UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 24, 2006
------------------------------------------------------------------
BRT REALTY TRUST
----------------
(Exact name of Registrant as specified in charter)
Massachusetts 001-07172 13-2755856
----------------------------------------------------------------
(State or other (Commission file No.) (IRS Employer
jurisdiction of I.D. No.)
incorporation)
60 Cutter Mill Road, Suite 303, Great Neck, New York 11021
----------------------------------------------------------
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code 516-466-3100
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
-- Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
-- Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
-- Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
-- Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
==============================================================================
Item 1.01 Entry into a Material Definitive Agreement.
On November 24, 2006, BRT Realty Trust (the "registrant") and REIT Management
Corp. entered into an Amended and Restated Advisory Agreement, effective as of
January 1, 2007, amending and restating the Advisory Agreement, dated as of
February 7, 1983, between the registrant and REIT Management Corp., as amended.
Unless terminated earlier in accordance with the terms thereof, the Amended and
Restated Advisory Agreement will terminate on December 31, 2010.
In accordance with the Amended and Restated Advisory Agreement, the registrant
has retained REIT Management Corp. to perform services on behalf of the
registrant, subject to the supervision of the Trustees of the registrant,
including (i) serving as the registrant's advisor and consultant in connection
with policy decisions to be made by the Trustees (ii) seeking out and presenting
to the registrant, whether through its own efforts or those of third parties,
suitable investment opportunities consistent with the registrant's investment
policy, (iii) participating in the deliberations of the registrant's Loan
Committee, and as requested, to provide officers, employees and consultants of
REIT Management Corp. to act as members of the Loan Committee, (iv) supervising
the performance of ministerial functions in connection with day to day
management of the registrant's operations (including property inspections and
construction supervisory services), (v) participating in the selection of
consultants, mortgage bankers, investment bankers, etc., (vi) participating and
negotiating on behalf of the registrant with investment bankers and others with
respect to private placements, securities offerings and obtaining loans (credit
lines), and (vii) performing such other services of a managerial or advisory
nature as the Trustees may deem to be in the best interests of the registrant.
The Amended and Restatement Advisory Agreement provides (i) that officers,
Trustees and employees of REIT Management Corp. may serve as officers, Trustees
and employees of the registrant, and upon the approval of the registrant's
Compensation Committee and Board of Trustees, such persons may receive
compensation from the registrant and/or REIT Management Corp.; (ii) that the
registrant shall pay its own expenses (and shall reimburse REIT Management Corp.
for any expenses it has paid on behalf of the registrant); and (iii) that REIT
Management Corp. and its affiliates may engage in any other business activities
provided that it shall not act as an advisor to any person that has investment
policies similar to those of the registrant, it offers the registrant any
mortgage investment or opportunity it is contemplating for its own account or
recommending to others if such investment or opportunity falls within the
registrant's objectives or policies, the registrant has the financial resources
to engage in such investment or opportunity and the registrant has rejected such
investment or opportunity.
For services performed by REIT Management Corp. under the prior Advisory
Agreement, it received an annual fee of 1/2 of 1% of invested assets (as defined
in such agreement) other than mortgages receivable, subordinated land leases and
investments in unconsolidated ventures, and 1% of mortgages receivable,
subordinated land loans and investments in unconsolidated ventures. In addition,
registrant's borrowers paid fees directly to REIT Management Corp. of 1% of the
loan amount committed by the registrant upon the funding of the loan commitment
(in each instance only after registrant was paid a 1% commitment or origination
fee by its borrower). The Amended and Restated Advisory Agreement provides that
the registrant shall pay to REIT Management Corp. a base fee of six tenths of 1%
of the registrant's invested assets (as defined therein) and that registrant's
borrowers pay REIT Management Corp. an incentive fee upon funding a loan of up
to 1/2 of 1% of the total commitment amount, provided that the registrant has
received a loan commitment fee of at least 1% of the total commitment amount
from such borrowers.
