exv10w2





Exhibit
10.2



SUB-ADVISORY AGREEMENT




by and between



PLYMOUTH REAL ESTATE INVESTORS INC.



and



HALEY REAL ESTATE GROUP LLC



August 1, 2011



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 DEFINITIONS
	 	 	1	 
	ARTICLE 2 APPOINTMENT
	 	 	2	 
	ARTICLE 3 DUTIES OF THE SUB-ADVISOR
	 	 	2	 
	3.01 Acquisition Services
	 	 	3	 
	3.02 Other Services
	 	 	3	 
	ARTICLE 4 AUTHORITY OF SUB-ADVISOR
	 	 	3	 
	4.01 Approval by the Advisor
	 	 	3	 
	4.02 Modification or Revocation of Authority of Sub-Advisor
	 	 	3	 
	4.03 Joint Ventures
	 	 	3	 
	ARTICLE 5 LIMITATION ON ACTIVITIES
	 	 	4	 
	ARTICLE 6
ACQUISITION FEE
	 	 	4	 
	ARTICLE 7 RELATIONSHIP OF ADVISOR AND SUB-ADVISOR; OTHER ACTIVITIES OF THE SUB-ADVISOR
	 	 	4	 
	7.01 Relationship
	 	 	4	 
	7.02 Time Commitment
	 	 	5	 
	ARTICLE 8 TERM AND TERMINATION OF THE AGREEMENT
	 	 	5	 
	8.01 Term
	 	 	5	 
	8.02 Termination by Either Party
	 	 	5	 
	8.03 Payments on Termination and Survival of Certain Rights and Obligations
	 	 	5	 
	ARTICLE 9 ASSIGNMENT
	 	 	6	 
	ARTICLE 10 INDEMNIFICATION AND LIMITATION OF LIABILITY
	 	 	6	 
	10.01 Indemnification
	 	 	6	 
	10.02 Limitation on Indemnification
	 	 	7	 
	10.03 Limitation on Payment of Expenses
	 	 	7	 
	ARTICLE 11 MISCELLANEOUS
	 	 	7	 
	11.01 Notices
	 	 	7	 
	11.02 Modification
	 	 	8	 
	11.03 Severability
	 	 	8	 
	11.04 Construction
	 	 	8	 
	11.05 Entire Agreement
	 	 	8	 
	11.06 Waiver
	 	 	8	 
	11.07 Gender
	 	 	8	 
	11.08 Titles Not to Affect Interpretation
	 	 	8	 











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SUB-ADVISORY AGREEMENT




     This
Sub-Advisory Agreement, dated as of August 1, 2011 (the “Agreement”), is by and
between Plymouth Real Estate Investors Inc., a Massachusetts corporation (the “Advisor”) and Haley
Real Estate Group LLC, a Nebraska limited liability company (the “Sub-Advisor”).



W I T N E S S E T H




     WHEREAS, the Advisor desires to avail itself of the knowledge, experience, sources of
information, advice, assistance and certain facilities of the Sub-Advisor and to have the
Sub-Advisor undertake the duties and responsibilities hereinafter set forth, on behalf of, and
subject to the supervision of, the Advisor, all as provided herein; and



     WHEREAS, the Sub-Advisor is willing to undertake to render such services, subject to the
supervision of the Advisor, 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:



ARTICLE 1




DEFINITIONS



     The following defined terms used in this Agreement shall have the meanings specified below:



     “Advisor” means (i) Plymouth Real Estate Investors Inc., a Massachusetts corporation, or (ii)
any successor advisor to Plymouth.



     “Affiliate or Affiliated.” An Affiliate of another Person includes any of the following: (i)
any Person directly or indirectly controlling, controlled by, or under common control with such
other Person; (ii) any Person directly or indirectly owning, controlling, or holding with the power
to vote 10% or more of the outstanding voting securities of such other Person; (iii) any legal
entity for which such Person acts as an executive officer, director, trustee, or general partner;
(iv) any Person 10% or more of whose outstanding voting securities are directly or indirectly
owned, controlled, or held, with power to vote, by such other Person; and (v) any executive
officer, director, trustee, or general partner of such other Person. An entity shall not be deemed
to control or be under common control with an Advisor-sponsored program unless (i) the entity owns
10% or more of the voting equity interests of such program or (ii) a majority of the board of
directors (or equivalent governing body) of such program is composed of Affiliates of the entity.



     “Code” means the 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.



