Exhibit 10.1


 


AMENDED AND RESTATED ADVISORY
AGREEMENT


 


DIVIDEND CAPITAL TRUST INC.


 

















 


TABLE OF CONTENTS


 


	
  1.

  	
  DEFINITIONS.

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  APPOINTMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  DUTIES OF THE ADVISOR

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  AUTHORITY OF ADVISOR

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  BANK ACCOUNTS

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  RECORDS; ACCESS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  LIMITATIONS ON ACTIVITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  RELATIONSHIP WITH DIRECTORS

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  FEES

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  EXPENSES

  	
   

  
	
   

  	
   

  	
   

  
	
  11.

  	
  OTHER SERVICES

  	
   

  
	
   

  	
   

  	
   

  
	
  12.

  	
  FIDELITY BOND

  	
   

  
	
   

  	
   

  	
   

  
	
  13.

  	
  REIMBURSEMENT TO THE
  ADVISOR

  	
   

  
	
   

  	
   

  	
   

  
	
  14.

  	
  OTHER ACTIVITIES OF THE
  ADVISOR

  	
   

  
	
   

  	
   

  	
   

  
	
  15.

  	
  RELATIONSHIP OF
  ADVISOR AND COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  16.

  	
  TERM; TERMINATION OF
  AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  17.

  	
  TERMINATION BY EITHER PARTY

  	
   

  
	
   

  	
   

  	
   

  
	
  18.

  	
  ASSIGNMENT TO AN AFFILIATE

  	
   

  
	
   

  	
   

  	
   

  
	
  19.

  	
  PAYMENTS
  TO AND DUTIES OF ADVISOR UPON TERMINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  20.

  	
  INDEMNIFICATION BY THE
  COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  21.

  	
  INDEMNIFICATION BY ADVISOR

  	
   

  
	
   

  	
   

  	
   

  
	
  22.

  	
  NOTICES

  	
   

  
	
   

  	
   

  	
   

  
	
  23.

  	
  MODIFICATION

  	
   

  
	
   

  	
   

  	
   

  
	
  24.

  	
  SEVERABILITY

  	
   

  
	
   

  	
   

  	
   

  
	
  25.

  	
  CONSTRUCTION

  	
   

  
	
   

  	
   

  	
   

  
	
  26.

  	
  ENTIRE AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  27.

  	
  INDULGENCES, NOT WAIVERS

  	
   

  
	
   

  	
   

  	
   

  
	
  28.

  	
  GENDER

  	
   

  
	
   

  	
   

  	
   

  
	
  29.

  	
  TITLES NOT TO
  AFFECT INTERPRETATION

  	
   

  
	
   

  	
   

  	
   

  
	
  30.

  	
  EXECUTION IN COUNTERPARTS

  	
   

  
	
   

  	
   

  	
   

  
	
  31.

  	
  INITIAL INVESTMENT

  	
   

  



 


i

















 


AMENDED AND RESTATED ADVISORY
AGREEMENT


 


THIS AMENDED AND RESTATED ADVISORY AGREEMENT, dated as
of November 21, 2003, as amended, is between Dividend Capital Trust Inc.,
a Maryland corporation (the “Company”), and Dividend Capital Advisors LLC, a
Colorado limited liability company (the “Advisor”) and amends the Advisory
Agreement (the “Original Agreement”) dated as of July 11, 2002 by and
among the same parties.


 


W I T N E S S E T H


 


WHEREAS, the Company has filed with the Securities and
Exchange Commission a Registration Statement on Form S-11 covering a public
offering of shares of its common stock (“Shares”) and the Company may
subsequently issue securities other than such Shares (“Securities”) or otherwise
raise additional capital;


 


WHEREAS, the Company and the Advisor wish to amend and
restate the Original Agreement;


 


WHEREAS, the Company intends to qualify as a REIT (as
defined below), and to invest its funds in investments permitted by the terms
of the Registration Statement and Sections 856 through 860 of the Code (as
defined below);


 


WHEREAS, the Company desires to avail itself of the
experience, sources of information, advice, assistance and certain facilities
of 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 Board of Directors of the Company 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, in consideration of the foregoing and
of the mutual covenants and agreements contained herein, the parties hereto
agree as follows:


 


1.                                       DEFINITIONS.  As
used in this Amended and Restated Advisory Agreement (the “Agreement”), the
following terms have the definitions hereinafter indicated:


 


Acquisition Expenses. Any and all
expenses, exclusive of Acquisition Fees, incurred by the Company, the Advisor,
or any Affiliate of either in connection with the selection or acquisition of
any Property, whether or not acquired, including, without limitation, legal
fees and expenses, travel and communications expenses, costs of appraisals,
nonrefundable option payments on property not acquired, accounting fees and
expenses, and title insurance.


 


Acquisition Fees. Any and all fees
and commissions, exclusive of Acquisition Expenses, paid by any person or
entity to any other person or entity (including any fees or commissions paid by
or to any Affiliate of the Company or the Advisor) in connection with making or
investing in mortgage loans and the selection or acquisition of any Property,
including, without limitation, real estate commissions, acquisition fees, finder’s
fees, selection fees, nonrecurring management fees, consulting fees, loan fees,
points, or any other fees or commissions of a similar nature.


 


Advisor. Dividend Capital Advisors
LLC, a Colorado limited liability company, any successor advisor to the
Company, or any person or entity to which Dividend Capital Advisors LLC or any
successor advisor subcontracts substantially all of its functions.


 

















 


Advisor Asset Management Fee. An
amount of up to 0.75% per annum of the Company’s aggregate Real Estate Value
(excluding the Real Estate Asset Value of any Properties for which the Company
paid an acquisition fee in accordance with Section 9(a)(i)).


 


Affiliate or Affiliated. As to any
individual, corporation, partnership, trust or other association, (i) any Person
or entity, directly or indirectly, through one or more intermediaries
controlling, controlled by, or under common control with such other person or
entity; (ii) any Person or entity, directly or indirectly owning or controlling
ten percent (10%) or more of the outstanding voting securities of such other
person or entity; (iii) any officer, director, partner, or trustee of such
other person or entity; (iv) any Person ten percent (10%) or more of whose
outstanding voting securities are directly or indirectly owned, controlled, or
held, with power to vote, by such other person; and (v) if such other person or
entity is an officer, director, partner, or trustee of a Person or entity, the
Person or entity for which such Person or entity acts in any such capacity.


 


Appraised Value. Value according to
an appraisal made by an Independent Appraiser.


 


Articles of Incorporation. The
Articles of Incorporation of the Company, as amended from time to time.


 


Average Invested Assets. For a
specified period, the average of the aggregate book value of the assets of the
Company invested, directly or indirectly, in Properties and loans made by the
Company which are secured by real estate before reserves for depreciation or
bad debts or other similar non-cash reserves, computed by taking the average of
such values at the end of each month during such period.


 


Board of Directors or Board. The
persons holding such office, as of any particular time, under the Articles of
Incorporation of the Company, whether they be the Directors named therein or
additional or successor Directors.


 


Bylaws. The bylaws of the Company,
as the same are in effect from time to time.


 


Cash from Financings. Net cash
proceeds realized by the Company from the financing of Company Property or from
the refinancing of any Company indebtedness.


