AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (AGREEMENT) is made as of March
7, 2008, between XXXXXXXXX XXXXXX REALTY INCOME FUND INC., a Maryland
corporation (ACQUIRED FUND), and XXXXXXXXX XXXXXX REAL ESTATE SECURITIES
INCOME FUND INC., also a Maryland corporation (ACQUIRING FUND) (each, a
FUND).
The Funds wish to effect a reorganization described in section 368(a)(1) of
the Internal Revenue Code of 1986, as amended (CODE), and intend this
Agreement to be, and adopt it as, a plan of reorganization within the meaning
of the regulations under the Code (REGULATIONS)). The reorganization will
consist of (1) the transfer of Acquired Funds assets to Acquiring Fund in
exchange solely for the issuance to Acquired Fund of shares of Acquiring Funds
common and preferred stock (and, under certain circumstances, Acquiring Funds
delivery to Acquired Fund of cash in lieu of fractional shares of common stock)
and Acquiring Funds assumption of Acquired Funds liabilities, (2) the
distribution of such shares (and cash, if applicable) to Acquired Funds
stockholders in liquidation thereof, and (3) Acquired Funds dissolution, all on
the terms and conditions set forth herein (collectively, the REORGANIZATION).
Each Funds Board of Directors (each, a BOARD), including all the members
thereof who are not interested persons (as such term is defined in the
Investment Company Act of 1940, as amended (1940 ACT)) thereof, (1) has duly
adopted and approved this Agreement and the transactions contemplated hereby and
(2) has determined that participation in the Reorganization is in the best
interests of its Fund and that the interests of the existing stockholders
thereof will not be diluted as a result of the Reorganization.
Acquired Funds capital stock is divided into one class of common stock
(ACQUIRED FUND COMMON STOCK) and four series of auction preferred stock,
designated Series A, Series B, Series C, and Series D (SERIES A ACQUIRED FUND
STOCK, SERIES B ACQUIRED FUND STOCK, SERIES C ACQUIRED FUND STOCK, and
SERIES D ACQUIRED FUND STOCK, respectively) (collectively, ACQUIRED FUND
STOCK). Acquiring Funds capital stock is divided into one class of common
stock (ACQUIRING FUND COMMON STOCK) and four series of auction market
preferred stock (AMPS), also designated Series A, Series B, Series C, and
Series D. If the Reorganization is approved by the Funds stockholders,
Acquiring Fund shall, effective no later than the EFFECTIVE TIME (as defined in
paragraph 3.1), (1) redesignate its Series B, Series C, and Series D AMPS as
Series C, Series G, and Series H AMPS and (2) issue four additional classes of
AMPS, designated Series B, Series D, Series E, and Series F (SERIES B ACQUIRING
FUND STOCK, SERIES D ACQUIRING FUND STOCK, SERIES E ACQUIRING FUND STOCK,
and SERIES F ACQUIRING FUND STOCK, respectively) (collectively, ACQUIRING
FUND STOCK).
In consideration of the mutual promises contained herein, the parties agree
as follows:
1. PLAN OF REORGANIZATION
1.1. Subject to the requisite approval of the Funds stockholders and the
terms and conditions set forth herein, Acquired Fund shall assign, sell, convey,
transfer, and deliver all of its assets described in paragraph 1.2 (ASSETS) to
Acquiring Fund. In exchange therefor, Acquiring Fund shall
(a) issue and deliver to Acquired Fund the number of full and, except
as otherwise provided in paragraph 1.7, fractional shares of Acquiring Fund
Common Stock, rounded to the third decimal place (or cash in lieu thereof),
determined by dividing Acquired Funds net value (computed as set forth in
paragraph 2.1) attributable to the Acquired Fund Common Stock by the net
asset value (NAV) (computed as set forth in paragraph 2.2) of a share of
Acquiring Fund Common Stock,
(b) issue and deliver to Acquired Fund the number of full shares of
(1) Series B Acquiring Fund Stock equal to the number of full shares of
Series A Acquired Fund Stock then outstanding, (2) Series D Acquiring Fund
Stock equal to the number of full shares of Series B Acquired Fund Stock
then outstanding, (3) Series E Acquiring Fund Stock equal to the number of
full shares of Series C Acquired Fund Stock then outstanding, and (4)
Series F Acquiring Fund Stock equal to the number of full shares of Series
D Acquired Fund Stock then outstanding, and
(c) assume all of Acquired Funds liabilities described in paragraph
1.3 (LIABILITIES).
Such transactions shall take place at the CLOSING (as defined in paragraph 3.1).
1.2. The Assets shall consist of all assets and property including all
cash, cash equivalents, securities, commodities, futures interests, receivables
(including interest and dividends receivable), claims and rights of action,
rights to register stock under applicable securities laws, books and records,
and deferred and prepaid expenses (other than unamortized organizational
expenses) shown as assets on Acquired Funds books Acquired Fund owns at the
VALUATION TIME (as defined in paragraph 2.1).
1.3. The Liabilities shall consist of all of Acquired Funds liabilities,
debts, obligations, and duties of whatever kind or nature existing at the
Valuation Time, whether absolute, accrued, contingent, or otherwise, whether
known or unknown, whether or not arising in the ordinary course of business,
whether or not determinable at the Valuation Time, and whether or not
specifically referred to in this Agreement, excluding REORGANIZATION EXPENSES
(as defined in paragraph 4.3.9) borne by Acquiring Fund and/or Xxxxxxxxx Xxxxxx
Management Inc. (ADVISOR) pursuant to paragraph 7.2. Notwithstanding the
foregoing, Acquired Fund agrees to use its best efforts to discharge all its
known Liabilities before the Effective Time.
1.4. If the dividends and/or other distributions either Fund previously
paid for the current taxable year do not equal or exceed the sum of its (a)
investment company taxable income (within the meaning of section 852(b)(2) of
the Code), computed without regard to any deduction for dividends paid, and (b)
net capital gain (as defined in section 1222(11) of the Code), after reduction
by any capital loss carryforward, for the current taxable year through the
Effective Time, then at or immediately before the Valuation Time such Fund shall
declare and pay (i) to the holders of its common stock one or more dividends
and/or other distributions in an amount large enough so that, together with such
2
previous distributions and the dividends described in (ii) below, it will have
distributed substantially all (and in any event not less than 98%) of such sum
and (ii) to the holders of its preferred stock all accumulated due and unpaid
dividends.
