Exhibit K.3
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AUCTION AGENCY AGREEMENT
between
NUVEEN REAL ESTATE INCOME FUND
and
BANKERS TRUST COMPANY
Dated as January ___, 2002
Relating to
TAXABLE AUCTIONED PREFERRED SHARES
of
NUVEEN REAL ESTATE INCOME FUND
TABLE OF CONTENTS
PAGE
1. DEFINITIONS AND RULES OF CONSTRUCTION.................................1
1.1 Terms Defined by Reference to Statement.......................1
1.2 Terms Defined Herein..........................................1
1.3 Rules of Construction.........................................2
2. THE AUCTION...........................................................3
2.1 Purpose; Incorporation by Reference of Auction
Procedures and Settlement Procedures..........................3
2.2 Preparation of Each Auction; Maintenance of Registry of
Beneficial Owners.............................................3
2.3 Information Concerning Rates..................................6
2.4 Auction Schedule..............................................6
2.5 Designation of Dividend Period................................7
2.6 Notice of Auction Results.....................................8
2.7 Broker-Dealers................................................9
2.8 Ownership of TAPS.............................................9
2.9 Access to and Maintenance of Auction Records..................9
2.10 Dividend and Redemption Price Deposit........................10
3. THE AUCTION AGENT AS DIVIDEND AND REDEMPTION PRICE DISBURSING
AGENT................................................................10
4. THE AUCTION AGENT AS TRANSFER AGENT AND REGISTRAR....................10
4.1 Issue of Share Certificates..................................10
4.2 Registration of Transfer of Shares...........................10
4.3 Removal of Legend on Restricted Shares.......................10
4.4 Lost Share Certificates......................................11
4.5 Disposition of Canceled Certificates; Record Retention.......11
4.6 Share Transfer Books.........................................11
4.7 Return of Funds..............................................11
5. REPRESENTATIONS AND WARRANTIES OF THE FUND...........................12
6. THE AUCTION AGENT....................................................12
6.1 Duties and Responsibilities..................................12
6.2 Rights of the Auction Agent..................................13
6.3 Auction Agent's Disclaimer...................................14
6.4 Compensation, Expenses and Indemnification...................14
7. MISCELLANEOUS........................................................14
7.1 Term of Agreement............................................14
7.2 Communications...............................................15
7.3 Entire Agreement.............................................16
7.4 Benefits.....................................................16
7.5 Amendment; Waiver............................................16
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TABLE OF CONTENTS
(continued)
PAGE
7.6 Successors and Assigns.......................................16
7.7 Severability.................................................16
7.8 Execution in Counterparts....................................16
7.9 Governing Law................................................16
7.10 Declaration of Trust.........................................16
EXHIBITS
EXHIBIT A - Form of Broker-Dealer Agreement
EXHIBIT B - Settlement Procedures
EXHIBIT C - Form of Statement
EXHIBIT D - Form of Notice of Auction Dates
EXHIBIT E - Form of Notice of Proposed Designation of Special Rate Period
EXHIBIT F - Form of Notice of Designation of Special Rate Period
EXHIBIT G - Form of Notice of Determination Not to Designate Special Rate
Period
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AUCTION AGENT AGREEMENT dated as of , 2001 between NUVEEN REAL
ESTATE INCOME FUND, a Massachusetts business trust (the "Fund"), and BANKERS
TRUST COMPANY, a New York banking corporation (the "Auction Agent").
WHEREAS, the Fund proposes to issue a series of preferred shares, par
value $.01 per share, liquidation preference $25,000 per share, designated
Taxable Auctioned Preferred Shares, Series M, T, W and F ("TAPS Series M, T, W
and F") and may in the future designate additional series of Taxable Auctioned
Preferred Shares (together with the TAPS Series M, T, W and F, referred to as
the "TAPS") pursuant to the Statement (as hereinafter defined), and desires that
the Auction Agent perform certain duties in connection with the TAPS upon the
terms and subject to the conditions of this Agreement, and hereby appoints the
Auction Agent to act in the capacities set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Fund and the Auction Agent agree as follows:
1. Definitions and Rules of Construction
1.1 Terms Defined by Reference to Statement. Capitalized terms not
defined herein shall have the respective meanings specified in the
Statement.
