THE BANK OF NEW YORK,
as Auction Agent
-----------------------
BROKER-DEALER AGREEMENT
dated as of June __, 2004
Relating to
Series Th Auction Preferred Shares ("Preferred Shares")
of
RMR HOSPITALITY AND REAL ESTATE FUND
---------------------------
RBC XXXX XXXXXXXX INC.
BROKER-DEALER AGREEMENT
This Broker-Dealer Agreement dated as of June __, 2004, is between The
Bank of New York, a New York banking corporation (the "Auction Agent") (not in
its individual capacity, but solely as agent of RMR Hospitality and Real Estate
Fund (the "Fund"), pursuant to authority granted to it in the Auction Agency
Agreement dated as of June __, 2004, between the Fund and the Auction Agent (the
"Auction Agency Agreement")), and RBC Xxxx Xxxxxxxx Inc. (together with its
successors and assigns, "BD").
The Fund proposes to issue auction preferred shares, par value $0.0001
per share, designated Series Th Auction Preferred Shares liquidation preference
$25,000 per share ("Preferred Shares"), pursuant to the Bylaws (as defined
below).
The Bylaws provide that for each Subsequent Rate Period of Preferred
Shares then outstanding, the Applicable Rate for Preferred Shares for each
Subsequent Rate Period shall be equal to the rate per annum that results from an
Auction for Outstanding Preferred Shares on the respective Auction Date therefor
next preceding such Subsequent Rate Period. The Board of Trustees of the Fund
has adopted a resolution appointing The Bank of New York as Auction Agent for
purposes of the Auction Procedures, and pursuant to Section 2.5 of the Auction
Agency Agreement, the Fund has requested and directed the Auction Agent to
execute and deliver this Agreement.
The Auction Procedures require the participation of one or more
Broker-Dealers.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Auction Agent and BD agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 TERMS DEFINED BY REFERENCE TO THE BYLAWS.
Capitalized terms not defined herein shall have the respective meanings
specified in the Bylaws.
1.2 TERMS DEFINED HEREIN.
As used herein, the following terms shall have the following meanings,
unless the context otherwise requires:
(a) "Auction" shall have the meaning specified in Section 2.1 of
the Auction Agency Agreement.
(b) "Auction Procedures" shall mean the Auction Procedures that are
set forth in Part II of Article X of the Bylaws.
(c) "Authorized Officer" of the Auction Agent shall mean each Vice
President, Assistant Vice President and Assistant Treasurer of the Dealing and
Trading Group of the Corporate Trust Department of the Auction Agent and every
other officer or employee of the Auction Agent designated as an "Authorized
Officer" for purposes of this Agreement in a written communication to BD.
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(d) "BD Officer" shall mean each officer or employee of BD
designated as a "BD Officer" for purposes of this Agreement in a written
communication to the Auction Agent.
(e) "Broker-Dealer Agreement" shall mean this Agreement and any
substantially similar agreement between the Auction Agent and a Broker-Dealer.
(f) "Bylaws" shall mean the Amended and Restated Bylaws of the Fund
specifying the powers, preferences and rights of the Preferred Shares.
1.3 RULES OF CONSTRUCTION.
Unless the context or use indicates another or different meaning or
intent, the following rules shall apply to the construction of this Agreement:
(a) Words importing the singular number shall include the plural
number and vice versa.
(b) The captions and headings herein are solely for convenience of
reference and shall not constitute a part of this Agreement, nor shall they
affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto," and other words of
similar import refer to this Agreement as a whole.
(d) All references herein to a particular time of day shall be to
New York City time.
II. NOTIFICATION OF DISTRIBUTION.
The provisions contained in Section 4 of Part I of Article X of the
Bylaws concerning the notification of a Special Rate Period will be followed by
the Auction Agent and BD, and the provisions contained therein are incorporated
herein by reference in their entirety and shall be deemed to be a part of this
Agreement to the same extent as if such provisions were set forth fully herein.
