(K)(ii)
SHAREHOLDER SERVICING AGREEMENT
SHAREHOLDER SERVICING AGREEMENT (the "Agreement"), dated as of
October 28, 2002, between Deutsche Asset Management, Inc. (the "Investment
Manager") and UBS Warburg LLC ("UBS Warburg").
WHEREAS, ▇▇▇▇▇▇▇ RREEF Real Estate Fund, Inc. (the "Fund") is a
closed-end, non-diversified management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), and its shares of
common stock are registered under the Securities Act of 1933, as amended; and
WHEREAS, the Investment Manager is the investment Investment Manager
of the Fund pursuant to an Investment Management Agreement (the "Investment
Management Agreement") dated as of an even date of this Agreement; and
WHEREAS, the Investment Manager desires to retain UBS Warburg to
provide shareholder servicing and market information with respect to the Fund,
and UBS Warburg is willing to render such services;
NOW, THEREFORE, in consideration of the mutual terms and conditions
set forth below, the parties hereto agree as follows:
1. The Investment Manager hereby employs UBS Warburg, for the period and on the
terms and conditions set forth herein, to provide the following services (the
"Services"):
(a) At the request of and as specified by the Investment
Manager, undertake to make available public information pertaining to the Fund
on an ongoing basis and to communicate to investors and prospective investors
the Fund's features and benefits (including periodic seminars or conference
calls, responses to questions from current or prospective shareholders and
specific shareholder contact where appropriate), provided that Services shall
not include customary market research information provided by UBS Warburg or its
registered broker-dealer affiliates in the ordinary course of their business.
(b) At the request of and as specified by the Investment
Manager, make available to investors and prospective investors market price, net
asset value, yield and other information regarding the Fund (provided that
Sevices shall not include customary market research information provided by UBS
Warburg or its registered broker-dealer affiliates in the ordinary course of
their business), if reasonably obtainable, for the purpose of maintaining the
visibility of the Fund in the investor community.
(c) At the request of the Investment Manager or the Fund,
provide certain economic research and statistical information and reports, if
reasonably obtainable, on behalf of the Investment Manager or the Fund and
consult with representatives of the Investment
Manager and/or Directors of the Fund in connection therewith, which information
and reports shall include: (i) statistical and financial market information with
respect to the Fund's market performance; and (ii) comparative information
regarding the Fund and other closed-end management investment companies with
respect to (x) the net asset value of their respective shares, (y) the
respective market performance of the Fund and such other companies, and (z)
other relevant performance indicators.
(d) At the request of the Investment Manager or the Fund,
provide information to and consult with the Investment Manager and/or the Board
of Directors of the Fund with respect to applicable strategies designed to
address market value discounts, which may include share repurchases, tender
offers, modifications to dividend policies or capital structure, repositioning
or restructuring of the Fund, conversion of the Fund to an open-end investment
company, liquidation or merger; including providing information concerning the
use and impact of the above strategic alternatives by other market participants.
(e) At the request of the Investment Manager or the Fund, UBS
Warburg shall limit or cease any action or service provided hereunder to the
extent and for the time period requested by the Investment Manager or the Fund;
provided, however, that pending termination of this Agreement as provided for in
Section 5 hereof, any such limitation or cessation shall not relieve the
Investment Manager of its payment obligations pursuant to Section 2 hereof.
(f) UBS Warburg will promptly notify the Investment Manager or
the Fund, as the case may be, if it learns of any material inaccuracy or
misstatement in, or material omission from, any written information provided by
UBS Warburg to the Investment Manager or the Fund in connection with the
performance of services by UBS Warburg under this Agreement. UBS Warburg
acknowledges that in performing the Services under this Agreement, it will
comply in all material respects with all applicable laws, rules and regulations.
2. The Investment Manager will pay UBS Warburg a fee computed weekly and payable
quarterly at an annualized rate of 0.10% of the average daily total managed
asset value of the Fund (as such term is defined in the Investment Management
Agreement).