1.5. At the Effective Time (or as soon thereafter as is reasonably
practicable), Acquired Fund shall distribute the Acquiring Fund Stock (and, to
the extent provided in paragraph 1.7, cash) it receives pursuant to paragraph
1.1(a) to its stockholders of record, determined at the Effective Time (each a
STOCKHOLDER), in proportion to their Acquired Fund Stock then so held and in
constructive exchange therefor, and shall completely liquidate. Such
distribution shall be accomplished by Acquiring Funds transfer agent (TRANSFER
AGENT) opening accounts on Acquiring Funds stockholder records in the names of
the Stockholders (except Stockholders in whose names accounts thereon already
exist) and crediting each Stockholders newly opened or preexisting account
with the respective PRO RATA number of shares of Acquiring Fund Stock due such
Stockholder. All outstanding Acquired Fund Stock, including any represented by
certificates, shall simultaneously be canceled on Acquired Funds stockholder
records. Acquiring Fund shall not issue certificates representing the Acquiring
Fund Stock issued in connection with the Reorganization.
1.6. Promptly after the Funds stockholders approve this Agreement, (1) the
Funds shall jointly file articles of transfer complying with section 3 109 of
the Maryland General Corporation Law (Titles 13 of the Corporations and
Associations Article of the Maryland Code) (ARTICLES OF TRANSFER) with the
Department of Assessments and Taxation of the State of Maryland (DEPARTMENT)
and (2) Acquiring Fund shall file with the Department articles supplementary
complying with section 2208 of such law regarding the redesignation of its
existing series of AMPS and its issuance of the Acquiring Fund Stock (ARTICLES
SUPPLEMENTARY).
1.7. If, but for this paragraph, fractional shares of Acquiring Fund Common
Stock would be delivered to Acquired Fund pursuant to paragraph 1.1(a) and thus
distributed to the Stockholders pursuant to paragraph 1.5, such fractional
shares (except the fractional share the agent for Acquired Funds distribution
reinvestment plan (PLAN AGENT) is entitled to receive) (NON DELIVERABLE
FRACTIONAL SHARES) shall not be delivered to Acquired Fund and instead either
(a) the Transfer Agent shall aggregate all the Nondeliverable Fractional
Shares, sell them on the American Stock Exchange, deliver the cash proceeds
thereof (net of transaction costs) to Acquired Fund pursuant to paragraph
1.1(a), and distribute such net proceeds to the Stockholders other than the Plan
Agent, on Acquired Funds behalf, in proportion to the fractional shares they
otherwise would have been entitled to receive pursuant to paragraph 1.5, or (b)
Acquiring Fund shall purchase the Nondeliverable Fractional Shares at the NAV
per full share of Acquiring Fund Common Stock at the Valuation Time, and the
Transfer Agent shall distribute the proceeds thereof to such Stockholders, on
Acquiring Funds behalf, in such proportion.
1.8. As soon as reasonably practicable after distribution of the Acquiring
Fund Stock pursuant to paragraph 1.5 and cash in lieu of Non deliverable
Fractional Shares pursuant to paragraph 1.7, but in all events within six months
after the Effective Time, Acquired Fund shall be dissolved and any further
actions shall be taken in connection therewith as required by applicable law.
3
1.9. Any reporting responsibility of Acquired Fund to a public authority,
including the responsibility for filing regulatory reports, tax returns, and
other documents with the Securities and Exchange Commission (COMMISSION), any
state securities commission, any federal, state, and local tax authorities, and
any other relevant regulatory authority, is and shall remain its responsibility
up to and including the date on which it is dissolved.
1.10. Any transfer taxes payable on issuance of Acquiring Fund Stock in a
name other than that of the registered holder on Acquired Funds stockholder
records of the Acquired Fund Stock actually or constructively exchanged therefor
shall be paid by the person to whom such Acquiring Fund Stock is to be issued,
as a condition of such transfer.
2. VALUATION
2.1. For purposes of paragraph 1.1(a), Acquired Funds net value shall be
(a) the value of the Assets computed immediately after the close of regular
trading on the New York Stock Exchange (NYSE) on the day of the Closing
(VALUATION TIME), using the valuation procedures adopted by its Board, less
(b) the amount of the Liabilities at the Valuation Time.
2.2. For purposes of paragraph 1.1(a), the NAV of a share of Acquiring Fund
Common Stock shall be computed at the Valuation Time, using the valuation
procedures adopted by Acquiring Funds Board.
2.3. All computations pursuant to paragraphs 2.1 and 2.2 shall be made by
or under the direction of Advisor.
3. CLOSING AND EFFECTIVE TIME
3.1. Unless the Funds agree otherwise, (a) the Reorganization, together
with related acts necessary to consummate it (CLOSING), shall occur at the
offices of Advisor, on the later of (i) the date the Articles of Transfer and
Articles Supplementary are accepted for record by the Department or (ii) a later
date specified in both the Articles of Transfer and Articles Supplementary not
more than 30 days after they are so accepted (which later date must be a day on
which the NYSE is open for regular trading (BUSINESS DAY)), and (b) all acts
taking place at the Closing shall be deemed to take place simultaneously at 5:00
p.m., Eastern Time, on that date (EFFECTIVE TIME). If, immediately before the
Valuation Time, (i) the NYSE or another primary trading market for portfolio
securities of either Fund (each, an EXCHANGE) is closed to trading or trading
thereon is restricted or (ii) trading or the reporting of trading on an Exchange
or elsewhere is disrupted, so that accurate appraisal of Acquired Funds net
value and/or the NAV of a share of Acquiring Fund Common Stock is impracticable,
the Valuation Time shall be postponed until the first Business Day after the day
when such trading has been fully resumed and such reporting has been restored
and the Effective Time shall be postponed until the following Business Day.
3.2. Acquired Fund shall direct its custodian to deliver at the Closing a
certificate (a) verifying that the information (including adjusted basis and
holding period, by lot) concerning the Assets, including all portfolio
securities, transferred by Acquired Fund to Acquiring Fund, as reflected on
Acquiring Funds books immediately after the Closing, does or will conform to
such information on Acquired Funds books immediately before the Closing and (b)
4
stating that (i) the Assets it holds will be transferred to Acquiring Fund at
the Effective Time and (ii) all necessary taxes in conjunction with the delivery
of the Assets, including all applicable federal and state stock transfer stamps,
if any, have been paid or provision for payment has been made.
