Exhibit 10.9
Berkshire Income Realty, Inc.
August 13, 2002
Page 1
[Xxxxxxxxx Shareholder Letterhead]
_____________, 2002
Berkshire Income Realty, Inc.
Xxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Re: LETTER OF AGREEMENT
Gentlemen:
This Letter of Agreement, including the Appendix attached hereto (collectively,
this "Agreement"), sets forth the terms and conditions of the engagement by
Berkshire Income Realty, Inc. (the "Company") of Xxxxxxxxx Shareholder
Communications Inc. and Xxxxxxxxx Shareholder Securities Corporation
(collectively, "Xxxxxxxxx") to act as Information Agent and Dealer Manager,
respectively, in connection with the Company's Exchange Offer of its Series A
Preferred Stock for interests in Xxxxx Government Income Trust, Xxxxx Government
Income Trust II, Xxxxx Insured Mortgage Limited Partnership, Xxxxx Insured Plus
Limited Partnership, Xxxxx Insured Plus II Limited Partnership, and Xxxxx
Insured Plus III Limited Partnership and the related public offering for cash of
such Series A Preferred Stock (together, the "Offer"). The term of the Agreement
shall be the term of the Offer, including any extensions thereof.
(a) SERVICES. Xxxxxxxxx shall perform the services described in the
Fees & Services Schedule attached hereto as Appendix I
(collectively, the "Services").
(b) FEES. In consideration of Xxxxxxxxx'x performance of the Services,
the Company shall pay Xxxxxxxxx the amounts, and pursuant to the
terms, set forth on the Fees & Services Schedule attached hereto as
Appendix 1.
(c) EXPENSES. In connection with Xxxxxxxxx'x performance of the
Services, and in addition to the fees and charges discussed in
paragraph (b) hereof, the Company agrees that it shall be solely
responsible for the following out-of-pocket costs and expenses, and
that the Company shall, at Xxxxxxxxx'x sole discretion, (i)
reimburse Xxxxxxxxx for such costs and expenses actually incurred
by Xxxxxxxxx, (ii) pay such costs and expenses directly and/or
(iii) advance sufficient funds to Xxxxxxxxx for payment of such
costs and expenses:
o reasonable and customary expenses incidental to the Offer,
including postage and freight charges incurred in delivering
Offer materials;
o reasonable and customary third-party expenses incurred by
Xxxxxxxxx in working with its agents or other parties
involved in the Offer, including charges for bank threshold
lists, data processing, telephone directory assistance,
facsimile transmissions or other forms of electronic
communication;
o expenses incurred by Xxxxxxxxx at the Company's request,
including copying expenses, expenses relating to the
printing of additional and/or supplemental material and
reasonable travel expenses of Xxxxxxxxx'x executives
requested and approved in advance by Company;
o any other fees and expenses authorized by the Company and
resulting from extraordinary contingencies which arise
during the course of the Offer, including fees and expenses
for advertising, media relations, stock watch and analytical
services.
Berkshire Income Realty, Inc.
August 13, 2002
Page 2
(d) COMPLIANCE WITH APPLICABLE LAWS. The Company and Xxxxxxxxx hereby
represent to one another that each shall use its best efforts to
comply with all applicable laws relating to the Offer, including,
without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
(e) INDEMNIFICATION. The Company agrees to indemnify and hold harmless
Xxxxxxxxx and its stockholders, officers, directors, employees,
agents and affiliates against any and all claims, costs, damages,
liabilities, judgments and expenses, including the fees, costs and
expenses of counsel retained by Xxxxxxxxx, which result from
claims, actions, suits, subpoenas, demands or other proceedings
brought against or involving Xxxxxxxxx which directly relate to or
arise out of Xxxxxxxxx'x performance of the Services (except for
costs, damages, liabilities, judgments or expenses which shall have
been determined by a court of law pursuant to a final and
nonappealable judgment to have directly resulted from Xxxxxxxxx'x
gross negligence or intentional misconduct). In addition, the
prevailing party shall be entitled to reasonable attorneys' fees
and court costs in any action between the parties to enforce the
provisions of this Agreement, including the indemnification rights
contained in this paragraph. The indemnity obligations set forth in
this paragraph shall survive the termination of this Agreement.
(f) GOVERNING LAW. This Agreement shall be governed by the substantive
laws of the State of New York without regard to its principles of
conflicts of laws, and shall not be modified in any way, unless
pursuant to a written agreement which has been executed by each of
the parties hereto. The parties agree that any and all disputes,
controversies or claims arising out of or relating to this
Agreement (including any breach hereof) shall be subject to the
jurisdiction of the federal and state courts in New York County,
New York; and the parties hereby waive any defenses on the grounds
of lack of personal jurisdiction of such courts, improper venue or
FORUM NON CONVENIENS.