1.2 Terms Defined Herein. As used herein and in the Settlement
Procedures, the following terms shall have the following meanings,
unless the context otherwise requires:
(a) "Adviser" shall mean Nuveen Institutional Advisory Corp.
(b) "Agent Member" of any Person shall mean the member of, or
participant in, the Securities Depository.
(c) "Auction" shall have the meaning specified in Section 2.1
hereof.
(d) "Auction Procedures" shall mean the auction procedures
constituting Part II of the Statement.
(e) "Authorized Officer" shall mean each Senior Vice President,
Vice President, Assistant Vice President, Assistant Treasurer
and Assistant Secretary of the Auction Agent assigned to its
Corporate Trust and Agency Group and every other officer or
employee of the Auction Agent designated as an "Authorized
Officer" for purposes hereof in a communication to the Fund.
(f) "Broker-Dealer Agreement" shall mean each agreement between
the Auction Agent as agent for the Fund and a Broker-Dealer
substantially in the form attached hereto as Exhibit A.
(g) "Fund Officer" shall mean the Chairman of the Board of
Trustees of the Fund, the President, each Vice President
(whether or not designated by a number or word or words added
before or after the title "Vice President"), the Secretary,
the Treasurer, each Assistant Secretary and each Assistant
Treasurer of the Fund and every other officer or employee of
the Fund designated as a "Fund Officer" for purposes hereof in
a notice to the Auction Agent.
(h) "Person" means and includes an individual, a partnership, a
corporation, a trust, an unincorporated association, a joint
venture or other entity or a government or any agency or
political subdivision thereof.
(i) "Settlement Procedures" shall mean the Settlement Procedures
attached hereto as Exhibit C.
(j) "Statement" shall mean the Statement Establishing and Fixing
the Rights and Preferences of Taxable Auctioned Preferred
Shares (the "Statement") designating the TAPS Series __ and
any additional series of TAPS as may be designated at some
future time, attached hereto as Exhibit C.
(k) "Underwriter" shall mean PaineWebber Incorporated and any
other person named as an underwriter of the TAPS in the
Underwriting Agreement or any schedule thereto.
(l) "Underwriting Agreement" shall mean the Underwriting
Agreement dated , 2001 among the Fund, the
Underwriter and the Adviser.
1.3 Rules of Construction. Unless the context or use indicates another
or different meaning or intent, the following rules shall apply to
the construction of this Agreement:
(a) Words importing the singular number shall include the plural
number and vice versa.
(b) The captions and headings herein are solely for convenience of
reference and shall not constitute a part of this Agreement
nor shall they affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto" and other words of
similar import refer to this Agreement as a whole.
(d) All references herein to a particular time of day shall be to
New York City time.
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2. The Auction
2.1 Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) The Statement provide that the Applicable Rate per annum for
each series of TAPS for each Dividend Period after the initial
Dividend Period with respect to each series of TAPS shall,
except under certain conditions, be equal to the rate per
annum that a bank or trust company appointed by the Fund
advises has resulted on the Business Day preceding the first
day of such Dividend Period from implementation of the Auction
Procedures for such series. Each periodic operation of the
Auction Procedures is hereinafter referred to as an "Auction."
The Board of Trustees has adopted a resolution appointing
Bankers Trust Company as Auction Agent for purposes of the
Auction Procedures for each series of the TAPS. The Auction
Agent accepts such appointment and agrees to follow the
procedures set forth in this Section 2 and the Auction
Procedures for the purpose of determining the Applicable Rate
for each series of TAPS for each Dividend Period thereof for
which the Applicable Rate is to be determined by an Auction.