 


Cash from Sales. Net cash proceeds
realized by the Company from the sale, exchange or other disposition of any of
its assets after deduction of all expenses incurred in connection therewith.
Cash from Sales shall not include Cash from Financings.


 


Cash from Sales and Financings. The
total sum of Cash from Sales and Cash from Financings.


 


Cause. With respect to the
termination of this Agreement, fraud, criminal conduct, willful misconduct or
willful or negligent breach of fiduciary duty by the Advisor, breach of this
Agreement, a default by the Sponsor under the guarantee by the Sponsor to the
Company or the bankruptcy of the Sponsor.


 


Change of Control. A change of
control of the Company of such a nature that would be required to be reported
in response to the disclosure requirements of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended, as
enacted and in force on the date hereof (the “Exchange Act”), whether or not
the Company is then subject to such reporting requirements; provided, however,
that, without limitation, a change of control shall be deemed to have occurred
if: (i) any “person” (within the meaning of Section 13(d) of the Exchange
Act) is or becomes the “beneficial owner” (as that term is defined in Rule
13d-3, as enacted and in force on the date hereof, under the


 


2

















 


Exchange Act) of securities of the Company representing 8.5% or more of
the combined voting power of the Company’s securities then outstanding; (ii)
there occurs a merger, consolidation or other reorganization of the Company
which is not approved by the Board of Directors of the Company; (iii) there
occurs a sale, exchange, transfer or other disposition of substantially all of
the assets of the Company to another entity, which disposition is not approved
by the Board of Directors of the Company; or (iv) there occurs a contested
proxy solicitation of the Stockholders of the Company that results in the contesting
party electing candidates to a majority of the Board of Directors’ positions
next up for election.


 


Code. Internal Revenue Code of 1986,
as amended from time to time, or any successor statute thereto. Reference to
any provision of the Code shall mean such provision as in effect from time to
time, as the same may be amended, and any successor provision thereto, as
interpreted by any applicable regulations as in effect from time to time.


 


Company. Dividend Capital Trust
Inc., a corporation organized under the laws of the State of Maryland.


 


Company Property. Any and all
property, real, personal or otherwise, tangible or intangible, which is
transferred or conveyed to the Company (including all rents, income, profits
and gains therefrom), and which is owned or held by, or for the account of, the
Company.


 


Competitive Real Estate Commission.
A real estate or brokerage commission for the purchase or sale of property
which is reasonable, customary, and competitive in light of the size, type, and
location of the property.  The total of
all real estate commissions paid by the Company to all Persons (including the
Subordinated Disposition Fee payable to the Advisor) in connection with any
Sale of one or more of the Company’s Properties shall not exceed the lesser of
(i) a Competitive Real Estate Commission or (ii) six percent of the gross sales
price of the Property or Properties.


 


Contract Purchase Price. The amount
actually paid or allocated (as of the date of purchase) to the purchase,
development, construction or improvement of property, exclusive of Acquisition
Fees and Acquisition Expenses.


 


Contract Sales Price. The total
consideration received by the Company for the sale of a Company Property.


 


Cumulative Return. For the period
for which the calculation is being made, the percentage resulting from dividing
(A) the total Distributions paid on each Distribution date during such period
(without regard to Distributions paid out of Cash from Sales and Financings),
by (B) the product of (i) the average Invested Capital for such period
(calculated on a daily basis), and (ii) the number of years (including
fractions thereof) elapsed during such period.


 


Dealer Manager.  Dividend Capital Securities LLC, an
Affiliate of the Advisor, or such other Person or entity selected by the Board
of Directors to act as the dealer manager for the Offering.  Dividend Capital Securities LLC is a member
of the National Association of Securities Dealers, Inc.


 


Dealer Manager Fee.  Up to: (a) 2.5% of Gross Proceeds payable to
the Dealer Manager for serving as the dealer manager of the Offering with
respect to the first $100 million of Gross Proceeds; and (b) 2.0% of Gross
Proceeds payable to the Dealer Manager for serving as the dealer manager of the
Offering with respect to any Gross Proceeds thereafter.


 


Director. A member of the Board of
Directors of the Company.


 


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Distributions. Any distributions of
money or other property by the Company to owners of Shares, including
distributions that may constitute a return of capital for federal income tax
purposes.


 


Equity Interest. The stock of or
other interests in, or warrants or other rights to purchase the stock of or
other interests in, any entity that has borrowed money from the Company or that
is a tenant of the Company or that is a parent or controlling Person of any
such borrower or tenant.


 


Equity Shares. Transferable shares
of beneficial interest of the Company of any class or series, including common
shares or preferred shares.


 


Final Closing Date. The last date on
which purchasers of Shares offered pursuant to the Prospectus are issued such
Shares.


 


Good Reason. With respect to the
termination of this Agreement, (i) any failure to obtain a satisfactory
agreement from any successor to the Company to assume and agree to perform the
Company’s obligations under this Agreement; or (ii) any material breach of this
Agreement of any nature whatsoever by the Company.


 


Gross Proceeds. The aggregate
purchase price of all Shares sold for the account of the Company through the
Offering, without deduction for Selling Commissions, volume discounts, the
marketing support and due diligence expense reimbursement fee or Organization
and Offering Expenses. For the purpose of computing Gross Proceeds, the purchase
price of any Share for which reduced Selling Commissions are paid to the Dealer
Manager or a Soliciting Dealer (where net proceeds to the Company are not
reduced) shall be deemed to be $10.00.


 


Independent Appraiser. A qualified
appraiser of real estate as determined by the Board. Membership in a nationally
recognized appraisal society such as the American Institute of Real Estate
Appraisers (“M.A.I.”) or the Society of Real Estate Appraisers (“S.R.E.A.”)
shall be conclusive evidence of such qualification.


 


Independent Director. A Director who
is not and within the last two years has not been directly or indirectly
associated 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 is or has been associated with the Advisor, any of its
Affiliates, or the Company.


 


Independent Expert. A person or
entity with no material current or prior business or personal relationship with
the Advisor or the Directors and who is engaged to a substantial extent in the
business of rendering opinions regarding the value of assets of the type held
by the Company.


 


Invested Capital. The amount calculated
by multiplying the total number of Shares purchased by stockholders by the
issue price, reduced by the portion of any Distribution that is attributable to
Net Sales Proceeds and by any amounts paid by the Company to repurchase Shares
pursuant to the Company’s plan for redemption of Shares.


 


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Joint Ventures. The joint venture or
partnership arrangements (other than Dividend Capital Operating Partnership LP)
in which the Company is a co-venturer or general partner which are established
to acquire Properties.


 


Listing. The listing of the Shares
of the Company on a national securities exchange or over-the-counter market.


 


Net Income. For any period, the
total revenues applicable to such period, less the total expenses applicable to
such period excluding additions to reserves for depreciation, bad debts or
other similar non-cash reserves; provided, however, Net Income for purposes of
calculating total allowable Operating Expenses (as defined herein) shall
exclude the gain from the sale of the Company’s assets.


