
registered with the SEC or exempt from such registration) for cash.




     “Exchange Act” means the Securities Exchange Act of 1934, as amended.




     “GAAP” means generally accepted accounting principles in effect in the United States on
the date such principles are applied.




     “Governing Instruments” means, with regard to any entity, the articles of incorporation
or certificate of incorporation and bylaws in the case of a corporation, the partnership
agreement in the case of a general or limited partnership or the certificate of formation and
operating agreement in the case of a limited liability company, the trust instrument in the
case of a trust, or similar governing documents in each case as amended.




     “Hurdle Rate” means (i) from the date hereof until the fiscal quarter in which the
Company’s Equity first exceeds $250,000,000, a rate equal to 1.50% and (ii) with respect to
each fiscal quarter thereafter, a rate equal to 1.75%.




     “Incentive Fee” means an incentive fee calculated and payable with respect to each
fiscal quarter, beginning with the fiscal quarter ending December 31, 2010, in arrears, in an
amount, not less than zero, that is the lesser of (i) fifteen percent (15%) of the Company’s
AFFO Plus Gain (Loss) on Sale for such fiscal quarter and (ii) the amount by which the
Company’s AFFO Plus Gain (Loss) on Sale for such fiscal quarter exceeds the product of (a)
Adjusted Equity for said quarter and (b) the Hurdle Rate.




     “Indemnified Party” has the meaning set forth in Section 8(b) hereof.




     “Independent Committee” means a committee of the Board of Directors comprised solely of
Independent Directors acting by unanimous written consent or at a meeting of such committee
or the Independent Directors acting at a meeting of the Board of Directors.




     “Independent Director” means a member of the Board of Directors who is “independent” in
accordance with the Company’s Governing Instruments and the rules of the NYSE or such other
securities exchange, if any, on which the shares of Common Stock are listed.




     “Initial Term” has the meaning set forth in Section 10(a) hereof.




     “Investment Company Act” means the Investment Company Act of 1940, as amended.




     “Last Appraiser” has the meaning set forth in Section 6(j) hereof.




     “Losses” has the meaning set forth in Section 8(a) hereof.




     “Notice of Proposal to Negotiate” has the meaning set forth in Section 10(c) hereof.




     “NYSE” means the New York Stock Exchange, Inc.



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     “Person” means any natural person, corporation, partnership, association, limited
liability company, estate, trust, joint venture, any federal, state, county or municipal
government or any bureau, department or agency thereof or any other legal entity and any
fiduciary acting in such capacity on behalf of the foregoing.




     “REIT” means a “real estate investment trust” as defined under the Code.




     “SEC” means the United States Securities and Exchange Commission.




     “Securities Act” means the Securities Act of 1933, as amended.




     “Securities Exchange Act” means the Securities Exchange Act of 1934, as amended.




     “Services Fee Payment” has the meaning set forth in Section 6(e) hereof.




     “Subsidiary” means any subsidiary of the Company and any partnership, the general
partner of which is the Company or any subsidiary of the Company, and any limited liability
company, the managing member of which is the Company or any subsidiary of the Company.




     “Termination Fee” means a termination fee equal to the sum of the average annual Base
Services Fee and the average annual Incentive Fee, both as earned by TREIT during the two
years immediately preceding the most recently completed fiscal quarter prior to the date of
termination, multiplied by two (2).




     “Termination Notice” has the meaning set forth in Section 10(c) hereof.




     “TREIT Confidential Information” has meaning set forth in Section 5(b) hereof.




     “TREIT Indemnified Party” has the meaning set forth in Section 8(a) hereof.




     “TREIT Permitted Disclosure Parties” has the meaning set forth in Section 5(a) hereof.




     “Valuation Notice” has the meaning set forth in Section 6(h) hereof.



          (b) As used herein, accounting terms relating to the Company and its Subsidiaries, if any, not
defined in Section 1(a) and accounting terms partly defined in Section 1(a), to the extent not
defined, shall have the respective meanings given to them under United States generally accepted
accounting principles.




          (c) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section references are to this Agreement unless otherwise specified.




          (d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms. The words include, includes and including shall be deemed
to be followed by the phrase “without limitation.”







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     Section 2. Appointment and Duties of TREIT. (a) The Company hereby appoints TREIT to provide
certain advisory services regarding the business and operations of the Company and its
Subsidiaries, subject at all times to the further terms and conditions set forth in this Agreement
and to the supervision and control of, and such further limitations or parameters as may be imposed
from time to time by, an Independent Committee. TREIT hereby agrees to use its commercially
reasonable efforts to perform each of the duties set forth herein. In performing its duties
hereunder, TREIT also hereby agrees to use its commercially reasonable efforts to comply, and to
cause the personnel providing services to the Company to comply, with the Conflicts of Interest
Policy. The appointment of TREIT shall be exclusive to TREIT, except to the extent that TREIT
elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to
cause the duties of TREIT as set forth herein to be provided by third parties, any costs of which
shall be borne by TREIT.



               (b) TREIT, in its performance of the services as set forth herein, at all times will be
subject to the supervision and control of an Independent Committee and will have only such
functions and authority as identified herein and assigned to TREIT hereby or such additional
functions and authority as such Independent Committee may assign to it. Subject to such
supervision and control by such Independent Committee, TREIT shall provide the following services
relating to the business and operations of the Company as may be appropriate under the
circumstances:




     (i) serving as the Company’s consultant with respect to the periodic review of criteria
and parameters for acquisitions, borrowings and operations (including the Conflicts of
Interest Policy, any modifications to which shall be approved by the Board of Directors
(including a majority of the Independent Directors)) and other policies and recommendations
with respect thereto for approval by the Board of Directors;




     (ii) making available to the Company TREIT’s knowledge and experience with respect to
mortgage loans, real estate, real estate securities, other real estate-related assets and
non-real estate related assets and real estate operating companies in the healthcare
industry and otherwise;




     (iii) serving as the Company’s consultant with respect to the identification,
investigation, evaluation, analysis, selection, purchase, origination, negotiation,
structuring, monitoring and disposition of the Company’s holdings;




     (iv) serving as the Company’s consultant and assisting it with respect to decisions
regarding financings, capital raising activities or borrowings undertaken by the Company or
its Subsidiaries, including assisting the Company with respect to (1) developing criteria
for debt and equity financing that is specifically tailored to the Company’s business
objectives, (2) obtaining appropriate warehouse or other financings for its holdings and (3)
long-term financing vehicles for the Company’s holdings;




     (v) making recommendations to the Company in connection with the purchase and finance
and commitment to purchase and finance investments;




     (vi) with respect to prospective acquisitions by the Company and sales, exchanges or
other dispositions of assets by the Company, serving as the Company’s consultant with
respect to negotiations with real estate brokers, sellers and purchasers and



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their respective agents, representatives and investment bankers and owners of privately
and publicly held real estate companies;




     (vii) advising the Company on portfolio management, asset servicing and loan servicing
matters, including enforcing rights, exercising remedies, granting consents, and taking
other actions in respect of the Company’s holdings;




