Exhibit 10.5
ADVISORY SERVICES AGREEMENT
ADVISORY SERVICES AGREEMENT (the "Agreement"), made as of April 1, 2004, by
and between BOSTON CAPITAL REAL ESTATE INVESTMENT TRUST, INC., a Maryland
corporation (the "Company"), and BOSTON CAPITAL REIT ADVISORS, LLC, a Delaware
limited liability company (the "Advisor").
WITNESSETH:
WHEREAS, the Company will file with the Securities and Exchange Commission
a registration statement on Form S-11 (the "Registration Statement"), to
register its shares of common stock, par value $0.001 per share (the "Shares"),
to be offered to the public, the proceeds from which will be invested by the
Company, and the Company may thereafter sell additional securities or otherwise
raise additional capital; and
WHEREAS, the Company intends to qualify as a "real estate investment
trust", as defined in the Internal Revenue Code of 1986, as amended (the
"Code"), and to invest its funds in investments permitted by the terms of the
Registration Statement; and
WHEREAS, the Company desires to avail itself of the experience, resources,
advice, assistance and certain facilities available to the Advisor and to have
the Advisor undertake the duties and responsibilities hereinafter set forth, on
behalf of and subject to the supervision of the Company's Board of Directors,
all as provided herein; and
WHEREAS, the Advisor is willing to undertake to render such services,
subject to the supervision of the Board of Directors, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. APPOINTMENT. The Company hereby appoints the Advisor to serve as its
investment and management advisor on the terms and conditions set
forth in this Agreement, and the Advisor hereby accepts such
appointment.
2. DUTIES OF THE ADVISOR. The Advisor undertakes to use its best
efforts to present to the Company potential investment opportunities
primarily in real property and other real estate investments as well
as provide a continuing and suitable investment program consistent
with the investment policies and objectives of the Company as
determined and adopted from time to time by the Board of Directors.
In performance of this undertaking, subject to the supervision and
direction of the Board of Directors, and consistent with the
Registration Statement, the Advisor shall, pursuant to delegated
authority:
(a) obtain or provide such services as may be required to
administer the daily operations of the Company;
(b) identify investment opportunities for the Company which are
consistent with its investment objectives and policies;
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(c) serve as the Company's investment and financial advisor and
provide reports with respect to the Company's portfolio of
investments, including, but not limited to, the making of
investments in real properties and other real estate
investments, as described in the Registration Statement;
(d) on behalf of the Company, investigate, select, engage and
conduct relations with such persons as the Advisor deems
necessary to the proper performance of its obligations
hereunder, including, but not limited to, consultants,
investors, builders, developers, banks, borrowers, lenders,
fiduciaries, financial service companies, mortgagors,
brokers, accountants, attorneys, appraisers and others,
including its and the Company's affiliates;
(e) consult with the Company's officers and directors and assist
the Company's Board of Directors in the formulation and
implementation of the Company's investment and other
policies, and furnish the officers and directors with advice
and recommendations concerning the making of investments
consistent with the investment policies and objectives of the
Company;
(f) structure and negotiate the terms of investments in real
properties and other real estate investments and obtain the
Board of Directors' approval of investments as provided in
the Registration Statement, but always consistent with the
investment policies and objectives of the Company;
(g) obtain from third parties or its affiliates, property
management services for the Company's investments in real
property;
(h) obtain for or provide to the Company such services as may be
required in acquiring, managing and disposing of investments,
including, but not limited to, the negotiation of purchase
contracts and services related to the acquisition of real
property and other real estate investments by the Company and
its affiliates, disbursing and collecting the funds of the
Company, paying the debts and fulfilling the obligations of
the Company and handling, prosecuting and settling any claims
of the Company and such other services as the Company may
require;
(i) advise the Company concerning its negotiations with
investment banking firms, securities brokers or dealers and
other institutions or investors for public or private sales
of the Company's securities, or in obtaining investments for
the Company, but in no event in such a way that the Advisor
could be deemed to be acting as a dealer or underwriter as
those terms are defined in the Securities Act of 1933, as
amended;
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(j) obtain or perform current appraisals for each potential
investment in real property or other real estate investment;
(k) do all things necessary to assure its ability to render the
services contemplated herein, including providing the office
space, furnishings and personnel necessary for the
performance of the foregoing services as Advisor;
(l) from time to time, or at any time reasonably requested by the
Company's Board of Directors, make reports to the Board of
Directors of its performance of the foregoing services; and
(m) within 30 days after the end of each fiscal quarter of the
Company, submit to the Company's Board of Directors a
statement of the Company's sources of income during such
fiscal quarter and make recommendations concerning changes,
if any, in the Company's investments to permit the Company to
satisfy the requirements of Sections 856(c)(2), 856(c)(3) and
856(c)(4) of the Code (such statement of income may be based
upon information supplied by independent contractors of the
Company to the extent applicable).