(g) EXCLUSIVITY. The Company agrees and acknowledges that Xxxxxxxxx
shall be the sole Information Agent and Dealer Manager retained by
the Company in connection with the Offer, other than affiliates of
the Company, and that the Company shall refrain from engaging any
other Information Agent or Dealer Manager to render any Services,
in a consultative capacity or otherwise, in relation to the Offer,
other than affiliates of the Company.
(h) ADDITIONAL SERVICES. In addition to the Services, the Company may
from time to time request that Xxxxxxxxx provide it with certain
additional consulting or other services. The Company agrees that
Xxxxxxxxx'x provision of such additional services shall be governed
by the terms of a separate agreement to be entered into by the
parties at such time or times, and that the fees charged in
connection therewith shall be at Xxxxxxxxx'x then-current rates.
(i) CONFIDENTIALITY. Xxxxxxxxx agrees to preserve the confidentiality
of (i) all material non-public information provided by the Company
or its agents for Xxxxxxxxx'x use in fulfilling its obligations
hereunder and (ii) any information developed by Xxxxxxxxx based
upon such material non-pubic information (collectively,
"Confidential Information"). For purposes of this Agreement,
Confidential Information shall not be deemed to include any
information which (w) is or becomes generally available to the
public in accordance with law other than as a result of a
disclosure by Xxxxxxxxx or any of its officers, directors,
employees, agents or affiliates; (x) was available to Xxxxxxxxx on
a nonconfidential basis and in accordance with law prior to its
disclosure to Xxxxxxxxx by the Company, (y) becomes available to
Xxxxxxxxx on a nonconfidential basis and in accordance with law
from a person other than the Company or any of its officers,
directors, employees, agents or affiliates who is not otherwise
bound by a confidentiality agreement with the Company or is not
otherwise prohibited from transmitting such Information to a third
party; or (z) was independently and lawfully
Berkshire Income Realty, Inc.
August 13, 2002
Page 3
developed by Xxxxxxxxx based on information described in clauses
(W), (x) or (y) of this paragraph. The Company agrees that all
reports, documents and other work product provided to the Company
by Xxxxxxxxx pursuant to the terms of this Agreement are for the
exclusive use of the Company and may not be disclosed to any other
person or entity without the prior written consent of Xxxxxxxxx.
The confidentiality obligations set forth in this paragraph shall
survive the termination of this Agreement.
(j) ENTIRE AGREEMENT; APPENDIX. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties hereto with respect to the
subject matter hereof. The Appendix to this Agreement shall be
deemed to be incorporated herein by reference as if fully set forth
herein. This Agreement shall be binding upon all successors to the
Company (by operation of law or otherwise).
IF THE ABOVE IS AGREED TO BY YOU, PLEASE EXECUTE AND RETURN THE
ENCLOSED DUPLICATE OF THIS AGREEMENT TO XXXXXXXXX SHAREHOLDER
COMMUNICATIONS INC., 00 XXXXX XXXXXX 00XX XXXXX, XXX XXXX, XXX XXXX
00000, ATTENTION: XXXXX XXXX, CONTRACT ADMINISTRATOR.
Sincerely,
XXXXXXXXX SHAREHOLDER
COMMUNICATIONS INC.
By:
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Title:
-----------------------------------
XXXXXXXXX SHAREHOLDER
SECURITIES CORPORATION
By:
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Title:
-----------------------------------
Agreed to and accepted as of
the date first set forth above:
BERKSHIRE INCOME REALTY INC.
By:
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Title:
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Berkshire Income Realty, Inc.
August 13, 2002
Page 4
APPENDIX I
FEES & SERVICES SCHEDULE
BASE SERVICES $100,000.00
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o Information Agent
o Includes ordering and processing beneficial owner Information;
coordinating distribution of bank/broker material; producing
institutional contact listings; coordinating tender information with the
Depositary; coordinating the telephone effort
o Information Banking - base fee
o Provide information and explain benefits of the offer to brokers,
institutional and individual investors; survey reactions and obtain
intelligence about potential success of the offer, provide advice and
counsel to the offeror.
o Depositary Services
o Processing the sale of shares for cash, if necessary.
SUCCESS FEES
o For each trust or partnership that receives participation of 25% or TBD
more, Berkshire Income Realty, Inc. will pay an additional fee of ---
$25,000.00 per fund.
PREMIUM SERVICES
o Telephone communications with target shareholders TBD
o $4.50 per completed call (incoming and outgoing) ---
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FEE PAYMENT INSTRUCTIONS
The Company shall pay Xxxxxxxxx as follows:
o Upon execution of this Agreement, the Company shall pay Xxxxxxxxx $50,000.00,
which amount is in consideration of Xxxxxxxxx'x commitment to represent the
Company and is non-refundable;
o Upon completion of the Offer, the Company shall pay Xxxxxxxxx the sum of (i)
$50,000.00, (ii) any variable fees for Premium Services (E.G., telephone
calls) which shall have accrued over the course of the Offer, (iii) all
reimbursable expenses, and (iv) the success fees.
Xxxxxxxxx will send the Company an invoice for each of the foregoing payments.
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