     (viii) reviewing, analyzing, commenting and making recommendations upon the operating
budgets, capital budgets and leasing plans of properties;




     (ix) advising on the selection and supervision of independent contractors retained by
the Company that provide real estate, investment banking, mortgage brokerage, securities
brokerage, appraisal, engineering, environmental, seismic, insurance, legal, accounting,
transfer agent, registrar, leasing, master servicing, special servicing, due diligence and
such other services as may be necessary or desirable;




     (x) advising on the coordination and operations management of any joint venture or
co-investment interests held by the Company;




     (xi) advising on the maintenance of appropriate information technology services used by
the Company;




     (xii) counseling the Company in connection with policy decisions to be made by the
Board of Directors;




     (xiii) at the Company’s request, furnishing reports and statistical and economic
research to the Company relating to the business and operations of the Company or the
services provided by TREIT hereunder, including but not limited to competitive analyses,
reports on the real estate market or real estate valuations, reports on the REIT market and
any other appropriate reports as agreed to between TREIT and the Company;




     (xiv) advising the Company with respect to the handling and resolution of claims,
disputes or controversies (including litigation, arbitration, settlement or other
proceedings or negotiations) in which the Company may be involved or to which the Company
may be subject arising out of the Company’s day-to-day operations other than with TREIT or
TREIT’s Affiliates;




     (xv) advising on the Company’s marketing and promotional efforts; and




     (xvi) performing such other advisory and consulting services in connection with the
business and operations of the Company as an Independent Committee shall reasonably request.



               (c) TREIT shall make available to the Company sufficient experienced and appropriate
personnel to perform the duties described in Section 2(b) and such personnel shall devote such of
their time and attention as is necessary to perform such services in good faith and in a
commercially reasonable manner.



               (d) Unless otherwise authorized or directed by the Board of Directors, TREIT shall refrain
from any action that, in its sole judgment made in good faith, (i) would adversely affect the
qualification of the Company as a REIT under the Code or the Company’s status as an entity
exempted from investment company status under the Investment Company Act, or (ii) would violate
any law, rule or regulation of any governmental body or agency



6









 







having jurisdiction over the Company or of any exchange on which the securities of the
Company may be listed or that would otherwise not be permitted by the Company’s Governing
Instruments. If TREIT is ordered to take any such action by the Board of Directors, TREIT shall
promptly notify the Board of Directors if it is TREIT’s judgment that such action would adversely
affect such status or violate any such law, rule or regulation or the Governing Instruments.
Notwithstanding the foregoing, TREIT, its directors, officers, stockholders and employees shall
not be liable to the Company, the Board of Directors, or the Company’s stockholders for any act or
omission by TREIT, its directors, officers, stockholders or employees except as provided in
Section 8 of this Agreement.



               (e) The Company (including the Board of Directors) agrees to take all actions reasonably
required to permit and enable TREIT to carry out its duties and obligations under this Agreement.
The Company further agrees to use commercially reasonable efforts to make available to TREIT all
resources, information and materials reasonably requested by TREIT to enable TREIT to satisfy its
obligations hereunder. If TREIT is not able to provide a service, or in the reasonable judgment of
TREIT it is not prudent to provide a service, without the approval of the Board of Directors, as
applicable, then TREIT shall be excused from providing such service (and shall not be in breach of
this Agreement) until the applicable approval has been obtained.



               (f) TREIT shall use commercially reasonable efforts to maintain reasonable and customary
“errors and omissions” insurance coverage with respect to its activities hereunder.



               (g) TREIT acknowledges receipt of the Company’s Code of Business Conduct and Securities
Trading Policy (collectively, the “Conduct Policies”) and agrees to require its employees who
provide services to the Company to comply with such Conduct Policies in the performance of such
services hereunder or such comparable policies as shall in substance hold employees of TREIT to at
least the standards of conduct set forth in the Conduct Policies.



     Section 3. Additional Activities of TREIT. Except as provided in the last sentence of this Section
3 and subject to the provisions of the Conduct Policies and the Conflicts of Interest Policy,
nothing in this Agreement shall (i) prevent TREIT or any of its Affiliates, officers, directors or
employees, from engaging in other businesses or from rendering services of any kind to any other
Person or entity, whether or not the investment objectives or policies of any such other Person or
entity are similar to those of the Company or (ii) in any way bind or restrict TREIT or any of its
Affiliates, officers, directors or employees from buying, selling or trading any securities or
commodities for their own accounts or for the account of others for whom TREIT or any of its
Affiliates, officers, directors or employees may be acting. While information and recommendations
supplied to the Company shall, in TREIT’s reasonable and good faith judgment, be appropriate under
the circumstances and in light of the objectives and policies of the Company, they may be different
from the information and recommendations supplied by TREIT or any Affiliate of TREIT to others. The
Company shall be entitled to equitable treatment under the circumstances in receiving information,
recommendations and any other services, but the Company recognizes that it is not entitled to
receive preferential treatment as compared with the treatment given by TREIT or any Affiliate of
TREIT to others. The Company shall have the benefit of TREIT’s best judgment and effort in
rendering services hereunder and, in furtherance of the foregoing, TREIT shall not undertake
activities that, in its



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good faith judgment, will adversely affect the performance of its obligations under this Agreement.




     Section 4. [Reserved].



     Section 5. Confidentiality. (a) TREIT shall keep confidential any and all non-public information,
written or oral, obtained by it in connection with the services rendered hereunder (“Confidential
Information”) and shall not use Confidential Information except in furtherance of its duties under
this Agreement or disclose Confidential Information, in whole or in part, to any Person other than
(i) to its Affiliates, officers, directors, employees, agents, representatives or advisors who need
to know such Confidential Information for the purpose of rendering services hereunder (and for
other related legal, audit or compliance purposes) (collectively, “TREIT Permitted Disclosure
Parties”), (ii) to governmental officials having jurisdiction over TREIT or any of its Affiliates,
(iii) as requested by law or legal process to which TREIT or any Person to whom disclosure is
permitted hereunder is a party, or (iv) with the consent of the Company. TREIT agrees to inform
each of its TREIT Permitted Disclosure Parties of the non-public nature of the Confidential
Information and to direct such Persons to treat such Confidential Information in accordance with
the terms hereof. Nothing herein shall prevent TREIT from disclosing Confidential Information (i)
upon a subpoena or the order of any court or administrative agency, (ii) upon the request or demand
of any regulatory agency or authority, or pursuant to any law or regulation, (iii) to the extent
reasonably required in connection with the exercise of any remedy hereunder, or (iv) to its legal
counsel or independent auditors; provided, however that with respect to disclosure pursuant to the
order of a court of law, it is agreed that TREIT will, to the extent permitted by law and
practicable under the circumstances, provide the Company with prompt written notice of such order,
request or demand so that the Company, at its sole expense, may seek an appropriate protective
order and/or waive TREIT’s compliance with the provisions of this Agreement. If, failing the entry
of a protective order or the receipt of a waiver hereunder, TREIT is required to disclose
Confidential Information, TREIT may disclose only that portion of such information that its counsel
advises is legally required without liability hereunder; provided, that TREIT agrees to exercise
commercially reasonable efforts to obtain reliable assurance that confidential treatment will be
accorded such information. Notwithstanding anything herein to the contrary, each of the following
shall be deemed to be excluded from provisions hereof: any Confidential Information that (A) is
available to the public from a source other than TREIT in violation of this Agreement, (B) is
released in writing by the Company to the public or to persons who are not under similar obligation
of confidentiality to the Company, or (C) is obtained by TREIT from a third-party without breach by
such third-party of an obligation of confidence with respect to the Confidential Information
disclosed. The provisions of this Section 5(a) shall survive the expiration or earlier termination
of this Agreement for a period of two (2) years.