 









 





     “Investments” means multi-family properties or Loans secured by multi-family properties.



     “Loans” means, as to Investments, mortgage loans and other types of debt financing investments
made by Plymouth or one of its subsidiaries, either directly or indirectly, including through
ownership interests in a joint venture or partnership, and including, without limitation, mezzanine
loans, bridge loans, convertible mortgages, wraparound mortgage loans, construction mortgage loans,
loans on leasehold interests, and participations in such loans.



     “Person” means an individual, corporation, partnership, estate, trust (including a trust
qualified under Section 401(a) or 501(c) (17) of the Code), a portion of a trust permanently set
aside for or to be used exclusively for the purposes described in Section 642(c) of the Code,
association, private foundation within the meaning of Section 509(a) of the Code, joint stock
company or other entity, or any government or any agency or political subdivision thereof, and also
includes a group as that term is used for purposes of Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended.



     “Plymouth” means Plymouth Opportunity REIT, Inc., a corporation organized under the laws of
the State of Maryland.



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



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



     “Shares” means the shares of common stock of Plymouth, par value $.01 per share.



     “Termination Date” means the date of termination of the Agreement determined in accordance
with Article 9 hereof.



ARTICLE 2




APPOINTMENT



     The Advisor hereby appoints the Sub-Advisor to serve as its advisor on the terms and
conditions set forth in this Agreement, and the Sub-Advisor hereby accepts such appointment. The
Advisor agrees that, during the term of this Agreement, Sub-Advisor shall have the exclusive right
to investigate and identify all prospective Investments for evaluation by the Advisor.



ARTICLE 3




DUTIES OF THE SUB-ADVISOR



     The Sub-Advisor undertakes to use its best efforts to present to the Advisor potential
investment opportunities consistent with the investment objectives and policies of Plymouth.
Subject to the limitations set forth in this Agreement, including Article 4 hereof, and the



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continuing and exclusive authority of the Advisor over the activities of the Sub-Advisor with
respect to its obligations under this Agreement, the Sub-Advisor shall perform the following
duties:




     3.01 Acquisition Services.




     (i) Serve as one of the Advisor’s investment and financial advisors and provide
relevant market research and economic and statistical data in connection with potential
Investments;




     (ii) Subject to Article 4 hereof and the investment objectives and policies of the
Plymouth: (a) locate and analyze potential Investments; (b) assist the Advisor in
structuring the terms and conditions of transactions pursuant to which Investments will be
made; and (c) assist the Advisor in arranging for financing and refinancing of Investments;




     (iii) Perform due diligence on prospective Investments and create due diligence reports
summarizing the results of such work;




     (iv) Prepare reports regarding prospective Investments that include recommendations and
supporting documentation necessary for the Advisor to evaluate the proposed Investments; and




     (v) Obtain reports, where appropriate, concerning the value of potential Investments.



     3.02 Other Services. Except as provided in Article 5 hereof, the Sub-Advisor shall
perform any other services reasonably requested by the Advisor.



ARTICLE 4




AUTHORITY OF SUB-ADVISOR



     4.01 Approval by the Advisor. The Sub-Advisor may not take any action on behalf of
the Advisor without the prior approval of the Advisor. The Sub-Advisor will deliver to the Advisor
all documents required by it to evaluate a proposed investment.



     4.02 Modification or Revocation of Authority of Sub-Advisor. The Advisor may, at any
time upon the giving of notice to the Advisor, modify or revoke the authority or approvals set
forth in Article 3 hereof.



     4.03 Joint Ventures. Notwithstanding anything herein to the contrary, the Sub-Advisor
and/or any of its affiliates shall be permitted to enter joint ventures, limited liability
companies partnerships or similar relationships with Plymouth and/or any of its affiliates with
respect to the acquisition of any Investment.



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ARTICLE 5




LIMITATION ON ACTIVITIES



     Notwithstanding any provision in this Agreement to the contrary, the Sub-Advisor shall not
take any action that, in the Sub-Advisor’s sole judgment made in good faith, would (i) adversely
affect the ability of Plymouth to qualify or continue to qualify as a REIT under the Code, (ii)
subject Plymouth to regulation under the Investment Company Act of 1940, as amended, (iii) violate
any law, rule, regulation or statement of policy of any governmental body or agency having
jurisdiction over Plymouth, its Shares or its other securities, or (iv) require the Sub-Advisor,
the Advisor or Plymouth to register as a broker-dealer with the SEC or any state. In the event an
action that would violate (i) through (iv) of the preceding sentence has been ordered by the
Advisor, the Sub-Advisor shall notify the Advisor of the Sub-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 Advisor. In such event, the Sub-Advisor shall have no
liability for acting in accordance with the specific instructions of the Advisor so given.