3.3. Acquired Fund shall deliver, or shall have its transfer agent deliver,
to Acquiring Fund at the Closing a list of the Stockholders names and
addresses, and the number of full and, in the case of the Plan Agent, fractional
outstanding shares of Acquired Fund Stock each Stockholder owns, at the
Effective Time, certified by Acquired Funds Secretary or Assistant Secretary or
by its transfer agent, as applicable. Acquiring Fund shall direct its transfer
agent to deliver at the Closing a certificate as to the opening of accounts in
the Stockholders names on Acquiring Funds stockholder records. Acquiring Fund
shall issue and deliver to Acquired Fund a confirmation, or other evidence
satisfactory to Acquired Fund, that the Acquiring Fund Stock to be credited to
Acquired Fund at the Effective Time has been credited to Acquired Funds account
on such records. At the Closing, each Fund shall deliver to the other bills of
sale, checks, assignments, stock certificates, receipts, or other documents the
other Fund or its counsel reasonably requests.
3.4. Each Fund shall deliver to the other at the Closing a certificate
executed in its name by its President or a Vice President in form and substance
satisfactory to the recipient and dated the Effective Time, to the effect that
the representations and warranties it made in this Agreement are true and
correct at the Effective Time except as they may be affected by the transactions
contemplated hereby.
4. REPRESENTATIONS AND WARRANTIES
4.1. Acquired Fund represents and warrants to Acquiring Fund as follows:
4.1.1. Acquired Fund (a) is a corporation that is duly organized,
validly existing, and in good standing under the laws of the State of
Maryland and (b) has the power to own all its properties and assets and to
carry on its business as described in documents filed with the Commission;
and its Articles of Incorporation (CHARTER) are on file with the
Department;
4.1.2. Acquired Fund is duly registered as a closedend management
investment company under the 1940 Act, such registration is in full force
and effect, and no proceeding has been instituted to suspend such
registration;
4.1.3. At the Effective Time, Acquired Fund will have good and
marketable title to the Assets and full right, power, and authority to
sell, assign, transfer, and deliver the Assets free of any liens or other
encumbrances (except securities that are subject to securities loans, as
referred to in section 851(b)(2) of the Code, or that are restricted to
resale by their terms), and on delivery and payment for the Assets,
Acquiring Fund will acquire good and marketable title thereto, subject to
no restrictions on the full transfer thereof, including restrictions that
might arise under the Securities Act of 1933, as amended (1933 ACT),
except as previously disclosed in writing to and accepted by Acquiring
Fund;
5
4.1.4. Acquired Funds investment operations from inception to the
date hereof have been in compliance in all material respects with the
investment policies and restrictions set forth in documents filed with the
Commission, except as previously disclosed in writing to and accepted by
Acquiring Fund;
4.1.5. Acquired Fund is not currently engaged in, and its execution,
delivery, and performance of this Agreement and consummation of the
Reorganization will not result in, (1) a material violation of any
provision of Maryland law, its Charter or ByLaws, or any agreement,
indenture, instrument, contract, lease, or other undertaking (each, an
UNDERTAKING) to which it is a party or by which it is bound or (2) the
acceleration of any obligation, or the imposition of any penalty, under any
Undertaking, judgment, or decree to which it is a party or by which it is
bound;
4.1.6. All material contracts and other commitments of or applicable
to Acquired Fund (other than this Agreement and certain investment
contracts, including options, futures, and forward contracts) will
terminate, or provision for discharge of any liabilities of Acquired Fund
thereunder will be made, at or before the Effective Time, without either
Funds incurring any liability or penalty with respect thereto and without
diminishing or releasing any rights Acquired Fund may have had with respect
to actions taken or omitted or to be taken by any other party thereto
before the Closing;
4.1.7. Except as previously disclosed in writing to and accepted by
Acquiring Fund, (a) no litigation, administrative proceeding, action, or
investigation of or before any court, governmental body, or arbitrator is
presently pending or, to Acquired Funds knowledge, threatened against
Acquired Fund or any of its properties or assets that, if adversely
determined, would materially and adversely affect its financial condition
or the conduct of its business, and (b) Acquired Fund knows of no facts
that might form the basis for the institution of any such litigation,
proceeding, or investigation and is not a party to or subject to the
provisions of any order, decree, or judgment of any court or governmental
body that materially or adversely affects its business or its ability to
consummate the transactions contemplated hereby;
4.1.8. The execution, delivery, and performance of this Agreement have
been duly authorized at the date hereof by all necessary action on the part
of Acquired Funds Board, which has made the determinations required by
Rule 17a8(a) under the 1940 Act; and this Agreement constitutes a valid
and legally binding obligation of Acquired Fund, enforceable in accordance
with its terms, subject to the effect of bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership, moratorium, and other laws
affecting the rights and remedies of creditors generally and general
principles of equity;
4.1.9. No governmental consents, approvals, authorizations, or filings
are required under the 1933 Act, the Securities Exchange Act of 1934, as
amended, or the 1940 Act (collectively, FEDERAL SECURITIES LAWS) or state
securities laws, and no authorizations, consents, or orders of any court
are required, for Acquired Funds execution or performance of this
Agreement, except for (a) Acquiring Funds filing with the Commission of a
registration statement on Form N14 relating to the Acquiring Fund Stock
issuable hereunder, and any supplement or amendment thereto (REGISTRATION
6
STATEMENT), including therein a prospectus and proxy statement
(PROSPECTUS/STATEMENT), and (b) consents, approvals, authorizations, and
filings that have been made or received or may be required after the
Effective Time;
4.1.10. On the effective date of the Registration Statement, at the
time of the STOCKHOLDERS MEETING (as defined in paragraph 6.1), and at the
Effective Time, the Prospectus/Statement will (a) comply in all material
respects with the applicable provisions of the Federal Securities Laws and
the rules and regulations thereunder and (b) not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which such statements were made, not misleading;
provided that the foregoing shall not apply to statements in or omissions
from the Prospectus/Statement made in reliance on and in conformity with
information furnished by Acquiring Fund for use therein;
4.1.11. Acquired Fund incurred the Liabilities in the ordinary course
of its business; and there are no Liabilities other than those disclosed or
provided for in Acquired Funds financial statements referred to in
paragraph 4.1.19 and Liabilities incurred by Acquired Fund in the ordinary
course of its business subsequent to October 31, 2007, none of which has
been materially adverse to the business, assets, or results of its
operations;