               (b) The Company shall keep confidential any and all non-public information regarding TREIT,
written or oral, obtained by it in connection with its relationship with TREIT (the “TREIT
Confidential Information”) and shall not use TREIT Confidential Information except in furtherance
of the terms of this Agreement or disclose TREIT Confidential Information, in whole or in part, to
any Person other than (i) to its Affiliates, officers, directors, agents, representatives or
advisors who need to know such TREIT Confidential Information (collectively, “Company Permitted
Disclosure Parties”), (ii) to governmental officials having jurisdiction over the Company or any
of its Affiliates, (iii) as



8









 







requested by law or legal process to which the Company or any Person to whom disclosure is
permitted hereunder is a party, or (iv) with the consent of TREIT. The Company agrees to inform
each of its Company Permitted Disclosure Parties of the non-public nature of the TREIT
Confidential Information and to direct such Persons to treat such TREIT Confidential Information
in accordance with the terms hereof. Nothing herein shall prevent the Company from disclosing
TREIT Confidential Information (i) upon a subpoena or the order of any court or administrative
agency, (ii) upon the request or demand of any regulatory agency or authority, or pursuant to any
law or regulation, (iii) to the extent reasonably required in connection with the exercise of any
remedy hereunder, or (iv) to its legal counsel or independent auditors; provided, however that
with respect to disclosure pursuant to the order of a court of law, it is agreed that the Company
will, to the extent permitted by law and practicable under the circumstances, provide TREIT with
prompt written notice of such order, request or demand so that TREIT may seek, at its sole
expense, an appropriate protective order and/or waive the Company’s compliance with the provisions
of this Agreement. If, failing the entry of a protective order or the receipt of a waiver
hereunder, the Company is required to disclose TREIT Confidential Information, the Company may
disclose only that portion of such information that its counsel advises is legally required
without liability hereunder; provided, that the Company agrees to exercise commercially reasonable
efforts to obtain reliable assurance that confidential treatment will be accorded such
information. Notwithstanding anything herein to the contrary, each of the following shall be
deemed to be excluded from provisions hereof: any TREIT Confidential Information that (A) is
available to the public from a source other than the Company in violation of this Agreement, (B)
is released in writing by TREIT to the public or to persons who are not under similar obligation
of confidentiality to TREIT, or (C) is obtained by the Company from a third-party without breach
by such third-party of an obligation of confidence with respect to the TREIT Confidential
Information disclosed. For the avoidance of doubt, information about the systems, employees,
policies, procedures and investment portfolio (other than investments in which the Company and
TREIT (or its Affiliates) have co-invested) of TREIT and its Affiliates shall be deemed to be
included within the meaning of “TREIT Confidential Information” for purposes of the Company’s
obligations pursuant to this Section 5(b). The provisions of this Section 5(b) shall survive the
expiration or earlier termination of this Agreement for a period of two (2) years.



     Section 6. Compensation. (a) For the services rendered under this Agreement, the Company shall
pay to TREIT the Base Services Fee and the Incentive Fee.



               (b) The parties acknowledge that the Base Services Fee is intended to compensate TREIT for
the costs and expenses of executive officers and employees of TREIT and overhead expenses of TREIT
incurred in providing to the Company the services rendered pursuant to this Agreement.



               (c) TREIT will not receive any compensation for the period prior to the Effective Date other
than expenses incurred and reimbursed pursuant to the provisions of Section 7 hereunder and other
than any Incentive Fee for the quarter ended December 31, 2010 payable under Section 6(a) hereof.



               (d) The Base Services Fee shall be payable monthly in arrears in cash, and shall be
calculated based on the average of (i) Equity at the beginning of the quarter and (ii)



9









 







Equity at the end of the quarter net of the cash proceeds of Equity Offerings, if any,
consummated in such quarter.



               (e) Prior to the completion of the relevant quarter end, the Company shall calculate the Base
Services Fee for each month in such quarter based solely on the Equity at the beginning of the
quarter. Following the completion of such quarter, the Company shall re-calculate the Base
Services Fee for each month in such quarter in accordance with Section 6(d) above and the next
payment of Base Services Fee made to TREIT hereunder shall be adjusted upward by the amount of any
additional Base Services Fee payable with respect to such quarter in accordance with Section 6(d)
or downward by the amount of any overpayment of Base Services Fees with respect to such quarter.
The Company shall calculate each payment of Base Services Fee as provided above and deliver such
calculation to TREIT along with payment therefor (each such payment, a “Services Fee Payment”),
within fifteen (15) days following the last day of each calendar month. The Company shall provide
to the Board of Directors each quarter a record of all Services Fee Payments made or to be made to
TREIT with respect to such quarter, including adjustments thereto, and the related computations.



               (f) If, during any given quarter, the Company consummates an Equity Offering, the Company
shall pay to TREIT, along with the Services Fee Payment with respect to the first month of the
following quarter, an amount equal to the net cash proceeds received by the Company as a result of
such Equity Offering multiplied by a fraction, the numerator of which is the number of days
remaining in such quarter after the date on which the Equity Offering is consummated and the
denominator of which is the total number of days in such quarter, multiplied by one-quarter of
0.5%, as additional Base Services Fee for such quarter.



               (g) With respect to the first, second and third quarters of any given year, the Company shall
compute each payment of the Incentive Fee within forty five (45) days after the end of the
calendar quarter with respect to which such Incentive Fee is payable and with respect to the
fourth quarter of any given year, the Company shall compute the Incentive Fee within ninety (90)
days after the end of such quarter. A copy of the computations made by the Company to calculate
such payment shall be delivered to the Board of Directors along with the applicable financial
statements, and the Incentive Fee shall be due and payable within two (2) Business Days after the
Board of Directors meeting at which such financial statements are reviewed.