In the case of any conflict between the terms of any document incorporated
herein by reference and the terms hereof, the Auction Agent shall not be liable
for its actions or inaction in accordance with the terms of this Agreement,
provided it shall have also complied with the standards of conduct in the
Auction Agency Agreement.
III. THE AUCTION.
3.1 PURPOSE; INCORPORATION BY REFERENCE OF AUCTION PROCEDURES.
(a) On each Auction Date, the provisions of the Auction Procedures
will be followed by the Auction Agent for the purpose of determining the
Applicable Rate for the Preferred Shares, for each Distribution Period. Each
periodic operation of such procedures is hereinafter referred to as an
"Auction."
3
(b) All of the provisions contained in the Auction Procedures are
incorporated herein by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions were set forth
fully herein. In the case of any conflict between the terms of any document
incorporated herein by reference and the terms hereof, the Auction Agent shall
not be liable for its actions or inaction in accordance with the terms of this
Agreement, provided it shall have also complied with the standards of conduct in
the Auction Agency Agreement.
(c) BD agrees to act as, and assumes the obligations of and
limitations and restrictions placed upon, a Broker-Dealer under this Agreement.
BD understands that other Persons meeting the requirements specified in the
definition of "Broker-Dealer" contained in "Definitions" in Article X of the
Bylaws may execute a Broker-Dealer Agreement and participate as Broker-Dealers
in Auctions, subject to that certain letter agreement dated June__, 2004,
between the Fund and BD, the form of which is attached hereto as Exhibit D.
(d) BD and other Broker-Dealers may participate in Auctions for
their own accounts. However, the Fund, by notice to BD and all other Broker
Dealers, may prohibit all Broker-Dealers from submitting Bids in Auctions for
their own accounts, PROVIDED that Broker-Dealers may continue to submit Hold
Orders and Sell Orders. At the request of the Fund, the Auction Agent will seek
written certification from the Broker-Dealer that none of its orders are for its
own account, other than Hold Orders or Sell Orders and will provide to the Fund
such written certifications as it receives. The Auction Agent shall have no
other responsibility for and shall have no liability with respect to the
enforcement of this Section 3.1(d).
3.2 PREPARATION FOR EACH AUCTION.
(a) Not later than 9:30 A.M. on each Auction Date for the Preferred
Shares, the Auction Agent shall advise BD by telephone or other electronic means
of communication acceptable to the parties of the Maximum Rate, and the
Reference Rate used to determine the Maximum Rate, in effect on such Auction
Date.
(b) The Auction Agent from time to time may, but shall not be
obligated to, request BD to provide it with a list of the respective customers
BD believes are Beneficial Owners of Preferred Shares. BD shall comply with any
such request, and the Auction Agent shall keep confidential any such
information, including information received as to the identity of Bidders in any
Auction, and shall not disclose any such information so provided to any Person
other than the Fund; and such information shall not be used by the Auction Agent
or its officers, employees, agents or representatives for any purpose other than
such purposes as are described herein or in the Auction Agency Agreement;
PROVIDED, HOWEVER, that the Auction Agent reserves the right and is authorized
to disclose any such information if (a) it is ordered to do so by a court of
competent jurisdiction or a regulatory body, judicial or quasi-judicial agency
or authority having the authority to compel such disclosure, (b) it is advised
by its counsel that its failure to do so would be unlawful or (c) failure to do
so would expose the Auction Agent to loss, liability, claim, damage or expense
for which it has not received indemnity or security satisfactory to it. In the
event that the Auction Agent is required to disclose information in accordance
with the foregoing sentence, it shall provide written notice of such requirement
to BD as promptly as practicable. The Auction Agent shall, subject to the terms
of the Auction Agency Agreement, transmit any list of customers BD believes are
Beneficial Owners of Preferred Shares and
4
information related thereto only to its officers, employees, agents or
representatives who need to know such information for the purposes of acting in
accordance with this Agreement, and the Auction Agent shall use commercially
reasonable efforts to prevent the transmission of such information to others and
shall cause its officers, employees, agents and representatives to abide by the
foregoing confidentiality restrictions; PROVIDED, HOWEVER, that the Auction
Agent shall have no responsibility or liability for the actions of any of its
officers, employees, agents or representatives that occur after they have left
the employ of the Auction Agent.