3. NO PARTNERSHIP OR JOINT VENTURE. The Company and the Advisor are not
partners or joint venturers with each other and nothing herein shall
be construed so as to make them such partners or joint venturers or
impose any liability as such on either of them or their affiliates.
4. CERTAIN GUIDELINES. The Advisor shall endeavor to ensure, with
respect to the Company's investments, that: (a) an appropriate
policy of title insurance is obtained with respect to any real
property investment (singly, a "Property," and collectively, the
"Properties") acquired by the Company, or an opinion of counsel as
to such title is obtained; (b) any Property acquired by the Company
is duly insured against loss or damage by fire, with extended
coverage, and against such other insurable hazards and risks as are
customary and appropriate in the circumstances; (c) a majority of
the Company's Board of Directors (including a majority of the
Independent Directors, as defined below) approves, in advance, any
investment (other than with respect to the initial Properties (as
described in the Registration Statement) by the Company, on the one
hand, with the Advisor or any of its affiliates, on the other hand;
(d) the Company does not make any loans to the Advisor or any of its
affiliates; (e) the Company's ratio of debt-to-total-assets, at the
time of the incurrence of any indebtedness, does not exceed 75%; and
(f) investments in any one Property acquired after the acquisition
of the initial Properties described in the Registration Statement do
not exceed 25% of the value of the Company's total assets at the
time of its acquisition, provided, however, that this limitation
shall not preclude the acquisition of multiple-building Properties
or a group of Properties in a purchase from a single seller in
transactions that exceed this limit. An Independent Director is a
Director who is not and within the last two years has not been
directly or indirectly associated
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with the Advisor by virtue of (i) ownership of an interest in the
Advisor or its affiliates, (ii) employment by the Advisor or its
affiliates, (iii) service as an officer or director of the Advisor
or its affiliates, (iv) performance of services, other than as a
Director, for the Company, (v) service as a director or trustee of
more than three real estate investment trusts advised by the
Advisor, or (vi) maintenance of a material business or professional
relationship with the Advisor or any of its affiliates. A business
or professional relationship is considered material if the gross
revenue derived by the Director from the Advisor and affiliates
exceeds 5% of either the Director's annual gross revenue during
either of the last two years or the Director's net worth on a fair
market value basis. An indirect relationship shall include
circumstances in which a Director's spouse, parents, children,
siblings, mothers- or fathers-in-law, sons- or daughters-in-law, or
brothers- or sisters-in-law are or have been associated with the
Advisor, any of its affiliates, or the Company.
