Exhibit (k)(i)
TRANSFER AGENCY REGISTRAR
AND DIVIDEND DISBURSING AGENCY AGREEMENT
AGREEMENT dated the ___ day of _______, 2002, by and between XXXXXXX RREEF
REAL ESTATE FUND, INC., a Maryland corporation (the "Fund"), and XXXXXXX SERVICE
COMPANY, a Delaware corporation ("Service Company").
WHEREAS, the Fund wants to appoint Service Company as transfer agent,
dividend disbursing agent, and agent for the dividend reinvestment and cash
purchase plan, and Service Company wants to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Scope of Appointment.
A. Subject to the terms and conditions set forth in this
Agreement, the Fund hereby employs and appoints Service
Company to act as transfer agent for the Fund's authorized and
issued shares of its common stock ("Shares"), dividend
disbursing agent and dividend reinvestment and cash purchase
plan agent, effective as of the date hereof.
B. Service Company hereby accepts such employment and appointment
and agrees that it will act as the Fund's transfer agent,
dividend disbursing agent, and dividend reinvestment and cash
purchase plan agent.
C. Service Company agrees that it will perform the following
services:
(1) Issue and record the appropriate number of Shares as
authorized and hold such Shares in the appropriate
Shareholder account;
(2) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(3) Prepare and transmit payments for dividends and
distributions declared by the Fund;
(4) Act as agent for Shareholders pursuant to the dividend
reinvestment and cash purchase plan in substantially the
form attached as Exhibit C hereto, as amended from time
to time;
(5) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon
receipt by Service Company of indemnification
satisfactory to Service Company, and, at its option, may
issue replacement certificates in exchange for, and upon
surrender of, mutilated certificates upon presentation
thereof and without such indemnity.
D. In addition, Service Company agrees that it will perform all
the usual and ordinary services of transfer agent, dividend
disbursing agent and dividend reinvestment and cash purchase
plan agent, including, without limitation, as applicable, the
following: issuing, transferring and canceling share
certificates, maintaining all shareholder accounts, preparing
shareholder meeting lists, mailing proxies, receiving and
tabulating proxies, mailing shareholder reports and
prospectuses, mailing notices to shareholders, withholding
federal income taxes, preparing and mailing checks for
disbursement of income and capital gains dividends, preparing
and filing all required U.S. Treasury Department information
returns for all shareholders, preparing and mailing
confirmation forms to shareholders and dealers with respect to
all purchases and liquidations of Fund shares and other
transactions in shareholder accounts for which confirmations
are required, recording reinvestments of dividends and
distributions in Fund shares, recording repurchases and
redemptions of Fund shares, and preparing and mailing checks
for payments upon repurchase and redemption and for
disbursements to systematic withdrawal plan shareholders.
E. Service Company agrees to provide the necessary facilities,
equipment and personnel to perform its duties and obligations
hereunder in accordance with industry practice.
F. The Fund agrees to use all reasonable efforts to deliver to
Service Company in Kansas City, Missouri, as soon as they are
available, all its shareholder account records.
2. Compensation and Expenses.
A. In consideration for the services provided hereunder by
Service Company, the Fund will pay to Service Company from
time to time the compensation set forth in a separate schedule
to be agreed to by the Fund and Service Company. The initial
agreement regarding compensation is attached as Exhibit A.
B. The Fund agrees to promptly reimburse Service Company for all
reasonable out-of-pocket expenses or advances incurred by
Service Company in connection with the performance of services
under this Agreement including, but not limited to, postage
(and first class mail insurance in connection with mailing
share certificates); overnight delivery expenses; paper stock
for reports and statements; stationery; forms, including tax
forms, check forms, and continuous forms; proxy cards;
envelopes; labels; cost of insertion of materials in mailing
envelopes by outside firms; telephone line expenses incurred
in answering inquiries from brokers, dealers or shareholders;
record retention; database searches conducted to comply with
Lost Shareholder rules; and proxy solicitations as required by
the Fund. Service Company may, at its option,
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arrange to have various service providers submit invoices
directly to the Fund for payment of out-of-pocket expenses
reimbursable hereunder.
C. Service Company shall be contractually bound hereunder by the
terms of any publicly announced fee cap or waiver of its fee
or by the terms of any written document provided to the Fund's
Board announcing a fee cap or waiver of its fee, or any
limitation of the Fund's expenses, as if such fee cap, fee
waiver or expense limitation were fully set forth herein.