The Chairman of the Board of the registrant is the sole shareholder of REIT
Management Corp. Certain executive officers and/or Trustees of the registrant
are officers and directors of REIT Management Corp. or act as consultants to
REIT Management Corp. and receive compensation from REIT Management Corp. in the
form of salary, bonus or consulting fees.
A copy of the Amended and Restated Advisory Agreement is attached hereto as
Exhibit 10.1. The foregoing is only a summary of some of the terms of the
Amended and Restated Advisory Agreement. To review all of the terms and
conditions of the Amended and Restated Advisory Agreement, you should read it in
its entirety.
Item 1.02 Termination of a Material Definitive Agreement.
Reference is made to Item 1.01 above.
Item 9.01 Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) Shell Company Transactions.
Not applicable.
(d) Exhibits.
10.1 Amended and Restated Advisory Agreement, effective as
of January 1, 2007, between BRT Realty Trust and REIT
Management Corp.
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BRT REALTY TRUST
Date: November 27, 2006 By: /s/ Simeon Brinberg
-----------------------
Simeon Brinberg
Senior Vice President and Secretary
EXHIBIT 10.1
AMENDED
AND
RESTATED ADVIS0RY AGREEMENT
Amended and Restated Advisory Agreement effective as of the 1st of
January, 2007, by and between BRT Realty Trust and REIT Management Corp.
WITNESSETH:
WHEREAS, BRT Realty Trust is qualified as a real estate investment
trust as defined in the Internal Revenue Code of 1986;
WHEREAS, REIT Management Corp. has provided services to BRT Realty
Trust since 1983 pursuant to an advisory agreement dated February 7, 1983, as
amended;
WHEREAS, the Trustees of BRT Realty Trust have approved certain changes
to the existing advisory agreement effective as of January 1, 2007;
WHEREAS, the parties desire to reflect such changes in an amended and
restated advisory agreement;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained the parties hereto agree that the advisory agreement as amended and
restated shall provide as follows:
1. Definitions: As used in this Agreement, the following terms have the
respective meanings set forth below:
"Advisor" means REIT Management Corp.
"Affiliate" means, with respect to any specified Person, (a)
any other Person directly or indirectly controlling, controlled by, or
under common control with such specified Person; (b) any individual who
is an executive officer of such specified Person or any other Person
described in clause (a) of this definition or (c) or any other Person
directly or indirectly controlling, controlled by, or under common
control with any individual or groups of individuals described in
clause (b) of this definition.
"Agreement" means this Amended and Restated Advisory Agreement.
"Base Fee" means the fee payable to the Advisor pursuant to
Section 9 of this Agreement.
"BRT" or "Trust" means BRT Realty Trust, a Massachusetts
business trust.
"BRT Loan" means any loan that is made or advanced by BRT in
the normal course of its business.
"Code" means the Internal Revenue Code of 1986, as amended or
modified from time to time, together with any regulations and rulings
thereunder.
"Declaration of Trust" means the Third Amended and Restated
Declaration of Trust, of BRT, as same may hereafter be amended or
restated.
"Fiscal Year" means a year commencing October 1 and ending
September 30, as same may be changed by the Board of Trustees of BRT.
"GAAP" means generally accepted accounting principals applied
on a consistent basis.
"Incentive Fee" means the fee which is payable to the Advisor
pursuant to Section 10 of this Agreement.
"Independent Trustee" means a Trustee (a) who is not
affiliated, directly or indirectly, with the Advisor, whether by
ownership of, ownership interest in, employment by or, any material
business or professional relationship with, or service as an officer or
director of the Advisor and (b) who shall have been determined by the
Nominating and Corporate Governance Committee of the Board of Trustees
and by the Board of Trustees of BRT to be independent under applicable
statutes and rules and regulations and New York Stock Exchange
Corporate Governance Rules.