4.1.12. For each taxable year of its operation (including the taxable
year ending at the Effective Time), Acquired Fund has met (or for its
current taxable year will meet) the requirements of Subchapter M of Chapter
1 of the Code (SUBCHAPTER M) for qualification as a regulated investment
company (RIC) and has been (or for such year will be) eligible to and has
computed (or for such year will compute) its federal income tax under
section 852 of the Code; from the time Acquired Funds Board approved the
transactions contemplated hereby (APPROVAL TIME) through the Effective
Time, Acquired Fund has invested and will invest its assets in a manner
that ensures its compliance with the foregoing and paragraph 4.1.13; from
the time it commenced operations through the Effective Time, Acquired Fund
has conducted and will conduct its historic business (within the meaning
of section 1.3681(d)(2) of the Regulations) in a substantially unchanged
manner; from the Approval Time through the Effective Time, Acquired Fund
(1) has not disposed of and/or acquired, and will not dispose of and/or
acquire, any assets (a) for the purpose of satisfying Acquiring Funds
investment objectives or policies or (b) for any other reason except in the
ordinary course of its business as a RIC and (2) has not otherwise changed,
and will not otherwise change, its historic investment policies; Acquired
Fund has no earnings and profits accumulated in any taxable year in which
the provisions of Subchapter M did not apply to it; and Acquired Fund has
not at any time since its inception been liable for, and is not now liable
for, any material tax pursuant to sections 852 or 4982 of the Code, except
as previously disclosed in writing to and accepted by Acquiring Fund;
4.1.13. Acquired Fund is in the same line of business as Acquiring
Fund is in, for purposes of section 1.3681(d)(2) of the Regulations, and
did not enter into such line of business as part of the plan of
reorganization;
7
4.1.14. At the Effective Time, at least 33 1/3% of Acquired Funds
portfolio assets will meet Acquiring Funds investment objectives,
strategies, policies, risks, and restrictions, and Acquired Fund did not
alter and will not alter its portfolio in connection with the
Reorganization to meet such 33 1/3% threshold;
4.1.15. To the best of Acquired Funds managements knowledge, at the
record date for Acquired Funds stockholders entitled to vote on approval
of this Agreement, there was no plan or intention by its stockholders to
sell, exchange, or otherwise dispose of a number of shares of Acquired Fund
Stock (or Acquiring Fund Stock to be received in the Reorganization), in
connection with the Reorganization, that would reduce their ownership of
the Acquired Fund Stock (or the equivalent Acquiring Fund Stock) to a
number of shares that was less than 50% of the number of shares of Acquired
Fund Stock at such date;
4.1.16. Acquired Fund is not under the jurisdiction of a court in a
title 11 or similar case (as defined in section 368(a)(3)(A) of the
Code);
4.1.17. During the fiveyear period ending at the Effective Time, (a)
neither Acquired Fund nor any person related (as defined in section
1.3681(e)(3) of the Regulations) (RELATED) to it will have acquired
Acquired Fund Stock, either directly or through any transaction, agreement,
or arrangement with any other person, with consideration other than
Acquiring Fund Stock or Acquired Fund Stock, and (b) no distributions will
have been made with respect to Acquired Fund Stock, other than normal,
regular dividend distributions made pursuant to Acquired Funds historic
dividendpaying practice and other distributions that qualify for the
deduction for dividends paid (within the meaning of section 561 of the
Code) referred to in sections 852(a)(1) and 4982(c)(1)(A) of the Code;
4.1.18. By the Effective Time, Acquired Fund shall have duly and
timely filed all federal, state, local, and foreign tax returns required by
law to have been filed by such date (giving effect to properly and timely
filed extensions of time to file); Acquired Fund has timely paid all taxes
payable pursuant to such filed returns except for amounts that alone or in
the aggregate would not reasonably be expected to have a material adverse
effect; and Acquired Fund is in compliance in all material respects with
applicable Regulations pertaining to the reporting of, and withholding in
respect of, distributions on its stock and is not liable for any material
penalties that could be imposed thereunder;
4.1.19. The Statement of Assets and Liabilities (including Schedule of
Investments), Statement of Operations, and Statement of Changes in Net
Assets (collectively, STATEMENTS) of Acquired Fund at and for the fiscal
year (in the case of the last Statement, for the two fiscal years) ended
October 31, 2007, have been audited by Ernst & Young LLP, an independent
registered public accounting firm (E&Y), and are in accordance with
generally accepted accounting principles (GAAP), and copies thereof have
been delivered to Acquiring Fund; to Acquired Funds managements best
knowledge and belief, there are no known contingent liabilities of Acquired
Fund required to be reflected on a balance sheet (including the notes
thereto) in accordance with GAAP consistently applied at such date that are
8
not disclosed therein; and such Statements present fairly, in all material
respects, Acquired Funds financial condition at such date in accordance
with GAAP consistently applied and the results of its operations and
changes in its net assets for the period then ended;
4.1.20. Since October 31, 2007, there has not been any material
adverse change in Acquired Funds financial condition, assets, liabilities,
or business, other than changes occurring in the ordinary course of
business, or any incurrence by Acquired Fund of indebtedness maturing more
than one year from the date such indebtedness was incurred, except as
previously disclosed in writing to and accepted by Acquiring Fund; for
purposes of this representation, a decline in NAV per share of Acquired
Fund Stock due to declines in market values of securities Acquired Fund
holds or the discharge of its liabilities shall not constitute a material
adverse change;
4.1.21. All issued and outstanding Acquired Fund Stock is, and at the
Effective Time will be, duly and validly issued and outstanding, fully
paid, and nonassessable by Acquired Fund and has been offered and sold in
every state and the District of Columbia in compliance in all material
respects with applicable registration requirements of the 1933 Act and
state securities laws; all issued and outstanding Acquired Fund Stock will,
at the Effective Time, be held by the persons and in the amounts set forth
on Acquired Funds stockholder records, as provided in paragraph 3.3; and
Acquired Fund does not have outstanding any options, warrants, or other
rights to subscribe for or purchase any Acquired Fund Stock, nor are there
outstanding any securities convertible into any Acquired Fund Stock;
4.1.22. Not more than 25% of the value of Acquired Funds total assets
(excluding cash, cash items, and U.S. government securities) is invested in
the stock and securities of any one issuer, and not more than 50% of the
value of such assets is invested in the stock and securities of five or
fewer issuers; and
4.1.23. No registration of any Asset under the 1933 Act or any state
securities or blue sky laws would be required if it was, at the Effective
Time, the subject of a public distribution by either Fund, except as
previously disclosed in writing to and accepted by Acquiring Fund.