5. REIT QUALIFICATION. Notwithstanding anything to the contrary in this
Agreement, the Advisor shall use its best efforts to refrain from
taking any action (including, without limitation, the furnishing or
rendering of services to tenants of a Property or managing or
operating a Property) which, in its judgment, made in good faith and
with the exercise of reasonable care, would: (a) adversely affect
the status of the Company as a "real estate investment trust" under
the Code and all rules and regulations promulgated thereunder; (b)
violate any law, rule, regulation or statement of policy of any
governmental body or agency having jurisdiction over the Company or
over its securities, of which the Advisor should reasonably be
aware; or (c) otherwise not be permitted by the Registration
Statement or the Company's Articles of Incorporation or Bylaws, each
as they may be amended from time to time, except if such action
shall be ordered by the Company's Board of Directors, in which event
the Advisor shall promptly notify the Board of Directors of the
Advisor's judgment that such action would adversely affect the
status of the Company as a "real estate investment trust" under the
Code and shall refrain from taking such action, unless, but only to
the extent that, the Advisor receives specific written instructions
from the Board of Directors expressly ordering that the action be
taken, notwithstanding such notification by it to the Board of
Directors. In such event the Advisor shall have no liability for
acting in accordance with the specific written instructions of the
Directors so given.
6. INVESTMENT COMPANY STATUS. Notwithstanding anything to the contrary
in this Agreement, the Advisor shall use its best efforts to refrain
from any action which, in its judgment, made in good faith and in
the exercise of reasonable care, would cause the Company to be
required to register as an investment company under the Investment
Company Act of 1940, as amended, except where such action has been
ordered by the Company's Board of Directors, in which event the
Advisor shall promptly notify the Board of Directors of the
Advisor's judgment that such action might require such registration
and shall refrain from taking such action, unless, but only to the
extent that, the Advisor receives specific written instructions from
the Board of Directors expressly ordering that
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the actions be taken, notwithstanding such notification by it to the
Board of Directors. In such event, the Advisor shall have no
liability for acting in accordance with the specific written
instructions of the Board of Directors so given.
7. BANK ACCOUNTS. The Advisor may establish and maintain one or more
bank accounts in its own name 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 Company's Board of
Directors may approve. However, the Advisor shall not commingle any
of the funds in such account with those of the Advisor or of other
entities managed by the Advisor. Further, the Advisor shall, from
time to time, render to the Board of Directors and to the auditors
of the Company a complete accounting of such collections and
disbursements.
8. INFORMATION FURNISHED TO THE ADVISOR. The Company's Board of
Directors shall at all times keep the Advisor fully informed
concerning the investment and capitalization policies of the Company
and the intentions of the Board of Directors concerning the future
activities and investments of the Company. The Company shall furnish
the Advisor with a certified copy of all financial statements, a
signed copy of each report prepared by independent certified public
accountants and such other information with regard to the Company's
affairs as the Advisor may from time to time reasonably request.
9. CONSULTATION AND ADVICE. In addition to the services described
above, the Advisor shall consult with the Company's Board of
Directors and shall, at the request of the Board, furnish advice and
recommendations with respect to other aspects of the business and
affairs of the Company.
10. COMPENSATION. For rendering the services described herein, the
Company shall pay to the Advisor the following (with the approval of
the Company's Independent Directors and the concurrence of the
Advisor, the fees referred to in this Section 10 paid by the Company
to the Advisor in Shares at net asset value or by Company debt
instruments):
(a) ORGANIZATION AND OFFERING EXPENSES. The Company shall
reimburse the Advisor for all organization and offering
expenses advanced by the Advisor up to a maximum of 3.0% of
Gross Offering Proceeds (as defined below).
(b) ASSET MANAGEMENT FEE. The Company shall pay to the Advisor as
compensation for the advisory services rendered to the
Company under Paragraph 2 above a monthly asset management
fee in an amount equal to 1/12th of 0.75% of the Company's
Real Estate Asset Value (as defined below) (the "Asset
Management Fee") as of the end of the preceding month. Real
Estate Asset Value equals the amount actually paid or
allocated to the purchase, development, construction or
improvement of
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the Properties wholly-owned by the Company, including the
outstanding principal amount of any mortgage indebtedness on
the Properties assumed upon the purchase of the properties,
and, in the case of Properties owned by any joint venture or
partnership in which the Company is a co-venturer or partner,
the Company's portion of such amount actually paid or
allocated with respect to such Properties, exclusive of
Acquisition Fees and Acquisition Expenses (each as defined
below). The Asset Management Fee shall be payable monthly on
the last day of such month, or the first business day
following the last day of such month, and will be based on
the Real Estate Asset Value determined on the last day of the
prior month. The Asset Management Fee, which will not exceed
fees which are competitive for similar services in the same
geographic area, may or may not be taken, in whole or in part
as to any year, in the sole discretion of the Advisor. All or
any portion of the Asset Management Fee not taken as to any
fiscal year shall be deferred without interest and may be
taken in such other fiscal year as the Advisor shall
determine.