3. The Investment Manager acknowledges that the Services of UBS Warburg provided
for hereunder do not include any advice as to the value of securities or
regarding the advisability of purchasing or selling any securities for the
Fund's portfolio. No provision of this Agreement shall be considered as
creating, nor shall any provision create, any obligation on the part of UBS
Warburg, and UBS Warburg is not hereby agreeing, to: (i) furnish any advice or
make any recommendations regarding the purchase or sale of portfolio securities
or (ii) render any opinions, valuations or recommendations of any kind or to
perform any such similar services in connection with providing the services
described in Section 1 hereof, it being understood between the parties hereto
that any such advice, recommendations or such similar activities if, and to the
extent, agreed to be performed by UBS Warburg shall be the subject of a separate
agreement with the Investment Manager, including, but not limited to, separate
agreements with respect to any indemnification of UBS Warburg.
4. Nothing herein shall be construed as prohibiting UBS Warburg or its
affiliates from providing similar or other services to any other clients
(including other registered investment companies or other investment managers),
so long as UBS Warburg's Services to the Investment Manager and the Fund are not
impaired thereby. Neither this Agreement nor the performance of the Services
hereunder shall be considered to constitute a partnership, association or joint
venture between UBS Warburg and the Investment Manager. In addition, nothing in
this Agreement shall be construed to constitute UBS Warburg as the agent or
employee of the Investment Manager or the Investment Manager as the agent or
employee of UBS Warburg, and neither party shall make any representation to the
contrary.
5. The term of this Agreement shall commence upon the date referred to above,
shall be in effect for a period of two years and shall thereafter continue for
successive one year periods, provided that the agreement may be terminated by
either party upon 60 days' written notice of the intention to terminate;
provided, however, this Agreement shall remain in effect only so long as the
Investment Management Agreement remains in effect between the Fund and the
Investment Manager or any successor in interest or affiliate of the Investment
Manager, as and to the extent that such Investment Management Agreement is
renewed periodically in accordance with the 1940 Act. This Agreement may not be
assigned, except by operation of law or in connection with the sale of all or
substantially all of the assets or of the equity securities of one of the
parties hereto, without the other party's prior consent.
6. The Investment Manager will furnish UBS Warburg with such information as UBS
Warburg believes appropriate to its assignment hereunder (all such information
so furnished being the "Information"). The Investment Manager recognizes and
confirms that UBS Warburg (a) will use and rely primarily on the Information and
on information available from generally recognized public sources in performing
the services contemplated by this Agreement without having independently
verified the same and (b) does not assume responsibility for the accuracy or
completeness of the Information and such other information. To the best of the
Investment Manager's knowledge, the Information to be furnished by the
Investment Manager when delivered, will be true and correct in all material
respects and will not contain any material misstatement of fact or omit to state
any material fact necessary to make the statements contained therein not
misleading. The Investment Manager will promptly notify UBS Warburg if it learns
of any material inaccuracy or misstatement in, or material omission from, any
Information delivered to UBS Warburg. UBS Warburg acknowledges that certain of
the Information provided by the Investment Manager may be proprietary to the
Investment Manager and hereby agrees that it will not disclose (other than as
may be required by applicable law or regulatory proceeding) to any third party
any Information provided to UBS Warburg by the Investment Manager and
specifically identified in writing by the Investment Manager, prior to or at the
time of its delivery, as confidential or proprietary.
7. It is understood that UBS Warburg is being engaged hereunder solely to
provide the Services described above to the Investment Manager and to the Fund
and that UBS Warburg
is not acting as an agent or fiduciary of, and shall have no duties or liability
to the current or future shareholders of the Fund or any other third party in
connection with its engagement hereunder, all of which are hereby expressly
waived.
8. The Investment Manager agrees that UBS Warburg shall have no liability to the
Investment Manager or the Fund for any act or omission to act by UBS Warburg in
the course of its performance under this Agreement, in the absence of gross
negligence, bad faith or willful misconduct on the part of UBS Warburg. The
Investment Manager agrees to the indemnification and other agreements set forth
in the Indemnification Agreement attached hereto, the provisions of which are
incorporated herein by reference and shall survive the termination, expiration
or supersession of this Agreement.
9. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK FOR CONTRACTS TO BE PERFORMED ENTIRELY THEREIN AND WITHOUT REGARD TO
THE CHOICE OF LAW PRINCIPLES THEREOF.