4.2. Acquiring Fund represents and warrants to Acquired Fund as follows:
4.2.1. Acquiring Fund (a) is a corporation that is duly organized,
validly existing, and in good standing under the laws of the State of
Maryland and (b) has the power to own all its properties and assets and to
carry on its business as described in documents filed with the Commission;
and its Charter is on file with the Department;
4.2.2. Acquiring Fund is duly registered as a closedend management
investment company under the 1940 Act, such registration is in full force
and effect, and no proceeding has been instituted to suspend such
registration;
4.2.3. No consideration other than Acquiring Fund Stock (and cash in
lieu of fractional shares and Acquiring Funds assumption of the
Liabilities) will be issued in exchange for the Assets in the
Reorganization;
9
4.2.4. The Acquiring Fund Stock to be issued and delivered to Acquired
Fund hereunder will, at the Effective Time, have been duly authorized by
Acquiring Fund and, when issued and delivered as provided herein (including
the receipt of consideration in exchange therefor not less than its par
value), will be duly and validly issued and outstanding stock of Acquiring
Fund, fully paid and nonassessable by Acquiring Fund;
4.2.5. Acquiring Funds investment operations from inception to the
date hereof have been in compliance in all material respects with the
investment policies and restrictions set forth in documents filed with the
Commission, except as previously disclosed in writing to and accepted by
Acquired Fund;
4.2.6. Acquiring Fund is not currently engaged in, and its execution,
delivery, and performance of this Agreement will not result in, (1) a
material violation of any provision of Maryland law, its Charter or
ByLaws, or any Undertaking to which it is a party or by which it is bound
or (2) the acceleration of any obligation, or the imposition of any
penalty, under any Undertaking, judgment, or decree to which it is a party
or by which it is bound;
4.2.7. Except as previously disclosed in writing to and accepted by
Acquired Fund, (a) no litigation, administrative proceeding, action, or
investigation of or before any court, governmental body, or arbitrator is
presently pending or, to Acquiring Funds knowledge, threatened against it
or any of its properties or assets that, if adversely determined, would
materially and adversely affect its financial condition or the conduct of
its business, and (b) Acquiring Fund knows of no facts that might form the
basis for the institution of any such litigation, proceeding, or
investigation and is not a party to or subject to the provisions of any
order, decree, or judgment of any court or governmental body that
materially or adversely affects its business or its ability to consummate
the transactions contemplated hereby;
4.2.8. The execution, delivery, and performance of this Agreement have
been duly authorized at the date hereof by all necessary action on the part
of Acquiring Funds Board, which has made the determinations required by
Rule 17a8(a) under the 1940 Act; and this Agreement constitutes a valid
and legally binding obligation of Acquiring Fund, enforceable in accordance
with its terms, subject to the effect of bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership, moratorium, and other laws
affecting the rights and remedies of creditors generally and general
principles of equity;
4.2.9. No governmental consents, approvals, authorizations, or filings
are required under the Federal Securities Laws or state securities laws,
and no authorizations, consents, or orders of any court are required, for
Acquiring Funds execution or performance of this Agreement, except for (a)
the filing of the Registration Statement with the Commission and (b) such
consents, approvals, authorizations, and filings as have been made or
received or as may be required subsequent to the Effective Time;
4.2.10. On the effective date of the Registration Statement, at the
time of the Stockholders Meeting, and at the Effective Time, the
Prospectus/Statement will (a) comply in all material respects with the
applicable provisions of the Federal Securities Laws and the rules and
10
regulations thereunder and (b) not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which such statements were made, not misleading;
provided that the foregoing shall not apply to statements in or omissions
from the Prospectus/Statement made in reliance on and in conformity with
information furnished by Acquired Fund for use therein;
4.2.11. For each taxable year of its operation (including the taxable
year in which the Effective Time occurs), Acquiring Fund has met (or for
its current taxable year will meet) the requirements of Subchapter M for
qualification as a RIC and has been (or for such year will be) eligible to
and has computed (or for such year will compute) its federal income tax
under section 852 of the Code; Acquiring Fund intends to continue to meet
all such requirements for the next taxable year; Acquiring Fund has no
earnings and profits accumulated in any taxable year in which the
provisions of Subchapter M did not apply to it; and Acquiring Fund has not
at any time since its inception been liable for, and is not now liable for,
any material tax pursuant to sections 852 or 4982 of the Code, except as
previously disclosed in writing to and accepted by Acquired Fund;
4.2.12. Following the Reorganization, Acquiring Fund (a) will continue
Acquired Funds historic business (within the meaning of section
1.3681(d)(2) of the Regulations) and (b) will use a significant portion of
Acquired Funds historic business assets (within the meaning of section
1.3681(d)(3) of the Regulations) in a business; moreover, Acquiring Fund
(c) has no plan or intention to sell or otherwise dispose of any of the
Assets, except for dispositions made in the ordinary course of such
business and dispositions necessary to maintain its status as a RIC, and
(d) expects to retain substantially all the Assets in the same form as it
receives them in the Reorganization, unless and until subsequent investment
circumstances suggest the desirability of change or it becomes necessary to
make dispositions thereof to maintain such status;
4.2.13. Acquiring Fund is in the same line of business as Acquired
Fund was in preceding the Reorganization, for purposes of section
1.3681(d)(2) of the Regulations, and did not enter into such line of
business as part of the plan of reorganization; following the
Reorganization, Acquiring Fund will continue, and has no intention to
change, such line of business; and at the Effective Time, (1) at least 33
1/3% of Acquired Funds portfolio assets will meet Acquiring Funds
investment objectives, strategies, policies, risks, and restrictions and
(2) Acquiring Fund has no plan or intention to change any of its investment
objectives, strategies, policies, risks, or restrictions after the
Reorganization;
4.2.14. There is no plan or intention for Acquiring Fund to be
dissolved or merged into another corporation or a business or statutory
trust or any fund thereof (as defined in section 851(g)(2) of the Code)
following the Reorganization;
4.2.15. During the fiveyear period ending at the Effective Time,
neither Acquiring Fund nor any person Related to it will have acquired
Acquired Fund Stock with consideration other than Acquiring Fund Stock;
11
4.2.16. By the Effective Time, Acquiring Fund shall have duly and
timely filed all federal, state, local, and foreign tax returns required by
law to have been filed by such date (giving effect to properly and timely
filed extensions of time to file); Acquiring Fund has timely paid all taxes
payable pursuant to such filed returns except for amounts that alone or in