(b) All of the provisions contained in the Auction Procedures and
the Settlement Procedures are incorporated herein by reference
in their entirety and shall be deemed to be a part hereof to
the same extent as if such provisions were fully set forth
herein.
2.2 Preparation of Each Auction; Maintenance of Registry of Beneficial
Owners.
(a) Not later than seven days prior to the first Auction Date for
any series of TAPS, the Fund shall provide the Auction Agent
with a list of the Broker-Dealers. Not later than seven days
prior to any Auction Date for any series of TAPS for which any
change in such list of Broker-Dealers is to be effective, the
Fund will notify the Auction Agent in writing of such change
and, if any such change involves the addition of a
Broker-Dealer to such list, shall cause to be delivered to the
Auction Agent for execution by the Auction Agent a
Broker-Dealer Agreement signed by such Broker-Dealer;
provided, however, that if the Fund proposes to designate any
Special Rate Period of any series of TAPS pursuant to Section
4 of Part I of the Statement, not later than 11:00 A.M., New
York City time, on the Business Day next preceding the Auction
next preceding the first day of such Special Rate Period, upon
the written request of the Auction Agent, the Fund shall
provide the Auction Agent with a list of the Broker-Dealers
for such series. The Auction Agent and the Fund shall have
entered into a
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Broker-Dealer Agreement with each Broker-Dealer prior to the
participation of any such Broker-Dealer in any Auction.
(b) In the event that any Auction Date for any series of TAPS
shall be changed after the Auction Agent shall have given the
notice referred to in clause [(vi) (vii)] of paragraph (a) of
the Settlement Procedures, or after the notice referred to in
Section 2.5(a) hereof, if applicable, the Auction Agent, by
such means as the Auction Agent deems practicable, shall give
notice of such change to the Broker-Dealers for such series
not later than the earlier of 9:15 A.M. on the new Auction
Date or 9:15 A.M. on the old Auction Date.
(c) (i) The Auction Agent shall maintain a registry of the
beneficial owners of the shares of each series of TAPS who
shall constitute Existing Holders of shares of such series of
TAPS for purposes of Auctions and shall indicate thereon the
identity of the respective Broker-Dealer of each Existing
Holder, if any, on whose behalf such Broker-Dealer submitted
the most recent Order in any Auction which resulted in such
Existing Holder continuing to hold or purchasing shares of
such series of TAPS. The Auction Agent shall keep such
registry current and accurate. The Fund shall provide or cause
to be provided to the Auction Agent at or prior to the Date of
Original Issue of each series of TAPS a list of the initial
Existing Holders of the shares of each such series, the number
of shares purchased by each such Existing Holder and the
respective Broker-Dealer of each such Existing Holder or the
affiliate thereof through which each such Existing Holder
purchased such shares. The Auction Agent shall advise the Fund
in writing as to whether the number of Existing Holders is 500
or more [or any Existing Holder owns 5% or more of the
outstanding shares of any series of TAPS]. The Auction Agent
may rely upon, as conclusive evidence of the identities of the
Existing Holders of shares of any series of TAPS, (A) such
list, (B) the results of Auctions (C) notices from any
Existing Holder, the Agent Member of any Existing Holder or
the Broker-Dealer of any Existing Holder as described in the
first sentence of Section 2.2(c)(iii) hereof and (D) the
results of any procedures approved by the Fund that have been
devised for the purpose of determining the identities of
Existing Holders in situations where shares of TAPS may have
been transferred without compliance with any restriction on
the transfer thereof set forth in the Auction Procedures.
(ii) In the event of any partial redemption of any series of
TAPS, the Auction Agent shall, at least two Business
Days prior to the next Auction for such series, request
each Broker-Dealer to provide the Auction Agent with a
list of Persons who such Broker-Dealer believes should
remain Existing Holders after such redemption
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based upon inquiries of those Persons such Broker-Dealer
believes are Beneficial Owners as a result of the most
recent Auction and with respect to each such Person, the
number of shares of TAPS of such series such
Broker-Dealer believes are owned by such Person after
such redemption. In the absence of receiving any such
information from any Broker-Dealer, the Auction Agent
may continue to treat the Persons listed in its registry
of Existing Holders as the beneficial owner of the
number of shares of TAPS of such series shown in such
registry.