(c) ACQUISITION FEE. The Advisor may receive, as compensation
payable by the Company for services rendered in connection
with the investigation, selection and acquisition (by
purchase, investment or exchange) of Properties, acquisition
fees in an amount equal to up to 3.0% of Gross Offering
Proceeds ("Acquisition Fees") and acquisition expenses in an
amount equal to up to 0.5% of Gross Offering Proceeds
("Acquisition Expenses"). In no event shall Acquisition
Expenses exceed the lesser of the actual cost of such
expenses or 90% of competitive rates charged by unaffiliated
persons providing similar services. Gross Offering Proceeds
shall mean the aggregate purchase price of all Shares sold
for the account of the Company through the offering
contemplated by the Registration Statement, without deduction
for selling commissions, volume discounts, dealer-manager
fees or organization and offering expenses. In no event shall
the Advisor receive Acquisition Fees with respect to the
acquisition of Properties for which it did not render such
services and for which acquisition fees have been previously
paid or are owed to another affiliate of the Company. For the
purpose of computing Gross Offering Proceeds, the purchase
price of any Share sold pursuant to the Registration
Statement for which reduced selling commissions are paid to
the dealer-manager or any other broker-dealer (where net
proceeds as to the Company are not reduced) shall be deemed
to be $10.00. In connection with the purchase of a Property,
the total of all Acquisition Fees and Acquisition Expenses
shall not exceed an amount equal to 6.0% of the contract
price of the Property.
(d) SUBORDINATED DISPOSITION FEE. If the Advisor or an affiliate
provides a substantial amount of the services (as determined
by a majority of the Company's Independent Directors) in
connection with the sale of one or more Properties, the
Advisor or an affiliate shall receive a subordinated
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disposition fee equal to the lesser of (i) one-half of a
competitive real estate commission, or (ii) 3.0% of the sales
price of such Property or Properties ("Subordinated
Disposition Fee"). The Subordinated Disposition Fee will be
paid only if stockholders have received total dividends in an
amount equal to 100% of their aggregate invested capital plus
a 6.0% annual cumulative non-compounded return on their net
invested capital (the "Stockholders' 6.0% Return"). To the
extent that Subordinated Disposition Fees are not paid by the
Company on a current basis due to the foregoing limitation,
the unpaid fees will be accrued and paid at such time as the
subordination conditions have been satisfied. The
Subordinated Disposition Fee may be paid in addition to real
estate commissions paid to non-affiliates, provided that the
total real estate commissions paid to all persons by the
Company shall not exceed an amount equal to the lesser of (i)
6.0% of the contract sales price of a Property, or (ii) the
competitive real estate commission. In the event this
Agreement is terminated prior to such time as the
stockholders have received total distributions in an amount
equal to 100% of invested capital plus the Stockholders' 6.0%
Return, an appraisal of the Properties then owned by the
Company shall be made and the Subordinated Disposition Fee on
Properties previously sold will be deemed earned if the
appraised value of the Properties then owned by the Company
plus total distributions received prior to the date of the
termination of this Agreement equals 100% of invested capital
plus the Stockholders' 6.0% Return. Upon Listing (as defined
below), if the Advisor has accrued but not been paid such
Subordinated Disposition Fee, then for purposes of
determining whether the subordinated conditions have been
satisfied, stockholders will be deemed to have received
distributions in the amount equal to the product of the total
number of Shares outstanding and the average closing price of
the Shares over a period of 30 consecutive days during which
the Shares are traded, with such period beginning 180 days
after Listing.