               (h) Twenty percent (20%) (or more, upon TREIT’s request, and subject to approval of an
Independent Committee) of the Incentive Fee (subject to restrictions under securities laws and the
NYSE (or such other securities exchange on which the shares of Common Stock are listed) and to the
remaining provisions of this Section 6(h) and the provisions of Sections 6(i) and 6(j)) shall be
paid in shares of Common Stock and the remainder thereof shall be paid in cash. TREIT’s receipt
of shares of Common Stock in accordance herewith shall be subject to all applicable securities
exchange rules and securities laws (including prohibitions on insider trading). All shares of
Common Stock paid to TREIT as Incentive Fee will be fully vested upon issuance; provided, that
TREIT agrees not to sell such shares of Common Stock for a period of one (1) year from the last
day of the calendar quarter for which the Incentive Fee being paid in Common Stock was earned
(such agreement not to sell, the “Lock-Up Restriction”). Notwithstanding the Lock-Up Restriction
and subject to compliance with all applicable securities laws (including prohibitions on insider
trading), TREIT shall have the right to allocate such shares in its sole and absolute discretion
to its



10









 







officers, employees and other individuals who provide services to it at any time. In
addition, the Lock-Up Restriction shall terminate upon termination or non-renewal of this
Agreement.



               (i) Shares of Common Stock payable as a portion of the Incentive Fee shall be valued as
follows:




     (i) if such shares are traded on a securities exchange, the value shall be deemed to be
the closing price of the shares on such exchange on the Business Day prior to the issuance
of such shares;




     (ii) if such shares are actively traded over-the-counter, the value shall be deemed to
be the last reported sales price on the Business Day prior to the issuance of such shares,
unless such shares did not trade on the specified Business Day in which case the value shall
be deemed to be the average of the last reported bid and ask prices on such day; and




     (iii) if there is no active public market for such shares as determined by the Board of
Directors (including a majority of the Independent Directors) in its sole discretion, the
value shall be the fair market value thereof, as reasonably determined in good faith by the
Board of Directors (including a majority of the Independent Directors) of the Company.



               (j) If at any time TREIT shall, in connection with a determination of fair market value made
by the Board of Directors, (i) dispute such determination in good faith by more than five percent
(5%), and (ii) such dispute cannot be resolved between the Independent Directors and TREIT within
ten (10) Business Days after TREIT provides written notice to the Company of such dispute (the
“Valuation Notice”), then the matter shall be resolved by an independent appraiser of recognized
standing selected jointly by the Independent Directors and TREIT within not more than twenty (20)
days after the Valuation Notice. In the event the Independent Directors and TREIT cannot agree
with respect to such selection within the aforesaid twenty (20) day time-frame, the Independent
Directors shall select one such independent appraiser and TREIT shall select one independent
appraiser within five (5) Business Days after the expiration of the twenty (20) day period, with
one additional such appraiser (the “Last Appraiser”) to be selected by the appraisers so
designated within five (5) Business Days after their selection. Any valuation decision made by
the Last Appraiser shall be deemed final and binding upon the Board of Directors and TREIT and
shall be delivered to TREIT and the Company within not more than fifteen (15) days after the
selection of the Last Appraiser. The expenses of the appraisal shall be paid by the party with
the estimate which deviated the furthest from the final valuation decision made by the appraisers.



               (k) Officers and directors of TREIT shall receive no additional compensation from the Company
for services rendered pursuant to this Agreement, other than equity compensation awards granted to
such officers or employees by the CNG Committee pursuant to equity incentive plans approved by the
Company’s shareholders.



11









 





     Section 7. Expenses of the Company. (a) TREIT shall be responsible for all of the overhead
expenses of TREIT necessary to perform the services required to be performed pursuant to this
Agreement and all of the employment expenses of employees of TREIT, including salaries, bonus and
other wages, payroll taxes and the cost of employee benefit plans of such personnel.



               (b) The Company shall pay all of its own costs and expenses incurred in connection with the
business and operations of the Company. Without limiting the generality of the foregoing, it is
specifically agreed that, for the avoidance of doubt, the following costs and expenses shall be
expenses of the Company or its Subsidiaries and shall be paid by the Company and not by TREIT:




     (i) all costs and expenses associated with the capital raising activities of the
Company and its Subsidiaries, if any, including the costs and expenses of the preparation of
the Company’s registration statements, any and all costs and expenses of any equity
offerings and any filing fees and costs of maintaining the Company’s status as a public
company, including filings with the SEC, the National Association of Securities Dealers,
Inc. and the NYSE (and any other exchange or over-the-counter market), among other such
entities;




     (ii) all costs and expenses in connection with the acquisition, disposition,
development, protection, maintenance, financing, hedging, administration and ownership of
the Company’s or any Subsidiary’s investment assets, including costs and expenses incurred
in contracting with third parties to provide such services, such as legal fees, accounting
fees, consulting fees, trustee fees, appraisal fees, insurance premiums, commitment fees,
brokerage fees, guaranty fees, ad valorem taxes, costs of foreclosure, maintenance, repair
and improvement of property and premiums for insurance on property owned or leased by the
Company or any Subsidiary;




     (iii) all legal, audit, accounting, consulting, underwriting, brokerage, listing,
filing, custodian, transfer agent, rating agency, registration and other fees and charges,
printing, engraving and other expenses and taxes incurred in connection with the issuance,
distribution, transfer, registration and stock exchange listing of the Company’s or any
Subsidiary’s equity securities or debt securities;




     (iv) all costs and expenses in connection with legal, accounting, due diligence, asset
management, securitization, property management, leasing and other services that outside
professionals or outside consultants perform on behalf of the Company;




     (v) all expenses relating to communications to holders of equity securities or debt
securities issued by the Company or any Subsidiary and the other third party services
utilized in maintaining relations with holders of such securities and in complying with the
continuous reporting and other requirements of governmental bodies or agencies (including
the SEC), including any costs of computer services in connection with this function, the
cost of printing and mailing certificates for such securities and proxy solicitation
materials and reports to holders of the Company’s or any Subsidiary’s securities and the
cost of any reports to third parties required under any indenture to which the Company or
any Subsidiary is a party;



12









 






     (vi) all costs and expenses of money borrowed by the Company or its Subsidiaries, if
any, including principal, interest and the costs associated with the establishment and
maintenance of any credit facilities, warehouse loans, repurchase facilities and other
indebtedness of the Company and its Subsidiaries, if any (including commitment fees, legal
fees, closing and other costs);




     (vii) all taxes and license fees applicable to the Company or any Subsidiary, including
interest and penalties thereon;




     (viii) all fees paid to and expenses of third-party advisors and independent
contractors, consultants, managers and other agents engaged by the Company or any
Subsidiary;




     (ix) all insurance costs incurred by the Company or any Subsidiary, including any costs
to obtain liability or other insurance to indemnify TREIT and underwriters of any securities
of the Company;




     (x) all costs and expenses relating to the acquisition of, and maintenance and upgrades
to, the Company’s portfolio accounting systems;




     (xi) all compensation, fees and expenses of directors of the Company or any Subsidiary
required to be paid by the Company under the Company’s director compensation policy, the
cost of directors and officers liability insurance and any other insurance deemed necessary
or advisable by the Board of Directors for the benefit of the Company and its directors and
officers (including those directors who are also employees of TREIT);




     (xii) all third-party legal, accounting and auditing fees and expenses and other
similar services relating to the Company’s or any Subsidiary’s operations (including all
quarterly and annual audit or tax fees and expenses);