(iii) The Auction Agent shall be required to register a
transfer of shares of TAPS of any series from an
Existing Holder of such shares of TAPS only if such
transfer is to another Existing Holder, or other Person
if permitted by the Fund, and only if such transfer is
made (A) pursuant to an Auction, (B) the Auction Agent
has been notified in writing (I) in a notice
substantially in the form of Exhibit C to the
Broker-Dealer Agreements by a Broker-Dealer of such
transfer or (II) in a notice substantially in the form
of Exhibit D to the Broker-Dealer Agreements by the
Broker-Dealer of any Existing Holder, or other Person if
permitted by the Fund, that purchased or sold such
shares of TAPS in an Auction of the failure of such
shares of TAPS to be transferred as a result of such
Auction or (C) pursuant to procedures approved by the
Fund that have been devised for the purpose of
determining the identities of Existing Holders in
situations where shares of TAPS may have been
transferred without compliance with any restriction on
the transfer thereof set forth in the Auction
Procedures. The Auction Agent is not required to accept
any such notice for an Auction unless it is received by
the Auction Agent by 3:00 P.M. on the Business Day
preceding such Auction.
(d) The Auction Agent may request the Broker-Dealers, as set forth
in the Broker-Dealer Agreements, to provide the Auction Agent
with a list of Persons who such Broker-Dealer believes should
be Existing Holders based upon inquiries of those Persons such
Broker-Dealer believes are Beneficial Owners as a result of
the most recent Auction and with respect to each such Person,
the number of shares of such series of TAPS such Broker-Dealer
believes to be owned by such Person. The Auction Agent shall
keep confidential such registry of Existing Holders and shall
not disclose the identities of the Existing Holders of such
shares of TAPS to any Person other than the Fund and the
Broker-Dealer that provided such information.
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2.3 Information Concerning Rates.
(a) On each Auction Date, the Auction Agent shall determine the AA
Composite Commercial Paper Rate or the Treasury Index Rate, as
the case may be, and the Minimum Rate and Maximum Rate. If the
AA Composite Commercial Paper Rate or the Treasury Index Rate,
as the case may be, is not quoted on an interest basis, if the
rate obtained by the Auction Agent is quoted on a discount
basis, or if the rate obtained by the Auction Agent is quoted
on another basis the Auction Agent shall convert the quoted
rate to an interest rate after consultation with the Fund as
to the method of such conversion. Not later than 9:30 A.M. on
each Auction Date the Auction Agent shall notify the Fund and
the Broker-Dealers of the Minimum Rate and Maximum Rate so
determined and the AA Composite Commercial Paper Rate or the
Treasury Index Rate, as the case may be, used to make such
determination.
(b) If any AA Composite Commercial Paper Rate is to be based on
rates supplied by Commercial Paper Dealers and one or more of
the Commercial Paper Dealers shall not provide a quotation for
the determination of such AA Composite Commercial Paper Rate,
the Auction Agent shall immediately notify the Fund so that
the Fund can determine whether to select a substitute
Commercial Paper Dealer or substitute Commercial Paper Dealers
to provide the quotation or quotations not being supplied by
any Commercial Paper Dealer or Commercial Paper Dealers. The
Fund shall promptly advise the Auction Agent of any such
selection.
(c) If any Treasury Index Rate is to be based on rates supplied by
U.S. Government Securities Dealers and one or more of the U.S.
Government Securities Dealers shall not provide a quotation
for the determination of such Treasury Rate, the Auction Agent
shall immediately notify the Fund so that the Fund can
determine whether to select a Substitute U.S. Government
Securities Dealer or Substitute U.S. Government Securities
Dealers to provide the quotation or quotations not being
supplied by any U.S. Government Securities Dealers. The Fund
shall promptly advise the Auction Agent of any such selection.
