AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION, dated
as of June 4, 2009 (this "Agreement"), is made by and
between RMR Dividend Capture Fund, a Massachusetts business
trust and registered closed end management investment
company, File No. 811-22079 (the "Target Fund"), and RMR
Real Estate Income Fund, a Delaware statutory trust and
registered closed end management investment company, File
No. 811-22234 (the "Acquiring Fund" and together with the
"Target Fund", the "Funds" and each individually, a "Fund").
WHEREAS, the Acquiring Fund has proposed to enter
into the Reorganization (as defined below) with the Target
Fund;
WHEREAS, the Boards of Trustees of the Funds have
determined that participation in the Reorganization is in
the best interests of each respective Fund;
WHEREAS, the parties intend that the transaction
contemplated by this Agreement qualify as a "reorganization"
within the meaning of Section 368(a) of the Code
(as defined below); and
WHEREAS, the Acquiring Fund is also proposing to
enter into a reorganization with each of (i) RMR Real
Estate Fund, a registered closed end management investment
company, File No. 811-21241, (ii) RMR Hospitality and Real
Estate Fund, a registered closed end management investment
company, File No. 811-21502, (iii) RMR F.I.R.E. Fund, a
registered closed end management investment company, File
No. 811-21616, and (iv) RMR Preferred Dividend Fund, a
registered closed end management investment company, File
No. 811-21671 (the funds identified in clauses (i) through
(iv) above being referred to individually as an "RMR Fund"
and collectively as the "RMR Funds"), pursuant to a separate
agreement and plan of reorganization in connection with
each such reorganization;
NOW, THEREFORE, in order to consummate the
Reorganization, and in consideration of the respective
representations, warranties, covenants and agreements
hereinafter set forth, and intending to be legally bound,
each Fund hereby agrees as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall
have the following meanings:
(a) "1933 Act" means the Securities Act of 1933,
as amended.
(b) "1934 Act" means the Securities Exchange Act of
1934, as amended.
(c) "1940 Act" means the Investment Company Act of
1940, as amended.
(d) "Acquiring Fund" shall have the meaning assigned
to such term in the preamble.
(e) "Acquiring Fund Closing Financial Statements"
shall have the meaning assigned to such term in Section 2(d).
(f) "Acquiring Fund Common Shares" shall have the
meaning assigned to such term in Section 2(k).
(g) "Acquiring Fund Preferred Shares" shall have
the meaning assigned to such term in Section 2(k).
(h) "Advisor" means RMR Advisors, Inc.
(i) "Agreement" shall have the meaning assigned to
such term in the preamble.
(j) "Closing Date" shall have the meaning assigned
to such term in Section 8(a).
(k) "Code" means the Internal Revenue Code of 1986,
as amended.
(l) "Commission" means the Securities and Exchange
Commission.
(m) "Fund" or "Funds" shall have the meaning
assigned to such terms in the preamble.
(n) "GAAP" means United States generally accepted
accounting principles and practices as in effect from time
to time and applied consistently throughout the periods
involved.
(o) "Indemnified Party" shall have the meaning
assigned to such term in Section 13(a).
(p) "Indemnitor" shall have the meaning assigned
to such term in Section 13(a).
(q) "Loss" or "Losses" shall have the meanings
assigned to such terms in Section 13(a).
(r) "NYSE Amex" means NYSE Amex LLC.
(s) Reserved.
(t) "Proxy Statement/Prospectus" shall have the
meaning assigned to such term in Section 2(j).
(u) "Registration Statement" shall have the meaning
assigned to such term in Section 2(j).
(v) "Reorganization" shall have the meaning assigned
to such term in Section 4(a).
(w) "RIC" means a regulated investment company under
Section 851 of the Code.
(x) "RMR Fund" or "RMR Funds" shall have the meaning
assigned to such terms in the recitals.
(y) "Shareholder Meeting" shall have the meaning
assigned to such term in Section 2(j).
(z) "Skadden" means Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP.
(aa) "Target Fund" shall have the meaning assigned
to such term in the preamble.
(bb) "Target Fund Closing Financial Statements" shall
have the meaning assigned to such term in Section 3(e).
(cc) "Target Fund Common Shares" shall have the
meaning assigned to such term in Section 3(m).
(dd) "Target Fund Investments" means (i) the investments
of the Target Fund shown on the schedule of its investments
as of the Valuation Date furnished to the Acquiring Fund and
(ii) all other assets owned by the Target Fund or liabilities
incurred as of the Valuation Date.
(ee) "Target Fund Preferred Shares" shall have the
meaning assigned to such term in Section 3(m).
(ff) "Valuation Date" shall be 4:00 p.m., Eastern Time,
on June 22, 2009, or such earlier or later day and time as may
be mutually agreed upon in writing by the parties hereto.
2. REPRESENTATIONS AND WARRANTIES OF THE ACQUIRING FUND.
The Acquiring Fund represents and warrants to, and
agrees with, the Target Fund that:
(a) The Acquiring Fund is a trust, with transferable
shares, duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and has the
power and authority to own all of its assets and to carry out
this Agreement. The Acquiring Fund has all necessary federal,
state and local authorizations to carry on its business as it
is now being conducted or proposed to be conducted and to carry
out this Agreement.
(b) The Acquiring Fund is duly registered under the 1940
Act as a non-diversified, closed end management investment
company and such registration has not been revoked or rescinded
and is in full force and effect.
(c) The Acquiring Fund has full power and authority to
enter into and perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement has been
duly authorized by all necessary action of its board of trustees,
and this Agreement constitutes a valid and binding contract
enforceable in accordance with its terms, subject to the effects
of bankruptcy, insolvency, moratorium, fraudulent conveyance
and similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto.
(d) An unaudited statement of assets, liabilities and
capital of the Acquiring Fund and an unaudited schedule of
investments of the Acquiring Fund, in each case, with values
determined as provided in Section 5 of this Agreement, each as
of the Valuation Date (together, the "Acquiring Fund Closing
Financial Statements"), will be furnished to the Target Fund,
at or prior to the Closing Date, for the purpose of determining
the number of Acquiring Fund Common Shares and Acquiring Fund
Preferred Shares to be issued to the Target Fund pursuant to
Section 5 hereof; the Acquiring Fund Closing Financial
Statements will fairly present the financial
position of the Acquiring Fund as of the Valuation Date in
conformity with GAAP.
