FORM OF CORPORATE FINANCE SERVICES AND CONSULTING AGREEMENT
This CORPORATE FINANCE SERVICES AND CONSULTING AGREEMENT (the
"Agreement"), dated as of November 25, 2002, between X.X. Xxxxxxx & Sons, Inc.
("X.X. Xxxxxxx") and Xxxxxxxxx Xxxxxx Management Inc. ("Xxxxxxxxx Xxxxxx").
WHEREAS, Xxxxxxxxx Xxxxxx Real Estate Income Fund Inc. (the "Fund") is
a non-diversified, closed-end management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), and its shares of
common stock, par value $.0001 per share (the "Common Stock"), are registered
under the Securities Act of 1933, as amended;
WHEREAS, Xxxxxxxxx Xxxxxx has completed its public offering of Common
Stock (the "Offering");
WHEREAS, Xxxxxxxxx Xxxxxx is the investment manager and the
administrator of the Fund;
WHEREAS, Xxxxxxxxx Xxxxxx desires to retain X.X. Xxxxxxx to provide
certain corporate finance and consulting services to the Fund on an ongoing
basis, and X.X. Xxxxxxx is willing to render such services; and
WHEREAS, Xxxxxxxxx Xxxxxx desires to provide compensation to X.X.
Xxxxxxx for providing such services;
NOW, THEREFORE, in consideration of the mutual terms and conditions
set forth below, the parties hereto agree as follows:
1. (a) Xxxxxxxxx Xxxxxx hereby employs X.X. Xxxxxxx, for the period and
on the terms and conditions set forth herein, to provide the
following services: (i) Provide relevant information, studies or
reports regarding general trends in the closed-end investment
company and asset management industries, if reasonably
obtainable, and consult with representatives of Xxxxxxxxx Xxxxxx
in connection therewith; (ii) At the request of Xxxxxxxxx Xxxxxx,
provide certain economic research and statistical information and
reports, if reasonably obtainable, on behalf of Xxxxxxxxx Xxxxxx
or the Fund and consult with representatives of Xxxxxxxxx Xxxxxx
or the Fund, and/or Directors of the Fund in connection
therewith, which information and reports shall include: (a)
statistical and financial market information with respect to the
Fund's market performance; and (b) comparative information
regarding the Fund and other closed-end management investment
companies with respect to (x) the net asset value of their
respective shares, (y) the respective market performance of the
Fund and such other companies, and (z) other relevant performance
indicators.
(b) At the request of Xxxxxxxxx Xxxxxx, X.X. Xxxxxxx shall limit or
cease any action or service provided hereunder to the extent and
for the time period requested by Xxxxxxxxx Xxxxxx; provided,
however, that pending termination of this Agreement as provided
for in Section 6 hereof, any such limitation or cessation shall
not relieve Xxxxxxxxx Xxxxxx of its payment obligations pursuant
to Section 2 hereof.
(c) X.X. Xxxxxxx will promptly notify Xxxxxxxxx Xxxxxx in writing if
it learns of any material inaccuracy or misstatement in, or
material omission from, any written information provided by X.X.
Xxxxxxx to Xxxxxxxxx Xxxxxx in connection with the performance of
services by X.X. Xxxxxxx under this Agreement. X.X. Xxxxxxx
agrees that in performing its services under this Agreement, it
shall comply with all applicable laws, rules and regulations.
2. Xxxxxxxxx Xxxxxx shall pay X.X. Xxxxxxx a fee computed weekly and
payable quarterly in arrears commencing November 30, 2002 at an
annualized rate of 0.10% of the Fund's Managed Assets (as such term is
defined in the Prospectus relating to the Offering) for a term as
described in Section 6 hereof; provided that the total amount of the
fee hereunder (when taken together with any sales load paid by the Fund
to X.X. Xxxxxxx in connection with the Offering of the Common Stock and
any expense reimbursement paid to X.X. Xxxxxxx) shall not exceed any
sales charge limits (which the parties hereto currently understand to
be 9.0% of the aggregate offering price of the Common Shares in the
Offering) under the rules of the National Association of Securities
Dealers, Inc., as then in effect; and provided further, that in
determining when this maximum fee amount has been paid, the value of
each of the quarterly payments made hereunder shall be discounted at
the annual rate of 10% to the closing date of Offering. All quarterly
fees payable hereunder shall be paid to X.X. Xxxxxxx within 30 days
following the end of each calendar quarter.
3. Xxxxxxxxx Xxxxxx shall be permitted to discharge all or a portion of
its payment obligations hereunder upon prepayment in full or in part of
the remaining balance due of the maximum additional commission amount
described in paragraph 2 above.