2.4 Auction Schedule. The Auction Agent shall conduct Auctions for each
series of TAPS in accordance with the schedule set forth below. Such
schedule may be changed by the Auction Agent with the consent of the
Fund, which consent shall not be unreasonably withheld or delayed.
The Auction Agent shall give written notice of any such change to
each Broker-Dealer. Such notice shall be given prior to the close of
business on the Business Day next preceding the first Auction Date
on which any such change shall be effective.
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Time Event
By 9:30 A.M. Auction Agent advises the Fund and
Broker-Dealers of the applicable
Minimum Rate and Maximum Rate and the
Reference Rate(s) used in determining
such Minimum Rate and Maximum Rate as
set forth in Section 2.3(a) hereof.
9:30 A.M. - 1:00 P.M. Auction Agent assembles information
communicated to it by Broker-Dealers
as provided in Section 2(a) of the
Auction Procedures. Submission
Deadline is 1:00 P.M.
Not earlier than 1:00 P.M. Auction Agent makes determinations
pursuant to Section 3(a) of the Auction
Procedures.
By approximately 3:00 P.M. Auction Agent advises Fund of results
of Auction as provided in Section 3(b)
of the Auction Procedures.
Submitted Bids and Submitted Sell
Orders are accepted and rejected and
shares of TAPS allocated as provided
in Section 4 of the Auction
Procedures. Auction Agent gives
notice of Auction results as set forth
in paragraph(a) of the Settlement
Procedures.
The Auction Agent shall follow the notification procedures set forth in
paragraph (a) of the Settlement Procedures.
2.5 Designation of Dividend Period.
(a) The Statement provide that, subject to the Fund's option to
designate a Special Rate Period as referred to in paragraph
(b) of this Section 2.5, (i) the Dividend Period (other than
the initial Dividend Period) for each series of TAPS will be a
Standard Rate Period. Any such designation of a Special Rate
Period shall be effective only if (i) notice thereof shall
have been given as provided herein, (ii) any failure to pay in
a timely manner to the Auction Agent the full amount of any
dividend on, or the redemption price of, the TAPS shall have
been cured, (iii) Sufficient Clearing Bids shall have existed
in an Auction held on the Auction Date immediately preceding
the first day of such proposed Dividend Period other than a
Standard Rate Period, (iv) if the Fund shall have mailed a
Notice of Redemption with respect to any shares, the
Redemption Price with respect to such shares shall have been
deposited with the Auction Agent, and (v) in the case of a
Special Rate Period, the Fund has provided notice and
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an TAPS Basic Maintenance Report to Moody's (if Xxxxx'x is
then rating the TAPS).
(b) Pursuant to the Statement, the Fund may, at its option,
designate a Special Rate Period for any series of TAPS in the
manner described below and in Section 4 of Part I of the
Statement. If the Fund proposes to designate any succeeding
Special Rate Period the Fund shall deliver to the Auction
Agent:
(i) A notice of such proposed Special Rate Period in the
form of Exhibit F hereto not less than 7 nor more than
30 days prior to the first day of such proposed Special
Rate Period. The Auction Agent on behalf of the Fund
shall deliver such notice by first-class mail, postage
prepaid, to each Existing Holder of shares of such
series of TAPS at the address set forth for such
Existing Holder in the records of the Auction Agent and
to the Broker-Dealers for such series as promptly as
practicable after its receipt of such notice from the
Fund.
(ii) A notice in the form of Exhibit G hereto not later than
3:00 P.M. on the second Business Day next preceding the
first day of such proposed Special Rate Period, of
either (x) its determination, subject to certain
conditions, to proceed with such Special Rate Period, in
which case the Fund shall specify the terms of the
Specific Redemption Provisions, if any, or (y) its
determination not to proceed with such Special Rate
Period in which latter event the succeeding Dividend
Period shall be a Standard Rate Period. The Auction
Agent shall promptly deliver such notice to the
Broker-Dealers, but in no event later than 3:00 P.M. on
the date of such notice.