"Invested Assets" means the aggregate of all assets of BRT on
the applicable balance sheet of the Trust, prepared on a consolidated
basis in accordance with GAAP, including, without limitation, BRT Loans
(including BRT Loans not earning interest and before allowances for
possible losses), real estate properties, investments in unconsolidated
ventures, and available for sale securities at market, without
deduction for (a) mortgages and other security interests to which any
of such assets are subject (b) accumulated depreciation and (c)
amortization, but excluding (i) cash and cash items, (ii) amounts due
from managing agents, (iii) rents and other receivables (except
mortgages receivable and other receivables arising from the sale of
Invested Assets), (iv) rent security, (v) prepaid expenses and deferred
charges and (vi) obligations of municipal, state and federal
governments and governmental agencies, other than securities of the FHA
and VA and the Federal National Mortgage Association and the securities
issued by governmental agencies or other similar securities that are
backed by a pool of mortgages.
"Loan Committee" means the loan committee (or any similar
committee or group) used by BRT to evaluate and approve any proposed or
prospective BRT Loan.
"Loan Origination Fee" means with respect to any BRT Loan that
is made or advanced by BRT, the aggregate fee (whether denominated as
"points", "origination fee" or otherwise) that is paid by the borrower
of a BRT Loan upon and as consideration for the initial making or
advancement of a BRT Loan exclusive, however, of any portion of such
fee that is paid or payable as a deposit or otherwise for reimbursement
of loan origination expenses related to such BRT Loan.
"Person" means and include individuals, corporations, limited
partnerships, general partnerships, limited liability companies, joint
stock companies or associations, joint ventures, companies, trusts,
banks, trust companies, business trusts or other entities and
governments and agencies and political subdivisions thereof.
"REIT" means a corporation or trust which qualifies as a real
estate investment trust described in Section 856 through 860 of the
Code.
"Shareholder" means a holder of Shares.
"Shares" means the shares of beneficial interest, par value
$3.00 per share, of the Trust.
"Trustees" means, collectively, the Persons who from time to
time constitute the Board of Trustees of BRT.
2. Prior Advisory Agreement Superseded. The Advisory Agreement dated
February 7, 1983 is superseded by this Agreement in all respects as of
January 1, 2007.
3. Duties of Advisor. The Trust retains the Advisor to perform the
services hereinafter set forth and the Advisor accepts such
appointment, subject to the terms and conditions contained herein. In
performance of this undertaking, subject to the supervision of the
Trustees and consistent with the provisions of the Declaration of
Trust, the Advisor shall perform the following services:
(a) serve as the Trustees' Advisor and consultant in
connection with policy decisions to be made by the
Trustees;
(b) seek out and present to the Trust, whether through
its own efforts or those of third parties, suitable
investment opportunities which are consistent with
the investment objectives and policies of the Trust,
as adopted by Trustees from time to time. It is
understood that the primary investment policy of the
Trust is to originate commercial mortgage loans;
(c) participate in the deliberations of the Loan
Committee and, as requested by the Trust, to provide
Advisor's, officers, employees and/or consultants to
act as members of the Loan Committee. This includes,
without limitation, reviewing proposed or prospective
BRT Loans and issues related to defaulted,
non-performing or delinquent BRT Loans;
(d) supervise the performance of any ministerial
functions in connection with the management of the
day to day operations of the Trust, subject to the
supervision of the Trustees. This includes, but is
not limited to property inspections in connection
with BRT Loans and construction supervision in
connection with BRT Loans which involve construction
and development activities and any real property
owned by the Trust or any joint venture in which the
Trust has an equity interest;
(e) participate with the Trust in the selection of, and,
on behalf of the Trust, conduct and maintain
relations with and employ or enter into appropriate
contracts with consultants, mortgage bankers,
correspondents, lenders, technical advisors, brokers,
under-writers, fiduciaries, escrow agents, banks,
builders, developers, servicing companies, and other