3.3 AUCTION SCHEDULE; METHOD OF SUBMISSION OF ORDERS.
(a) The Fund and the Auction Agent shall conduct Auctions for
Preferred Shares in accordance with the schedule set forth below. Such schedule
may be changed at any time by the Auction Agent with the consent of the Fund,
which consent shall not be withheld unreasonably. The Auction Agent shall give
notice of any such change to BD. Such notice shall be received prior to the
first Auction Date on which any such change shall be effective.
TIME EVENT
---- -----
By 9:30 A.M. Auction Agent shall advise the
Fund and the Broker-Dealers of
the Maximum Rate and the Reference
Rate as set forth in Section 3.2(a)
hereof.
9:30 A.M. - 1:00 P.M. Auction Agent shall assemble
information communicated to it by
Broker-Dealers as provided in Section
3(a) of Part II of Article X of the
Bylaws. Submission Deadline is
1:00 P.M.
Not earlier than 1:00 P.M. Auction Agent shall make
determinations pursuant to
Section 3(a) of Part II of Article X
of the Bylaws.
By approximately 3:30 P.M. (and not Auction Agent shall advise the Fund
later than the close of business) of the results of the Auction as
provided in Section 3(b) of Part II
of Article X of the Bylaws.
Submitted Bid Orders and Submitted
Sell Orders will be accepted and
rejected in whole or in part and
Preferred Shares will be allocated as
provided in Section 4 of Part II of
Article X of the Bylaws.
Auction Agent shall give notice of
the Auction results as set forth in
Section 3.4(a) hereof.
(b) BD agrees to maintain a list of Potential Beneficial Owners and
to contact the Potential Beneficial Owners on such list on or prior to each
Auction Date for the purposes set forth in Section 2 of Part II of Article X of
the Bylaws.
(c) BD shall submit Orders to the Auction Agent in writing in
substantially the form attached hereto as Exhibit A. BD shall submit separate
Orders to the Auction Agent for each Potential Beneficial Owner or Beneficial
Owner on whose behalf BD is submitting an
5
Order and shall not net or aggregate the Orders of Potential Beneficial Owners
or Beneficial Owners on whose behalf BD is submitting Orders.
(d) BD shall deliver to the Auction Agent (i) a written notice,
substantially in the form attached hereto as Exhibit B, of transfers of
Preferred Shares, made through BD by an Existing Holder to another Person other
than pursuant to an Auction, and (ii) a written notice, substantially in the
form attached hereto as Exhibit C, of the failure of Preferred Shares to be
transferred to or by any Person that purchased or sold Preferred Shares through
BD pursuant to an Auction. The Auction Agent is not required to accept any
notice delivered pursuant to the terms of the foregoing sentence with respect to
an Auction unless it is received by the Auction Agent by 3:00 P.M. on the
Business Day next preceding the applicable Auction Date.
3.4 NOTICE OF AUCTION RESULTS.
(a) On each Auction Date, the Auction Agent shall notify BD by
telephone or other electronic means acceptable to the parties of the Auction
results. On the Business Day next succeeding such Auction Date, the Auction
Agent shall notify BD in writing of the disposition of all Orders submitted by
BD in the Auction held on such Auction Date.
(b) BD shall notify each Beneficial Owner, Potential Beneficial
Owner, Existing Holder or Potential Holder on whose behalf BD has submitted an
Order, of the Auction results and take such other action as is required of BD.
If any Beneficial Owner or Existing Holder selling Preferred Shares in
an Auction fails to deliver such shares, the Broker-Dealer of any Person that
was to have purchased Preferred Shares in such Auction may deliver to such
Person a number of whole shares of Preferred Shares that is less than the number
of shares that otherwise was to be purchased by such Person. In such event, the
number of Preferred Shares to be so delivered shall be determined by such
Broker-Dealer. Delivery of such lesser number of shares shall constitute good
delivery. Upon the occurrence of any such failure to deliver shares, such
Broker-Dealer shall deliver to the Auction Agent the notice required by Section
3.3(d)(ii) hereof. Notwithstanding the foregoing terms of this Section 3.4(b),
any delivery or non-delivery of Preferred Shares which represents any departure
from the results of an Auction, as determined by the Auction Agent, shall be of
no effect unless and until the Auction Agent shall have been notified of such
delivery or non-delivery in accordance with the terms of Section 3.3(d) hereof.