(iii) If the Fund fails to deliver either such notice with
respect to any designation of any proposed Special Rate
Period to the Auction Agent by 3:00 P.M., New York City
time, on the second Business Day next preceding the
first day of such proposed Special Rate Period, the Fund
shall be deemed to have delivered a notice to the
Auction Agent with respect to such Dividend Period to
the effect that it has determined not to proceed with
the designation of a Special Rate Period, thereby
resulting in a Standard Rate Period.
2.6 Notice of Auction Results. On each Auction Date for any series of
TAPS, the Auction Agent shall notify Broker-Dealers of the results
of the Auction held on such date by telephone as set forth in
paragraph (a) of the Settlement Procedures.
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2.7 Broker-Dealers.
(a) Not later than 12:00 Noon on each Auction Date for any series
of TAPS, the Fund shall pay to the Auction Agent an amount in
cash equal to the aggregate fees payable to the Broker-Dealers
for such series pursuant to Section 2.6 of the Broker-Dealer
Agreement for such series. The Auction Agent shall apply such
moneys as set forth in Section 2.6 of each such Broker-Dealer
Agreement.
(b) The Fund shall obtain the consent of the Auction Agent prior
to selecting any Person to act as a Broker-Dealer, which
consent shall not be unreasonably withheld.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement
as set forth therein if so directed by the Fund.
(d) Subject to the Auction Agent's having consented to the
selection of the relevant Broker-Dealer pursuant to Section
2.8(b) hereof, the Auction Agent shall from time to time enter
into such Broker-Dealer Agreements with one or more
Broker-Dealers as the Fund shall request, and shall enter into
such schedules to any such Broker-Dealer Agreements as the
Fund shall request, which schedules, among other things, shall
set forth the series of TAPS to which such Broker-Dealer
Agreement relates.
2.8 Ownership of TAPS. The Fund shall notify the Auction Agent if the
Fund or any affiliate of the Fund acquires any shares of TAPS of any
series. Neither the Fund nor any affiliate of the Fund shall submit
any Order in any Auction for TAPS, except as set forth in the next
sentence. Any Broker-Dealer that is an affiliate of the Fund may
submit Orders in Auctions, but only if such Orders are not for its
own account. For purposes of this Section 2.7, a Broker-Dealer shall
not be deemed to be an affiliate of the Fund solely because one or
more of the directors or executive officers of such Broker-Dealer or
of any Person controlled by, in control of or under common control
with such Broker-Dealer is also a Director of the Fund. The Auction
Agent shall have no duty or liability with respect to enforcement of
this Section 2.8.
2.9 Access to and Maintenance of Auction Records. The Auction Agent
shall, upon the receipt of prior written notice from the Fund,
afford to the Fund access at reasonable times during normal business
hours to all books, records, documents and other information
concerning the conduct and results of Auctions. The Auction Agent
shall maintain records relating to an Auction for a period of six
years after such Auction and such records shall, in reasonable
detail, accurately and fairly reflect the actions taken by the
Auction Agent hereunder.
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2.10 Dividend and Redemption Price Deposit. The Fund shall pay to the
Auction Agent, not later than 12:00 noon, New York City time, (A) on
the Business Day next preceding any Dividend Payment Date for any
series of TAPS, in funds available on such Dividend Payment Date in
The City of New York, New York, the full amount of any dividends to
be paid on such Dividend Payment Date on any share of such series,
and (B) on the Business Day next preceding any redemption date for
any series of TAPS in funds available on such redemption date for
such series in The City of New York, New York, the Redemption Price
to be paid on such redemption date for the shares of any such series
after notice of redemption is given as set forth in the Statement.