persons or entities acting in any other capacity
deemed by the Trustees necessary or desirable to
further the interests of the Trust;
(f) upon request by the Trustees, act as attorney in fact
or agent of the Trust in acquisitions and
dispositions of investments, in collecting funds of
the Trust from borrowers and others, in disbursing
the funds of the Trust, in paying the debts of the
Trust, and in handling, prosecuting and settling any
claims of the Trust, including the enforcement of any
lease obligations and the foreclosure or other
enforcement of any mortgage or other lien securing
investments, and exercise its own sound discretion in
doing so;
(g) upon request by the Trustees, participate and
negotiate on behalf of the Trust with investment
bankers and others with respect to the private
placement or public offering of Shares, or other
securities or obligations of the Trust, or with
respect to the obtaining of loans (including credit
lines with banking institutions) by the Trust, but in
no event in such a way so that the Advisor shall be
acting as a broker-dealer or underwriter for the
Trust;
(h) upon request by the Trustees recommend investment
opportunities and negotiate on behalf of BRT with
respect to potential investments or the disposition
thereof; invest or reinvest any funds of the Trust as
authorized or directed by the Trustees;
(i) arrange for office space, office equipment, and
accounting or computing equipment and all other
services necessary to operate the business of the
Trust, the cost of which is to be borne by the Trust
(it being understood that some of these services may
be provided to BRT by Affiliates of the Advisor
pursuant to a cost sharing arrangement);
(j) perform such other services of a managerial or
advisory nature as the Trustees may deem to be in the
best interests of the Trust.
4. Information Furnished Advisor. The Trustees shall keep the
Advisor informed with regard to the investment policy of the
Trust, the capitalization policy of the Trust, and generally
their current intentions as to the future business activities
of the Trust. The Trust shall furnish the Advisor with a
certified copy of all financial statements, a copy of each
report prepared by the independent certified public
accountants, and such other information with regard to the
affairs of the Trust as the Advisor may from time to time
reasonably request.
5. Advisor Responsibility re: Investments. The Advisor will
endeavor to take appropriate action, including obtaining
the opinion of counsel where appropriate, to see to it
that any title to real estate invested in by the Trust is
"marketable" title, that any lease included among
investments of the Trust is valid and enforceable in
accordance with its terms, that any mortgage securing any
investment of the Trust shall be a valid lien upon the
mortgaged property according to its terms, that any
property forming part of the Trust's investment is insured
against loss or damage by fire, with extended coverage, and
against such other insurable hazards and risk as is customary
and appropriate in the circumstances, and shall carry out
the policies from time to time specified by the Trustees
with regard to the protection of the Trust's investments.
6. REIT Qualification. Anything else in this Agreement to the
contrary notwithstanding, the Advisor shall refrain from any
action, which in its sole judgment made in good faith, or in
the judgment of the Trustees, provided the Trustees give the
Advisor written notice to such affect, would adversely affect
the status of the Trust as a real estate investment trust
pursuant to Section 856 of the Code or be prohibited by the
Declaration of Trust. If action shall be ordered by the
Trustees which the Advisor believes would adversely affect the
foregoing status or contravene the terms of the Declaration of
Trust, the Advisor shall promptly notify the Trustees and
shall refrain from taking such action pending further
clarification or instructions from the Trustees.
7. Other Activities of Advisor's Officers, Directors and
Employees. Officers, directors and employees of the Advisor
may serve as trustees, officers and employees of the Trust and
may be compensated by the Trust for services rendered in such
latter capacities, provided that any such compensation shall
have been approved or ratified by the Compensation Committee
of the Board of Trustees (which is composed of Independent
Trustees). Officers, directors and employees of the Trust may
receive compensation from the Advisor, provided that any such
compensation is approved by the Compensation Committee of the
Board of Trustees and the Board of Trustees.
