Pre-Effective Amendment to Registration Statement for Securities of a Real Estate Company — Form S-11
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-11/A Pre-Effective Amendment to Registration Statement 259 1.12M
for Securities of a Real Estate Company
2: EX-1.1 Underwriting Agreement 22 82K
3: EX-3.1 Articles of Incorporation/Organization or By-Laws 54 245K
4: EX-5.1 Opinion re: Legality 2 16K
5: EX-8.1 Opinion re: Tax Matters 3 21K
6: EX-10.1 Material Contract 16 69K
14: EX-10.10 Material Contract 31± 178K
15: EX-10.11 Material Contract 20 163K
16: EX-10.13 Material Contract 5 27K
17: EX-10.14 Material Contract 72 372K
18: EX-10.15 Material Contract 61 336K
7: EX-10.2 Material Contract 10 43K
19: EX-10.23 Material Contract 34 106K
20: EX-10.24 Material Contract 1 12K
21: EX-10.25 Material Contract 35 112K
22: EX-10.26 Material Contract 1 13K
23: EX-10.27 Material Contract 2 16K
24: EX-10.28 Material Contract 4 27K
25: EX-10.29 Material Contract 3 19K
8: EX-10.3 Material Contract 9 39K
26: EX-10.30 Material Contract 26 91K
27: EX-10.31 Material Contract 1 12K
28: EX-10.32 Material Contract 2 15K
29: EX-10.33 Material Contract 3 17K
30: EX-10.34 Material Contract 2 15K
31: EX-10.35 Material Contract 1 12K
9: EX-10.4 Material Contract 3 17K
10: EX-10.5 Material Contract 13 65K
11: EX-10.7 Material Contract 18 63K
12: EX-10.8 Material Contract 5 32K
13: EX-10.9 Material Contract 19 151K
32: EX-23.1 Consent of Experts or Counsel 2± 14K
33: EX-99 Miscellaneous Exhibit 12 50K
EX-10.5 — Material Contract
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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"). 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. 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 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
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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 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
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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, or the Advisor terminates this
Agreement, for any reason at any time. The Special
Termination Payment shall be an amount equal to the
projected Asset Management 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
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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, 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.
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 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:
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(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.
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. 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; provided,
however, that the Advisor shall not be entitled to
indemnification, under this Section 19, if it acts in a manner
which constitutes gross negligence or willful misconduct.
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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:
(a) If to the Company, to:
Boston Capital Real Estate Investment Trust, Inc.
c/o Boston Capital Corporation
One Boston Place, Suite 2100
Boston, Massachusetts 02108-4406
Attn: Jeffrey H. Goldstein, President
with a copy to:
Nixon Peabody LLP
101 Federal Street
Boston, MA 02210
Attn: Alexander J. Jordan, Jr., Esq.
12
(b) If to the Advisor, to:
Boston Capital REIT Advisors, LLC
c/o Boston Capital Corporation
One Boston Place, Suite 2100
Boston, Massachusetts 02108-4406
Attn: John P. Manning, President
with a copy to:
Nixon Peabody LLP
101 Federal Street
Boston, MA 02210
Attn: Alexander J. Jordan, Jr., 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/ Jeffrey H. Goldstein
-------------------------------------
Jeffrey H. Goldstein, President
BOSTON CAPITAL REIT ADVISORS, LLC
By: /s/ John P. Manning
-------------------------------------
John P. Manning, President
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-11/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 12/31/14 | | 8 | | | | | None on these Dates |
| Filed on: | | 4/9/04 |
| | 4/1/04 | | 1 |
| List all Filings |
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Filing Submission 0001047469-04-011470 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
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