 


Net Sales Proceeds. In the case of a
transaction described in clause (A) of the definition of Sale, the proceeds of
any such transaction less the amount of all real estate commissions and closing
costs paid by the Operating Partnership. 
In the case of a transaction described in clause (B) of such definition,
Net Sales Proceeds means the proceeds of any such transaction less the amount
of any legal and other selling expenses incurred by the Operating Partnership
in connection with such transaction.  In
the case of a transaction described in clause (C) of such definition, Net Sales
Proceeds means the proceeds of any such transaction actually distributed to the
Operating Partnership from the Joint Venture less any expenses incurred by the
Operating Partnership in connection with such transaction.  In the case of a transaction described in
clause (D) of the definition of Sale, Net Sales Proceeds means the proceeds of
such transaction or series of transactions less the amount of all commissions
and closing costs paid by the Operating Partnership.  In the case of transactions described in clause (E) of such
definition, Net Sales Proceeds means the proceeds of any such transaction less
the amount of all selling costs and other expenses incurred by the Operating
Partnership in connection with such transaction.  Net Sales Proceeds shall also include, in the case of any lease
of a Property consisting of a building only, any amounts that the Company
determines, in its discretion, to be economically equivalent to proceeds of a
Sale.  Net Sales Proceeds shall not
include any amounts used to repay the outstanding indebtedness secured by the
asset disposed of in the sale.


 


Offering. The initial public
offering of Shares pursuant to the Prospectus.


 


Operating Expenses. All costs and
expenses incurred by the Company, as determined under generally accepted
accounting principles, which in any way are related to the operation of the
Company or to Company business, including advisory fees and the Advisor Asset
Management Fees, but excluding (i) the expenses of raising capital such as
Organizational and Offering Expenses, the Dealer Manager Fee, Selling
Commissions, legal, audit, accounting, underwriting, brokerage, listing, registration,
and other fees, printing and other such expenses and tax incurred in connection
with the issuance, distribution, transfer, registration and Listing of the
Shares, (ii) interest payments, (iii) taxes, (iv) non-cash expenditures such as
depreciation, amortization and bad loan reserves, (v) the Property Management
Fee and (vi) Acquisition Fees and Acquisition Expenses, real estate
commissions on the sale of property, and other expenses connected with the
acquisition, and ownership of real estate interests, mortgage loans or other
property (such as the costs of foreclosure, insurance premiums, legal services,
maintenance, repair and improvement of property).


 


Operating Partnership.  Dividend Capital Operating Partnership LP,
the limited partnership through which the Company will own the Properties.


 


OP Unit.  Units of limited partnership interest in the Operating
Partnership.


 


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Organizational and Offering Expenses.  Any and all costs and expenses, other than
Selling Commissions and the Dealer Manager Fee and due diligence expense
reimbursement fee, incurred by the Advisor or any Affiliate in connection with
the formation, qualification and registration of the Company and the marketing
and distribution of Shares, including, without limitation, the following: total
underwriting and brokerage discounts and commissions (including fees of the
underwriters’ attorneys); legal, accounting and escrow fees; printing,
amending, supplementing, mailing and distribution costs; salaries of employees
while engaged in registering, marketing and wholesaling the Shares; filing,
registration and qualification fees and taxes; telegraph and telephone costs;
and all advertising and marketing expenses, including the costs related to
investor and broker-dealer sales meetings. 
The Organizational and Offering Expenses paid by the Company in
connection with formation of the Company will not exceed (a) 3% of the
first $100 million of Gross Proceeds raised in connection with the Offering;
and (b) 2% of any Gross Proceeds raised in connection with the Offering
thereafter.


 


Permitted Affiliate.  Any Affiliate of the Advisor other than an
Affiliate that is a property management company engaged to manage any
properties or other assets owned directly or indirectly by the Company.


 


Person. An individual, corporation,
partnership, trust, joint venture, limited liability company or other entity.


 


Property or Properties. (i) The real
properties, including the buildings located thereon, or (ii) the real
properties only, or (iii) the buildings only, which are acquired by the Company
or the Operating Partnership, either directly or through joint venture
arrangements or other partnerships.


 


Property Management Fee.  Fees paid to a property management company
(which may be an Affiliate of the Advisor) in consideration for the management
and leasing of Properties.


 


Prospectus. “Prospectus” has the
meaning set forth in Section 2(10) of the Securities Act of 1933, as
amended (the “Securities Act”), including a preliminary Prospectus, an offering
circular as described in Rule 256 of the General Rules and Regulations under
the Securities Act or, in the case of an intrastate offering, any document by
whatever name known, utilized for the purpose of offering and selling
securities to the public.


 


Real Estate Asset Value. The amount
actually paid or allocated to the purchase, development, construction or
improvement of a Property, exclusive of Acquisition Fees and Acquisition
Expenses.


 


Registration Statement. The
Registration Statement filed on Form S-11 with respect to the Offering, of
which the Prospectus is a part.


 


REIT. A “real estate investment
trust” under Sections 856 through 860 of the Code.


 


Sale or Sales.  Any transaction or series of transactions whereby:
(A) the Operating Partnership sells, grants, transfers, conveys, or
relinquishes its ownership of any Property or portion thereof, including the
lease of any Property consisting of the building only, and including any event
with respect to any Property which gives rise to a significant amount of
insurance proceeds or condemnation awards; (B) the Operating Partnership sells,
grants, transfers, conveys, or relinquishes its ownership of all or
substantially all of the interest of the Operating Partnership in any Joint
Venture in which it is a co-venturer or partner; or (C) any Joint Venture in
which the Operating Partnership is a co-venturer or partner sells, grants,
transfers, conveys, or relinquishes its ownership of any Property or portion
thereof, including any event with respect to any Property which gives rise to
insurance claims or condemnation awards; (D) the Operating Partnership sells,
grants, conveys, or relinquishes its interest in any asset, or portion thereof,


 


6

















 


including any event with respect to any asset which gives rise to a
significant amount of insurance proceeds or similar awards; or (E) the
Operating Partnership sells or otherwise disposes of or distributes all of its
assets in liquidation of the Operating Partnership.


 


Securities. Any Equity Shares,
Excess Shares, as such term is defined in the Company’s Articles of
Incorporation, any other stock, shares or other evidences of equity or
beneficial or other interests, voting trust certificates, bonds, debentures,
notes or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
“securities” or any certificates of interest, shares or participations in, temporary
or interim certificates for, receipts for, guarantees of, or warrants, options
or rights to subscribe to, purchase or acquire, any of the foregoing.


 


Selling Commissions.  Up to: (a) 7% of Gross Proceeds payable to
the Dealer Manager or Soliciting Dealers with respect to Securities sold by
them with respect to the first $100 million of Gross Proceeds; and (b) 6% of
Gross Proceeds payable to the Dealer Manager or Soliciting Dealers with respect
to Securities sold by them with respect to any Gross Proceeds thereafter;
provided that the selling commission may be up to 7% with respect to Gross
Proceeds resulting from a sale of Securities to a purchaser that elects to pay
a deferred commission.  The Company
shall restrict the Dealer Manager from re-allowing in excess of 1% of the fee
it receives for acting as Dealer Manager.


 


Shares. The shares of the common
stock of the Company to be sold in the Offering.


 


Soliciting Dealers. Broker-dealers
who are members of the National Association of Securities Dealers, Inc., or
that are exempt from broker-dealer registration, and who, in either case, have
executed participating broker or other agreements with the Dealer Manager to
sell Shares.