8. Bond. If required by the Trustees, the Advisor will
maintain a fidelity bond with a responsible surety company in
an amount approved by the Trustees covering all officers,
directors and employees of the Advisor handling funds of the
Trust and any investment documents pertaining to the
investments of the Trust. Any such bond shall protect the
Trust against all losses from acts of such officers, directors
and employees through theft, embezzlement, fraud, negligence,
error and omission or otherwise. The premiums on such bonds
shall be paid by the Trust.
9. Base Management Fee. The Advisor shall be paid a Base
Management Fee at the annual rate of six tenths of one percent
(.6%) on Invested Assets. The fee shall be computed within ten
(10) days after the end of each month by the Trust on an
interim basis. Such computation shall be determined by the
Trust A copy of such computation shall be delivered to the
Advisor within such ten (10) day period, accompanied by
payment of the interim fee shown to be payable. The monthly
payments for each Fiscal Year shall be subject to adjustment
within thirty (30) days after receipt by the Trust of the
audited financial statements for such Fiscal Year. The fee
pursuant to the above calculations shall be made based on the
Invested Assets at the end of each quarter in the Fiscal Year
and adjusted annually based on the average Invested Assets at
the end of each quarter.
10. Incentive Fee. Each Loan Origination Fee shall be payable
to the Advisor and the Trust as follows: (a) the first 1% of
the borrower's BRT Loan shall be payable to the Trust, (b) up
to the next 1/2 of 1%, if any, of the borrower's BRT Loan
shall be payable to the Advisor, and (c) the balance, if any,
of any Loan Origination Fee shall be payable to the Trust. The
Advisor's portion of the Loan Origination Fee (if and to the
extent paid by the borrower to BRT and not directly by
borrower to the Advisor) shall be paid to Advisor by BRT
within ten (10) days following collection of said fee,
adjusted annually (if necessary) after the close of the
applicable fiscal year.
11. Additional Services. If and to the extent that the Trust
shall request the Advisor, or any director, officer or
employee thereof to render services for the Trust other than
those required to be rendered by the Advisor hereunder, such
additional services shall be performed and only on terms
(including compensation) agreed upon in advance between the
Advisor and the Board of Trustees, including the Independent
Trustees.
12. Expenses. Except as herein expressly otherwise provided,
the Trust shall pay all of its expenses (and shall reimburse
the Advisor for any of such expenses paid by the Advisor), and
without limiting the generality of the foregoing, it is
specifically agreed that the following expenses of the Trust
shall be paid by the Trust:
(a) interest, discount, commitment fees, and other costs for borrowed money;
(b) taxes on income or property, license and qualification fees, including
franchise taxes and all taxes of any nature payable by the Trust;
(c) rental paid for office space used by Trust (provided that any rental paid
to an Affiliate and payments made under any shared services arrangement
with an Affiliate, shall be approved or ratified by the Board of Trustees,
including the Independent Trustees.
(d) audit and accounting fees and expenses, and bookkeeping costs, charges,
payroll costs and other bookkeeping expenses, including payments made under
any shared servicing arrangement with an Affiliate, provided such payment
shall be approved or ratified by the Board of Trustees, including the
Independent Trustees.