(e) There are no material legal, administrative or other
proceedings pending or, to the knowledge of the Acquiring Fund,
threatened against it which assert liability on the part of the
Acquiring Fund or which materially affect its financial condition
or its ability to consummate the Reorganization. The Acquiring
Fund is not charged with nor, to the best of its knowledge, does
any person presently intend to charge it with, or to recommend that
it be charged with, any violation of any provisions of any federal,
state or local law or regulation or administrative ruling to
which it is bound.
(f) There are no material contracts outstanding to which
the Acquiring Fund is a party that have not been disclosed in the
Registration Statement or that have not otherwise been disclosed
to the Target Fund.
(g) The execution, delivery and performance of this Agreement
by the Acquiring Fund do not, and the consummation of the
transactions contemplated hereby will not, constitute or result in
a breach or violation of, or a default under, (i) the governing
documents of the Acquiring Fund, (ii) any contract or other
commitment or obligation binding upon the Acquiring Fund, after
giving effect to any agreement of the Funds to amend such contract
or other commitment or obligation to cure any potential violation
as a condition precedent to the Reorganization or (iii) any order
or decree binding upon the Acquiring Fund.
(h) The Acquiring Fund has no known liabilities of a
material amount, contingent or otherwise, other than those
shown on the Acquiring Fund Closing Financial Statements, those
incurred in the ordinary course of its business as an investment
company, and those incurred in connection with the Reorganization.
As of the Valuation Date, the Acquiring Fund will advise the
Target Fund in writing of all known liabilities, contingent or
otherwise, whether or not incurred in the ordinary course of
business, existing or accrued as of such time, not otherwise
disclosed in the Acquiring Fund Closing Financial Statements.
(i) No consent, approval, authorization or order of any
court or government authority is required for the consummation
by the Acquiring Fund of the Reorganization, except such as may
be required under the 1933 Act, the 1934 Act and the 1940 Act
or state securities laws (which term as used herein shall
include the laws of the District of Columbia and Puerto Rico).
(j) The registration statement filed by the Acquiring Fund
on Form N-14, which includes the proxy statement of the Target
Fund with respect to the transactions contemplated herein
(the "Proxy Statement/Prospectus"), and any documents included
or incorporated by reference therein and any supplement or
amendment thereto (collectively, as so amended or supplemented,
the "Registration Statement"), on the effective date of the
Registration Statement, at the time of the special meeting of
the shareholders of the Target Fund called to vote on this
Agreement and the Reorganization (the "Shareholder Meeting")
and at the Closing Date (i) complied or will comply in all
material respects with the provisions of the 1933 Act, the 1934
Act and the 1940 Act and the rules and regulations thereunder
and (ii) did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading; and the Proxy Statement/Prospectus included therein
did not or will not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that no
representation or warranty is made by the Acquiring Fund
with respect to statements made or incorporated by
reference in the Registration Statement or Proxy
Statement/Prospectus based on information supplied by
the Target Fund or any RMR Fund for inclusion or
incorporation by reference therein, or based on
information which is not included or incorporated by
reference in such documents but which should have been
disclosed pursuant to Section 3(l).
(k) The Acquiring Fund is authorized to issue an
unlimited number of common shares of beneficial interest,
par value $.001 per share (the "Acquiring Fund Common
Shares"), and an unlimited number of preferred shares
of beneficial interest ("Acquiring Fund Preferred Shares").
(l) The Acquiring Fund Common Shares and the
Acquiring Fund Preferred Shares to be issued to the Target
Fund pursuant to this Agreement will have been duly
authorized and, when issued and transferred pursuant to this
Agreement, will be legally and validly issued and will be
fully paid, nonassessable and will have full voting rights,
and no shareholder of the Acquiring Fund will have any preemptive
right of subscription or purchase in respect thereof.
(m) The Acquiring Fund, subject to the Registration
Statement having been declared effective and the filing of
the Proxy Statement/Prospectus under Rule 497, has taken
all required action under the 1933 Act, the 1934 Act and
the 1940 Act and the rules and regulations thereunder to
make the public offering and consummate the sale of the
Acquiring Fund Common Shares as contemplated by this
Agreement.
(n) At or prior to the Closing Date, the Acquiring
Fund will have obtained any and all regulatory, trustee
and shareholder approvals necessary to issue the Acquiring
Fund Common Shares and the Acquiring Fund Preferred Shares
to the Target Fund.
(o) The Acquiring Fund has filed, or intends to file,
or has obtained extensions to file, all federal, state and
local tax returns which are required to be filed by it,
and has paid or has obtained extensions to pay, all federal,
state and local taxes shown on said returns to be due and
owing and all assessments received by it, up to and including
the taxable year in which the Closing Date occurs. All tax
liabilities of the Acquiring Fund have been adequately
provided for on its books, and no tax deficiency or liability
of the Acquiring Fund has been asserted and no question
with respect thereto has been raised by the Internal Revenue
Service or by any state or local tax authority for taxes in
excess of those already paid, up to and including the taxable
year in which the Closing Date occurs.
(p) The Acquiring Fund has (i) elected to qualify and
has qualified as a RIC as of and since its inception, (ii)
been a RIC at all times since the end of its first taxable year
when it so qualified, (iii) qualifies and will continue to
qualify as a RIC and (iv) satisfied the distribution requirements
imposed by the Code for each of its taxable years.
(q) The Acquiring Fund has no plan or intention to sell
or otherwise dispose of the Target Fund Investments, except
for dispositions made in the ordinary course of business.
3. REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND.
The Target Fund represents and warrants to, and agrees
with, the Acquiring Fund that:
(a) The Target Fund is a trust, with transferable shares,
duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, and has
the power and authority to own all of its assets and to carry
out this Agreement. The Target Fund has all necessary federal,
state and local authorizations to carry on its business as
it is now being conducted and to carry out this Agreement.
(b) The Target Fund is duly registered under the 1940
Act as a non-diversified, closed end management investment
company, and such registration has not been revoked or
rescinded and is in full force and effect.