 


Special OP Units.  The separate series of limited partnership
interests to be issued in accordance with Paragraph 9(d).


 


Sponsor. Any Person directly or
indirectly instrumental in organizing, wholly or in part, the Company or any
Person who will control, manage or participate in the management of the
Company, and any Affiliate of such Person. 
Not included is any Person whose only relationship with the Company is
that of an independent property manager of Company assets, and whose only
compensation is as such. Sponsor does not include wholly independent third
parties such as attorneys, accountants, and underwriters whose only
compensation is for professional services.


 


Stockholders. The registered holders
of the Company’s Shares.


 


Stockholders’ 7% Return. As of each
date, an aggregate amount equal to a 7% cumulative, noncompounded, annual
return on Invested Capital.


 


Termination Date. The date of
termination of the Agreement.


 


Termination Event.  The termination or nonrenewal of this
Agreement (i) in connection with a merger, sale of assets or transaction
involving the Company pursuant to which a majority of the Directors then in
office are replaced or removed, (ii) by the Advisor for Good Reason or (iii) by
the Company other than for Cause.


 


Total Property Cost. With regard to
any Company Property, an amount equal to the sum of the Real Estate Asset Value
of such Property plus the Acquisition Fees paid in connection with such
Property.


 


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2%/25% Guidelines. For any year in
which the Company qualifies as a REIT, the requirement pursuant to the
guidelines of the North American Securities Administrators Association, Inc.
that, in any 12 month period, total Operating Expenses not exceed the greater
of 2% of the Company’s Average Invested Assets during such 12 month period or
25% of the Company’s Net Income over the same 12 month period.


 


Valuation. An estimate of value of
the assets of the Company as determined by an Independent Expert.


 


2.                                       APPOINTMENT. The Company hereby appoints the Advisor to
serve as its advisor on the terms and conditions set forth in this Agreement,
and the Advisor hereby accepts such appointment.


 


3.                                       DUTIES OF THE ADVISOR. The Advisor undertakes to
use its best efforts to present to the Company potential investment
opportunities and to provide a continuing and suitable investment program
consistent with the investment objectives and policies of the Company as
determined and adopted from time to time by the Directors. In performance of
this undertaking, subject to the supervision of the Directors and consistent
with the provisions of the Registration Statement, Articles of Incorporation
and Bylaws of the Company, the Advisor shall, either directly or by engaging a
Permitted Affiliate:


 


(a)                                  serve
as the Company’s investment and financial advisor and provide research and economic
and statistical data in connection with the Company’s assets and investment
policies;


 


(b)                                 provide
the daily management of the Company and perform and supervise the various
administrative functions reasonably necessary for the management of the Company;


 


(c)                                  investigate,
select, and, on behalf of the Company, engage and conduct business with such
Persons as the Advisor deems necessary to the proper performance of its
obligations hereunder, including but not limited to consultants, accountants,
correspondents, lenders, technical advisors, attorneys, brokers, underwriters,
corporate fiduciaries, escrow agents, depositaries, custodians, agents for
collection, insurers, insurance agents, banks, builders, developers, property
owners, mortgagors, and any and all agents for any of the foregoing, including
Affiliates of the Advisor, and Persons acting in any other capacity deemed by
the Advisor necessary or desirable for the performance of any of the foregoing
services, including but not limited to entering into contracts in the name of
the Company with any of the foregoing;


 


(d)                                 consult
with the officers and Directors of the Company and assist the Directors in the
formulation and implementation of the Company’s financial policies, and, as
necessary, furnish the Directors with advice and recommendations with respect
to the making of investments consistent with the investment objectives and
policies of the Company and in connection with any borrowings proposed to be
undertaken by the Company;


 


(e)                                  subject
to the provisions of Paragraphs 3(g) and 4 hereof, (i) locate, analyze and
select potential investments in Properties, (ii) structure and negotiate the
terms and conditions of transactions pursuant to which investment in Properties
will be made; (iii) make investments in Properties on behalf of the Company in
compliance with the investment objectives and policies of the Company; (iv)
arrange for financing and refinancing and make other changes in the asset or
capital structure of, and dispose of, reinvest the proceeds from the sale of,
or otherwise deal with the investments in, Property; and (v) enter into leases
and service contracts for Company Property and, to the extent necessary,
perform all other operational functions for the maintenance and administration of
such Company Property;


 


8

















 


(f)                                    provide
the Directors with periodic reports regarding prospective investments in
Properties;


 


(g)                                 obtain
the prior approval of the Directors (including a majority of all Independent
Directors) for any and all investments in Properties;


 


(h)                                 negotiate
on behalf of the Company with banks or lenders for loans to be made to the
Company, and negotiate on behalf of the Company with investment banking firms
and broker-dealers or negotiate private sales of Shares and Securities or
obtain loans for the Company, but in no event in such a way so that the Advisor
shall be acting as broker-dealer or underwriter; and provided, further, that
any fees and costs payable to third parties incurred by the Advisor in
connection with the foregoing shall be the responsibility of the Company;


 


(i)                                     obtain
reports (which may be prepared by the Advisor or its Affiliates), where
appropriate, concerning the value of investments or contemplated investments of
the Company in Properties;


 


(j)                                     from
time to time, or at any time reasonably requested by the Directors, make
reports to the Directors of its performance of services to the Company under
this Agreement;


 


(k)                                  provide
the Company with all necessary cash management services;


 


(l)                                     do
all things necessary to assure its ability to render the services described in
this Agreement;


 


(m)                               deliver
to or maintain on behalf of the Company copies of all appraisals obtained in
connection with the investments in Properties; and


 


(n)                                 notify
the Board of all proposed material transactions before they are completed.


 


4.                                       AUTHORITY OF ADVISOR.


 


(a)                                  Pursuant
to the terms of this Agreement (including the restrictions included in this
Paragraph 4 and in Paragraph 7), and subject to the continuing and exclusive
authority of the Directors over the management of the Company, the Directors
hereby delegate to the Advisor the authority to (1) locate, analyze and select
investment opportunities, (2) structure the terms and conditions of transactions
pursuant to which investments will be made or acquired for the Company, (3)
acquire Properties in compliance with the investment objectives and policies of
the Company, (4) arrange for financing or refinancing Property, (5) enter into
leases and service contracts for the Company’s Property, (6) oversee Affiliated
and non-Affiliated property managers who perform services for the Company; and
(7) manage accounting and other record-keeping functions for the Company.


 


(b)                                 Notwithstanding
the foregoing, any investment in Properties, including any acquisition of
Property by the Company (as well as any financing acquired by the Company in
connection with such acquisition), will require the prior approval of the
Directors (including a majority of the Independent Directors).


 


(c)                                  If
a transaction requires approval by the Independent Directors, the Advisor will
deliver to the Independent Directors all documents required by them to properly
evaluate the proposed investment in the Property.