(e) legal fees, expenses of litigation or other administrative or judicial
proceedings involving the Trust, and other expenses for professional
services;
(f) charges of custodians, transfer agents, registrars, warrant agents,
dividend disbursing agents, brokers, underwriters and banks;
(g) expenses related to meetings of Trustees and Shareholders and filing
reports with governmental authorities;
(h) printing certificates for securities issued by the Trust;
(i) expenses in connection with reporting to shareholders, dividends and
dividend distributions, including, but without limitation, all fees and
charges of public relations and/or advertising agencies and other public
relations and advertising expenses;
(j) expenses connected with the listing of securities of the Trust on any
national securities exchange or with the issuance and distribution or the
private placement of any securities of the Trust at any time, such as
underwriting and brokerage fees, taxes, legal fees, printing costs, listing
and registration fees, and other expenses of the type normally listed in
Item 27 of Form S-11 as promulgated by the Securities and Exchange
Commission for use under the Securities Act of 1933 and selling and
promotional expenses related thereto;
(k) expenses connected with the acquisition, disposition, or ownership of
investment assets, including, but not limited to, travel expenses, cost of
appraisal, leasing, maintenance, repair, improvement and foreclosure of
property, title insurance, abstract expenses and legal fees; premiums for
insurance on property owned by or mortgaged to the Trust; and origination
and mortgage servicing fees, finders' fees and real estate brokerage
commissions;
(l) fees for the management of real estate owned by the Trust;
(m) fees, other compensation and related expenses payable to the Trustees,
officers, employees and independent contractors, consultants, managers, or
agents, other than the Advisor;
(n) the expenses of organizing, revising, amending, converting, modifying, or
terminating the Trust; and
(o) payments required to be made by the Trust under the Declaration of Trust.
13. No Partnership or Joint Venture. The Trust and the Advisor
are not partners or joint venturers with each other and
nothing herein shall be construed so as to make them such
partners or joint venturers or impose any liability as such on
either of them.
14. Other Activities of Advisor. Nothing in this Agreement
shall prevent the Advisor or any of its Affiliates from
engaging in other business activities related to real estate,
mortgage investments or other investments, whether similar, or
dissimilar to those made by the Trust. However, without the
consent of the Board of Trustees, including the Independent
Trustees, neither the Advisor nor any of its Affiliates shall
act as Advisor to any other Person having investment policies
substantially similar to those of the Trust. Before the
Advisor or its Affiliates may take advantage of a mortgage
investment or opportunity for their own account or recommend
it to others, they are obligated to present it to the Trust if
(i) such investment or opportunity is within the Trust's
investment objectives and policies, and (ii) the Trust has the
financial resources to take advantage of such opportunity, and
if (i) and (ii) are applicable the Trust has rejected such
mortgage investment or opportunity.
15. Term. This Agreement shall continue in force until
December 31, 2010 unless terminated by BRT or REIT as set
forth below.
16. Assignment. This Agreement shall terminate automatically
in the event of its assignment by the Advisor, unless such
assignment is consented to in writing by the Trust. Such an
assignment, if consented to by the Trust, shall bind the
assignee hereunder in the same manner as the Advisor is bound
hereunder. This Agreement is not assignable by the Trust
without the written consent of the Advisor, except in the case
of assignment by the Trust to a corporation or other
organization which is a successor to all or substantially all
of the business and assets of the Trust, in which case such
successor organization shall be bound hereunder and by the
terms of said assignment in the same manner as the Trust is
bound hereunder. Notwithstanding anything to the contrary
herein, Advisor may assign this Agreement to or have services
performed by a wholly owned subsidiary of Advisor but such
shall not release Advisor from its obligations.
17. Termination. (a) The Trust may terminate this Agreement
effective sixty (60) days after notice of termination from the
Trust to the Advisor in the event that there shall have
occurred any act of fraud, misappropriation of funds,
embezzlement against the Trust or other willful and material
violation of this Agreement by Advisor in its corporate
capacity (as distinguished from acts of any employees which
are taken without the complicity of any of the executive
officers of the Advisor); provided that any willful and
material violation continues for a period of thirty (30) days
after written notice thereof specifying such violation and
requesting that same be remedied within such thirty (30) day
period.
(b) At the option of the Trustees, this Agreement shall be
terminated immediately upon written notice of termination from
the Trustees to the Advisor:
(i) if the Advisor shall be adjudged bankrupt or insolvent by
a court of competent jurisdiction, or an order shall be made
by a court of competent jurisdiction for the appointment of a
receiver, liquidator or trustee of the Advisor, or of all or
substantially all of its property by reason of the foregoing,
or approving any petition filed against the Advisor for its
reorganization, and such adjudication or order shall remain in
force or unstayed for a period of 30 days; or
(ii) if the Advisor shall institute proceedings for voluntary
bankruptcy or shall file a petition seeking reorganization
under the Federal bankruptcy laws, or for relief under any law
for the relief of debtors, or shall consent to the appointment
of a receiver of itself or of all or substantially all of its
property, or shall make a general assignment for the benefit
of its creditors, or shall admit in writing its inability to
pay its debts generally, as they become due.