The Auction Agent shall have no duty or liability with respect to enforcement of
this Section 3.4(b). Any delivery or non-delivery of Preferred Shares which
represents any departure from the results of an Auction shall not affect the
results of the Auction.
3.5 SERVICE CHARGE TO BE PAID TO BD.
On the Business Day next succeeding each Auction Date, the Auction
Agent shall pay to BD from moneys received from the Fund an amount equal to the
product of: (a) (i) in the case of any Auction Date immediately preceding a
Distribution Period consisting of less than one year, 1/4 of 1% or (ii) in the
case of any Auction Date immediately preceding a Distribution Period consisting
of one year or more, a percentage agreed upon in writing by the Fund and the BD
times (b) a fraction the numerator of which is the number of days in such
Distribution Period
6
beginning on such Business Day and the denominator of which is 360, times (c)
$25,000, times (d) the sum of (i) the aggregate number of Preferred Shares
placed by BD in the applicable Auction that were (A) the subject of a Submitted
Bid of an Existing Holder submitted by BD and continued to be held as a result
of such submission and (B) the subject of a Submitted Bid of a Potential Holder
submitted by BD and were purchased as a result of such submission plus (ii) the
aggregate number of Preferred Shares subject to valid Hold Orders (determined in
accordance with paragraph (d) of Section 2 of Part II of Article X of the
Bylaws) submitted to the Auction Agent by BD plus (iii) the number of Preferred
Shares deemed to be subject to Hold Orders by Existing Holders pursuant to
paragraph (c) of Section 2 of Part II of Article X of the Bylaws that were
acquired by BD for its own account or were acquired by BD for its customers who
are Beneficial Owners.
For purposes of subclause (d)(iii) of the foregoing sentence, if any
Existing Holder or Beneficial Owner who acquired Preferred Shares through BD
transfers those shares to another Person other than pursuant to an Auction, then
the Broker-Dealer for the shares so transferred shall continue to be BD,
PROVIDED, HOWEVER, that if the transfer was effected by, or if the transferee
is, a Broker-Dealer other than BD, then such Broker-Dealer shall be the
Broker-Dealer for such shares.
IV. THE AUCTION AGENT.
4.1 DUTIES AND RESPONSIBILITIES.
(a) The Auction Agent is acting solely as agent for the Fund
hereunder, owes no fiduciary duties to any Person by reason of this Agreement,
and owes no duties, fiduciary or otherwise, to any other Person by reason of
this Agreement.
(b) The Auction Agent undertakes to perform such duties and only
such duties as are set forth specifically in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against the Auction
Agent.
(c) In the absence of willful misconduct or gross negligence on its
part, the Auction Agent shall not be liable for any action taken, suffered or
omitted by it or for any error of judgment made by it in the performance of its
duties under this Agreement. The Auction Agent shall not be liable for any error
of judgment made in good faith unless the Auction Agent shall have been grossly
negligent in ascertaining the pertinent facts necessary to make such judgment.
(d) In no event shall the Auction Agent be liable for special,
punitive, indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, lost profits), even if the Auction Agent has
been advised of the likelihood of such loss or damage and regardless of the form
of action.
4.2 RIGHTS OF THE AUCTION AGENT.
(a) The Auction Agent may conclusively rely upon, and shall be
fully protected in acting or refraining from acting upon, any communication
authorized hereby and any written instruction, notice, request, direction,
consent, report, certificate, share certificate or
7
other instrument, paper or document reasonably believed by it to be genuine. The
Auction Agent shall not be liable for acting or refraining from acting upon any
telephone communication authorized hereby that the Auction Agent reasonably
believes in good faith to have been given by the Fund or by a Broker-Dealer. The
Auction Agent may record telephone communications with the Fund or with the
Broker-Dealers or with both.