 


9

















 


The prior approval of a majority of the Independent
Directors and a majority of the Directors not otherwise interested in the
transaction will be required for each transaction which is proposed for the
Company by the Advisor or its Affiliates. The Directors may, at any time upon
the giving of notice to the Advisor, modify or revoke the authority set forth
in this Paragraph 4. If and to the extent the Directors so modify or revoke the
authority contained herein, the Advisor shall henceforth submit to the
Directors for prior approval such proposed transactions involving investments
in Property as thereafter require prior approval, provided however, that such
modification or revocation shall be effective upon receipt by the Advisor and
shall not be applicable to investment transactions to which the Advisor has
committed the Company prior to the date of receipt by the Advisor of such
notification.


 


5.                                       BANK ACCOUNTS. 
The Advisor may establish and maintain one or more bank accounts in its
own name for the account of the Company or in the name of the Company and may
collect and deposit into any such account or accounts, and disburse from any
such account or accounts, any money on behalf of the Company, under such terms
and conditions as the Directors may approve, provided that no funds shall be
commingled with the funds of the Advisor; and the Advisor shall from time to
time render appropriate accountings of such collections and payments to the
Directors and to the auditors of the Company.


 


6.                                       RECORDS; ACCESS. 
The Advisor shall maintain appropriate records of all its activities
hereunder and make such records available for inspection by the Directors and
by counsel, auditors and authorized agents of the Company, at any time or from
time to time during normal business hours. The Advisor shall at all reasonable
times have access to the books and records of the Company.


 


7.                                       LIMITATIONS ON ACTIVITIES.  Anything else in this Agreement to the
contrary notwithstanding, the Advisor shall refrain from taking any action
which, in its sole judgment made in good faith, would (a) adversely affect the
status of the Company as a REIT, (b) subject the Company to regulation under
the Investment Company Act of 1940, as amended, or (c) violate any law, rule,
regulation or statement of policy of any governmental body or agency having
jurisdiction over the Company, its Shares or its Securities, or otherwise not
be permitted by the Articles of Incorporation or Bylaws of the Company, except
if such action shall be ordered by the Directors, in which case the Advisor
shall notify promptly the Directors of the Advisor’s judgment of the potential
impact of such action and shall refrain from taking such action until it
receives further clarification or instructions from the Directors. In such
event the Advisor shall have no liability for acting in accordance with the
specific instructions of the Directors so given. Notwithstanding the foregoing,
the Advisor, its directors, officers, employees and stockholders, and
stockholders, directors and officers of the Advisor’s Affiliates shall not be
liable to the Company or to the Directors or stockholders for any act or
omission by the Advisor, its directors, officers or employees, or stockholders,
directors or officers of the Advisor’s Affiliates taken or omitted to be taken
in the performance of their duties under this Agreement except as provided in
Paragraphs 20 and 21 of this Agreement.


 


8.                                       RELATIONSHIP WITH DIRECTORS.  Subject to paragraph 7 of this Agreement and
to restrictions advisable with respect to the qualification of the Company as a
REIT, directors, officers and employees of the Advisor or an Affiliate of the
Advisor or any corporate parents of an Affiliate, or directors, officers or
stockholders of any director, officer or corporate parent of an Affiliate may
serve as a Director and as officers of the Company, except that no director,
officer or employee of the Advisor or its Affiliates who also is a Director or
officer of the Company shall receive any compensation from the Company for
serving as a Director or officer other than reasonable reimbursement for travel
and related expenses incurred in attending meetings of the Directors.


 


10

















 


9.                                       FEES.


 


(a)                                  Acquisition
Fees. The Advisor shall receive as compensation for services rendered in
connection with the investigation, selection and acquisition (by purchase,
investment or exchange) of Property an Acquisition Fee payable by the Company.
The Acquisition Fees shall be reduced to the extent that, and, if necessary to
limit, the total compensation paid to all persons involved in the acquisition
of any Property to the amount customarily charged in arm’s-length transactions
by other persons or entities rendering similar services as an ongoing public
activity in the same geographical location and for comparable types of
Properties and to the extent that other acquisition fees, finder’s fees, real
estate commissions, or other similar fees or commissions are paid by any person
in connection with the transaction.  The
total Acquisition Fees paid to the Advisor or its Affiliates shall not exceed
(i) 3%  of
the Contract Purchase Price of Properties acquired directly or indirectly by
the Company for the first $170 million in aggregate Contract Purchase Price of
Properties acquired; and (ii) 1% of the Contract Purchase Price of Properties
acquired directly or indirectly by the Company thereafter.  Acquisition Fees shall be payable on the
acquisition of a specific property or the acquisition of a portfolio of
properties through a purchase of assets, merger or similar transaction.  However, the total of all Acquisition Fees
and Acquisition Expenses payable with respect to any Property shall not exceed
6% of the Contract Purchase Price of such Property unless fees in excess of
such amount are approved by a majority of the Directors not interested in such
transaction and by a majority of the Independent Directors not interested in
such transaction.


 


(b)                                 Subordinated
Disposition Fee. If the Advisor or an Affiliate provides a substantial
amount of the services (as determined by a majority of the 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% of
the sales price of such Property or Properties. The Subordinated Disposition
Fee will be paid only if Stockholders have received total Distributions in an
amount equal to the sum of their aggregate Invested Capital and their aggregate
Stockholders’ 7% 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% 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 an amount
sufficient to pay the Stockholders’ 7% Return through the Termination Date, 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 Termination Date equals 100% of
Invested Capital plus an amount sufficient to pay the Stockholders’ 7% Return
through the Termination Date. Upon Listing, if the Advisor has accrued but not
been paid such Subordinated Disposition Fee, then for purposes of determining
whether the subordination conditions have been satisfied, Stockholders will be
deemed to have received a Distribution 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, beginning 180 days after Listing, of 30 days during which
the Shares are traded.


 


(c)                                  Advisor
Asset Management Fee. The Advisor shall receive as compensation for
services rendered in connection with the management of the Company’s assets the
Advisor Asset Management Fee.  The
Advisor Asset Management Fee shall be payable by the Company in cash or in
Shares at the option of the Advisor, and may be deferred, in whole or in part,
from time to time, by the Advisor (without interest).  The Advisor Asset Management Fee shall be calculated monthly, not
to


 


11

















 


exceed a rate of 0.0625% per month. 
The Advisor Asset Management Fee calculated with respect to each month
shall be payable by the Company on the first business day following the last
day of such month.


 


(d)                                 Operating
Partnership Interests.  The Advisor
will make a capital contribution of $200,000 to the Operating Partnership in
exchange for OP Units.  An affiliate of
the Advisor also will be issued OP Units constituting a separate series of
limited partnership interests (the “Special OP Units”).  The holder of the Special OP Units will be
entitled to distributions from the Operating Partnership in an amount equal to
15% of the Net Sales Proceeds after the holders of regular partnership interests
have received cumulative distributions from the Operating Partnership from
operating income, sales proceeds or other sources equal to their capital
contributions to the Operating partnership plus a 7% cumulative, noncompounded
annualized return thereon.  Upon the
earliest to occur of the termination of this Agreement for Cause, a
Termination  Event or the Listing, all
of the Special OP Units shall be redeemed by the Operating Partnership.  In the case of a redemption upon a
Termination Event or the Listing, the Special OP Units shall be redeemed for an
aggregate amount equal to the Net Sales Proceeds that would have been
distributed to the holders of Special OP Units in accordance with the preceding
sentence if a transaction within the meaning of clause (E) of the definition of
Sale had occurred on such date, all assets of the Operating Partnership had
been sold for their fair market value and all liabilities of the Operating
Partnership had been satisfied in full according to their terms.  In determining the fair market value of the
assets of the Operating Partnership, (i) in connection with a Termination
Event, the Company shall obtain an appraisal of the properties of the Operating
Partnership and (ii) in connection with the Listing, the Company shall make
such determination taking into account the market value of the Company’s listed
Shares based upon the average closing price, or average of bid and asked
prices, as the case may be, during a period of 30 days during which such Shares
are traded beginning 180 days after the Listing.  If the Agreement is terminated or not renewed by the Company for
Cause, the Special OP Units shall be redeemed by the Operating Partnership for
$1.  The Operating Partnership will
redeem the Special OP Units for cash. 
There shall be a corresponding allocation of profits of the Operating
Partnership made to the holder of the Special OP Units in connection with the
amounts payable hereunder and such amounts will be payable only out of profits
of the Operating Partnership.


