Exhibit k(ii)
SHAREHOLDER SERVICING AGREEMENT
SHAREHOLDER SERVICING AGREEMENT (the "Agreement"), dated as of October
___, 2002, between Deutsche Asset Management, Inc. (the "Adviser") and UBS
Warburg LLC ("UBS Warburg").
WHEREAS, ▇▇▇▇▇▇▇ RREEF REIT Fund, Inc. (the "Fund") is a closed-end,
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 Adviser is the investment adviser of the Fund pursuant to
an investment advisory agreement (the "Investment Advisory Agreement") dated as
of an even date of this Agreement; and
WHEREAS, the Adviser 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 Adviser hereby employs UBS Warburg, for the period and on the terms
and conditions set forth herein, to provide the following services:
(a) 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).
(b) Make available to investors and prospective investors market
price, net asset value, yield and other information regarding the Fund, if
reasonably obtainable, for the purpose of maintaining the visibility of the Fund
in the investor community.
(c) At the request of the Adviser or the Fund, provide certain
economic research and statistical information and reports, if reasonably
obtainable, on behalf of the Adviser or the Fund and consult with
representatives of the Adviser 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 Adviser or the Fund, provide information
to and consult with the Adviser 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 Adviser 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 Adviser or the Fund; provided, however, that
pending termination of this Agreement as provided for is Section 5 hereof, any
such limitation or cessation shall not relieve the Adviser of its payment
obligations pursuant to Section 2 hereof.
(f) UBS Warburg will promptly notify the Adviser 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
Adviser or the Fund in connection with the performance of services by UBS
Warburg under this Agreement.
2. The Adviser 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 Advisory
Agreement.
3. The Adviser acknowledges that the shareholder 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 services if, and to the
extent, agreed to be performed by UBS Warburg shall be the subject of a separate
agreement with the Adviser, 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 Adviser and the Fund are not impaired
thereby.
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 Advisory Agreement remains in
effect between the Fund and the Adviser or any successor in interest or
affiliate of the Adviser, as and to the extent that such Investment Advisory
Agreement renewed periodically in accordance with the 1940 Act.
6. The Adviser 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 Adviser 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 Adviser's
knowledge, the Information to be furnished by the Adviser 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 Adviser 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 Adviser may be
proprietary to the Adviser and hereby agrees that it will not disclose (other
than as may be required by applicable law) to any third party any Information
provided to UBS Warburg by the Adviser and specifically identified in writing by
the Adviser, prior to or at the time of its delivery, as confidential or
proprietary and as being subject to this Section 6 of this Agreement
7. It is understood that UBS Warburg is being engaged hereunder solely to
provide the services described above to the Adviser 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, 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 Adviser agrees that UBS Warburg shall have no liability to the
Adviser 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, willful misconduct or reckless disregard of duty on the part of UBS
Warburg. The Adviser 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 ADVISER 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 ADVISER 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 ADVISER 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 Adviser 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. This Agreement
may not be assigned by either party without the prior written consent of the
other party.
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 Adviser.
13. All notices required or permitted to be sent under this Agreement shall
be sent, if to the Adviser:
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: _____________________________
Name:
Title:
UBS WARBURG LLC
By: _____________________________
Name: ▇▇▇▇ ▇. Reit
Title: Executive Director
UBS WARBURG LLC INDEMNIFICATION AGREEMENT
October ___, 2002
UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
In connection with the engagement of UBS Warburg LLC ("UBS Warburg") to
advise and assist the undersigned (the "Company") with the matters set forth in
the Shareholder Sevices 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 any
matter in any way relating to or referred to in the Agreement or arising out of
the matters contemplated by the Agreement, including, without limitation,
related services and activities prior to the date of the Agreement, 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 any matter in any way relating to or referred to in
the Agreement or arising out of the matters contemplated by the Agreement,
including, without limitation, related services and activities prior to the date
of the Agreement, 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,
willful misconduct or reckless disregard of duty of UBS Warburg. In addition, in
the event that UBS Warburg becomes involved in any capacity in any Proceeding in
connection with any matter in any way relating to or referred to in the
Agreement or arising out of the matters contemplated by the Agreement,
including, without limitation, related services and activities prior to the date
of the Agreement, the Company will reimburse UBS Warburg for its legal and other
expenses (including the 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 and affiliates and
other constituencies, 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 and affiliates and other constituencies, on the one
hand, and the party entitled to contribution, on the other hand, as well as any
other relevant equitable considerations. The Company agrees that for the
purposes of this paragraph the relative benefits received, or sought to be
received, by the Company and its stockholders and affiliates, on the one hand,
and the party entitled to contribution, on the other hand, of a transaction as
contemplated shall be deemed to be in the same proportion that the total
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value received or paid or contemplated to be received or paid by the Company or
its stockholders or affiliates and other constituencies, as the case may be, as
a result of or in connection with the transaction (whether or not consummated)
for which UBS Warburg has been retained to perform financial services bears to
the fees paid to UBS Warburg under the Agreement; 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 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.
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 either UBS Warburg's engagement
under the Agreement or any matter referred to in the Agreement, including,
without limitation, related services and activities prior to the date of the
Agreement, 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, willful misconduct or reckless disregard of duty of UBS
Warburg in performing the services that are the subject of the Agreement.
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
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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:
--------------------------------
Name:
Title
Accepted and agreed to as of
the date first above written:
UBS WARBURG LLC
By
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
By
-------------------------------
Name: ▇▇▇▇ ▇. Reit
Title: Executive Director
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