(c) The Target Fund has full power and authority to
enter into and perform its obligations under this Agreement,
subject, in the case of consummation of the Reorganization,
to the approval and adoption of this Agreement and the
Reorganization by the shareholders of the Target Fund as
described in Section 9(a) hereof. The execution, delivery
and performance of this Agreement has been duly authorized
by all necessary action of its board of trustees and this
Agreement constitutes a valid and binding contract enforceable
in accordance with its terms, subject to the effects of
bankruptcy, insolvency, moratorium, fraudulent conveyance
and similar laws relating to or affecting creditors'
rights generally and court decisions with respect thereto.
(d) The Target Fund has furnished the Acquiring Fund
with the Target Fund's Annual Report to Shareholders for
the year ended December 31, 2008, and the audited financial
statements appearing therein fairly present the financial
position of the Target Fund as of the respective dates
indicated, in conformity with GAAP.
(e) An unaudited statement of assets, liabilities
and capital of the Target Fund and an unaudited schedule of
investments of the Target Fund (which shall include dates of
acquisition and tax costs), in each case, with values
determined as provided in Section 5 of this Agreement, each
as of the Valuation Date (together, the "Target Fund Closing
Financial Statements"), will be furnished to the Acquiring
Fund at or prior to the Closing Date for the purpose of
determining the number of Acquiring Fund Common Shares
and Acquiring Fund Preferred Shares to be issued to the
Target Fund pursuant to Section 5 hereof; the Target Fund
Closing Financial Statements will fairly present the financial
position of the Target Fund as of the Valuation Date in
conformity with GAAP.
(f) Other than as disclosed in the Registration
Statement, there are no material legal, administrative or
other proceedings pending or, to the knowledge of the Target
Fund, threatened against it which assert liability on the
part of the Target Fund or which materially affect its
financial condition or its ability to consummate the
Reorganization. The Target Fund is not charged with nor,
to the best of its knowledge, does any person presently
intend to charge it with, or to recommend that it be charged
with, any violation of any provisions of any federal, state
or local law or regulation or administrative ruling to which
it is bound.
(g) There are no material contracts outstanding to
which the Target Fund is a party that have not been disclosed
in the Registration Statement or that have not otherwise been
disclosed to the Acquiring Fund.
(h) The execution, delivery and performance of this
Agreement by the Target Fund do not, and the consummation
of the transactions contemplated hereby will not, constitute
or result in a breach or violation of, or a default under,
(i) the governing documents of the Target Fund, (ii) any
contract or other commitment or obligation binding upon the
Target Fund or (iii) any order or decree binding upon the
Target Fund.
(i) Other than as disclosed in the Registration
Statement, the Target Fund has no known liabilities of a
material amount, contingent or otherwise, other than those
shown on the Target Fund Closing Financial Statements, those
incurred in the ordinary course of its business as an
investment company and those incurred in connection with the
Reorganization. As of the Valuation Date, the Target Fund
will advise the Acquiring Fund in writing of all known
liabilities, contingent or otherwise, whether or not incurred
in the ordinary course of business, existing or accrued as
of such time, not otherwise disclosed in the Target Fund
Closing Financial Statements.
(j) No consent, approval, authorization or order of
any court or governmental authority is required for the
consummation by the Target Fund of the Reorganization, except
such as may be required under the 1933 Act, the 1934 Act and
the 1940 Act or state securities laws (which term as used
herein shall include the laws of the District of Columbia
and Puerto Rico).
(k) At both the Valuation Date and the Closing Date,
the Target Fund will have full right, power and authority
to sell, assign, transfer and deliver the Target Fund
Investments. At the Closing Date, subject only to the
obligation to deliver the Target Fund Investments as
contemplated by this Agreement, the Target Fund will have good
and marketable title to all of the Target Fund Investments,
and the Acquiring Fund will acquire all of the Target Fund
Investments free and clear of any encumbrances, liens or
security interests and without any restrictions upon the
transfer thereof (except those imposed by the federal or
state securities laws and those imperfections of title or
encumbrances as do not materially detract from the value
or use of the Target Fund Investments or materially affect
title thereto).
(l) The Registration Statement, on the effective
date of the Registration Statement, at the time of the
Shareholder Meeting and on the Closing Date (i) complied or
will comply in all material respects with the provisions
of the 1933 Act, the 1934 Act and the 1940 Act and the rules
and regulations thereunder and (ii) did not or will not
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
and the Proxy Statement/Prospectus included therein did
not or will not contain any untrue statement of a material
fact or omit to state any material fact necessary to make
the statements therein, in light of the circumstances
under which they were made, not misleading; provided,
however, that no representation or warranty is made by
the Target Fund with respect to statements made or
incorporated by reference in the Registration Statement or
Proxy Statement/Prospectus based on information supplied
by the Acquiring Fund or any RMR Fund for inclusion or
incorporation by reference therein, or based on
information which is not included or incorporated by
reference in such documents but which should have been
disclosed pursuant to Section 2(j).
(m) The Target Fund is authorized to issue an
unlimited number of common shares of beneficial interest,
par value $.001 per share (the "Target Fund Common Shares"),
1,255,914 shares of which are outstanding on the date
hereof, and an unlimited number of preferred shares of
beneficial interest (the "Target Fund Preferred Shares"),
27 shares of which are outstanding on the date hereof.
Each of the outstanding Target Fund Preferred shares has
a par value of $.0001 per share, liquidation preference
of $25,000 per share plus an amount equal to accumulated
but unpaid distributions thereon (whether or not earned
or declared), and is designated as Series F. Each
outstanding Target Fund Common Share and Target Fund
Preferred Share is duly authorized, validly issued,
fully paid, nonassessable, and has full voting rights,
subject, in the case of the nonassessability of such
shares, to certain decisions of the Supreme Judicial
Court of The Commonwealth of Massachusetts holding that
shareholders of a Massachusetts business trust may, in
certain circumstances, be assessed or held personally
liable as partners for the obligations of a Massachusetts
business trust. Other than the outstanding Target Fund
Common Shares and Target Fund Preferred Shares, there are
no outstanding (i) shares of capital stock or other
voting securities of the Target Fund, (ii) stock
appreciation rights, phantom stock units, restricted
stock grants or contingent stock grants which grant awards
of any of the foregoing, (iii) bonds, debentures, notes or
other indebtedness of the Target Fund having the right
to vote (or convertible into, or exchangeable for,
securities having the right to vote) on any matters on
which shareholders of the Target Fund may vote, (iv)
securities of the Target Fund convertible into or
exchangeable for shares of capital stock or voting
securities of the Target Fund, (v) options or other
rights to acquire from the Target Fund, or obligations
of the Target Fund to issue any, capital stock, voting
securities or securities convertible into or exchangeable
for capital stock or voting securities of the Target Fund
or (vi) equity equivalent interests in the ownership or
earnings of the Target Fund.