(e) SUBORDINATED SHARE OF NET SALE PROCEEDS. A subordinated share
of net sale proceeds shall be payable to the Advisor in an
amount equal to 15.0% of net sales proceeds remaining after
the stockholders have received distributions equal to the sum
of the Stockholders' 6.0% Return and 100% of invested capital
("Subordinated Share of Net Sale Proceeds"). Following
Listing, no Subordinated Share of Net Sale Proceeds will be
paid to the Advisor.
(f) SUBORDINATED INCENTIVE LISTING FEE. Upon listing on a
national securities exchange registered under Section 6 of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or a national market system registered under
Section 11A of the Exchange Act ("Listing"), the Advisor
shall be entitled to a subordinated incentive listing fee in
an amount equal to 10.0% of the amount by which (i) the
market value of the outstanding stock of the Company,
measured by taking the average
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closing price or average of bid and asked price, as the case
may be, over a period of 30 consecutive days during which the
stock is traded, with such period beginning 180 days after
Listing ("Market Value"), plus the total of all distributions
paid to stockholders from the Company's inception until the
date of Listing, exceeds (ii) the sum of (A) 100% of invested
capital and (B) the total distributions required to be paid
to the stockholders in order to pay the Stockholders' 6.0%
Return from inception through the date of Listing
("Subordinated Incentive Listing Fee"). The Company shall
have the option to pay such fee in the form of cash, Shares,
a promissory note or any combination of the foregoing. The
Subordinated Incentive Fee will be reduced by the amount of
any prior payment to the Advisor of any Subordinated Share of
Net Sale Proceeds from a sale or sales of a Property. In the
event the Subordinated Incentive Fee is paid to the Advisor
following Listing, no other performance fee will be paid to
the Advisor.
(g) CHANGES TO FEE STRUCTURE. In the event of Listing, or,
notwithstanding the absence of Listing, in the event the
stockholders elect to continue the Company's existence after
December 31, 2014, the Company and the Advisor may negotiate
in good faith to establish another fee structure appropriate
for a perpetual life entity. A majority of the Company's
Independent Directors must approve any new fee structure
negotiated with the Advisor. In negotiating a new fee
structure, the Independent Directors shall consider all of
the factors they deem relevant, including, but not limited
to: (i) the amount of the advisory fee in relation to the
asset value, composition and profitability of the Company's
portfolio; (ii) the success of the Advisor in generating
opportunities that meet the investment objectives of the
Company; (iii) the rates charged to other REITs and to
investors other than REITs by advisors performing the same or
similar services; (iv) additional revenues realized by the
Advisor and its affiliates through their relationship with
the Company, including underwriting or broker commissions,
servicing, engineering, inspection and other fees, whether
paid by the Company or by others with whom the Company does
business; (v) the quality and extent of service and advice
furnished by the Advisor; (vi) the performance of the
investment portfolio of the Company, including income,
conversion or appreciation of capital, and number and
frequency of problem investments; and (vii) the quality of
the Property portfolio of the Company in relationship to the
investments generated by the Advisor for its own account. The
new fee structure can be no more favorable to the Advisor
than the current fee structure.
(h) SPECIAL TERMINATION PAYMENT. The Advisor shall receive a
Special Termination Payment (as defined below) if the Company
terminates or does not renew this Agreement without cause.
The Special Termination Payment shall be an amount equal to
the projected Asset Management
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Fee for the one-year period following the date of the
termination of this Agreement.