(b) The Auction Agent may consult with counsel of its choice, and
the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reasonable reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or
risk its own funds or otherwise incur or become exposed to financial liability
in the performance of its duties hereunder. The Auction Agent shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Fund.
(d) The Auction Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or attorneys (other
than its officers and employees) and shall not be responsible for the negligence
or misconduct of any such agent or attorney selected and appointed by it with
due care.
(e) The Auction Agent shall not be required to and shall make no
representations and have no responsibilities as to the validity, accuracy, value
or genuineness of any signatures or endorsements, other than its own and those
of its Authorized Officers, employees, agents, and attorneys. The Auction Agent
makes no representations as to and shall have no liability with respect to the
correctness of the recitals in, or the validity, accuracy or adequacy of this
Agreement, the Auction Agent Agreement, any offering material used in connection
with the offer and sale of the Preferred Shares or any other agreement or
instrument executed in connection with the transactions contemplated herein or
in any thereof. The Auction Agent shall have no obligation or liability in
respect of the registration or exemption therefrom of the Preferred Shares under
federal or state securities laws in respect of the sufficiency or the conformity
of any transfer of the Preferred Shares pursuant to the terms of the Auction
Agency Agreement, this Agreement, or any other document contemplated thereby or
related thereto.
(f) Whenever in the administration of the provisions of this
Agreement the Auction Agent shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering any action to be taken
hereunder, such matter may, in the absence of negligence or willful misconduct
on the part of the Auction Agent, be deemed to be conclusively proved and
established by a certificate signed by the Fund or the Broker-Dealer, and
delivered to the Auction Agent and such certificate, in the absence of gross
negligence or willful misconduct on the part of the Auction Agent, shall be full
warrant to the Auction Agent for any action taken or omitted by it under the
provisions of this Agreement upon the faith thereof. Upon receipt of any such
certificate signed by the Fund or a Broker-Dealer, the Auction Agent shall
promptly provide a copy of said certificate to the Broker-Dealer or the Fund,
respectively.
(g) The Auction Agent shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, entitlement order,
approval or other paper or document furnished by Fund or
8
the Broker-Dealer and reasonably believed by it to be genuine, except to the
extent that such failure to investigate would be deemed grossly negligent.
(h) Any corporation into which the Auction Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Auction Agent shall be
a party, or any corporation succeeding to the Dealing and Trading business of
the Auction Agent shall be the successor of the Auction Agent hereunder, with
the consent of the Fund but without the execution or filing of any paper with
any party hereto or any further act on the part of any of the parties hereto,
except where any instrument of transfer or assignment may be required by law to
effect such succession, anything herein to the contrary notwithstanding.
V. MISCELLANEOUS.
5.1 TERMINATION.
Any party may terminate this Agreement at any time upon five days'
prior written notice to the other party; PROVIDED, HOWEVER, that if the
Broker-Dealer is RBC Xxxx Xxxxxxxx Inc., it may not terminate this Agreement
without first obtaining the prior written consent of the Fund to such
termination, which consent shall not be withheld unreasonably. The Auction Agent
is without discretion to terminate this Agreement and will move to terminate it
only pursuant to written direction from the Fund. This Agreement shall
automatically terminate upon the redemption of all outstanding Preferred Shares
or upon termination of the Auction Agent Agreement.
5.2 FORCE MAJEURE.
Neither party to this Agreement shall be responsible or liable for any
failure or delay in the performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
reasonable control, including, without limitation, acts of God; earthquakes;
fires; floods; wars; civil or military disturbances; sabotage; acts of
terrorism; epidemics; riots; interruptions, loss or malfunctions or utilities;
computer (hardware or software) or communications services (provided that the
Auction Agent has not been grossly negligent with respect to selection,
operation or maintenance of such utilities, computer (hardware or software) or
communications service); accidents; labor disputes; acts of civil or military
authority or governmental actions; it being understood that the parties shall
use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.