3. Representations and Warranties of Service Company. Service Company
represents and warrants to the Fund that:
A. It is a corporation duly organized and existing and in good
standing under the laws of the State of Delaware.
B. It is duly qualified to carry on its business in the State of
Missouri.
C. It is empowered under applicable laws and by its Certificate
of Incorporation and Bylaws to enter into and perform the
services contemplated in this Agreement.
D. All requisite corporate action has been taken to authorize it
to enter into and perform this Agreement.
E. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
F. It is, and will continue to be, registered as a transfer agent
under the Securities Exchange Act of 1934, and will perform
its obligations under this Agreement in compliance with
applicable law.
4. Representations and Warranties of Fund. The Fund represents and
warrants to Service Company that:
A. It is a corporation duly organized and existing and in good
standing under the laws of the State of Maryland.
B. It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this
Agreement.
C. All requisite corporate action has been taken to authorize it
to enter into and perform this Agreement.
D. It is a closed-end investment company registered under the
Investment Company Act of 1940.
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E. To the extent required by federal securities laws, a
registration statement under the Securities Act of 1933 was
made effective, and appropriate state securities law filings
have been made with respect to all shares of the Fund offered
for sale at any time and from time to time.
5. Efficient Operation of Service Company System. In connection with
the performance of its services under this Agreement, Service
Company is responsible for the accurate and efficient functioning of
its system at all times, including, as applicable:
(1) The accuracy of the entries in Service Company's records
reflecting purchase and redemption orders and other
instructions received by Service Company from dealers,
shareholders, the Fund or its principal underwriter.
(2) The timely availability and the accuracy of shareholder
lists, shareholder account verifications, confirmations
and other shareholder account information to be produced
from Service Company's records or data.
(3) The accurate and timely issuance of dividend and
distribution checks in accordance with instructions
received from the Fund.
(4) The accuracy of redemption transactions and payments in
accordance with redemption instructions received from
dealers, shareholders or the Fund or other authorized
persons.
(5) The deposit daily in the Fund's appropriate special bank
account of all checks and payments received from dealers
or shareholders for investment in shares.
(6) The requiring of proper forms of instructions,
signatures and signature guarantees and any necessary
documents supporting the rightfulness of transfers,
redemptions, repurchases and other shareholder account
transactions, all in conformance with Service Company's
present procedures, with such changes as may be deemed
reasonably appropriate by Service Company or as may be
reasonably approved by or on behalf of the Fund.
(7) The maintenance of a current duplicate set of the Fund's
essential or required records, as agreed upon from time
to time by the Fund and Service Company, at a secure
distant location, in form available and usable forthwith
in the event of any breakdown or disaster disrupting its
main operation.
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6. Indemnification.
A. The Fund shall indemnify and hold Service Company harmless
from and against any and all claims, actions, suits, losses,
damages, costs, charges, counsel fees, payments, expenses and
liabilities arising out of or attributable to any action or
omission by Service Company pursuant to this Agreement or in
connection with the agency relationship created by this
Agreement, provided that Service Company has acted in good
faith, without negligence and without willful misconduct, and
without breach of any representation or warranty of Service
Company hereunder.
B. Service Company shall indemnify and hold the Fund harmless
from and against any and all claims, actions, suits, losses,
damages, costs, charges, counsel fees, payments, expenses and
liabilities arising out of or attributable to any action or
omission by Service Company pursuant to this Agreement or in
connection with the agency relationship created by this
Agreement, provided that the Fund has acted in good faith,
without negligence and without willful misconduct, and without
breach of any representation or warranty of the Fund
hereunder.
C. In order that the indemnification provisions contained in this
Section 6 shall apply, upon the assertion of a claim for which
either party (the "Indemnifying Party") may be required to
provide indemnification hereunder, the party seeking
indemnification (the "Indemnitee") shall promptly notify the
Indemnifying Party of such assertion, and shall keep such
party advised with respect to all developments concerning such
claim. The Indemnifying Party shall be entitled to assume
control of the defense and the negotiations, if any, regarding
settlement of the claim. If the Indemnifying Party assumes
control, the Indemnitee shall have the option to participate
in the defense and negotiations of such claim at its own
expense. The Indemnitee shall in no event confess, admit to,
compromise, or settle any claim for which the Indemnifying
Party may be required to indemnify it except with the prior
written consent of the Indemnifying Party, which shall not be
unreasonably withheld.