(n) All of the issued and outstanding Target Fund
Common Shares and Target Fund Preferred Shares were
offered for sale and sold in conformity with all
applicable federal and state securities laws.
(o) The Target Fund has filed, or intends to file,
or has obtained extensions to file, all federal, state and
local tax returns which are required to be filed by it,
and has paid or has obtained extensions to pay, all
federal, state and local taxes shown on said returns to
be due and owing and all assessments received by it, up
to and including the taxable year in which the Closing
Date occurs. All tax liabilities of the Target Fund have
been adequately provided for on its books, and no tax
deficiency or liability of the Target Fund has been asserted
and no question with respect thereto has been raised by
the Internal Revenue Service or by any state or local tax
authority for taxes in excess of those already paid, up
to and including the taxable year in which the Closing
Date occurs.
(p) The Target Fund (i) has elected to qualify and
has qualified as a RIC as of and since its inception, (ii)
has been a RIC at all times since the end of its first
taxable year when it so qualified, (iii) qualifies and
will continue to qualify as a RIC for its taxable year
ending upon its liquidation and dissolution and (iv) has
satisfied the distribution requirements imposed by the
Code for each of its taxable years.
(q) The books and records of the Target Fund made
available to the Acquiring Fund and/or its counsel are
substantially true and correct and contain no material
misstatements or omissions with respect to the operations
of the Target Fund.
(r) The Target Fund will not sell or otherwise
dispose of any of the Acquiring Fund Common Shares or
Acquiring Fund Preferred Shares to be received in the
Reorganization, except for the distribution to the
shareholders of the Target Fund, as provided in this
Agreement.
4. THE REORGANIZATION.
(a) Subject to the receipt of the requisite
approvals of the shareholders of the Target Fund, and to
the other terms and conditions contained herein, the
Target Fund agrees to convey, transfer and deliver to the
Acquiring Fund and the Acquiring Fund agrees to acquire
from the Target Fund, on the Closing Date, all of the
Target Fund Investments (including interest accrued as
of the Valuation Date on debt instruments), and assume
all of the liabilities of the Target Fund, in exchange
for that number and type of Acquiring Fund Common Shares
and Acquiring Fund Preferred Shares determined as
provided in Section 5 of this Agreement (the "Reorganization").
On the Closing Date, the Target Fund Common Shares and
the Target Fund Preferred Shares shall be cancelled on
the books of the Target Fund, will be null and void, and
shall represent only the right to receive, subject to the
terms and conditions of this Agreement, Acquiring Fund
Common Shares, Acquiring Fund Preferred Shares and, if
not paid prior to the Reorganization, any dividends
payable with respect to such Target Fund Common Shares
and Target Fund Preferred Shares pursuant to
Section 4(c) herein. Pursuant to this Agreement, as
soon as practicable after the Closing Date, the Target
Fund will distribute (or cause to be distributed) all
Acquiring Fund Common Shares and Acquiring Fund
Preferred Shares it has received pursuant to the terms
of this Agreement to its shareholders pro rata in
exchange for their Target Fund Common Shares and Target
Fund Preferred Shares. Such distributions shall be
accomplished by the opening of shareholder accounts on
the share ledger records of the Acquiring Fund in the
names of and in the amounts due to the holders of Target
Fund Common Shares and holders of Target Fund Preferred
Shares based on their respective holdings in the Target
Fund as of the Valuation Date.
(b) If it is mutually determined by the parties
hereto that the portfolios of the Target Fund and the
Acquiring Fund, when aggregated, would contain investments
exceeding certain percentage limitations set forth in the
Acquiring Fund's investment policies and restrictions,
the Target Fund, if requested by the Acquiring Fund,
will dispose of a sufficient amount of such investments
as may be necessary to avoid violating such limitations
as of the Closing Date. Notwithstanding the foregoing,
(i) nothing herein will require the Target Fund to dispose
of any portfolio securities or other investments, if,
in the reasonable judgment of the Target Fund's board
of trustees or investment advisor, such disposition
would create more than an insignificant risk that the
Reorganization would not be treated as a "reorganization"
described in Section 368(a) of the Code for federal
income tax purposes or would otherwise not be in the
best interests of the Target Fund and (ii) nothing will
permit the Target Fund to dispose of any portfolio
securities or other investments if, in the reasonable
judgment of the Acquiring Fund's board of trustees or
investment advisor, such disposition would create more
than an insignificant risk that the Reorganization would
not be treated as a "reorganization" described in
Section 368(a) of the Code for federal income tax
purposes or would otherwise not be in the best interests
of the Acquiring Fund.
(c) Prior to the Closing Date, the Target Fund
shall declare and pay on or immediately before the
Closing Date a dividend or dividends which, together
with all such previous dividends, shall have the
effect of distributing to its shareholders all of
its net investment company taxable income to and
including the Closing Date, if any (computed without
regard to any deduction for dividends paid), and all
of its net capital gain, if any, realized to and
including the Closing Date.
(d) The Target Fund will promptly pay or cause
to be paid to the Acquiring Fund any interest the Target
Fund receives on or after the Closing Date with respect
to any of the Target Fund Investments transferred to the
Acquiring Fund hereunder.
(e) Recourse for liabilities assumed from the
Target Fund by the Acquiring Fund in the Reorganization
will be limited to the net assets acquired by the Acquiring
Fund. The known liabilities of the Target Fund, as of the
Valuation Date, shall be confirmed to the Acquiring Fund
pursuant to Section 3(i) of this Agreement.