     (xiii) subject to Section 8 below, all third-party legal, expert and other fees and
expenses relating to any actions, proceedings, lawsuits, demands, causes of action and
claims, whether actual or threatened, made by or against the Company, or which the Company
is authorized or obligated to pay under applicable law or its Governing Instruments or by
the Board of Directors;




     (xiv) subject to Section 8 below, any judgment or settlement of pending or threatened
proceedings (whether civil, criminal or otherwise) against the Company or any Subsidiary, or
against any director or officer of the Company or any Subsidiary in his capacity as such for
which the Company or any Subsidiary is required to indemnify such director or officer by any
court or governmental agency, or settlement of pending or threatened proceedings;




     (xv) all travel and related expenses of the Company’s officers and TREIT’s employees
incurred in connection with attending meetings of the Board of Directors or holders of
securities of the Company or any Subsidiary or performing other business activities, at the
Company’s request, that relate to the Company or any Subsidiary, including travel and
expenses incurred in connection with the purchase, consideration for purchase, financing,
refinancing, sale or other disposition of any asset or potential asset of the Company;
provided, however, that if any such expenses are incurred for the benefit of both the
Company and TREIT and its Affiliates, the Company shall only be



13









 







responsible for its proportionate share of such expenses, as determined by the Company
in good faith;




     (xvi) all expenses of organizing, modifying or dissolving the Company or any Subsidiary
and costs preparatory to entering into a business or activity, or of winding up or disposing
of a business activity of the Company or its Subsidiaries, if any;




     (xvii) all expenses relating to payments of dividends or interest or distributions in
cash or any other form made or caused to be made by the Board of Directors to or on account
of holders of the securities of the Company or any Subsidiary, including in connection with
any dividend reinvestment plan;




     (xviii) all costs and expenses related to the design and maintenance of the Company’s
web site or sites and associated with any computer software, hardware or information
technology services of the Company’s;




     (xix) costs and expenses incurred with respect to market information systems and
publications, research publications and materials, and settlement, clearing and custodial
fees and expenses; provided, however, that if any such expenses are incurred for the benefit
of both the Company and TREIT and its Affiliates, the Company shall only be responsible for
its proportionate share of such expenses, as determined by the Company in good faith;




     (xx) all expenses incurred on behalf of the Company in connection with servicing
problem or delinquent loans, or special servicing;




     (xxi) the costs and expenses incurred with respect to administering the Company’s
incentive plans;




     (xxii) rent (including disaster recovery facilities costs and expenses), telephone,
utilities, office furniture, equipment, machinery and other office, internal and overhead
expenses of the Company and its Subsidiaries; provided, however, that if any such expenses
are incurred for the benefit of both the Company and TREIT and its Affiliates (other than
rent for the Company’s New York City offices, which up to four (4) employees of TREIT who
are providing services to the Company, or a higher number of employees of TREIT upon
approval of the Company’s Chief Executive Officer if there is space that is not being used
by the Company’s employees or as approved by an Independent Committee, may utilize from time
to time without allocation of a portion of such rent), the Company shall only be responsible
for its proportionate share of such expenses, as determined by the Company in good faith;
and




     (xxiii) all other expenses of the Company or any Subsidiary relating to the Company’s
business and operations, including the costs and expenses of acquiring, owning, protecting,
maintaining, developing and disposing of assets.



               (c) An Independent Committee shall, on a quarterly basis, review and approve the allocation
of shared expenses between the Company and TREIT pursuant to Subsections 7(b)(xv), 7(b)(xix) and
7(b)(xxii) above and the Company’s cost and expense reimbursement to TREIT shall be subject to
adjustment at the end of each calendar quarter as a result of such review.



14









 





     Section 8. Limits of TREIT’s Responsibility. (a) TREIT assumes no responsibility under this
Agreement other than to render the services called for hereunder in good faith and shall not be
responsible for any action of the Board of Directors in following or declining to follow any advice
or recommendations of TREIT, including as set forth in the Conflicts of Interest Policy. TREIT and
its Affiliates, and the directors, officers, employees and stockholders of TREIT and its
Affiliates, will not be liable to the Company, any Subsidiary of the Company, the Board of
Directors, or the Company’s stockholders for any acts or omissions by TREIT, its officers,
employees or its Affiliates, performed in accordance with and pursuant to this Agreement, except by
reason of acts constituting bad faith, willful misconduct, gross negligence or reckless disregard
of their respective duties under this Agreement. The Company shall, to the full extent lawful,
reimburse, indemnify and hold harmless TREIT, its Affiliates, and the directors, officers,
employees and stockholders of TREIT and its Affiliates (each, a “TREIT Indemnified Party”), of and
from any and all expenses, losses, damages, liabilities, demands, charges and claims of any nature
whatsoever (including reasonable attorneys’ fees) (collectively “Losses”), in respect of or arising
from any acts or omissions of such TREIT Indemnified Party performed in good faith under this
Agreement and, in respect of any such TREIT Indemnified Party, not constituting bad faith, willful
misconduct, gross negligence or reckless disregard of duties of such TREIT Indemnified Party under
this Agreement.



               (b) TREIT shall, to the full extent lawful, reimburse, indemnify and hold harmless the
Company, and the directors, officers and stockholders of the Company and each Person, if any,
controlling the Company (each, a “Company Indemnified Party”; a TREIT Indemnified Party and a
Company Indemnified Party are each sometimes hereinafter referred to as an “Indemnified Party”) of
and from any and all Losses in respect of or arising from (i) any acts or omissions of any TREIT
Indemnified Party constituting bad faith, willful misconduct, gross negligence or reckless
disregard of the duties of TREIT under this Agreement or (ii) any claims by employees of TREIT or
its Affiliates relating to the terms and conditions of their employment by TREIT or its
Affiliates.



               (c) In case any such claim, suit, action or proceeding (a “Claim”) is brought against any
Indemnified Party in respect of which indemnification may be sought by such Indemnified Party
pursuant hereto, the Indemnified Party shall give prompt written notice thereof to the
indemnifying party, which notice shall include all documents and information in the possession of
or under the control of such Indemnified Party reasonably necessary for the evaluation and/or
defense of such Claim and shall specifically state that indemnification for such Claim is being
sought under this Section; provided, however, that the failure of the Indemnified Party to so
notify the indemnifying party shall not limit or affect such Indemnified Party’s rights to be
indemnified pursuant to this Section except to the extent the indemnifying party is actually
prejudiced thereby. Upon receipt of such notice of Claim (together with such documents and
information from such Indemnified Party), the indemnifying party shall, at its sole cost and
expense, in good faith defend any such Claim with counsel reasonably satisfactory to such
Indemnified Party, which counsel may, without limiting the rights of such Indemnified Party
pursuant to the next succeeding sentence of this Section, also represent the indemnifying party in
such investigation, action or proceeding. In the alternative, such Indemnified Party may elect to
conduct the defense of the Claim, if (i) such Indemnified Party reasonably determines that the
conduct of its defense by the indemnifying party could be materially prejudicial to its interests,
(ii) the indemnifying party refuses to defend (or fails to