(i) REIMBURSEMENT OF EXPENSES. Except as otherwise expressly
limited by the terms of this Agreement, the Company shall
reimburse the Advisor or its affiliates for (1) the actual
cost to the Advisor or its affiliates of goods, materials and
services used for or by the Company and obtained from persons
unaffiliated with the Advisor and its affiliates, (2) the
cost of administrative services rendered to the Company which
are necessary to the prudent operation of the Company, such
as legal, accounting, computer, transfer agent and other
services which could be performed directly for the Company by
independent parties, provided however, that no reimbursement
shall be made for personnel costs to the extent that such
personnel are used in transactions for which the Advisor
receives a separate fee, and (3) the actual cost to the
Advisor or its affiliates of any letter of credit or credit
enhancement that may be required of any lender or seller in
connection with the financing of the acquisition of
Properties. Absent the vote of a majority of the Company's
Independent Directors, the Advisor shall reimburse the
Company for reimbursements paid to the Advisor to the extent
that such reimbursements exceed, for any given year, the
greater of (i) 2% of the Company's average invested assets
(which consists, as defined in the Company's Articles of
Incorporation, as amended, of the average book value of the
assets of the Company, before reserves for appreciation or
bad debts) or (ii) 25% of the Company's net income (which
consists, as defined in the Company's Articles of
Incorporation, as amended, of the total revenues less total
expenses, excluding reserves for depreciation, bad debt and
certain other similar non-cash reserves).
11. OTHER ACTIVITIES OF THE ADVISOR. Nothing contained herein shall
prevent the Advisor from engaging in other activities, including,
without limitation, the rendering of advice to other investors
(including other REITs) and the management of other programs
advised, sponsored or organized by the Advisor or its affiliates;
nor shall this Agreement limit or restrict the right of any
director, officer, employee or shareholder of the Advisor or its
affiliates to engage in any other business or to render services of
any kind to any other partnership, corporation, firm, individual,
trust or association. Notwithstanding the foregoing, however, the
Advisor shall devote sufficient resources to the administration of
the Company to discharge its obligations hereunder. The Advisor may,
with respect to any investment in which the Company is a
participant, subject to its contractual duties to the Company under
this Agreement, also render advice and service to each and every
other participant therein.
12. ALLOCATION OF INVESTMENT OPPORTUNITIES. Neither the Advisor nor any
of its affiliates shall be obligated to present to the Company
investment opportunities that come to their attention, even if any
of those opportunities may be suitable to
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the Company. In addition, if the Advisor shall have an investment
opportunity which satisfies the investment criteria of the Company,
the Advisor shall make that investment opportunity available to the
Company before such opportunity is invested in by the Advisor.
13. TERM/TERMINATION OF AGREEMENT. Initially, this Agreement shall have
a term of one (1) year commencing on the closing date of the initial
minimum offering under the Registration Statement. Following the
initial term, subsequent renewals for one (1) year terms will be
subject to an evaluation of the performance of the Advisor by the
audit committee of the Company's Board of Directors. This Agreement
may be terminated by a majority of the Independent Directors of the
Company or by the Advisor, in all cases by giving not less than 60
days' advance notice in writing to the other party.
14. ACTION UPON TERMINATION. The Advisor shall not be entitled to
compensation for services performed after the effective date of the
termination of this Agreement. The Advisor shall, forthwith upon
such termination:
(a) promptly pay over to the Company all monies 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
under this Agreement;
(b) promptly deliver to the Company a full accounting, including
a statement showing all amounts collected, disbursed and held
by the Advisor, for the period following the date of the last
accounting furnished to the Company; and
(c) promptly deliver to the Company all property and documents of
the Company then in the custody of the Advisor.
15. AMENDMENTS. The Agreement shall not be modified except by an
instrument in writing signed by both parties hereto, or their
respective successors or assigns, or otherwise as provided herein.
16. ASSIGNMENT. This Agreement may be assigned upon the consent of both
parties hereto: (i) upon approval of a majority of the Independent
Directors of the Company, by the Advisor to a person which is an
affiliate of the Advisor; or (ii) by either the Advisor or the
Company to its successor-in-interest. The Advisor may delegate some
or all of its duties under this Agreement to an affiliate.