the aggregate would not reasonably be expected to have a material adverse
effect; and Acquiring Fund is in compliance in all material respects with
applicable Regulations pertaining to the reporting of, and withholding in
respect of, distributions on its stock and is not liable for any material
penalties that could be imposed thereunder;
4.2.17. Acquiring Funds Statements at and for the fiscal year (in the
case of its Statement of Changes in Net Assets, for the two fiscal years)
ended October 31, 2007, have been audited by E&Y, and copies thereof have
been delivered to Acquired Fund; to Acquiring Funds managements best
knowledge and belief, there are no known contingent liabilities of
Acquiring Fund required to be reflected on a balance sheet (including the
notes thereto) in accordance with GAAP consistently applied at such date
that are not disclosed therein; and such Statements present fairly, in all
material respects, Acquiring Funds financial condition at such date in
accordance with GAAP consistently applied and the results of its operations
and changes in its net assets for the period then ended;
4.2.18. Since October 31, 2007, there has not been any material
adverse change in Acquiring Funds financial condition, assets,
liabilities, or business, other than changes occurring in the ordinary
course of business, or any incurrence by Acquiring Fund of indebtedness
maturing more than one year from the date such indebtedness was incurred,
except as previously disclosed in writing to and accepted by Acquired Fund;
for purposes of this representation, a decline in NAV per share of
Acquiring Fund Stock due to declines in market values of securities
Acquiring Fund holds or the discharge of its liabilities shall not
constitute a material adverse change;
4.2.19. Assuming the truthfulness and correctness of Acquired Funds
representation and warranty in paragraph 4.1.22, immediately after the
Reorganization, (a) not more than 25% of the value of Acquiring Funds
total assets (excluding cash, cash items, and U.S. government securities)
will be invested in the stock and securities of any one issuer and (b) not
more than 50% of the value of such assets will be invested in the stock and
securities of five or fewer issuers;
4.2.20. Acquiring Fund does not directly or indirectly own, nor at the
Effective Time will it directly or indirectly own, nor has it directly or
indirectly owned at any time during the past five years, any Acquired Fund
Stock;
4.2.21. Acquiring Fund has no plan or intention to issue additional
Acquiring Fund Stock following the Reorganization except to the agent for
its dividend reinvestment plan; nor does Acquiring Fund, or any person
Related to it, have any plan or intention to acquire during the
fiveyear period beginning at the Effective Time, either directly or
through any transaction, agreement, or arrangement with any other person
with consideration other than Acquiring Fund Stock, any Acquiring Fund
Stock issued to the Stockholders pursuant to the Reorganization; and
12
4.2.22. All issued and outstanding Acquiring Fund Stock is, and at the
Effective Time will be, duly and validly issued and outstanding, fully
paid, and nonassessable by Acquiring Fund and has been offered and sold in
every state and the District of Columbia in compliance in all material
respects with applicable registration requirements of the 1933 Act and
state securities laws; and Acquiring Fund does not have outstanding any
options, warrants, or other rights to subscribe for or purchase any
Acquiring Fund Stock, nor are there outstanding any securities convertible
into any Acquiring Fund Stock.
4.3. Each Fund represents and warrants to the other Fund as follows:
4.3.1. The fair market value of the Acquiring Fund Stock each
Stockholder receives (together with cash in lieu of Nondeliverable
Fractional Shares, if any) will be approximately equal to the fair market
value of its Acquired Fund Stock it actually or constructively surrenders
in exchange therefor;
4.3.2. Its management (a) is unaware of any plan or intention of
Stockholders to sell or otherwise dispose of (1) any portion of their
Acquired Fund Stock before the Reorganization to any person Related to
either Fund or (2) any portion of the Acquiring Fund Stock they receive in
the Reorganization to any person Related to Acquiring Fund, (b) does not
anticipate dispositions of such Acquiring Fund Stock at the time of or soon
after the Reorganization to exceed the usual rate and frequency of
dispositions of shares of Acquired Fund Stock, and (c) expects that the
percentage of stockholder interests, if any, that will be disposed of as a
result of or at the time of the Reorganization will be DE MINIMIS;
4.3.3. The Stockholders will pay their own expenses (such as fees of
personal investment or tax advisers for advice concerning the
Reorganization), if any, incurred in connection with the Reorganization;
4.3.4. The fair market value of the Assets on a going concern basis
will equal or exceed the Liabilities to be assumed by Acquiring Fund and
those to which the Assets are subject;
4.3.5. There is no intercompany indebtedness between the Funds that
was issued or acquired, or will be settled, at a discount;
4.3.6. Pursuant to the Reorganization, Acquired Fund will transfer to
Acquiring Fund, and Acquiring Fund will acquire, at least 90% of the fair
market value of the net assets, and at least 70% of the fair market value
of the gross assets, Acquired Fund held immediately before the
Reorganization; for the purposes of this representation, any amounts
Acquired Fund uses to pay its Reorganization expenses and to make
redemptions and distributions immediately before the Reorganization (except
regular, normal dividend distributions (a) made to conform to its policy of
distributing all or substantially all of its income and gains to avoid the
obligation to pay federal income tax and/or the excise tax under section
4982 of the Code and (b) on its preferred stock) will be included as assets
it held immediately before the Reorganization;
13
4.3.7. None of the compensation received by any Stockholder who or
that is an employee of or service provider to Acquired Fund will be
separate consideration for, or allocable to, any of the Acquired Fund Stock
such Stockholder held; none of the Acquiring Fund Stock any such
Stockholder receives will be separate consideration for, or allocable to,
any employment agreement, investment advisory agreement, or other service
agreement; and the compensation paid to any such Stockholder will be for
services actually rendered and will be commensurate with amounts paid to
third parties bargaining at armslength for similar services;
4.3.8. Immediately after the Reorganization, the Stockholders will own
stock constituting control (as defined in section 304(c) of the Code) of
Acquiring Fund;
4.3.9. No expenses incurred by Acquired Fund or on its behalf in
connection with the Reorganization will be paid or assumed by Acquiring
Fund, Advisor, or any third party unless such expenses are solely and
directly related to the Reorganization (determined in accordance with the
guidelines set forth in Rev. Rul. 7354, 19731 C.B. 187) (REORGANIZATION
EXPENSES), and no cash or property other than Acquiring Fund Stock will be
transferred to Acquired Fund or any of its stockholders with the intention
that such cash or property be used to pay any expenses (even Reorganization
Expenses) thereof; and
4.3.10. The aggregate value of the acquisitions and distributions
limited by paragraphs 4.1.17, 4.2.15, and 4.2.21 will not exceed 50% of the
value (without giving effect to such acquisitions and distributions) of the
proprietary interest in Acquired Fund at the Effective Time.