10. EACH OF THE INVESTMENT MANAGER AND UBS WARBURG AGREE THAT ANY ACTION OR
PROCEEDING BASED HEREON, OR ARISING OUT OF UBS WARBURG'S ENGAGEMENT HEREUNDER,
SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇ LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE INVESTMENT MANAGER AND UBS
WARBURG EACH HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK AND OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF
ANY SUCH ACTION OR PROCEEDING AS SET FORTH ABOVE AND IRREVOCABLY AGREE TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH ACTION OR
PROCEEDING. EACH OF THE INVESTMENT MANAGER AND UBS WARBURG HEREBY IRREVOCABLY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING
BROUGHT IN ANY SUCH REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH ACTION OR
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
11. The Investment Manager and UBS Warburg each hereby irrevocably waive any
right they may have to a trial by jury in respect of any claim based upon or
arising out of this Agreement or the transactions contemplated hereby.
12. This Agreement (including the attached Indemnification Agreement) embodies
the entire agreement and understanding between the parties hereto and supersedes
all prior agreements and understandings relating to the subject matter hereof.
If any provision of this Agreement is determined to be invalid or unenforceable
in any respect, such determination will not affect such provision in any other
respect or any other provision of this Agreement, which
will remain in full force and effect. This Agreement may not be amended or
otherwise modified or waived except by an instrument in writing signed by both
UBS Warburg and the Investment Manager.
13. All notices required or permitted to be sent under this Agreement shall be
sent, if to the Investment Manager:
Deutsche Asset Management, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Legal Officer
or if to UBS Warburg:
UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Legal Officer
or such other name or address as may be given in writing to the other parties.
Any notice shall be deemed to be given or received on the third day after
deposit in the U.S. mail with certified postage prepaid or when actually
received, whether by hand, express delivery service or facsimile transmission,
whichever is earlier.
14. This Agreement may be exercised on separate counterparts, each of which is
deemed to be an original and all of which taken together constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Shareholder Servicing Agreement as of the date first above written.
DEUTSCHE ASSET MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
UBS WARBURG LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇ ▇. REIT
---------------------------------------
Name: ▇▇▇▇ ▇. Reit
Title: Executive Director
UBS WARBURG LLC INDEMNIFICATION AGREEMENT
October 28, 2002
UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
In connection with the engagement of UBS Warburg LLC ("UBS Warburg") to
provide the Services to the undersigned (the "Company") with the matters set
forth in the Shareholder Services Agreement dated October , 2002 between the
Company and UBS Warburg (the "Agreement"), in the event that UBS Warburg becomes
involved in any capacity in any claim, suit, action, proceeding, investigation
or inquiry (including, without limitation, any shareholder or derivative action
or arbitration proceeding) (collectively, a "Proceeding") in connection with or
arising out of the Agreement or the Services to be provided thereunder, the
Company agrees to indemnify, defend and hold UBS Warburg harmless to the fullest
extent permitted by law, from and against any losses, claims, damages,
liabilities and expenses in connection with or arising out of the Agreement or
the Services to be provided thereunder (a "Covered Claim"), except to the extent
that it shall be determined by a court of competent jurisdiction in a judgment
that has become final in that it is no longer subject to appeal or other review,
that such losses, claims, damages, liabilities and expenses resulted solely from
the gross negligence, bad faith or willful misconduct of UBS Warburg. In
addition, in the event that UBS Warburg becomes involved in any capacity in any
Proceeding which relates to a Covered Claim, the Company will reimburse UBS
Warburg for its legal and other expenses (including the reasonable cost of any
investigation and preparation) as such expenses are incurred by UBS Warburg in
connection therewith. If such indemnification were not to be available for any
reason, the Company agrees to contribute to the losses, claims, damages,
liabilities and expenses involved (i) in the proportion appropriate to reflect
the relative benefits received or sought to be received by the Company and its
stockholders, on the one hand, and UBS Warburg, on the other hand, in the
matters contemplated by the Agreement or (ii) if (but only if and to the extent)
the allocation provided for in clause (i) is for any reason held unenforceable,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and its
stockholders, on the one hand, and the party entitled to contribution, on the
other hand, as well as any other relevant equitable considerations; provided,
that in no event shall the Company contribute less than the amount necessary to
assure that UBS Warburg is not liable for losses, claims, damages, liabilities
and expenses in excess of the amount of fees actually received by UBS Warburg
pursuant to the Agreement. Relative fault shall be determined by reference to,
among other things, whether any alleged untrue statement or omission or any
other alleged conduct relates to information provided by the Company or other
conduct by the Company (or its employees or other agents), on the one hand, or
by UBS Warburg, on the other hand. The Company will not settle any Proceeding in
respect of which indemnity may be sought hereunder, whether or not UBS Warburg
is an actual or potential party to such Proceeding, without UBS Warburg's prior
written consent. For purposes of this
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Indemnification Agreement, UBS Warburg shall include UBS Warburg LLC, any of its
affiliates, each other person, if any, controlling UBS Warburg or any of its
affiliates, their respective officers, current and former directors, employees
and agents, and the successors and assigns of all of the foregoing persons. The
foregoing indemnity and contribution agreement shall be in addition to any
rights that any indemnified party may have at common law or otherwise.