15









 







give written notice to the Indemnified Party within ten (10) days of receipt of a notice of
Claim that the indemnifying party assumes such defense), or (iii) the indemnifying party shall
have failed, in such Indemnified Party’s reasonable judgment, to defend the Claim in good faith.
The indemnifying party may settle any Claim against such Indemnified Party without such
Indemnified Party’s consent, provided (i) such settlement is without any Losses whatsoever to such
Indemnified Party, (ii) the settlement does not include or require any admission of liability or
culpability by such Indemnified Party and (iii) the indemnifying party obtains an effective
written release of liability for such Indemnified Party from the party to the Claim with whom such
settlement is being made, which release must be reasonably acceptable to such Indemnified Party,
and a dismissal with prejudice with respect to all claims made by the party against such
Indemnified Party in connection with such Claim. The applicable Indemnified Party shall
reasonably cooperate with the indemnifying party, at the indemnifying party’s sole cost and
expense, in connection with the defense or settlement of any Claim in accordance with the terms
hereof. If such Indemnified Party is entitled pursuant to this Section to elect to defend such
Claim by counsel of its own choosing and so elects, then the indemnifying party shall be
responsible for any good faith settlement of such Claim entered into by such Indemnified Party.
Except as provided in the immediately preceding sentence, no Indemnified Party may pay or settle
any Claim and seek reimbursement therefor under this Section.



               (d) The provisions of this Section 8 shall survive the expiration or earlier termination of
this Agreement.



     Section 9. No Joint Venture. The Company and TREIT are not partners or joint venturers with each
other and nothing herein shall be construed to make them such partners or joint venturers or impose
any liability as such on either of them.



     Section 10. Term; Renewal.



               (a) Initial Term. This Agreement shall become effective on the Effective Date and shall
continue in operation, unless terminated in accordance with the terms hereof, until December 31,
2013 (the “Initial Term”).



               (b) Automatic Renewal Terms. After the Initial Term, this Agreement shall be deemed renewed
automatically each year for an additional one-year period (an “Automatic Renewal Term”) unless the
Company or TREIT elects not to renew this Agreement in accordance with this Section 10.



               (c) Nonrenewal of TREIT. Notwithstanding any other provision of this Agreement to the
contrary, the Company may, in connection with the expiration of the Initial Term or any Automatic
Renewal Term, decline to renew this Agreement upon the vote of at least a majority of the
Independent Directors. If the Company elects not to renew this Agreement at the expiration of the
Initial Term or any Automatic Renewal Term, the Company shall deliver to TREIT prior written
notice (the “Termination Notice”) of the Company’s intention not to renew this Agreement based
upon the terms set forth in this Section 10(c) not less than one hundred eighty (180) days prior
to the expiration of the then existing term. If the Company so elects not to renew this
Agreement, TREIT shall cease to provide services under this Agreement and this Agreement shall
expire at the end of the then existing term (the “Effective Termination Date”). If the Company
issues the Termination Notice, the Company shall be obligated to pay TREIT the Termination Fee
within ninety (90) days after the



16









 







Effective Termination Date. Notwithstanding the foregoing, if the Termination Notice
specifies that the reason for termination arises from a decision made by a majority vote of the
Independent Directors that the compensation payable to TREIT is unfair, TREIT shall have the right
to renegotiate the compensation payable to TREIT under this Agreement by delivering to the
Company, not less than one hundred twenty (120) days prior to the pending Effective Termination
Date, written notice (a “Notice of Proposal to Negotiate”) of its intention to renegotiate the
compensation payable to TREIT under this Agreement. Thereupon, the Company (represented by the
Independent Directors) and TREIT shall endeavor to negotiate the compensation payable to TREIT
under this Agreement in good faith. Provided that the Company and TREIT agree to the revised
compensation payable to TREIT within sixty (60) days following the Company’s receipt of the Notice
of Proposal to Negotiate, the Termination Notice from the Company shall be deemed of no force and
effect, and this Agreement shall continue in full force and effect on the terms stated herein,
except that the compensation payable to TREIT under this Agreement shall be the revised
compensation structure then agreed upon by the Company and TREIT. The Company and TREIT agree to
execute and deliver an amendment to this Agreement setting forth such revised compensation
structure promptly upon reaching an agreement regarding same. In the event that the Company and
TREIT are unable to agree to a revised compensation structure during such sixty (60) day period,
this Agreement shall expire on the Effective Termination Date and the Company shall be obligated
to pay TREIT the Termination Fee within ninety (90) days of the Effective Termination Date.



               (d) No later than one hundred eighty (180) days prior to the expiration of the Initial Term
or any Renewal Term, TREIT may deliver written notice to the Company informing it of TREIT’s
intention to decline to renew this Agreement, whereupon this Agreement shall not be renewed and
extended and this Agreement shall expire effective upon expiration of the then current term. In
the event that TREIT declines to renew this Agreement, no Termination Fee shall be paid.



               (e) In the event of expiration or nonrenewal of this Agreement pursuant to this Section 10,
the parties shall be without any further liability or obligation to each other, except as provided
in Section 13 of this Agreement and except for such obligations as expressly survive the
expiration or termination of this Agreement.



17









 





     Section 11. Assignments. (a) This Agreement shall terminate automatically without
payment of the Termination Fee in the event of its assignment, in whole or in part, by TREIT,
unless such assignment is consented to in writing by the Company with the consent of a majority of
the Independent Directors. Any such permitted assignment shall bind the assignee under this
Agreement in the same manner as TREIT is bound. In addition, the assignee shall execute and
deliver to the Company a counterpart of this Agreement substituting such assignee for TREIT for
all purposes of this Agreement. Notwithstanding the foregoing, TREIT may (i) assign this Agreement
to an Affiliate of TREIT that is a successor to TREIT by reason of a restructuring or other
internal reorganization among TREIT and any one or more of its Affiliates without the consent of a
majority of the Independent Directors and (ii) delegate to one or more of its Affiliates the
performance of any of its responsibilities hereunder, the costs of which shall be borne by TREIT,
so long as it remains liable for any such Affiliate’s performance, to the extent set forth in this
Agreement. Nothing contained in this Agreement shall preclude any pledge, hypothecation or other
transfer of any amounts payable to TREIT under this Agreement.



               (b) The Company shall not assign this Agreement, in whole or in part, unless such assignment
is consented to in writing by TREIT. Any such permitted assignment shall bind the assignee under
this Agreement in the same manner as the Company is bound. In addition, the assignee shall
execute and deliver to TREIT a counterpart of this Agreement.