5. COVENANTS
5.1. Each Fund covenants to operate its business in the ordinary course
between the date hereof and the Closing, it being understood that:
(a) such ordinary course will include declaring and paying customary
dividends and other distributions and changes in operations contemplated by
each Funds normal business activities; and
(b) each Fund will retain exclusive control of the composition of its
portfolio until the Closing; provided that Acquired Fund shall not dispose
of more than an insignificant portion of its historic business assets (as
defined in paragraph 4.2.12) during such period without Acquiring Funds
prior consent, and the Funds shall coordinate their respective portfolios
so that the transfer of the Assets to Acquiring Fund will not cause it to
fail to be in compliance with all of its investment policies and
restrictions immediately after the Closing.
5.2. Acquired Fund covenants that the Acquiring Fund Stock to be delivered
hereunder is not being acquired for the purpose of making any distribution
thereof, other than in accordance with the terms hereof.
14
5.3. Acquired Fund covenants that it will assist Acquiring Fund in
obtaining information Acquiring Fund reasonably requests concerning the
beneficial ownership of Acquired Fund Stock.
5.4. Acquired Fund covenants that its books and records (including all
books and records required to be maintained under the 1940 Act and the rules and
regulations thereunder) will be turned over to Acquiring Fund at the Closing.
5.5. Each Fund covenants to cooperate in preparing the Prospectus/Statement
in compliance with applicable federal securities laws.
5.6. Each Fund covenants that it will, from time to time, as and when
requested by the other Fund, execute and deliver or cause to be executed and
delivered all assignments and other instruments, and will take or cause to be
taken all further action, the other Fund may deem necessary or desirable in
order to vest in, and confirm to, (a) Acquiring Fund, title to and possession of
all the Assets, and (b) Acquired Fund, title to and possession of the Acquiring
Fund Stock to be delivered hereunder, and otherwise to carry out the intent and
purpose hereof.
5.7. Acquiring Fund covenants to use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act, the 1940 Act, and state
securities laws it deems appropriate to continue its operations after the
Effective Time.
5.8. Acquiring Fund covenants to cause the Acquiring Fund Common Stock that
will be issued hereunder to be listed on the American Stock Exchange at the
Effective Time.
5.9. Subject to this Agreement, each Fund covenants to take or cause to be
taken all actions, and to do or cause to be done all things, reasonably
necessary, proper, or advisable to consummate and effectuate the transactions
contemplated hereby.
6. CONDITIONS PRECEDENT
Each Funds obligations hereunder shall be subject to (a) performance by
the other Fund of all its obligations to be performed hereunder at or before the
Effective Time, (b) all representations and warranties of the other Fund
contained herein being true and correct in all material respects at the date
hereof and, except as they may be affected by the transactions contemplated
hereby, at the Effective Time, with the same force and effect as if made at the
Effective Time, and (c) the following further conditions that, at or before the
Effective Time:
6.1. This Agreement and the transactions contemplated hereby shall have
been duly adopted and approved by both Boards, and the Funds shall have called a
joint special meeting of their stockholders to consider and act on this
Agreement and to take all other action necessary to obtain approval of the
transactions contemplated hereby (STOCKHOLDERS MEETING).
6.2. All necessary filings shall have been made with the Commission and
state securities authorities, and no order or directive shall have been received
that any other or further action is required to permit the parties to carry out
the transactions contemplated hereby; the Registration Statement shall have
become effective under the 1933 Act, no stop orders suspending the effectiveness
15
thereof shall have been issued, and, to each Funds best knowledge, no
investigation or proceeding for such purpose shall have been instituted or be
pending, threatened, or contemplated under the 1933 Act or the 1940 Act; the
Commission shall not have issued an unfavorable report with respect to the
Reorganization under section 25(b) of the 1940 Act nor instituted any
proceedings seeking to enjoin consummation of the transactions contemplated
hereby under section 25(c) of the 1940 Act; and all consents, orders, and
permits of federal, state, and local regulatory authorities (including the
Commission and state securities authorities) either Fund deems necessary to
permit consummation, in all material respects, of the transactions contemplated
hereby shall have been obtained, except where failure to obtain same would not
involve a risk of a material adverse effect on either Funds assets or
properties, provided that either Fund may for itself waive any of such
conditions.
6.3. At the Effective Time, no action, suit, or other proceeding shall be
pending (or, to either Funds knowledge, threatened to be commenced) before any
court, governmental agency, or arbitrator in which it is sought to enjoin the
performance of, restrain, prohibit, affect the enforceability of, or obtain
damages or other relief in connection with, the transactions contemplated
hereby.