 


(e)                                  Loans
from Affiliates. If any loans are made to the Company by an Affiliate of
the Advisor, the maximum amount of interest that may be charged by such
Affiliate shall be the lesser of (i) 1% above the prime rate of interest
charged from time to time by the principal bank then used by the Company and
(ii) the rate that would be charged to the Company by unrelated lending
institutions on comparable loans for the same purpose. The terms of any such
loans shall be no less favorable than the terms available between
non-Affiliated Persons for similar commercial loans.


 


(f)                                    Changes
to Fee Structure. In the event of Listing, the Company and the Advisor
shall negotiate in good faith to establish a fee structure appropriate for a
perpetual-life entity. A majority of the Independent Directors must approve the
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 loan administration, underwriting or broker commissions, servicing,
engineering, inspection and other fees, whether paid by the REIT or by others
with whom the REIT does business; (v) the quality and extent of service and
advice furnished by the Advisor; (vi) the performance of the investment
portfolio of the REIT, 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


 


12

















 


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.


 


(g)                                 Exclusion
of Certain Transactions.  In the
event the Company shall propose to enter into any transaction in which an
officer or director of the Company, the Advisor, or any Affiliate of the
Company or the Advisor has a direct or indirect interest, then (i) such
transaction shall be approved by a majority of the Board of Directors and also
by a majority of the Independent Directors and (ii) any commissions or
remuneration received by any such persons in connection with such transaction
shall be deducted from the fees payable under this Agreement.


 


10.                                 EXPENSES.


 


(a)                                  In
addition to the compensation paid to the Advisor pursuant to Paragraph 9
hereof, the Company shall pay directly or reimburse the Advisor for all of the
expenses paid or incurred by the Advisor in connection with the services it
provides to the Company pursuant to this Agreement, including, but not limited
to:


 


(i)                                     the
Company’s Organizational and Offering Expenses; provided, however, that within
60 days after the end of the month in which the Offering terminates, the
Advisor shall reimburse the Company for any Organizational and Offering
Expenses reimbursement received by the Advisor pursuant to this Paragraph 10,
to the extent that such reimbursement exceeds the maximum amount permitted or,
at the option of the Company, such excess shall be subtracted from the next
reimbursement of expense to be made by the Company pursuant to this paragraph
10.  The Advisor shall be responsible
for the payment of all the Company’s Organizational and Offering Expenses in
excess of the maximum amount permitted;


 


(ii)                                  Acquisition
Expenses incurred in connection with the selection and acquisition of
Properties at the lesser of the actual cost or 90% of the competitive rate
charged by unaffiliated persons providing similar goods and services in the
same geographic location;


 


(iii)                               the actual cost of goods
and services used by the Company and obtained from entities not affiliated with
the Advisor, other than Acquisition Expenses, including brokerage fees paid in
connection with the purchase and sale of securities;


 


(iv)                              interest
and other costs for borrowed money, including discounts, points and other similar
fees;


 


(v)                                 taxes
and assessments on income of the Company or Properties;


 


(vi)                              costs
associated with insurance required in connection with the business of the
Company or by the Directors;


 


(vii)                           expenses of managing and
operating Properties owned by the Company, whether payable to an Affiliate of
the Company or a non-affiliated Person.


 


(viii)                        all expenses in connection with
payments to the Directors and meetings of the Directors and Stockholders;


 


(ix)                                expenses
associated with Listing or with the issuance and distribution of Shares and
Securities, such as selling commissions and fees, advertising expenses, taxes,
legal and accounting fees, Listing and registration fees, and other
Organization and Offering Expenses;


 


13

















 


(x)                                   expenses
connected with payments of Distributions in cash or otherwise made or caused to
be made by the Company to the Stockholders;


 


(xi)                                expenses
of organizing, revising, amending, converting, modifying, or terminating the
Company or the Articles of Incorporation;


 


(xii)                             expenses of maintaining
communications with Stockholders, including the cost of preparation, printing,
and mailing annual reports and other Stockholder reports, proxy statements and
other reports required by governmental entities;


 


(xiii)                          administrative service
expenses (including personnel costs; provided, however, that no reimbursement
shall be made for costs of personnel to the extent that such personnel perform
services in transactions for which the Advisor receives a separate fee); and


 


(xiv)                         audit, accounting and legal
fees.


 


(b)                                 Expenses
incurred by the Advisor on behalf of the Company and payable pursuant to this
Paragraph 10 shall be reimbursed no less than monthly to the Advisor. The
Advisor shall prepare a statement documenting the expenses of the Company and
the calculation of the Advisor Asset Management Fee during each quarter, and
shall deliver such statement to the Company within 45 days after the end of
each quarter.


 


11.                                 OTHER SERVICES. 
Should the Directors request that the Advisor or any director, officer
or employee thereof render services for the Company other than set forth in
Paragraph 3, such services shall be separately compensated at such rates and in
such amounts as are agreed by the Advisor and the Independent Directors of the
Company, subject to the limitations contained in the Articles of Incorporation,
and shall not be deemed to be services pursuant to the terms of this Agreement.


 


12.                                 FIDELITY BOND. 
The Advisor shall maintain a fidelity bond for the benefit of the
Company which bond shall insure the Company from losses of up to $200,000 per
occurrence and shall be of the type customarily purchased by entities
performing services similar to those provided to the Company by the Advisor.


 


13.                                 REIMBURSEMENT TO THE ADVISOR.  For any year in which the Company qualifies
as a REIT, the Company shall not reimburse the Advisor at the end of any fiscal
quarter Operating Expenses that, in the four consecutive fiscal quarters then
ended (the “Expense Year”) exceed (the “Excess Amount”) the greater of 2% of
Average Invested Assets or 25% of Net Income (the “2%/25% Guidelines”) for such
year. Any Excess Amount paid to the Advisor during a fiscal quarter shall be
repaid to the Company or, at the option of the Company, subtracted from the
Operating Expenses reimbursed during the subsequent fiscal quarter.  If there is an Excess Amount in any Expense
Year and the Independent Directors determine that such excess was justified,
based on unusual and nonrecurring factors which they deem sufficient, the
Excess Amount may be carried over and included in Operating Expenses in
subsequent Expense Years, and reimbursed to the Advisor in one or more of such
years, provided that Operating Expenses in any Expense Year, including any
Excess Amount to be paid to the Advisor, shall not exceed the 2%/25%
Guidelines.  Within 60 days after the
end of any fiscal quarter of the Company for which total Operating Expenses for
the Expense Year exceed the 2%/25% Guidelines, there shall be sent to the
stockholders a written disclosure of such fact, together with an explanation of
the factors the Independent Directors considered in determining that such
excess expenses were justified. Such determination shall be reflected in the
minutes of the meetings of the Board of Directors. The Company will not
reimburse the Advisor or its Affiliates for services for which the Advisor or
its Affiliates are entitled to compensation in the form of a separate fee. All
figures used in the foregoing


 


14

















 


computation shall be determined in accordance with generally accepted
accounting principles applied on a consistent basis.