7. Certain Covenants of Service Company and Fund.
A. The Fund shall promptly furnish to Service Company the
following:
(1) A certified copy of the resolution of the Board of
Directors of the Fund authorizing the appointment of
Service Company as Transfer Agent, Dividend Disbursing
Agent and Dividend Reinvestment and Cash Purchase Plan
Agent, and the execution of this Agreement.
(2) A copy of the Articles of Incorporation and By-Laws of
the Fund and all amendments thereto.
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(3) A copy of the Fund's most recent Registration Statement
filed with the Securities and Exchange Commission.
(4) Specimens of the signatures of the officers of the Fund
authorized to sign written instructions and requests on
behalf of the Fund.
B. All requisite steps will be taken by the Fund from time to
time when and as necessary to register the Fund's shares for
sale in all states in which Fund's shares shall at the time be
offered for sale and require registration. If at any time the
Fund receives notice of any stop order or other proceeding in
any such state affecting such registration or the sale of the
Fund's shares, or of any stop order or other proceeding under
the Federal securities laws affecting the sale of the Fund's
shares, the Fund will give prompt notice thereof to Service
Company.
C. Service Company hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Fund
for safekeeping of share certificates, check forms, and
facsimile signature imprinting devices, if any; and for the
preparation or use, and for keeping account of, such
certificates, forms and devices. Further, Service Company
agrees to carry insurance, as specified in Exhibit B hereto,
with insurers reasonably acceptable to the Fund and in minimum
amounts that are reasonably acceptable to the Fund, which will
not be changed without the consent of the Fund, which consent
shall not be unreasonably withheld, and which will be expanded
in coverage or increased in amounts from time to time if and
when reasonably requested by the Fund. If Service Company
determines that it is unable to obtain any such insurance upon
commercially reasonable terms, it shall promptly so advise the
Fund in writing. In such event, the Fund shall have the right
to terminate this Agreement upon 30 days notice.
D. To the extent required by Section 31 of the Investment Company
Act of 1940 and Rules thereunder, Service Company agrees that
all records maintained by Service Company relating to the
services to be performed by Service Company under this
Agreement are the property of the Fund and will be preserved
and will be surrendered promptly to the Fund on request.
E. In case of any request or demand for the inspection of the
Shareholder records of the Fund, Service Company will endeavor
to notify the Fund and to secure instructions from an
authorized officer of the Fund as to such inspection. Service
Company reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by
its counsel that it may be held liable for the failure to
exhibit the Shareholder records to such person.
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F. Service Company agrees to furnish the Fund annual reports of
its financial condition, consisting of a balance sheet,
earnings statement and any other reasonably available
financial information reasonably requested by the Fund. The
annual financial statements will be certified by Service
Company's certified public accountants.
G. Service Company represents and agrees that it will use all
reasonable efforts to keep current on the trends of the
investment company industry relating to shareholder services
and will use all reasonable efforts to continue to modernize
and improve its system without additional cost to Fund.
H. Service Company will permit the Fund and its authorized
representatives to make periodic inspections of its operations
at reasonable times during business hours.
I. If Service Company is prevented from complying, either totally
or in part, with any of the terms or provisions of this
Agreement, by reason of fire, flood, storm, strike, lockout or
other labor trouble, riot, war, rebellion, accidents, acts of
God, equipment, utility or transmission failure or damage,
and/or any other cause or casualty beyond the reasonable
control of Service Company, whether similar to the foregoing
matters or not, then upon written notice to the Fund, the
requirements of this Agreement that are affected by such
disability, to the extent so affected, shall be suspended
during the period of such disability; provided, however, that
Service Company shall make reasonable effort to remove such
disability as soon as possible. During such period, the Fund
may seek alternate sources of service without liability
hereunder; and Service Company will use all reasonable efforts
to assist the Fund to obtain alternate sources of service.
Service Company shall have no liability to the Fund for
nonperformance because of the reasons set forth in this
Section 7.I; but if a disability that, in Fund's reasonable
belief, materially affects Service Company's ability to
perform its obligations under this Agreement continues for a
period of 30 days, then the Fund shall have the right to
terminate this Agreement upon 10 days written notice to
Service Company.