The Advisor agrees that if any of the events specified in
subsection (b) of this Section 17 shall happen, it will give
written notice thereof to the Trustees within seven days after
the happening of such event.
18. Obligation Upon Termination. From and after the effective
date of termination of this Agreement, pursuant to Sections 16
or 17 hereof, the Advisor shall not be entitled to
compensation for further services hereunder. The Advisor shall
forthwith upon such termination:
(a) pay over to the Trust all money held for the account
of the Trust pursuant to this Agreement, after
deducting any accrued compensation and reimbursement
for its expenses to which it is then entitled;
(b) deliver to the Trustees an 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 Trustees; and
(c) deliver to the Trustees all property and documents of
the Trust then in the custody of the Advisor.
19. Notice. 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,
mailed by first class mail to or sent by overnight delivery
service (federal express or similar service) to the following
addresses of the parties hereto:
The Trustees and/or the Trust:
Suite 303
60 Cutter Mill Road
Great Neck, New York 11021
The Advisor:
Suite 303
60 Cutter Mill Road
Great Neck, New York 11021
Either party may at any time give notice in writing to the other party
of a change of its address for the purpose of this Section 19.
20. Amendments. This Agreement shall not be changed or modified in
whole or in part except by an instrument in writing signed by both
parties hereto, or their respective successors or assigns, or otherwise
as provided herein.
21. Successors. This Agreement shall bind any successors or assigns of
the parties hereto as herein provided subject to the provisions of
Section 16 hereof.
22. Governing Law. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of the State of New York as
at the time in effect.
23. Limitation of Liability. The Advisor assumes no responsibility
under this Agreement other than to render the services called for
hereunder in good faith and shall not be responsible for any action of
the Trustees in following or declining to follow any advice or
recommendations of the Advisor. The Advisor, its directors, officers,
shareholders and employees, shall not be liable to the Trust, the
Trust's Shareholders, or others, except by reason of acts constituting
bad faith, willful misfeasance, gross negligence or reckless disregard
of their duties or for failure to act in good faith in the reasonable
belief that such action was in the best interests of the Trust. The
Advisor may accept and rely upon the advice and opinion of the Trust's
counsel as to all legal and tax matters and of the Trust's accountants
as to all matters relating to accounting and the financial statements
and books of account of the Trust, and shall be fully protected in so
doing. Each party indemnifies the other to the extent of insurance
coverage.
24. Declaration of Trust. Reference is hereby made to the Third Amended
and Restated Declaration of Trust of BRT Realty Trust, dated as of
October 5, 2005, a copy of which, together with any amendments thereto
is on file in the office of the Secretary of the Commonwealth of
Massachusetts. The name "BRT Realty Trust" refers to the Trustees under
the Declaration of Trust collectively as Trustees, but not as
individuals or personally; and no Trustee, shareholder, officer or
agent of BRT Realty Trust shall be held to any personal liability
hereunder; nor shall resort be had to their private property for the
satisfaction of any obligation or claim hereunder or otherwise in
connection with the affairs of said BRT Realty Trust, but the Trust
estate only shall be liable.
25. Headings. The section headings hereof have been intended for
convenience of reference only and shall not be construed to offset the
meaning, construction or effect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their officers thereunto duly authorized as of the day and year first above
written.
BRT REALTY TRUST
By: ______________________
Simeon Brinberg, Sr. Vice President
REIT MANAGEMENT CORP.
By: _______________________
Seth Kobay, Vice President