ARTICLE 6




ACQUISITION
FEE



       As compensation for the investigation and identification of
Investments, the Advisor shall pay an acquisition fee to the Sub-Advisor in an amount equal to 1.5%
of the “contract purchase price” or the “amount advanced for a Loan” with respect to each
Investment acquired by Plymouth. For purposes of this Agreement, “contract purchase price” or the
“amount advanced for a Loan” means the amount actually paid or allocated in respect of the
purchase, development, construction or improvement of an Investment or the amount actually paid or
allocated in respect of the purchase of a Loan, in each case inclusive of acquisition expenses and
any indebtedness assumed or incurred in respect of such Investment.




ARTICLE 7




RELATIONSHIP OF ADVISOR AND SUB-ADVISOR;

OTHER ACTIVITIES OF THE SUB-ADVISOR



     7.01 Relationship. The Advisor and the Sub-Advisor are not partners or joint
venturers with each other, and nothing in this Agreement shall be construed to make them



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such partners or joint venturers. Nothing herein contained shall prevent the Sub-Advisor from
engaging in other activities, including, without limitation, the rendering of advice to other
Persons (including other REITs). This Agreement shall not limit or restrict the right of any
manager, director, officer, employee or equityholder of the Sub-Advisor or its Affiliates to engage
in any other business or to render services of any kind to any other Person. The Sub-Advisor may,
with respect to any investment in which Plymouth is a participant, also render advice and service
to each and every other participant therein. The Sub-Advisor shall promptly disclose to the Advisor
the existence of any condition or circumstance, existing or anticipated, of which it has knowledge,
that creates or could create a conflict of interest between the Sub-Advisor’s obligations to the
Advisor and its obligations to or its interest in any other Person.




     7.02 Time Commitment. The Sub-Advisor shall, and shall cause its Affiliates and their
respective employees, officers and agents to, devote to the Advisor such time as shall be
reasonably necessary to fulfill the Sub-Advisor’s responsibilities hereunder in an appropriate
manner consistent with the terms of this Agreement. The Advisor acknowledges that the Sub-Advisor
and its Affiliates and their respective employees, officers and agents may also engage in
activities unrelated to the Advisor and may provide services to Persons other than the Advisor or
any of its Affiliates.



ARTICLE 8




TERM AND TERMINATION OF THE AGREEMENT



     8.01 Term. This Agreement shall have an initial term of one year from the date hereof
and may be renewed for an unlimited number of successive one-year terms upon mutual consent of the
parties. The Advisor will evaluate the performance of the Sub-Advisor annually before renewing this
Agreement, and each such renewal shall be for a term of no more than one year.



     8.02 Termination by Either Party. This Agreement may be terminated upon 60 days
written notice without cause or penalty by either the Advisor or the Sub-Advisor. The provisions of
Articles 1, 8, 10 and 11 hereof shall survive termination of this Agreement.



     8.03 Payments on Termination and Survival of Certain Rights and Obligations.




     (i) After the Termination Date, the Sub-Advisor shall not be entitled to compensation
for further services hereunder except it shall be entitled to receive from the Advisor
within 30 days after the effective date of such termination all unpaid reimbursements of
expenses and all earned but unpaid fees payable to the Sub-Advisor prior to termination of
this Agreement. For purposes of this Section 8.03, a fee will be deemed to be “earned” if
Plymouth acquires an Investment within 15 days of the date of termination of this Agreement.




     (ii) The Sub-Advisor shall promptly upon termination:



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     (a) pay over to the Advisor all money collected pursuant to this Agreement, if
any, after deducting any accrued compensation and reimbursement for its expenses to
which it is then entitled;




     (b) deliver to the Advisor 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 Advisor; and




     (c) deliver to the Advisor all assets and documents of the Advisor then in the
custody of the Sub-Advisor.



ARTICLE 9




ASSIGNMENT



     This Agreement may be assigned by the Sub-Advisor to an Affiliate with the consent of the
Advisor. The Sub-Advisor may assign any rights to receive fees or other payments under this
Agreement without obtaining the approval of the Advisor. This Agreement shall not be assigned by
the Advisor without the consent of the Sub-Advisor.