(f) The Target Fund will cause its existence to be
terminated following the Closing Date by (i) terminating
its registration under the 1940 Act, (ii) delisting from
NYSE Amex, (iii) terminating its organization and voluntarily
dissolving and liquidating in accordance with Massachusetts
law and (iv) withdrawing its authority to do business in
any state where it is required to do so.
5. ISSUANCE AND VALUATION OF ACQUIRING FUND COMMON
SHARES AND ACQUIRING FUND PREFERRED SHARES IN THE
REORGANIZATION.
(a) On the Closing Date, Acquiring Fund Common
Shares and Acquiring Fund Preferred Shares shall be
issued by the Acquiring Fund to the Target Fund in
exchange for such assets of the Target Fund as follows:
on the Closing Date, the Acquiring Fund will issue to
the Target Fund (i) a number of Acquiring Fund Common
Shares, the aggregate net asset value of which will equal
the aggregate net asset value of the Target Fund Common
Shares, determined as set forth in this Section 5 and (ii)
a number of Acquiring Fund Preferred Shares, to be
designated Series F, the aggregate liquidation preference
of which will equal the aggregate liquidation preference
of the Target Fund Preferred Shares, determined as set
forth in this Section 5 and the terms of which will be
substantially the same as the terms of the Target Fund
Preferred Shares.
(b) The net asset value of each of the Funds and
the liquidation preference of each of the Funds'
preferred shares shall be determined in accordance with
the regular procedures of the Acquiring Fund, and no
formula will be used to adjust the net asset value
so determined of any Fund to take into account
differences in realized and unrealized gains and losses.
The value of the Target Fund Investments to be
transferred to the Acquiring Fund shall be determined
pursuant to the regular procedures of the Acquiring Fund.
Values in all cases shall be determined as of the
Valuation Date.
(c) The net asset value per share of the Target
Fund Common Shares and the liquidation preference per
share of the Target Fund Preferred Shares shall be
determined in accordance with this Section 5 on the
Valuation Date, and the net asset value per share of
the Acquiring Fund Common Shares and the liquidation
preference per share of the Acquiring Fund Preferred
Shares shall be determined in accordance with this
Section 5 immediately after giving effect to the
Reorganization. For purposes of determining the
net asset value of a Target Fund Common Share and
an Acquiring Fund Common Share, the value of the
securities held by the applicable Fund plus any cash
or other assets (including interest accrued but not
yet received) minus all liabilities (including
accrued and incurred expenses as allocated pursuant
to Section 6 hereof) and the aggregate liquidation
value of the outstanding shares of Target Fund
Preferred Shares or Acquiring Fund Preferred Shares,
as the case may be, is divided by the total number
of Target Fund Common Shares or Acquiring Fund Common
Shares, as the case may be, outstanding at such time.
(d) The Acquiring Fund shall issue to the
Target Fund separate certificates or evidence of
book entry for the Acquiring Fund Common Shares and
the Acquiring Fund Preferred Shares, each registered
in the names provided by the Target Fund or in the
name of the Target Fund. The Target Fund shall then
distribute the Acquiring Fund Common Shares and the
Acquiring Fund Preferred Shares to the holders of
Target Fund Common Shares and Target Fund Preferred
Shares (i) by delivering the Acquiring Fund Common
Shares to Xxxxx Fargo Bank, N.A., as the transfer
agent and registrar for the Acquiring Fund Common
Shares, for distribution to the holders of Target
Fund Common Shares on the basis of such holder's
proportionate interest in the aggregate net asset
value of the Target Fund Common Shares and (ii) by
delivering the Acquiring Fund Preferred Shares to The
Bank of New York, as the transfer agent and registrar
for the Acquiring Fund Preferred Shares, for distribution
to the holders of Target Fund Preferred Shares on the basis
of such holder's proportionate interest in the aggregate
liquidation preference of the Target Fund Preferred Shares.
All issued and outstanding Target Fund Common Shares
and Target Fund Preferred Shares will be cancelled on
the books of the Target Fund and will be null and void
as of the Closing Date.
6. PAYMENT OF EXPENSES.
(a) Each of the Acquiring Fund and the Target Fund
will pay its own expenses incurred in connection with
the Reorganization, whether or not consummated. With
respect to expenses incurred in connection with the
Reorganization and the reorganizations of any RMR Fund with
the Acquiring Fund that are attributable to the Target
Fund and such RMR Funds, such expenses shall be allocated
in proportion to the net asset values attributable to the
common shares of the Target Fund and the applicable RMR
Funds. Neither the Funds, the RMR Funds, nor the Advisor
will pay any expenses of shareholders arising out of or in
connection with the Reorganization.
(b) Notwithstanding anything herein to the contrary,
if for any reason the Reorganization is not consummated,
except for the payment of expenses as provided in this
Section 6, no party shall be liable to any other party for
any damages resulting therefrom, including, without
limitation, consequential damages.
7. COVENANTS OF THE FUNDS.
(a) The Target Fund covenants to operate its
business as presently conducted between the date hereof
and the Closing Date. The Acquiring Fund covenants not
to commence business operations (except to the extent
contemplated herein or necessary or appropriate to consummate
the purposes and intent of this Agreement and the separate
agreements and plans of reorganization that it has entered
into with the RMR Funds) prior to the completion of the
Reorganization on the Closing Date.
(b) The Acquiring Fund will file the Registration
Statement with the Commission and will use its reasonable
best efforts to cause the Registration Statement to become
effective as promptly as practicable. Each Fund agrees to
cooperate fully with the other, and each will furnish to
the other the information relating to itself to be set
forth in the Registration Statement as required by the 1933
Act, the 1934 Act and the 1940 Act, and the rules and
regulations thereunder and any applicable state securities
laws.
(c) The Acquiring Fund shall use its reasonable
best efforts to cause the Acquiring Fund Common Shares to
be issued in the Reorganization to be approved for listing
on NYSE Amex prior to the Closing Date.
(d) The Target Fund shall mail to its shareholders
of record entitled to vote at the Shareholder Meeting, in
sufficient time to comply with requirements as to notice
thereof, the Proxy Statement/Prospectus.