Notwithstanding the foregoing, so long as the Company intends to
qualify as a real estate investment trust under the Code, this
Agreement may not be assigned to any entity that serves as a
property manager with respect to the Properties of the Company.
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17. GOVERNING LAW. The provisions of this Agreement shall be construed
and interpreted in accordance with the internal laws of The
Commonwealth of Massachusetts without giving effect to conflicts of
laws principles or rules.
18. DIRECTORS AND STOCKHOLDERS NOT LIABLE. This Agreement is made on
behalf of the Company by an officer of the Company, not
individually, but solely as such officer, and the obligations under
this Agreement are not binding upon, nor shall resort be had to, the
private property of any of the directors, officers, stockholders,
employees or agents of the Company personally, but shall bind only
the Company.
19. INDEMNIFICATION BY THE COMPANY. Subject to the limitation in Article
9 of the Company's Restated Articles of Incorporation the Company
shall indemnify and hold harmless the Advisor, to the full extent
permitted by the Maryland General Corporation Law (in effect at the
time indemnity is sought), from all liability, claims, damages or
loss arising in the performance of its 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.
20. INDEMNIFICATION BY ADVISOR. The Advisor 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,
losses and related expenses are not fully reimbursed by insurance
and are incurred by reason of the Advisor's bad faith, fraud,
willful misfeasance, misconduct, negligence or reckless disregard of
its duties, but the Advisor shall not be held responsible for any
action of the Company's Board of Directors in following or declining
to follow any advice or recommendation given by the Advisor.
21. HEADINGS. The section headings hereof have been inserted for
reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
22. NOTICES. All notices, demands and other communication to be given or
delivered under or by reason of the provisions of this Agreement
must be in writing and will be deemed to have been given on the day
established by sender as having been delivered personally; on the
day delivered by private courier as such day is established by
evidence obtained by the sender from the courier; on the day and at
the time established by evidence obtained by the sender from a
telegraph company if telegraphic means of communication are used; or
on the day established by a return receipt with respect to notices,
demands and other communications intended to be delivered by U.S.
mail. Such notices, demands and other communications to be valid,
must be addressed:
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(a) If to the Company, to:
Boston Capital Real Estate Investment Trust, Inc.
c/o Boston Capital Corporation
Xxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxx, President
with a copy to:
Xxxxx Peabody LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxxx X. Xxxxxx, Xx., Esq.
(b) If to the Advisor, to:
Boston Capital REIT Advisors, LLC
c/o Boston Capital Corporation
Xxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxx, President
with a copy to:
Xxxxx Xxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxxx X. Xxxxxx, Xx., Esq.
or to such other address or to the attention of such other person as
recipient party has specified by prior written notice to the sending
party (or in the case of counsel, to such other readily
ascertainable business address as such counsel may hereafter
maintain).
23. INITIAL INVESTMENT. Boston Capital Companion Limited Partnership
("Companion"), an affiliate of the Advisor, has contributed to the
Company $200,000 in exchange for 20,000 Shares (the "Initial
Investment"). Companion may not sell these Shares while the Advisory
Agreement is in effect, although Companion may transfer them to its
affiliates. The Advisor and its affiliates may buy and sell Shares,
and this restriction shall not apply to any Shares, other than the
Shares acquired through the Initial Investment, acquired by the
Advisor or its affiliates. The Advisor shall not vote any Shares it
hereafter acquires in any vote for the removal of any of the
Company's directors or any vote regarding the approval or
termination of any contract with the Advisor or any of its
affiliates. The restrictions contained in this Section 23 shall not
go into effect until the initial closing described in the
Registration Statement has occurred.
13
IN WITNESS WHEREOF, we have executed this Agreement as of the date first
above written.
BOSTON CAPITAL REAL ESTATE
INVESTMENT TRUST, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxx, President
BOSTON CAPITAL REIT ADVISORS, LLC
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx, President
