AMENDED AND RESTATED NOTE ADMINISTRATION FEE AGREEMENT
AMENDED AND RESTATED NOTE ADMINISTRATION FEE AGREEMENT
This Amended and Restated Note Administration Fee Agreement (this “Agreement”), dated as of October 1, 2005, is by and between X.X. XXXX COMPANY (the “Advisor”), X.X. XXXX REAL ESTATE INVESTMENT TRUST (the “Trust”) and, solely with respect to Section 1(a) hereof, X.X. XXXX ADVISORY COMPANY, L.L.C. (“Xxxx Advisory”).
WHEREAS, Xxxx Advisory and the Trust entered into the Note Administration Fee Agreement dated as of February 8, 2002 (the “Existing Agreement”) to provide for separate compensation to Xxxx Advisory for the services provided and the costs incurred by Xxxx Advisory in administering the Trust’s notes program (the “Program”);
(a) Xxxx Advisory hereby transfers and assigns to the Advisor all of its rights in the Existing Agreement, other than fees earned through September 30, 2005;
1
(b) The Advisor hereby accepts such assignment of the Existing Agreement and assumes and agrees to pay, perform and discharge in full and in a timely manner the obligations of Xxxx Advisory under or with respect to the Existing Agreement, as amended hereby; and
(c) The Trust hereby consents to the assignment and assumption referred to above.
2. Note Administration Fee. The Trust hereby agrees to pay a fee to the Advisor as compensation for the services provided and costs incurred by the Advisor in administering the Program in the amount of (i) during any calendar month the Trust issues notes under the Program, 2% of the principal amount of notes as they are issued or (ii) during any calendar month the Trust does not issue notes under the Program, $7,500 for such month. This revised fee shall be effective as of November 1, 2005. The fee payable to the Advisor for the period between October 1, 2005 and October 31, 2005 shall be 2% of the principal amount of notes as they are issued during such period. The Advisor shall provide the administrative services (and bear the costs) with respect to the Program that Xxxx Advisory provided to the Trust under the Existing Agreement. Upon the request of either the Trust or the Advisor, but at least annually, the Trust and the Advisor shall review the fee hereunder to insure that it is fair and reasonable to both the Trust and the Advisor and make any adjustment agreed upon.
3. Payment of Fee. All amounts payable to the Advisor under Section 1 shall be due on the last day of the month following the month in which the notes to which such amounts pertain were issued or, if no notes were issued during such month, on the last day of the month following such month.
4. Miscellaneous.
(a) This Agreement shall be in force until September 30, 2006, and shall continue thereafter from year to year unless cancelled by either party at the end of any contact year, upon written notice given at least three (3) months prior to the end of any such contract year.
(b) The parties hereto shall do and perform or cause to be done and performed all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments and documents as any other party hereto may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(c) This Agreement shall be construed and interpreted in accordance with the law of the State of Maryland in effect at the time (without giving effect to the application of choice of law provisions that could result in the application of the laws of any other jurisdiction).
2
(d) This Agreement shall be binding upon the successors and assigns of the parties hereto. This Agreement shall automatically be assigned to any person who succeeds the Advisor as the Trust’s advisor under the Advisory Contract.
(e) Anything in this Agreement to the contrary notwithstanding, the Advisor shall not have or make any claim under, by reason of, or in connection with this Agreement against the Trustees personally or the shareholders of the Trust, but shall look solely to the property of the Trust for the payment of any such claim. The Advisor hereby acknowledges that it is familiar with the Declaration of Trust of the Trust as amended and in particular the provisions thereof relating to the non-liability of shareholders and Trustees, to which reference is hereby made.
(f) This Agreement may be executed in one or more counterparts, all of which taken together shall be deemed to constitute one and the same instrument.
X.X. XXXX COMPANY | ||
By: | /s/ Xxxx X. Xxxxxxx | |
Name: | Xxxx X. Xxxxxxx | |
Title: | Vice President | |
X.X. XXXX REAL ESTATE INVESTMENT TRUST | ||
By: | /s/ Xxxxxxx X. Xxxxxxx | |
Name: | Xxxxxxx X. Xxxxxxx | |
Title: | Vice President |
Agreed and accepted solely with respect to Section 1(a) hereof as of the date first written above.
X.X. XXXX ADVISORY COMPANY, L.L.C. | ||
By: | /s/ Xxxx X. Xxxxxxx | |
Name: | Xxxx X. Xxxxxxx | |
Title: | Vice President |
3