 


14.                                 OTHER ACTIVITIES OF THE ADVISOR.  Nothing herein contained shall prevent the
Advisor from engaging in other activities, including, without limitation, the
rendering of advice to other Persons (including other REITs) and the management
of other programs advised, sponsored or organized by the Advisor or its
Affiliates; nor shall this Agreement limit or restrict the right of any
director, officer, employee, or stockholder 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. The Advisor
may, with respect to any investment in which the Company is a participant, also
render advice and service to each and every other participant therein. The
Advisor shall report to the Directors the existence of any condition or circumstance,
existing or anticipated, of which it has knowledge, which creates or could
create a conflict of interest between the Advisor’s obligations to the Company
and its obligations to or its interest in any other partnership, corporation,
firm, individual, trust or association. The Advisor or its Affiliates shall
promptly disclose to the Directors knowledge of such condition or circumstance.
If the Sponsor, Advisor, Director or Affiliates thereof have sponsored other
investment programs with similar investment objectives which have investment
funds available at the same time as the Company, it shall be the duty of the
Directors (including the Independent Directors) to adopt the method set forth
in the Registration Statement or another reasonable method by which properties
are to be allocated to the competing investment entities and to use their best
efforts to apply such method fairly to the Company.


 


The Advisor shall be required to use its best efforts
to present a continuing and suitable investment program to the Company which is
consistent with the investment policies and objectives of the Company, but
neither the Advisor nor any Affiliate of the Advisor shall be obligated
generally to present any particular investment opportunity to the Company even
if the opportunity is of character which, if presented to the Company, could be
taken by the Company.


 


The Advisor or its Affiliates may make such an
investment in a property only after (i) such investment has been offered to the
Company and all public partnerships and other investment entities Affiliated
with the Company with funds available for such investment and (ii) such
investment is found to be unsuitable for investment by the Company, such
partnerships and investment entities.


 


In the event that the Advisor or its Affiliates is
presented with a potential investment which might be made by the Company and by
another investment entity which the Advisor or its Affiliates advises or
manages, the Advisor shall consider the investment portfolio of each entity, cash
flow of each entity, the effect of the acquisition on the diversification of
each entity’s portfolio, rental payments during any renewal period, the
estimated income tax effects of the purchase on each entity, the policies of
each entity relating to leverage, the funds of each entity available for
investment and the length of time such funds have been available for
investment. In the event that an investment opportunity becomes available which
the Advisor determines is suitable for the Company based on the criteria set
forth above, then the investment opportunity shall be offered to the
Company.  The Advisor may consider the
property for its own investment only if such property is deemed inappropriate
for any investment entity which is advised or managed by the Advisor, including
the Company.


 


15.                                 RELATIONSHIP OF ADVISOR AND COMPANY.  The Company and the Advisor are not partners
or joint venturers with each other, and nothing in this Agreement shall be
construed to make them such partners or joint venturers or impose any liability
as such on either of them.


 


16.                                 TERM; TERMINATION OF AGREEMENT.  This Agreement shall continue in force for a
period of one year from the date hereof, subject to an unlimited number of
successive one-year renewals


 


15

















 


upon mutual consent of the parties. It is the duty of the Directors to
evaluate the performance of the Advisor annually before renewing the Agreement,
and each such renewal shall be for a term of no more than one year.


 


17.                                 TERMINATION BY EITHER PARTY.  This Agreement may be terminated upon 60
days written notice with or without Cause and without penalty, by either party
(by a majority of the Independent Directors of the Company or a majority of the
Board of Directors of the Advisor, as the case may be).


 


18.                                 ASSIGNMENT TO AN AFFILIATE.  This Agreement may be assigned by the
Advisor to a Permitted Affiliate with the approval of a majority of the
Directors (including a majority of the Independent Directors). The Advisor may
assign any rights to receive fees or other payments under this Agreement
without obtaining the approval of the Directors. This Agreement shall not be
assigned by the Company without the consent of the Advisor, except in the case
of an assignment by the Company to a corporation or other organization which is
a successor to all of the assets, rights and obligations of the Company, in
which case such successor organization shall be bound hereunder and by the
terms of said assignment in the same manner as the Company is bound by this
Agreement.


 


19.                                 PAYMENTS TO AND DUTIES OF ADVISOR UPON
TERMINATION.  Payments to the
Advisor of unpaid expense reimbursements pursuant to this Section 19 shall
be subject to the 2%/25% Guidelines to the extent applicable.


 


(a)                                  After
the Termination Date, the Advisor shall not be entitled to compensation for
further services hereunder except it shall be entitled to receive from the
Company within 30 days after the effective date of such termination all unpaid
reimbursements of expenses and all earned but unpaid fees payable to the
Advisor prior to termination of this Agreement.


 


(b)                                 The
Advisor shall promptly upon termination:


 


(i)                                     pay
over to the Company all money collected and held for the account of the Company
pursuant to this Agreement, after deducting any accrued compensation and
reimbursement for its expenses to which it is then entitled;


 


(ii)                                  deliver
to the Directors a full accounting, including a statement showing all payments
collected by it and a statement of all money held by it, covering the period
following the date of the last accounting furnished to the Directors;


 


(iii)                               deliver to the Directors
all assets, including Properties, and documents of the Company then in the
custody of the Advisor; and


 


(iv)                              cooperate
with the Company to provide an orderly management transition.


 


20.                                 INDEMNIFICATION BY THE COMPANY.  The Company shall indemnify and hold
harmless the Advisor and its Affiliates, including their respective officers,
directors, partners and employees, from all liability, claims, damages or
losses arising in the performance of their duties hereunder, and related
expenses, including reasonable attorneys’ fees, to the extent such liability,
claims, damages or losses and related expenses are not fully reimbursed by insurance,
subject to any limitations imposed by the laws of the State of Maryland or the
Articles of Incorporation of the Company. Notwithstanding the foregoing, the
Advisor shall not be entitled to indemnification or be held harmless pursuant
to this paragraph 20 for any activity which the Advisor shall be required to
indemnify or hold


 


16

















 


harmless the Company pursuant to paragraph 21. Any indemnification of
the Advisor may be made only out of the net assets of the Company and not from
Stockholders.  Notwithstanding the
foregoing, the Company may not indemnify or hold harmless the Advisor, its
Affiliates, or any of their respective officers, directors, partners or employees
in any manner that would be inconsistent with the provisions of
Section II.G of the REIT Guidelines adopted by the North American
Securities Administrators Association (the “Indemnification Guideline”).  A copy of the Indemnification Guideline is
attached hereto as Exhibit A and is incorporated herein by reference.