     Section 12. Termination of TREIT for Cause. At the option of the Company and at any time during
the term of this Agreement, this Agreement shall be and become terminated upon sixty (60) days’
written notice of termination from the Company (by action of a majority of the Independent
Directors) to TREIT, without payment of the Termination Fee, if any of the following events shall
occur, which shall be determined in good faith by such majority of Independent Directors:




     (i) TREIT shall commit any act of fraud, misappropriation of funds, or embezzlement
against the Company in its corporate capacity or shall be grossly negligent in the
performance of its duties under this Agreement (including such action or inaction by TREIT
which materially impairs the Company’s ability to conduct its business);




     (ii) TREIT shall commit a material breach of any provision of this Agreement (including
the failure by TREIT to use commercially reasonable efforts to comply with the Company’s
Conflicts of Interest Policy); provided, that such breach has continued uncured for a period
of sixty (60) days after written notice thereof, which notice shall contain a request that
the same be remedied;




     (iii) Any one of: (A) TREIT shall commence any case, proceeding or other action (1)
under any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts or (2) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or TREIT shall make a general assignment for the benefit of
its creditors; (B) there shall be commenced against TREIT any case, proceeding or other
action of a nature referred to in clause (A) above which (1) results in



18









 







the entry of an order for relief or any such adjudication or appointment or (2) remains
undismissed, undischarged or unbonded for a period of ninety (90) days; (C) TREIT shall take
any action in furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (A) or (B) above; or (D) TREIT shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its debts as they become
due;




     (iv) upon the conviction (including a plea of nolo contendere) of TREIT of a felony or
the entry of any order or consent decree by any state or federal regulatory agency or
authority, or the settlement by TREIT with any such regulatory agency or authority, whether
or not such order, consent decree or settlement involves the admission or denial of
liability, with respect to or arising out of any regulatory proceeding where the subject
matter of the regulatory proceeding involves conduct of TREIT in the course of conducting
its business as contemplated by this Agreement; or




     (v) upon the dissolution of TREIT.


If any of the events specified above shall occur, TREIT shall give prompt written notice thereof to
the Board of Directors.




     Section 13. Action Upon Termination. From and after the effective date of expiration or
termination of this Agreement pursuant to Sections 10, 11, or 12 of this Agreement, TREIT shall not
be entitled to compensation for further services hereunder, but shall be paid all compensation
accruing to the date of termination and, if this Agreement is not renewed pursuant to Section 10,
the Termination Fee. Upon any such termination, TREIT shall forthwith:



               (a) calculate and submit to the Company any accrued compensation and reimbursement for its
expenses to which it is then entitled; and



               (b) deliver to the Board of Directors any property and documents of the Company and any
Subsidiaries then in the custody of TREIT.



     Section 14. [Reserved]



     Section 15. Representations and Warranties. (a) The Company hereby represents and warrants to
TREIT as follows:




     (i) The Company is duly organized, validly existing and in good standing under the laws
of Maryland, has the corporate power and authority and the legal right to own and operate
its assets, to lease any property it may operate as lessee and to conduct the business in
which it is now engaged and is duly qualified as a foreign corporation and in good standing
under the laws of each jurisdiction where its ownership or lease of property or the conduct
of its business requires such qualification, except for failures to be so qualified,
authorized or licensed that could not in the aggregate have a material adverse effect on the
business operations, assets or financial condition of the Company and its Subsidiaries, if
any, taken as a whole.




     (ii) The Company has the corporate power and authority and the legal right to make,
deliver and perform this Agreement and all obligations required hereunder and has taken all
necessary corporate action to authorize this Agreement on the terms and



19









 







conditions hereof and the execution, delivery and performance of this Agreement and all
obligations required hereunder. No consent of any other Person, including stockholders and
creditors of the Company, and no license, permit, approval or authorization of, exemption
by, notice or report to, or registration, filing or declaration with, any governmental
authority, is required by the Company in connection with this Agreement or the execution,
delivery, performance, validity or enforceability of this Agreement and all obligations
required hereunder. This Agreement has been, and each instrument or document required
hereunder will be, executed and delivered by a duly authorized officer of the Company, and
this Agreement constitutes, and each instrument or document required hereunder when executed
and delivered hereunder will constitute, the legally valid and binding obligation of the
Company enforceable against the Company in accordance with its terms.




     (iii) The execution, delivery and performance of this Agreement and the documents or
instruments required hereunder will not violate any provision of any existing law or
regulation binding on the Company, or any order, judgment, award or decree of any court,
arbitrator or governmental authority binding on the Company, or the Governing Instruments
of, or any securities issued by the Company or of any mortgage, indenture, lease, contract
or other agreement, instrument or undertaking to which the Company is a party or by which
the Company or any of its assets may be bound, the violation of which would have a material
adverse effect on the business operations, assets or financial condition of the Company and
its Subsidiaries, if any, taken as a whole, and will not result in, or require, the creation
or imposition of any lien on any of its property, assets or revenues pursuant to the
provisions of any such mortgage, indenture, lease, contract or other agreement, instrument
or undertaking.



               (b) TREIT hereby represents and warrants to the Company as follows:




     (i) TREIT is duly organized, validly existing and in good standing under the laws of
Delaware, has the corporate power and authority and the legal right to own and operate its
assets, to conduct the business in which it is now engaged and is duly qualified as a
foreign corporation and in good standing under the laws of each jurisdiction where the
conduct of its business requires such qualification, except for failures to be so qualified,
authorized or licensed that could not in the aggregate have a material adverse effect on the
business operations, assets or financial condition of TREIT.




     (ii) TREIT has the corporate power and authority and the legal right to make, deliver
and perform this Agreement and all obligations required hereunder and has taken all
necessary corporate action to authorize this Agreement on the terms and conditions hereof
and the execution, delivery and performance of this Agreement and all obligations required
hereunder. No consent of any other Person, including members and creditors of TREIT, and no
license, permit, approval or authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental authority, is required by TREIT
in connection with this Agreement or the execution, delivery, performance, validity or
enforceability of this Agreement and all obligations required hereunder. This Agreement has
been, and each instrument or document required hereunder will be, executed and delivered by
a duly authorized officer of TREIT, and this Agreement constitutes, and each instrument or
document required hereunder when



20









 







executed and delivered hereunder will constitute, the legally valid and binding
obligation of TREIT enforceable against TREIT in accordance with its terms.




     (iii) The execution, delivery and performance of this Agreement and the documents or
instruments required hereunder will not violate any provision of any existing law or
regulation binding on TREIT, or any order, judgment, award or decree of any court,
arbitrator or governmental authority binding on TREIT, or the Governing Instruments of, or
any securities issued by TREIT or of any agreement, instrument or undertaking to which TREIT
is a party or by which TREIT or any of its assets may be bound, the violation of which would
have a material adverse effect on the business operations, assets or financial condition of
TREIT, and will not result in, or require, the creation or imposition of any lien on any of
its property, assets or revenues pursuant to the provisions of any such agreement,
instrument or undertaking.



     Section 16. Miscellaneous. (a) Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by telecopy), and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered
against receipt or upon actual receipt of (i) personal delivery, (ii) delivery by reputable
overnight courier, (iii) delivery by facsimile transmission with telephonic confirmation or (iv)
delivery by registered or certified mail, postage prepaid, return receipt requested, addressed as
set forth below (or to such other address as may be hereafter notified by the respective parties
hereto in accordance with this Section 16):



	 	 	 

	The Company:

	 	Care Investment Trust Inc.
	 