4. Xxxxxxxxx Xxxxxx acknowledges that the services of X.X. Xxxxxxx
provided for hereunder do not include any advice as to the value of
securities or regarding the advisability of purchasing or selling any
securities, in each case for the Fund's portfolio. No provision of this
Agreement shall be considered as creating, nor shall any provision
create, any obligation on the part of X.X. Xxxxxxx, and X.X. Xxxxxxx is
not hereby agreeing, to: (i) furnish any advice or make any
recommendations regarding the purchase or sale of portfolio securities
or (ii) render any opinions, valuations or recommendations of any kind
or to perform any such similar services in connection with providing
the services described in Section 1 hereof , it being understood
between the parties hereto that any such advice, recommendations,
opinions, recommendations or such similar activities if, and to the
extent, agreed to be performed by X.X. Xxxxxxx, shall be the subject of
a separate agreement with Xxxxxxxxx Xxxxxx.
5. Nothing herein shall be construed as prohibiting X.X. Xxxxxxx or its
affiliates from providing similar or other services to any other
clients (including other registered investment companies or other
investment managers), so long as X.X. Xxxxxxx'x services to Xxxxxxxxx
Xxxxxx are not impaired thereby. Neither this Agreement nor the
performance of the services contemplated hereunder shall be considered
to constitute a partnership, association or joint venture between X.X.
Xxxxxxx and Xxxxxxxxx Xxxxxx. In addition, nothing in this Agreement
shall be construed to constitute X.X. Xxxxxxx as the agent or employee
of Xxxxxxxxx Xxxxxx or Xxxxxxxxx Xxxxxx as the agent or employee of
X.X. Xxxxxxx, and neither party shall make any representation to the
contrary.
6. The term of this Agreement shall commence upon the date referred to
above and shall be in effect only so long as Xxxxxxxxx Xxxxxx (or any
affiliate or successor in interest) acts as the investment manager to
the Fund pursuant to the Management Agreement (as such term is defined
in the Underwriting Agreement, dated November 25, 2002, by and among
the Fund, Xxxxxxxxx Xxxxxx and each of the Underwriters named therein),
as such Agreement (or other subsequent advisory agreement) may be
renewed from time to time pursuant to the 1940 Act.
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7. Xxxxxxxxx Xxxxxx agrees that X.X. Xxxxxxx shall have no liability to
Xxxxxxxxx Xxxxxx or the Fund for any act or omission to act by X.X.
Xxxxxxx in the course of its performance under this Agreement, in the
absence of gross negligence, bad faith or willful misconduct on the
part of X.X. Xxxxxxx.
8. This Agreement and any claim, counterclaim or dispute of any kind or
nature whatsoever arising out of or in any way relating to this
Agreement ("Claim") shall be governed by and construed in accordance
with the laws of the State of New York.
9. No Claim may be commenced, prosecuted or continued in any court other
than the courts of the State of New York located in the City and County
of New York or in the United States District Court for the Southern
District of New York, which courts shall have exclusive jurisdiction
over the adjudication of such matters, and Xxxxxxxxx Xxxxxx and X.X.
Xxxxxxx consent to the jurisdiction of such courts and personal service
with respect thereto. Each of X.X. Xxxxxxx and Xxxxxxxxx Xxxxxx waives
all right to trial by jury in any proceeding (whether based upon
contract, tort or otherwise) in any way arising out of or relating to
this Agreement. Xxxxxxxxx Xxxxxx agrees that a final judgment in any
proceeding or counterclaim brought in any such court shall be
conclusive and binding upon Xxxxxxxxx Xxxxxx and may be enforced in any
other courts to the jurisdiction of which Xxxxxxxxx Xxxxxx is or may be
subject, by suit upon such judgment.
10. This Agreement may not be assigned by either party without the prior
written consent of the other party.
11. This Agreement embodies the entire agreement and understanding between
the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof. If any provision
of this Agreement is determined to be invalid or unenforceable in any
respect, such determination will not affect such provision in any other
respect or any other provision of this Agreement, which will remain in
full force and effect. This Agreement may not be amended or otherwise
modified or waived except by an instrument in writing signed by both
X.X. Xxxxxxx and Xxxxxxxxx Xxxxxx.
12. All notices required or permitted to be sent under this Agreement shall
be sent, if to Xxxxxxxxx Xxxxxx:
Xxxxxxxxx Xxxxxx Management, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx (cc: General Counsel)
or if to X.X. Xxxxxxx:
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Attention: Investment Banking--Corporate Finance
or such other name or address as may be given in writing to the other
parties. Any notice shall be deemed to be given or received on the
third day after deposit in the US mail with certified postage prepaid
or when actually received, whether by hand, express delivery service or
facsimile transmission, whichever is earlier.
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13. This Agreement may be executed in separate counterparts, each of which
is deemed to be an original and all of which taken together constitute
one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Corporate Finance Services and Consulting Agreement as of the date first above
written.
XXXXXXXXX XXXXXX MANAGEMENT, INC. X.X. XXXXXXX & SONS, INC.
By: _____________________________ By: _____________________________
Name: Name:
Title: Title:
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