(e) The Target Fund shall duly take all lawful
action to call, give notice of, convene and hold the Shareholder
Meeting on a date determined in accordance with the mutual
agreement of the Funds for the purpose of obtaining the
requisite shareholder vote with respect to this Agreement
and the Reorganization and shall take all lawful action to
solicit the approval and adoption of this Agreement and the
Reorganization by its shareholders.
(f) Each of the Funds agrees that, by the Closing
Date, all of its federal and other tax returns and reports
required to be filed on or before such date shall have been
filed and all taxes shown on said returns to be due and owing
either shall have been paid or adequate liability reserves
shall have been provided for the payment of such taxes.
The intention of the parties is that the transaction
contemplated by this Agreement will qualify as a
"reorganization" within the meaning of Section 368(a) of
the Code. Neither Fund shall take any action or cause any
action to be taken (including, without limitation, the
filing of any tax return) that is inconsistent with such
treatment or results in the failure of the transaction to
qualify as a reorganization within the meaning of Section
368(a) of the Code. At or prior to the Closing Date, each
Fund will take such action, or cause such action to be taken,
as is reasonably necessary to enable Skadden, as special U.S.
federal income tax counsel to the Acquiring Fund, to render
the tax opinion required herein (including, without
limitation, each party's execution of representations
reasonably requested by and addressed to Skadden).
In connection with this covenant, the Funds agree to
cooperate with each other in filing any tax return, amended
return or claim for refund, determining a liability for
taxes or a right to a refund of taxes or participating in or
conducting any audit or other proceeding in respect of taxes.
The Acquiring Fund agrees to retain for a period of 10 years
following the Closing Date all returns, schedules and work
papers and all material records or other documents relating
to tax matters of the Target Fund for the taxable period first
ending after the Closing Date and for all prior taxable periods.
After the Closing Date, the Target Fund shall prepare,
or cause its agents to prepare, any federal, state or local
tax returns required to be filed by such Fund with respect
to its final taxable year ending with its complete
liquidation and dissolution and for any prior periods
or taxable years and further shall cause such tax returns
to be duly filed with the appropriate taxing authorities.
(g) The Target Fund agrees that following the consummation
of the Reorganization, it will terminate its organization
and dissolve and liquidate in accordance with Massachusetts
law and any other applicable law, it will not make any
distributions of any Acquiring Fund Common Shares or
Acquiring Fund Preferred Shares other than to its shareholders
as provided herein and without first paying or adequately
providing for the payment of all of its respective liabilities
not assumed by the Acquiring Fund, if any, and on and
after the Closing Date it shall not conduct any business
except in connection with its termination or as otherwise
expressly provided herein.
(h) The Target Fund undertakes that if the
Reorganization is consummated, it will file an application
pursuant to Section 8(f) of the 1940 Act for an order
declaring that the Target Fund has ceased to be a registered
investment company.
(i) Following the consummation of the Reorganization,
the Acquiring Fund will conduct its business as a non-diversified,
closed end management investment company registered under
the 1940 Act.
8. CLOSING DATE.
(a) Delivery of the Target Fund Investments and the
Acquiring Fund Common Shares and Acquiring Fund Preferred
Shares to be issued as provided in this Agreement, shall
be made at such place and time as the Funds shall mutually
agree on the Valuation Date, the date and time upon which
such delivery is to take place being referred to herein as
the "Closing Date." To the extent that any Target Fund
Investments, for any reason, are not transferable on the
Closing Date, the Target Fund shall cause such Target Fund
Investments to be transferred to the Acquiring Fund's account
with its custodian at the earliest practicable date thereafter.
(b) The Target Fund will deliver to the Acquiring Fund
on the Closing Date confirmation or other adequate evidence as
to the tax basis of the Target Fund Investments delivered to
the Acquiring Fund hereunder.
(c) As soon as practicable after the close of
business on the Closing Date, the Target Fund shall deliver
to the Acquiring Fund a list of the names and addresses of
all of the shareholders of record of the Target Fund on the
Closing Date and the number of Target Fund Common Shares and
Target Fund Preferred Shares owned by each such shareholder,
certified to the best of its knowledge and belief by the
transfer agent for the Target Fund or by its President.
9. CONDITIONS TO EACH FUND'S OBLIGATION TO EFFECT THE
REORGANIZATION.
The respective obligations of each Fund to consummate
the Reorganization shall be subject to the satisfaction of
each of the following conditions:
(a) That this Agreement shall have been adopted, and
the Reorganization shall have been approved, by the
affirmative vote of the holders of a "majority of the
outstanding" (as defined in the 1940 Act) Target Fund Common
Shares and Target Fund Preferred Shares, voting together as
a single class, and by the affirmative vote of the holders
of a majority of the outstanding Target Fund Preferred
Shares, voting as a separate class.
(b) That the board of trustees of the Acquiring Fund
shall have approved the issuance of additional Acquiring
Fund Common Shares and Acquiring Fund Preferred Shares in
an amount determined in accordance with Section 5 of this
Agreement and the Acquiring Fund Common Shares shall have
been approved for listing on NYSE Amex.
(c) That there shall not be any material litigation
pending with respect to the matters contemplated by this
Agreement.
(d) That the Registration Statement shall have
become effective under the 1933 Act, and no stop order
suspending such effectiveness shall have been instituted
or, to the knowledge of the Acquiring Fund, be contemplated
by the Commission.
(e) That the shareholders of RMR Real Estate Fund
shall have approved the reorganization of RMR Real Estate
Fund with the Acquiring Fund and that such reorganization
shall have been consummated.
10. CONDITIONS TO THE TARGET FUND'S OBLIGATION TO EFFECT
THE REORGANIZATION.
The obligations of the Target Fund to consummate
the Reorganization shall be subject to the satisfaction
of each of the following additional conditions:
(a) That the Acquiring Fund shall have delivered
to the Target Fund a copy of the resolution duly adopted
by its board of trustees approving this Agreement,
certified by its Secretary.
(b) That the Acquiring Fund shall have delivered
to the Target Fund a copy of the resolution duly adopted
by its board of trustees approving the issuance of
additional Acquiring Fund Common Shares and Acquiring Fund
Preferred Shares pursuant to this Agreement, certified
by its Secretary.