	 	780 Third Avenue, 21st Floor
	 

	 	New York, New York 10017
	 

	 	Attention: Chief Executive Officer
	 
	 	 
	with a copy to:

	 	Care Investment Trust Inc.
	 

	 	780 Third Avenue, 21st Floor
	 

	 	New York, New York 10017
	 

	 	Attention: Counsel
	 
	 	 
	TREIT:

	 	TREIT Management LLC
	 

	 	780 Third Avenue, 21st Floor
	 

	 	New York, New York 10017
	 

	 	Attention: President
	 
	 	 
	with a copy to:

	 	TREIT Management LLC
	 

	 	780 Third Avenue, 29th Floor
	 

	 	New York, New York 10017
	 

	 	Attention: General Counsel






               (b) Binding Nature of Agreement; Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns as provided herein.



21









 





               (c) No Third Party Beneficiaries. This Agreement is not intended to confer upon any person
other than the parties hereto any rights or remedies.



               (d) Integration. 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.



               (e) Amendments. Neither this Agreement nor any terms hereof may be amended, supplemented,
modified or waived except in an instrument in writing executed by the parties hereto, which shall
be approved by a majority of the Independent Directors.



               (F) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE
UNITED STATES DISTRICT COURT FOR ANY DISTRICT WITHIN SUCH STATE FOR THE PURPOSE OF ANY ACTION OR
JUDGMENT RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY AND TO THE LAYING OF VENUE IN SUCH COURT.



               (g) WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND,
THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY
ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.



               (h) Survival of Representations and Warranties. All representations and warranties made
hereunder, and in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement.



               (i) No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on
the part of a party hereto, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.



22









 





               (j) Section Headings. The section and subsection headings in this Agreement are for
convenience in reference only and shall not be deemed to alter or affect the interpretation of any
provisions hereof.



               (k) Counterparts. This Agreement may be executed by the parties to this Agreement on any
number of separate counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.



               (l) Severability. Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.



          IN WITNESS WHEREOF, each of the parties hereto have executed this Agreement as of the date
first written above.




	 	 	 	 	 
	 	CARE INVESTMENT TRUST INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TREIT MANAGEMENT LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




23









 





Exhibit A




Conflicts of Interest Policy




          Capitalized terms used but not defined herein shall have the meanings ascribed thereto in that
certain Services Agreement, dated as of November 4, 2010, as may be amended from time to time (the
“Services Agreement”), by and between Care Investment Trust Inc. (the “Company”) and TREIT
Management LLC (“TREIT”). For purposes of this Conflicts of Interest Policy, the term “Commercial
Healthcare Facilities” shall mean commercial real properties used primarily for the provision of
healthcare, geriatric and related services, including without limitation, senior living,
independent living, assisting living, skilled nursing, hospice and palliative care, physical
therapy, drug rehabilitation and Alzheimer’s facilities, medical office buildings, hospitals,
surgery centers and similar facilities.




          Special Provisions Relating to Allocation of Opportunities, Co-Investments and Certain Shared
Services:




          1. The Company shall have the first right to invest in all assets originated by or presented
to TREIT (but not, for the avoidance of doubt, an asset originated by or presented to an Affiliate
of TREIT) with one or more of the following characteristics (other than any asset that constitutes
a tax-exempt obligation or underlies a tax-exempt bond or taxable municipal bond), regardless of
how such asset is originated or otherwise identified by TREIT unless otherwise specified below:




          (a) any mortgage loan or participation interest therein secured by one or more mortgages or
deeds of trust on one or more Commercial Healthcare Facilities, with a total principal amount, or
total principal amount of participation interest, over $25 million;




          (b) any investment opportunity which constitutes equity or preferred equity in an entity where
a majority of the assets held by such entity are Commercial Healthcare Facilities, or in an entity
of which at least a majority of its income is derived from the management or servicing of
Commercial Healthcare Facilities, and;




          (c) any investment opportunity which constitutes mezzanine loans or B Notes that are directly
or indirectly secured by one or more mortgages or deeds of trust on one or more Commercial
Healthcare Facilities.




          2. The Company shall also have the right to invest in any other mortgage or real estate
related asset involving a Commercial Healthcare Facility that TREIT elects not to invest in for any
reason, including failure to satisfy TREIT’s investment criteria or concentration issues.




          3. The Company shall not purchase from, or co-invest (i.e., co-originate or co-purchase from
an unaffiliated third party) with, TREIT or its Affiliates unless either (i) the economic terms
(excluding any administrative fees payable to TREIT or its Affiliates as agent) shall be at least
as favorable to the Company as to TREIT and its Affiliates, or (ii) the Company’s investment has
been approved by a majority of the Independent Directors or a committee comprised solely of
Independent Directors.




          4. In the event that (i) the Company shall invest in a loan (or portion of a loan) that is
secured (directly or indirectly) by the same underlying real estate asset that secures a






 









 







loan (or tranche or other portion of a loan) of a different priority held by TREIT or (ii)
TREIT or the Company holds an interest (whether a debt, equity, participation or other interest) in
a real estate asset in which the other party hereto also has an interest and the Company and TREIT
have differing economic interests with respect to such assets (each such loan, loan tranche or
other loan portion, or equity or other interest being a “ Tranche”), then upon the occurrence of
(i) a material default in respect of the Tranche in which the Company holds an interest (the
“Company’s Tranche”) or (ii) any request to amend, modify or waive any material term of the
Company’s Tranche in order to avoid a pending material default, TREIT shall advise an Independent
Committee of the potential conflict of interest so that such Independent Committee may take
whatever action on behalf of the Company that such Independent Committee deems advisable (such as
retaining a reputable independent third party special servicer or adviser to advise the Company or
the Board of Directors with respect to all material rights, remedies, enforcement actions,
amendments and requests for waivers or consents in respect of the Company’s Tranche).




          5. The legal department of TREIT may provide legal services to the Company, such as advice as
to corporate governance matters, regulatory requirements, tax matters, litigation matters and other
matters as the Company may from time to time reasonably request, and in the provision of such legal
services the Company, its officers and directors shall, to the extent permitted by applicable law,
be entitled to all attorney-client privileges available under applicable law and all fiduciary
obligations owed by attorneys to their clients under applicable law. Notwithstanding the
foregoing, in order to mitigate possible conflicts of interest, the Company shall retain separate
external counsel and shall not be advised by the legal department of TREIT with respect to (a) any
disputes between TREIT and Company arising under this Agreement or any other agreement between
TREIT and Company, (b) any transaction of the kind described in Section 3 or Section 4 of this
Conflicts of Interest Policy, (c) any matter that a majority of the Independent Directors
identifies as a situation where the dual representation of the Company and TREIT presents an actual
or apparent conflict of interest; or (d) at the option of Company or any Independent Director, any
other matter.




          This Conflicts of Interest Policy may be amended, restated, modified, supplemented or waived
by TREIT and the Company (which approval must include a majority of the Independent Directors)
without the approval of the Company’s stockholders.