5.3 PARTICIPANT IN SECURITIES DEPOSITORY; PAYMENT OF DISTRIBUTIONS IN
SAME-DAY FUNDS.
(a) BD is, and shall remain for the term of this Agreement, a
member of, or a participant in, the Securities Depository (or an affiliate of
such a member or participant).
(b) BD represents that it (or if BD does not act as Agent Member,
one of its affiliates) shall make all distribution payments on the Preferred
Shares available in same-day
9
funds on each Distribution Payment Date to customers that use BD (or its
affiliate) as Agent Member.
5.4 AGENT MEMBER.
At the date hereof, BD is a participant of the Securities Depository.
5.5 COMMUNICATIONS.
Except for (i) communications authorized to be made by telephone
pursuant to this Agreement or the Auction Procedures and (ii) communications in
connection with the Auctions (other than those expressly required to be in
writing), all notices, requests and other communications to any party hereunder
shall be in writing (including telecopy or similar writing) and shall be given
to such party at its address or telecopier number set forth below:
If to the Auction Agent,
addressed to: The Bank of New York
Corporate Trust Administration
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Dealing and
Trading Group - Auction Desk
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the BD,
addressed to: RBC Xxxx Xxxxxxxx Inc.
0 Xxxxxxx Xxxxx
000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
or such other address or telecopier number as such party hereafter may specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of BD by a BD Officer and on behalf of
the Auction Agent by an Authorized Officer. BD may record telephone
communications with the Auction Agent.
5.6 ENTIRE AGREEMENT.
This Agreement contains the entire agreement between the parties
relating to the subject matter hereof, and there are no other representations,
endorsements, promises, agreements or understandings, oral, written or implied,
between the parties relating to the subject matter hereof.
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5.7 BENEFITS.
Nothing in this Agreement, express or implied, shall give to any
person, other than the Fund, the Auction Agent and BD and their respective
successors and permitted assigns, any benefit of any legal or equitable right,
remedy or claim under this Agreement.
5.8 AMENDMENT; WAIVER.
(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged.
(b) Failure of either party to this Agreement to exercise any right
or remedy hereunder in the event of a breach of this Agreement by the other
party shall not constitute a waiver of any such right or remedy with respect to
any subsequent breach.
5.9 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and permitted assigns of each of BD
and the Auction Agent. This Agreement may not be assigned by either party hereto
absent the prior written consent of the other party and the Fund.
5.10 SEVERABILITY.
If any clause, provision or section of this Agreement shall be ruled
invalid or unenforceable by any court of competent jurisdiction, the invalidity
or unenforceability of such clause, provision or section shall not affect any
remaining clause, provision or section hereof.
5.11 EXECUTION IN COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
5.12 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed wholly in said state.
5.13 JURISDICTION.
The parties agree that all actions and proceedings arising out of this
Broker-Dealer Agreement or any of the transactions contemplated hereby shall be
brought in the County of New York, and, in connection with any such action or
proceeding, submit to the jurisdiction of, and venue in, such County. Each of
the parties hereto also irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim arising out of this Agreement or the
transactions contemplated hereby.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
THE BANK OF NEW YORK, As Auction Agent
By:
---------------------------------
Name:
Title:
RBC XXXX XXXXXXXX INC.
By:
---------------------------------
Name:
Title:
12
EXHIBIT A
THE BANK OF NEW YORK
AUCTION BID FORM
SUBMIT TO: ISSUE:
--------- -----
The Bank of New York RMR HOSPITALITY AND REAL ESTATE FUND
Corporate Trust Administration Auction Preferred Shares, Series Th
000 Xxxxxxx Xxxxxx ("Preferred Shares")
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Dealing
and Trading Group - Auction Desk
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
The undersigned Broker-Dealer submits the following Order on behalf of the
Bidder listed below:
Name of Bidder:
--------------------------------------
BENEFICIAL OWNER
Preferred Shares now held HOLD
----------------------- --------------
BID at rate of
-------------
SELL
--------------
POTENTIAL BENEFICIAL OWNER
# of Series Th Preferred Shares ___________
BID at rate of___________ Notes:
(1) If submitting more than one Bid for one Bidder, use additional
Auction Bid Forms.