J. Service Company may apply to the Fund for instructions, and
may consult with counsel to the Fund at the Fund's expense or
with its own counsel at its own expense, with respect to any
legal question arising in connection with the services
contemplated by this Agreement. Service Company may act, or
not act, in reliance upon such instructions or upon the
opinion of counsel and it will not be liable for any action
taken or omitted by it in good faith in reliance upon such
instructions or upon the opinion of counsel.
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8. Future Amendments of Articles of Incorporation and By-Laws. Fund
will promptly file with Service Company copies of all material
amendments to its Articles of Incorporation and By-Laws and
Registration Statement made after the date of this Agreement.
9. Instructions, Opinion of Counsel and Signatures. At any time Service
Company may apply to any officer of the Fund for instructions, and
may consult with legal counsel for the Fund at the expense of the
Fund, or with its own legal counsel at its own expense, with respect
to any matter arising in connection with the agency; and it will not
be liable for any action taken or omitted by it in good faith in
reliance upon such instructions or upon the opinion of such counsel.
Service Company is authorized to act on the orders, directions or
instructions of such persons as the Board of the Fund shall from
time to time designate by resolution. Service Company will be
protected in acting upon any paper or document, including any
orders, directions or instructions, reasonably believed by it to be
genuine and to have been signed by the proper person or persons; and
Service Company will not be held to have notice of any change of
authority of any person so authorized by the Fund until receipt of
written notice thereof from the Fund. Service Company will also be
protected in recognizing share certificates that it reasonably
believes to bear the proper manual or facsimile signatures of the
officers of the Fund, and the proper countersignature of any former
Transfer Agent or Registrar, or of a Co-Transfer Agent or
Co-Registrar.
10. Records. Service Company will maintain customary records in
connection with its agency, and particularly will maintain those
records required to be maintained pursuant to sub-paragraph (2)(iv)
of paragraph (b) of Rule 31a-1 under the Investment Company Act of
1940, if any.
11. Disposition of Books, Records and Cancelled Certificates. Service
Company will send periodically to the Fund, or to where designated
by the Secretary or an Assistant Secretary of the Fund, all books,
documents, and all records no longer deemed needed for current
purposes and share certificates which have been cancelled in
transfer or in exchange, upon the understanding that such books,
documents, records, and share certificates will not be destroyed by
the Fund without the consent of Service Company (which consent will
not be unreasonably withheld), but will be safely stored for
possible future reference.
12. Provisions Relating to Dividend Disbursing Agency.
A. Service Company will, at the expense of the Fund, provide a
special form of check containing the imprint of any device or
other matter desired by the Fund. Said checks must, however,
be of a form and size convenient for use by Service Company.
B. If the Fund wants to include additional printed matter,
financial statements, etc., with the dividend checks, the same
will be furnished to
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Service Company within a reasonable time prior to the date of
mailing of the dividend checks, at the expense of the Fund.
C. If the Fund wants its distributions mailed in any special form
of envelopes, sufficient supply of the same will be furnished
to Service Company but the size and form of said envelopes
will be subject to the approval of Service Company. If stamped
envelopes are used, they must be furnished by Fund; or, if
postage stamps are to be affixed to the envelopes, the stamps
or the cash necessary for such stamps must be furnished by the
Fund.
D. Service Company will maintain one or more deposit accounts as
Agent for Fund, into which the funds for payment of dividends,
distributions, redemptions or other disbursements provided for
hereunder will be deposited, and against which checks will be
drawn.
13. Termination of Agreement.
A. This Agreement may be terminated by either party upon sixty
(60) days prior written notice to the other party.
B. The Fund, in addition to any other rights and remedies, shall
have the right to terminate this Agreement forthwith upon the
occurrence at any time of any of the following events:
(1) Any interruption or cessation of operations by Service
Company or its assigns which materially interferes with
the business operation of Fund.
(2) The bankruptcy of Service Company or its assigns or the
appointment of a receiver for Service Company or its
assigns.
(3) Any merger, consolidation or sale of substantially all
the assets of Service Company or its assigns.
(4) The acquisition of a controlling interest in Service
Company or its assigns, by any broker, dealer,
investment adviser or investment company except as may
presently exist.
(5) Failure by Service Company or its assigns to perform its
duties in accordance with this Agreement, which failure
materially adversely affects the business operations of
Fund and which failure continues for thirty (30) days
after written notice from the Fund.
(6) The registration of Service Company or its assigns as a
transfer agent under the Securities Exchange Act of 1934
is revoked, terminated or suspended for any reason.