6.4. The Funds shall have received an opinion of Xxxxxxxxxxx & Xxxxxxxx
Xxxxxxx Xxxxx Xxxxx LLP (COUNSEL) as to the federal income tax consequences
mentioned below (TAX OPINION). In rendering the Tax Opinion, Counsel may rely
as to factual matters, exclusively and without independent verification, on (a)
the representations and warranties made in this Agreement, which Counsel may
treat as representations and warranties made to it, and, if Counsel requests, in
separate letters addressed to Counsel and (b) the certificates delivered
pursuant to paragraph 3.4. The Tax Opinion shall be substantially to the effect
that, based on the facts and assumptions stated therein and conditioned on
consummation of the Reorganization in accordance with this Agreement, for
federal income tax purposes:
6.4.1. Acquiring Funds acquisition of the Assets in exchange solely
for Acquiring Fund Stock (and cash in lieu of Nondeliverable Fractional
Shares) and its assumption of the Liabilities, followed by Acquired Funds
distribution of such stock pro rata to the Stockholders (and the
distribution of any such cash to the Stockholders entitled thereto)
actually or constructively in exchange for their Acquired Fund Stock, in
complete liquidation of Acquired Fund, will qualify as a reorganization
(as defined in section 368(a)(1)(D) of the Code), and each Fund will be a
party to a reorganization (within the meaning of section 368(b) of the
Code);
6.4.2. Acquired Fund will recognize no gain or loss on the transfer of
the Assets to Acquiring Fund in exchange solely for Acquiring Fund Stock
(and cash in lieu of Nondeliverable Fractional Shares) and Acquiring
Funds assumption of the Liabilities or on the subsequent distribution of
such stock (and cash) to the Stockholders in exchange for their Acquired
Fund Stock;
6.4.3. Acquiring Fund will recognize no gain or loss on its receipt of
the Assets in exchange solely for Acquiring Fund Stock (and cash in lieu of
Nondeliverable Fractional Shares) and its assumption of the Liabilities;
16
6.4.4. Acquiring Funds basis in each Asset will be the same as
Acquired Funds basis therein immediately before the Reorganization, and
Acquiring Funds holding period for each Asset will include Acquired Funds
holding period therefor (except where Acquiring Funds investment
activities have the effect of reducing or eliminating an Assets holding
period);
6.4.5. A Stockholder will recognize no gain or loss on the exchange of
all its Acquired Fund Stock solely for Acquiring Fund Stock pursuant to the
Reorganization, except to the extent the Stockholder receives cash in lieu
of a Nondeliverable Fractional Share pursuant thereto; and
6.4.6. A Stockholders aggregate basis in the Acquiring Fund Stock it
receives in the Reorganization will be the same as the aggregate basis in
its Acquired Fund Stock it actually or constructively surrenders in
exchange for such Acquiring Fund Stock less the basis in any fractional
share of Acquired Fund Stock for which the Stockholder receives cash
pursuant to the Reorganization; and its holding period for such Acquiring
Fund Stock will include, in each instance, its holding period for such
Acquired Fund Stock, provided the Stockholder holds such Acquired Fund
Stock as a capital asset at the Effective Time.
Notwithstanding subparagraphs 6.4.2 and 6.4.4, the Tax Opinion may state that no
opinion is expressed as to the effect of the Reorganization on the Funds or any
Stockholder with respect to any Asset as to which any unrealized gain or loss is
required to be recognized for federal income tax purposes at the end of a
taxable year (or on the termination or transfer thereof) under a marktomarket
system of accounting.
6.5. Acquiring Fund shall have filed with the Department articles
supplementary describing the Acquiring Funds preferred stock to be issued
pursuant to this Agreement.
6.6. At any time before the Closing, either Fund may waive any of the
foregoing conditions (except those set forth in paragraphs 6.1, 6.4, and 6.5)
if, in the judgment of its Board, such waiver will not have a material adverse
effect on its Funds stockholders interests.
7. BROKERS AND EXPENSES
7.1. Each Fund represents and warrants to the other that there are no
brokers or finders entitled to receive any payments in connection with the
transactions provided for herein.
7.2. Subject to complying with the representation and warranty contained in
paragraph 4.3.9, all Reorganization Expenses (including fees and expenses
associated with filing, printing, and mailing the Registration Statement,
soliciting proxies, and tabulating votes and accounting, legal, and custodial
fees and expenses) shall be borne as follows: (a) the first $400,000 thereof, by
each Fund, in proportion to its respective net assets determined at the
Valuation Time, and (b) any excess, by Advisor. Notwithstanding the foregoing,
expenses shall be paid by the Fund directly incurring them if and to the extent
that the payment thereof by another person would result in such Funds
disqualification as a RIC or would prevent the Reorganization from qualifying as
a taxfree reorganization.
17
8. ENTIRE AGREEMENT; NO SURVIVAL
Neither Fund has made any representation, warranty, or covenant not set
forth herein, and this Agreement constitutes the entire agreement between the
parties. The representations, warranties, and covenants contained herein or in
any document delivered pursuant hereto or in connection herewith shall not
survive the Closing.
9. TERMINATION
This Agreement may be terminated at any time at or before the Effective
Time:
9.1. By either Fund (a) in the event of the other Funds material breach of
any representation, warranty, or covenant contained herein to be performed at or
before the Effective Time, (b) if a condition to its obligations has not been
met and it reasonably appears that such condition will not or cannot be met, or
(c) if the Closing has not occurred on or before June 30, 2008, or such other
date as to which the Funds may agree; or
9.2. By the Funds mutual agreement.
In the event of termination under paragraphs 9.1(c) or 9.2, neither Fund (nor
its directors, officers, or stockholders) shall have any liability to the other
Fund.
10. AMENDMENT
This Agreement may be amended, modified, or supplemented at any time in any
manner mutually agreed on in writing by the Funds, notwithstanding Acquired
Funds stockholders approval thereof; provided that, following such approval no
such amendment, modification, or supplement shall have a material adverse effect
on the Stockholders interests.
11. MISCELLANEOUS
11.1. This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Maryland, without giving effect to principles
of conflict of laws; provided that, in the case of any conflict between such
laws and the federal securities laws, the latter shall govern.
11.2. Nothing expressed or implied herein is intended or shall be construed
to confer on or give any person, firm, trust, or corporation other than the
parties and their respective successors and assigns any rights or remedies under
or by reason of this Agreement.
11.3. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective
when one or more counterparts have been executed by each Fund and delivered to
the other Fund. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
11.4. Any term or provision of this Agreement that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
18
or unenforceable the remaining terms and provisions hereof or affecting the
validity or enforceability of any of the terms and provisions hereof in any
other jurisdiction.
19
IN WITNESS WHEREOF, each party has caused this Agreement to be executed and
delivered by its duly authorized officers as of the day and year first written
above.
XXXXXXXXX XXXXXX REALTY INCOME FUND INC.
By:_____________________________
Name:___________________________
Title:__________________________
XXXXXXXXX XXXXXX REAL ESTATE SECURITIES
INCOME FUND INC.
By:_____________________________
Name:___________________________
Title:__________________________
20