(2) If one or more Bids covering in the aggregate more than the
number of outstanding shares held by any Beneficial Owner are
submitted, such bid shall be considered valid in the order of
priority set forth in the Auction Procedures on the above
issue.
(3) A Hold or Sell Order may be placed only by a Beneficial Owner
covering a number of shares not greater than the number of
shares currently held.
(4) Potential Beneficial Owners may make only Bids, each of which
must specify a rate. If more than one Bid is submitted on
behalf of any Potential Beneficial Owner, each Bid submitted
shall be a separate Bid with the rate specified.
(5) Bids may contain no more than three figures to the right of
the decimal point (.001 of 1%). Fractions will not be
accepted.
A-1
(6) An Order must be submitted in whole shares of Preferred Shares
with an aggregate liquidation preference of $25,000.
RBC XXXX XXXXXXXX INC.
---------------------------------------
Authorized Signature
------------------------------------------
A-2
EXHIBIT B
(Note: To be used only for transfers made other than pursuant to an Auction)
TRANSFER FORM
Re: RMR HOSPITALITY AND REAL ESTATE FUND
Auction Preferred Shares ("Preferred Shares")
We are (check one):
[ ] the Existing Holder named below;
[ ] the Broker-Dealer for such Existing Holder; or
[ ] the Agent Member for such Existing Holder.
We hereby notify you that such Beneficial Owner has transferred
_________ Series Th Preferred Shares to___________________________
--------------------------
(Name of Existing Holder)
--------------------------
(Name of Broker-Dealer)
--------------------------
(Name of Agent Member)
By:
---------------------------------------
Printed Name:
Title:
B-1
EXHIBIT C
(Note: To be used only for failures to deliver or to pay for
Preferred Shares sold pursuant to an Auction)
NOTICE OF A FAILURE TO DELIVER
We are a Broker-Dealer for _____________________ (the "Purchaser"),
which purchased _______ Series Th Preferred Shares of RMR HOSPITALITY AND REAL
ESTATE FUND in the Auction held on ____________________ from the seller of such
shares.
We hereby notify you that (check one):
______ the Seller failed to deliver such shares to the Purchaser.
______ the Purchaser failed to make payment to the Seller upon delivery of
such shares.
Name:
--------------------------------------
RBC XXXX XXXXXXXX INC.
By:
--------------------------------------
Printed Name:
Title:
C-1
EXHIBIT D
June __, 2004
RMR Hospitality and Real Estate Fund
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Auction Agency Agreement (the "Auction Agency
Agreement") to be dated June __, 2004, between RMR Hospitality and Real Estate
Fund (the "Company") and The Bank of New York, a New York banking corporation
(the "Auction Agent"). RBC Xxxx Xxxxxxxx Inc. ("RBC") wishes to confirm its
agreement with you that, for so long as RBC acts as broker-dealer in connection
with the auction of the Company's Series Th Auction Preferred Shares, $0.0001
par value per share, with a liquidation preference of $25,000 per share, the
Company shall not appoint, and shall not request or allow the Auction Agent to
appoint, any additional broker-dealers, without the prior written consent of
RBC, which consent shall be given in RBC's sole discretion. Nothing in this
letter agreement shall be taken to limit the rights of the Company to terminate,
or cause the Auction Agent to terminate, RBC as provided in Section 5.1 of the
Broker-Dealer Agreement to be dated June __, 2004, between the Auction Agent and
RBC.
If the foregoing correctly sets forth your understanding with respect
to the matters set forth above, kindly execute the acknowledgment below.
Very truly yours,
RBC Xxxx Xxxxxxxx Inc.
-----------------------------
By: Xxxxx Xxxxxx
Title: Managing Director
Acknowledged and Agreed
as of this ____ day of June, 2004
RMR Hospitality and Real Estate Fund
---------------------------
By: Xxxxxx X. X'Xxxxx
Title: President
D-1