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C. In the event of termination, the Fund will promptly pay
Service Company all amounts due to Service Company hereunder.
Upon termination of this Agreement, Service Company shall
deliver all shareholder and account records pertaining to the
Fund either to the Fund or as directed in writing by the Fund.
14. Assignment.
A. Neither this Agreement nor any rights or obligations hereunder
may be assigned by Service Company without the written consent
of the Fund; provided, however, no assignment will relieve
Service Company of any of its obligations hereunder.
B. This Agreement including, without limitation, the provisions
of Section 6 will inure to the benefit of and be binding upon
the parties and their respective successors and assigns.
C. Service Company is authorized by the Fund to use the system
services of DST Systems, Inc. and the system and other
services, including data entry, of Administrative Management
Group, Inc.
15. Confidentiality.
A. Except as otherwise required by law, Service Company will keep
confidential all records of and information in its possession
relating to the Fund or its shareholders or shareholder
accounts and will not disclose the same to any person except
at the request or with the consent of the Fund.
B. Except as otherwise required by law, the Fund will keep
confidential all financial statements and other financial
records (other than statements and records relating solely to
the Fund's business dealings with Service Company) and all
manuals, systems and other technical information and data, not
publicly disclosed, relating to Service Company's operations
and programs furnished to it by Service Company pursuant to
this Agreement and will not disclose the same to any person
except at the request or with the consent of Service Company.
Notwithstanding anything to the contrary in this Section, if
an attempt is made pursuant to subpoena or other legal process
to require the Fund to disclose or produce any of the
aforementioned manuals, systems or other technical information
and data, Fund shall give Service Company prompt notice
thereof prior to disclosure or production so that Service
Company may, at its expense, resist such attempt.
16. Survival of Representations and Warranties. All representations and
warranties by either party herein contained will survive the
execution and delivery of this Agreement.
17. Miscellaneous.
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A. This Agreement is executed and delivered in the State of New
York and shall be governed by the laws of said state.
B. No provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized
and executed by both parties hereto.
C. The captions in this Agreement are included for convenience of
reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their construction or
effect.
D. This Agreement shall become effective as of the date hereof.
E. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same
instrument.
F. If any part, term or provision of this Agreement is held by
the courts to be illegal, in conflict with any law or
otherwise invalid, the remaining portion or portions shall be
considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as
if the Agreement did not contain the particular part, term or
provision held to be illegal or invalid.
G. This Agreement, together with the Exhibits, is the entire
contract between the parties relating to the subject matter
hereof and supersedes all prior agreements between the
parties.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officer as of the day and year first set
forth above.
XXXXXXX RREEF REAL ESTATE FUND, INC.,
By:
------------------------------------
Name:
Title:
XXXXXXX SERVICE COMPANY,
By:
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Name:
Title:
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EXHIBIT A
FEE SCHEDULE
- Minimum annual fee of $16,200
- If Fund exceeds the minimum annual fee, an annual per account charge, as
follows:
$7.50 per open account
$2.50 per closed account
Out-of-pocket expenses will be reimbursed by the Fund in accordance with
paragraph 2.B of this Agreement.
Items not included in the services and fees set forth in this Agreement,
including, but not limited to, services associated with stock splits, rights
offerings, or other special projects, will be billed separately after a review
of the requirements and scope of the services to be provided.
The term of this fee schedule is for a period of three years, commencing from
the effective date of the Agency Agreement.
EXHIBIT B
INSURANCE COVERAGE
DESCRIPTION OF POLICY:
BROKERS BLANKET BOND, STANDARD FORM 14
Covering losses caused by dishonesty of employees, physical loss of securities
on or outside of premises while in possession of authorized person, loss caused
by forgery or alteration of checks or similar instruments.
ERRORS AND OMISSIONS INSURANCE
Covering replacement of destroyed records and computer errors and omissions.
SPECIAL FORGERY BOND
Covering losses through forgery or alteration of checks or drafts of customers
processed by insured but drawn on or against them.
MAIL INSURANCE (APPLIES TO ALL FULL SERVICE OPERATIONS)
Provides indemnity for the following types of securities lost in the mails:
- Non-negotiable securities mailed to domestic locations via registered
mail.
- Non-negotiable securities mailed to domestic locations via first-class or
certified mail.
- Non-negotiable securities mailed to foreign locations via registered mail.
- Negotiable securities mailed to all locations via registered mail.