If any Proceeding is brought against UBS Warburg in respect of which
indemnity may be sought against the Company pursuant to the foregoing paragraph,
UBS Warburg shall promptly notify the Company in writing of the institution of
such Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to UBS Warburg and
payment of all fees and expenses; provided, however, that the omission to so
notify the Company shall not relieve the Company from any liability which the
Company may have to UBS Warburg or otherwise, unless and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the Company. UBS Warburg shall have the right to employ its own counsel in
any such case, but the fees and expenses of such counsel shall be at the expense
of UBS Warburg unless the employment of such counsel shall have been authorized
in writing by the Company in connection with the defense of such Proceeding or
the Company shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding
or UBS Warburg shall have reasonably concluded that there may be defenses
available to it which are different from, additional to or in conflict with
those available to the Company (in which case the Company shall not have the
right to direct the defense of such Proceeding on behalf of UBS Warburg), in any
of which events such fees and expenses shall be borne by the Company and paid as
incurred (it being understood, however, that the Company shall not be liable for
the expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in the same
jurisdiction). The Company shall not be liable for any settlement of any
Proceeding effected without its written consent but if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless UBS
Warburg from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time UBS Warburg shall have
requested the Company to reimburse UBS Warburg for fees and expenses of counsel
as contemplated by the second sentence of this paragraph, then the Company
agrees that it shall be liable for any settlement of any Proceeding effected
without its written consent if (i) such settlement is entered into more than 60
business days after receipt by the Company of the aforesaid request, (ii) the
Company shall not have reimbursed UBS Warburg in accordance with such request
prior to the date of such settlement and (iii) UBS Warburg shall have given the
Company at least 30 days' prior notice of its intention to settle. The Company
shall not, without its prior written consent, effect any settlement of any
pending or threatened Proceeding in respect of which UBS Warburg is or could
have been a party and indemnity could have been sought hereunder by UBS Warburg,
unless such settlement includes an unconditional release of UBS Warburg from all
liability on claims that are the subject matter of such Proceeding and does not
include an admission of fault, culpability or a failure to act, by or on behalf
of UBS Warburg.
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The Company agrees that neither UBS Warburg nor any of its affiliates,
directors, agents, employees or controlling persons shall have any liability to
the Company or any person asserting claims on behalf of or in right of the
Company in connection with or as a result of a Covered Claim, except to the
extent that it shall be determined by a court of competent jurisdiction in a
judgment that has become final in that it is no longer subject to appeal or
other review that any losses, claims, damages, liabilities or expenses incurred
by the Company resulted solely from the gross negligence, bad faith or willful
misconduct of UBS Warburg in performing the Services.
THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF
ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS
AGREEMENT ("CLAIM"), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW,
NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE
COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH
COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS,
AND THE COMPANY AND UBS WARBURG CONSENT TO THE JURISDICTION OF SUCH COURTS AND
PERSONAL SERVICE WITH RESPECT THERETO. THE COMPANY HEREBY CONSENTS TO PERSONAL
JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF
OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY AND THIRD PARTY AGAINST
UBS WARBURG OR ANY INDEMNIFIED PARTY. EACH OF UBS WARBURG AND THE COMPANY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS
AGREEMENT. THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM
ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH
COURT SHALL BE CONCLUSIVE AND BINDING UPON THE COMPANY AND MAY BE ENFORCED IN
ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE COMPANY IS OR MAY BE SUBJECT,
BY SUIT UPON SUCH JUDGMENT.
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The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of UBS Warburg's engagement. This
Indemnification Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same agreement.
Very truly yours,
DEUTSCHE ASSET MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Accepted and agreed to as of
the date first above written:
UBS WARBURG LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
By /s/ ▇▇▇▇ ▇. REIT
-------------------------------
Name: ▇▇▇▇ ▇. Reit
Title: Executive Director
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