 


21.                                 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 or 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 Board of Directors in following or declining to follow any advice or
recommendation given by the Advisor. 
Notwithstanding the foregoing, the Company may not indemnify or hold
harmless the Advisor, its Affiliates, or any of their respective officers,
directors, partners or employees in any manner that would be inconsistent with
the provisions of Section II.G of the REIT Guidelines adopted by the North
American Securities Administrators Association.


 


22.                                 NOTICES.  Any notice,
report or other communication required or permitted to be given hereunder shall
be in writing unless some other method of giving such notice, report or other
communication is required by the Articles of Incorporation, the Bylaws, or
accepted by the party to whom it is given, and shall be given by being
delivered by hand or by overnight mail or other overnight delivery service to
the addresses set forth herein:


 


	
  To the Directors and to the Company:

  	
   

  	
  Dividend Capital Trust Inc.

  518 17th Street

  Suite 1700

  Denver, CO 80202

  
	
   

  	
   

  	
   

  
	
  To the Advisor:

  	
   

  	
  Dividend Capital Advisors LLC

  518 17th Street

  Suite 1700

  Denver, CO 80202

  



 


Either party may at any time give notice in writing to
the other party of a change in its address for the purposes of this Paragraph
22.


 


23.                                 MODIFICATION. 
This Agreement shall not be changed, modified, terminated, or
discharged, in whole or in part, except by an instrument in writing signed by
both parties hereto, or their respective successors or assignees.


 


24.                                 SEVERABILITY. 
The provisions of this Agreement are independent of and severable from
each other, and no provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any other or others of
them may be invalid or unenforceable in whole or in part.


 


25.                                 CONSTRUCTION. 
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of Colorado.


 


26.                                 ENTIRE AGREEMENT. 
This Agreement contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior


 


17

















 


and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof. This Agreement may not be modified or amended other
than by an agreement in writing.


 


27.                                 INDULGENCES, NOT WAIVERS.  Neither the failure nor any delay on the
part of a party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any occurrence
be construed as a waiver of such right, remedy, power or privilege with respect
to any other occurrence. No waiver shall be effective unless it is in writing
and is signed by the party asserted to have granted such waiver.


 


28.                                 GENDER.  Words used herein
regardless of the number and gender specifically used, shall be deemed and
construed to include any other number, singular or plural, and any other
gender, masculine, feminine or neuter, as the context requires.


 


29.                                 TITLES NOT TO AFFECT INTERPRETATION.  The titles of paragraphs and subparagraphs
contained in this Agreement are for convenience only, and they neither form a
part of this Agreement nor are they to be used in the construction or
interpretation hereof.


 


30.                                 EXECUTION IN COUNTERPARTS.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding
when one or more counterparts hereof, individually or taken together, shall
bear the signatures of all of the parties reflected hereon as the signatories.


 


31.                                 INITIAL INVESTMENT.  The Advisor has made a capital contribution of $200,000 to the
Operating Partnership in exchange for OP Units. The Advisor may not sell any of
the OP Units while the Advisor acts in such advisory capacity to the Company,
provided, that such OP Units may be transferred to Affiliates of the Advisor.
The restrictions included above shall not apply to any other Securities
acquired by the Advisor or its Affiliates. The Advisor shall not vote any
Shares it now owns, or hereafter acquires, in any vote for the election of
Directors or any vote regarding the approval or termination of any contract
with the Advisor or any of its Affiliates.


 


18

















 


IN WITNESS WHEREOF, the parties hereto have executed
this Amended and Restated Advisory Agreement as of the date and year first
above written.


 


	
   

  	
  DIVIDEND CAPITAL TRUST INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Evan H. Zucker

  	
   

  
	
   

  	
  Name:

  	
  Evan H. Zucker

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DIVIDEND CAPITAL ADVISORS LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ James R. Mulvihill

  	
   

  
	
   

  	
  Name:

  	
  James R. Mulvihill

  
	
   

  	
  Title:

  	
  Member

  



 


19

















 


EXHIBIT
A


 


INDEMNIFICATION
GUIDELINE


 


(a)                                  Liability
and Indemnification


 


(i)                                     The
REIT shall not provide for indemnification of the TRUSTEES, ADVISORS or
AFFILIATES for any liability or loss suffered by the TRUSTEES, ADVISORS or AFFILIATES,
nor shall it provide that the TRUSTEES, ADVISORS or AFFILIATES be held harmless
for any loss or liability suffered by the REIT, unless all of the following
conditions are met:


 


(1)                                  The
TRUSTEES, ADVISORS or AFFILIATES have determined, in good faith, that the
course of conduct which caused the loss or liability was in the best interests
of the REIT.


 


(2)                                  The
TRUSTEES, ADVISORS or AFFILIATES were acting on behalf of or performing
services for the REIT.


 


(3)                                  Such
liability or loss was not the result of:


 


(a)                                  negligence
or misconduct by the TRUSTEES, excluding the INDEPENDENT TRUSTEES, ADVISORS or
AFFILIATES; OR


 


(b)                                 gross
negligence or willful misconduct by the INDEPENDENT TRUSTEES.


 


(4)                                  Such
indemnification or agreement to hold harmless is recoverable only out of REIT
net assets and not from SHAREHOLDERS.


 


(ii)                                  Notwithstanding
anything to the contrary contained in Section II.G.1, the TRUSTEES,
ADVISORS or AFFILIATES and any persons acting as a broker-dealer shall not be
indemnified by the REIT for any losses, liabilities or expenses arising from or
out of an alleged violation of federal or state securities laws by such party
unless one or more of the following conditions are met:


 


(1)                                  There
has been a successful adjudication on the merits of each count involving
alleged securities law violations as to the particular indemnitee.


 


(2)                                  Such
claims have been dismissed with prejudice on the merits by a court of competent
jurisdiction as to the particular Indemnitee.


 


(3)                                  A
court of competent jurisdiction approves a settlement of the claims against a
particular indemnitee and finds that indemnification of the settlement and the
related costs should be made, and the court considering the request for
indemnification has been advised of the position of the Securities and Exchange
Commission and of the published position of any state securities regulatory
authority in which securities of the REIT were offered or sold as to
indemnification for violations of securities laws.


 


(iii)                               The advancement of REIT
funds to the TRUSTEES, ADVISORS or AFFILIATES for legal expenses and other
costs incurred as a result of any legal action for which indemnification is
being sought is permissible only if all of the following conditions are
satisfied:


 


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(1)                                  The
legal action relates to acts or omissions with respect to the performance of
duties or services on behalf of the REIT.


 


(2)                                  The
legal action is initiated by a third party who is not a SHAREHOLDER or the
legal action is initiated by a SHAREHOLDER acting in his or her capacity as
such and a court of competent jurisdiction specifically approves such
advancement.


 


(3)                                  The
TRUSTEES, ADVISORS and AFFILIATES undertake to repay the advanced funds to the
REIT, together with the applicable legal rate of interest thereon, in cases in
which such TRUSTEES, ADVISORS or AFFILIATES are found not to be entitled to
indemnification.


 


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