(c) That the Acquiring Fund shall have furnished
to the Target Fund the Acquiring Fund Closing Financial
Statements, certified on the Acquiring Fund's behalf by
its President (or any Vice President) or its Treasurer.
(d) That the Acquiring Fund shall have furnished
to the Target Fund a certificate signed by the Acquiring
Fund's President (or any Vice President) or its Treasurer,
dated as of the Closing Date, certifying that, as of the
Valuation Date and as of the Closing Date, all
representations and warranties of the Acquiring Fund made
in this Agreement that are not qualified by materiality
are true and correct in all material respects or, if
qualified by materiality, are true and correct in all
respects, in each case, with the same effect as if made
at and as of such dates, and that the Acquiring Fund has
complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied
at or prior to such dates.
(e) That the Target Fund shall have obtained an
opinion from Skadden, special U.S. federal income tax counsel
for the Acquiring Fund, dated as of the Closing Date,
addressed to the Target Fund, that the consummation of
the transactions set forth in this Agreement complies
with the requirements of a reorganization as described in
Section 368(a) of the Code.
11. CONDITIONS TO THE ACQUIRING FUND'S OBLIGATION TO
EFFECT THE REORGANIZATION.
The obligations of the Acquiring Fund hereunder
shall be subject to the following additional conditions:
(a) That the Target Fund shall have delivered to
the Acquiring Fund a copy of the resolution duly adopted
by its board of trustees approving this Agreement, and a
certificate setting forth the vote of the holders of
Target Fund Common Shares and Target Fund Preferred Shares
obtained at the Shareholder Meeting, each certified by its
Secretary.
(b) That the Target Fund shall have furnished to
the Acquiring Fund the Target Fund Closing Financial
Statements, certified on the Target Fund's behalf by its
President (or any Vice President) or its Treasurer, and
a certificate signed by such Fund's President (or any
Vice President) or its Treasurer, dated as of the Closing
Date, certifying that as of the Valuation Date and as of
the Closing Date there has been no material adverse change
in the financial position of the Target Fund since the date
of such Fund's most recent Annual Report or Semi-Annual
Report, as applicable, other than changes in the Target
Fund Investments since that date or changes in the market
value of the Target Fund Investments.
(c) That the Target Fund shall have furnished to
the Acquiring Fund a certificate signed by such Fund's
President (or any Vice President) or its Treasurer, dated
the Closing Date, certifying that, as of the Valuation
Date and as of the Closing Date, all representations and
warranties of the Target Fund made in this Agreement that
are not qualified by materiality are true and correct in
all material respects or, if qualified by materiality, are
true and correct in all respects, in each case, with the
same effect as if made at and as of such dates, and that
the Target Fund has complied with all of the agreements and
satisfied all of the conditions on its part to be performed
or satisfied at or prior to such dates.
(d) That the Acquiring Fund shall have obtained an
opinion from Skadden, as special U.S. federal income tax
counsel for the Acquiring Fund, dated as of the Closing
Date, addressed to the Acquiring Fund, that the
consummation of the transactions set forth in this
Agreement complies with the requirements of a
reorganization as described in Section 368(a) of the Code.
12. TERMINATION, POSTPONEMENT AND WAIVERS.
(a) Notwithstanding anything contained in this
Agreement to the contrary, this Agreement may be
terminated and the Reorganization abandoned at any time
(whether before or after adoption thereof by the
shareholders of the Target Fund) prior to the Closing Date,
or the Closing Date may be postponed, (i) by mutual
written consent of the Boards of Trustees of the Funds,
(ii) by the board of trustees of the Target Fund if any
condition of the Target Fund's obligations set forth in
Section 10 of this Agreement has not been fulfilled or
waived by such board; or (iii) by the board of trustees of
the Acquiring Fund if any condition of the Acquiring Fund's
obligations set forth in Section 11 of this Agreement has
not been fulfilled or waived by such board.
(b) If the transactions contemplated by this
Agreement have not been consummated by December 31, 2009,
this Agreement automatically shall terminate on that date,
unless a later date is mutually agreed to in writing by
the Boards of Trustees of the Funds.
(c) In the event this Agreement is terminated pursuant
to the provisions hereof, the same shall become void and
have no further effect, and there shall not be any
liability on the part of any Fund or its respective
directors, trustees, officers, agents or shareholders in
respect of this Agreement, except that the provisions of
Section 6, this Section 12, Section 13 and Section 14
shall survive such termination.
(d) At any time prior to the Closing Date, any of
the terms or conditions of this Agreement may be waived by
the board of trustees of any Fund (whichever is entitled
to the benefit thereof), if, in the judgment of such board
after consultation with its counsel, such waiver will not
have a material adverse effect on the benefits to the
shareholders of such Fund intended under this Agreement.
(e) The respective representations and warranties
contained in Sections 2 and 3 of this Agreement shall
expire with, and be terminated by, the consummation of the
Reorganization, and neither Fund nor any of its respective
officers, trustees, agents or shareholders shall have any
liability with respect to such representations or warranties
after the Closing Date. This provision shall not protect
any officer, trustee, agent or shareholder of either Fund
against any liability to the entity for which that officer,
trustee, agent or shareholder so acts or to its shareholders,
to which that officer, trustee, agent or shareholder
otherwise would be subject by reason of willful misfeasance,
bad faith, gross negligence, or reckless disregard of his or
her duties in the conduct of such office.
(f) If any order or orders of the Commission with
respect to this Agreement shall be issued prior to the Closing
Date that impose any terms or conditions that are determined
by action of the Boards of Trustees of the Funds to be
acceptable, such terms and conditions shall be binding as
if a part of this Agreement without further vote or
approval of the shareholders of the Target Fund, unless
such terms and conditions shall result in a change in the
method of computing the number of Acquiring Fund Common
Shares or Acquiring Fund Preferred Shares to be issued to
the Target Fund, as applicable, in which event, unless such
terms and conditions shall have been included in the proxy
solicitation materials furnished to the shareholders of the
Target Fund prior to the Shareholder Meeting, this Agreement
shall not be consummated and shall terminate unless the Target
Fund promptly shall call a special meeting of shareholders at
which such conditions so imposed shall be submitted for
approval.