ARTICLE 10




INDEMNIFICATION AND LIMITATION OF LIABILITY



     10.01 Indemnification. Except as prohibited by the restrictions provided in this
Section 10.01 and Section 10.02 and Section 10.03 hereof, the Advisor shall indemnify, defend and
hold harmless the Sub-Advisor and its Affiliates, including their respective officers, directors,
equity holders, 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. Any indemnification of the Sub-Advisor may be made only out of the net
assets of the Advisor.



     Notwithstanding the foregoing, the Advisor shall not indemnify the Sub-Advisor or its
Affiliates for any loss, liability or expense 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: (i) there has been a successful adjudication on the merits of each count involving alleged
material securities law violations as to the particular indemnitee; (ii) such claims have been
dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular
indemnitee; or (iii) 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 SEC and of the published position of any state securities regulatory authority in
which securities of Plymouth were offered or sold as to indemnification for violations of
securities laws.



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     10.02 Limitation on Indemnification. Notwithstanding the foregoing, the Advisor shall
not provide for indemnification of the Sub-Advisor or its Affiliates for any liability or loss
suffered by any of them, nor shall any of them be held harmless for any loss or liability suffered
by the Advisor, unless all of the following conditions are met:




     (i) The Sub-Advisor or its Affiliates have determined, in good faith, that the course
of conduct that caused the loss or liability was in the best interests of the Advisor.




     (ii) The Sub-Advisor or its Affiliates were acting on behalf of or performing services
for the Advisor.




     (iii) Such liability or loss was not the result of negligence or misconduct by the
Sub-Advisor or its Affiliates.



     10.03 Limitation on Payment of Expenses. The Advisor shall pay or reimburse
reasonable legal expenses and other costs incurred by the Sub-Advisor or its Affiliates in advance
of the final disposition of a proceeding only if (in addition to the procedures required by the
Massachusetts Corporation Law, as amended from time to time) all of the following are satisfied:
(i) the proceeding relates to acts or omissions with respect to the performance of duties or
services on behalf of the Advisor, (ii) the legal proceeding was initiated by a third party who is
not a stockholder or, if by a stockholder acting in his or her capacity as such, a court of
competent jurisdiction approves such advancement and (iii) the Sub-Advisor or its Affiliates
undertake to repay the amount paid or reimbursed by the Advisor, together with the applicable legal
rate of interest thereon, if it is ultimately determined that the particular indemnitee is not
entitled to indemnification.



ARTICLE 11




MISCELLANEOUS



     11.01 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 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 Advisor:


Plymouth Real Estate Investors Inc.

Two Liberty Square, 10th Floor

Boston, Massachusetts 02109

Attention: Jeffrey Witherell




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     To the Sub-Advisor:


Haley Real Estate Group LLC

10703 J Street, Suite 101

Omaha, Nebraska 68127

Attention: Carl J. Troia, Jr.




     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 Section 11.01.



     11.02 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 permitted assigns.



     11.03 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.



     11.04 Construction. The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the State of Massachusetts.



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



     11.06 Waiver. Neither the failure nor any delay on the part of a party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege, nor shall any
waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver
shall be effective unless it is in writing and is signed by the party asserted to have granted such
waiver.



     11.07 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.



     11.08 Titles Not to Affect Interpretation. The titles of Articles and Sections
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.



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     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.



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



	 	 	 	 	 	 	 

	 	 	PLYMOUTH REAL ESTATE INVESTORS INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jeffrey E. Witherell	 	 
	 

	 	Name:
	 	Jeffrey E. Witherell	 	 
	 

	 	Title:
	 	CEO	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	HALEY REAL ESTATE GROUP LLC	 	 
	 
	 	 	By:
John E. Haley, Revocable Trust Agreement dated June 13, 2008, by its Trustees
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Marjorie L. Haley	 	 
	 

	 	 
	 	 
Marjorie L. Haley, Trustee
	 	 
	 
	 

	 	By:
	 	/s/ Daniel Patrick Clatanoff	 	 
	 

	 	 
	 	 
Daniel Patrick Clatanoff, Trustee	 	 
	 
	 

	 	By:
	 	/s/ Monette Susan Storm Zaugg	 	 
	 

	 	
	 	 
Monette Susan Storm Zaugg, Trustee	 	 
	 
	 

	 	By:
	 	/s/ Kristi Kaye Storm	 	 
	 

	 	
	 	 
Kristi Kaye Storm, Trustee	 	 







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