13. INDEMNIFICATION.
(a) Each party (an "Indemnitor") shall indemnify and
hold the other and its officers, trustees, agents and
persons controlled by or controlling any of them (each
an "Indemnified Party") harmless from and against any and
all losses, damages, liabilities, claims, demands, judgments,
settlements, deficiencies, taxes, assessments, charges, costs
and expenses of any nature whatsoever (including reasonable
attorneys' fees) including amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and
counsel fees reasonably incurred by such Indemnified Party
in connection with the defense or disposition of any claim,
action, suit or other proceeding, whether civil or criminal,
before any court or administrative or investigative body
in which such Indemnified Party may be or may have been
involved as a party or otherwise or with which such
Indemnified Party may be or may have been threatened
(each, a "Loss" and collectively, "Losses") arising out
of or related to any claim of a breach of any covenant made
herein by the Indemnitor, provided, however, that no
Indemnified Party shall be indemnified hereunder against
any Losses arising directly from such Indemnified Party's
(i) willful misfeasance, (ii) bad faith, (iii) gross
negligence or (iv) reckless disregard of the duties
involved in the conduct of such Indemnified Party's
position.
(b) The Indemnified Party shall use its reasonable
best efforts to minimize any liabilities, damages,
deficiencies, claims, judgments, assessments, costs and
expenses in respect of which indemnity may be sought
hereunder. The Indemnified Party shall give written
notice to Indemnitor within the earlier of 10 days of
receipt of written notice to Indemnified Party or 30 days
from discovery by Indemnified Party of any matters which
may give rise to a claim for indemnification or
reimbursement under this Agreement. The failure to give
such notice shall not affect the right of Indemnified Party
to indemnity hereunder unless such failure has materially
and adversely affected the rights of the Indemnitor.
At any time after 10 days from the giving of such notice,
Indemnified Party may, at its option, resist, settle or
otherwise compromise, or pay such claim unless it shall
have received notice from Indemnitor that Indemnitor
intends, at Indemnitor's sole cost and expense, to assume
the defense of any such matter, in which case Indemnified
Party shall have the right, at no cost or expense to
Indemnitor, to participate in such defense. If Indemnitor
does not assume the defense of such matter, and in any
event until Indemnitor states in writing that it will
assume the defense, Indemnitor shall pay all costs of
Indemnified Party arising out of the defense until the
defense is assumed; provided, however, that Indemnified Party
shall consult with Indemnitor and obtain Indemnitor's prior
written consent to any payment or settlement of any such
claim. Indemnitor shall keep Indemnified Party fully
apprised at all times as to the status of the defense.
If Indemnitor does not assume the defense, Indemnified
Party shall keep Indemnitor apprised at all times as to
the status of the defense. Following indemnification as
provided for hereunder, Indemnitor shall be subrogated to
all rights of Indemnified Party with respect to all third
parties, firms or corporations relating to the matter for
which indemnification has been made.
14. OTHER MATTERS.
(a) All covenants, agreements, representations
and warranties made under this Agreement and any
certificates delivered pursuant to this Agreement
shall be deemed to have been material and relied upon
by each of the parties, notwithstanding any investigation
made by them or on their behalf.
(b) All notices hereunder shall be sufficiently
given for all purposes hereunder if in writing and
delivered personally or sent by registered mail or certified
mail, postage prepaid. Notice to the Target Fund shall
be addressed to the Target Fund c/o RMR Funds, 000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
General Counsel, or at such other address as the Target
Fund may designate by written notice to the Acquiring
Fund. Notice to the Acquiring Fund shall be addressed to
the Acquiring Fund x/x XXX Xxxxx, 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: General Counsel,
or at such other address and to the attention of such
other person as the Acquiring Fund may designate by written
notice to the Target Fund. Any notice shall be deemed to
have been served or given as of the date such notice is
delivered personally or mailed as provided herein.
(c) This Agreement supersedes all previous
correspondence and oral communications between the Funds
regarding the Reorganization, constitutes the only
understanding with respect to the Reorganization, may not
be changed except in a writing executed by each Fund
and shall be governed by and construed in accordance with
the laws of the State of Delaware (without giving effect
to choice of law principles thereof).
(d) This Agreement may be amended or modified by
the parties hereto prior to the Closing Date, by action
taken or authorized by their respective boards of trustees,
at any time before or after adoption of this Agreement
and approval of the Reorganization by the Target Fund's
shareholders, but, after any such adoption and approval,
no amendment or modification shall be made which by law
requires further approval by such shareholders without
such further approval. This Agreement may not be amended
or modified except by an instrument in writing signed on
behalf of each of the parties hereto.
(e) This Agreement is not intended to confer upon
any person other than the parties hereto (or their
respective successors and assigns) any rights, remedies,
obligations or liabilities hereunder. If any provision
of this Agreement shall be held or made invalid by a
statute, rule, regulation, decision of a tribunal or
otherwise, the remainder of this Agreement shall not be
affected thereby and, to such extent, the provisions of
this Agreement shall be deemed severable, provided that,
this Agreement shall be deemed modified to give effect to
the fullest extent permitted under applicable law to the
intentions of the parties as reflected by this Agreement
prior to the invalidity of such provision.
(f) It is expressly agreed that the obligations
of the Funds hereunder shall not be binding upon any of
their respective trustees, shareholders, nominees, officers,
agents, or employees personally, but shall bind only the
trust property of the respective Fund as provided in such
Fund's Agreement and Declaration of Trust. The execution and
delivery of this Agreement has been authorized by the board
of trustees of each Fund and signed by authorized officers
of each Fund, acting as such, and neither such authorization
by such trustees, nor such execution and delivery by
such officers shall be deemed to have been made by
any of them individually or to impose any liability
on any of them personally, but shall bind only the
trust property of each Fund as provided in such Funds'
Agreement and Declaration of Trust.
(g) This Agreement may be executed in any number
of counterparts, each of which, when executed and
delivered, shall be deemed to be an original but all
such counterparts together shall constitute but one
instrument.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have hereunto
caused this Agreement to be executed and delivered by
their duly authorized officers as of the day and year
first written above.
RMR DIVIDEND CAPTURE FUND
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Trustee, President and
Principal Executive Officer
RMR REAL ESTATE INCOME FUND
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Trustee, President and
Principal Executive Officer
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