3. The Auction Agent as Dividend and Redemption Price Disbursing Agent
The Auction Agent, as dividend and redemption price disbursing agent,
shall pay to the Holders of shares of TAPS of any series (i) on each Dividend
Payment Date for such series, dividends on the shares of TAPS of such series,
(ii) an any date fixed for redemption of shares of TAPS of any series, the
Redemption Price of any shares of such series called for redemption and (iii)
any late charge related to any payment of dividends or Redemption Price, in each
case after receipt of the necessary funds from the Fund with which to pay such
dividends, Redemption Price or late charge. The amount of dividends for any
Dividend Period for any series of TAPS to be paid by the Auction Agent to the
Holders of such shares of such series will be determined by the Fund as set
forth in Section 2 of Part I of the Statement with respect to such series. The
Redemption Price of any shares to be paid by the Auction Agent to the Holders
will be determined by the Fund as set forth in Section 3 of Part I of the
Statement with respect to such series. The Fund shall notify the Auction Agent
in writing of a decision to redeem shares of any series of TAPS as provided in
paragraph (b) of Section 3 of Part V of the Statement. Such notice by the Fund
to the Auction Agent shall contain the information required by paragraph (b) of
Section 3 of Part I of the Statement to be stated in the notice of redemption
required to be mailed by the Auction Agent to such Holders.
4. The Auction Agent as Transfer Agent and Registrar
4.1 Issue of Share Certificates. Upon the Date of Original Issue of each
series or TAPS, one certificate representing all of the shares of
each series issued on such date shall be issued by the Fund and, at
the request of the Fund, registered in the name of Cede & Co. and
countersigned by the Auction Agent.
4.2 Registration of Transfer of Shares. Shares of each series of TAPS
shall be registered solely in the name of the Securities Depository
or its nominee.
4.3 Removal of Legend on Restricted Shares. All requests for removal of
legends on shares of any series of TAPS indicating restrictions on
transfer shall be accompanied by an opinion of counsel stating that
such legends may be removed and such shares freely transferred, such
opinion to be delivered under cover of a
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letter from a Fund Officer authorizing the Auction Agent to remove
the legend on the basis of said opinion.
4.4 Lost Share Certificates. The Auction Agent shall issue and register
replacement certificates for certificates represented to have been
lost, stolen or destroyed upon the fulfillment of such requirements
as shall be deemed appropriate by the Fund and the Auction Agent,
subject at all times to provisions of law, the By-Laws of the Fund
governing such matters and resolutions adopted by the Fund with
respect to lost securities. The Auction Agent may issue new
certificates in exchange for and upon the cancellation of mutilated
certificates. Any request by the Fund to the Auction Agent to issue
a replacement or new certificate pursuant to this Section 4.4 shall
be deemed to be a representation and warranty by the Fund to the
Auction Agent that such issuance will comply with such provisions of
law and the By-Laws and resolutions of the Fund.
4.5 Disposition of Canceled Certificates; Record Retention. The Auction
Agent shall retain all share certificates which have been cancelled
in transfer or exchange and all accompanying documentation in
accordance with applicable rules and regulations of the Securities
and Exchange Commission for two calendar years. Upon the expiration
of this two-year period, the Auction Agent shall deliver to the Fund
the cancelled certificates and accompanying documentation. The Fund
also shall undertake to furnish to the Securities and Exchange
Commission and to the Board of Governors of the Federal Reserve
System, upon demand, at either the principal office or at any
regional office, complete, correct and current hard copies of any
and all such records. Thereafter such records shall not be destroyed
by the Fund without the concurrence of the Auction Agent.
4.6 Share Transfer Books. For so long as the Auction Agent is acting as
the transfer agent for any series of TAPS pursuant to this
Agreement, it shall maintain a share transfer book containing a list
of the Holders of the shares of each series of TAPS, the number of
shares of each series held by such Holders and the address of each
Holder. The Auction Agent shall record in such share transfer books
any change of address of a Holder upon notice by such Holder. In
case of any request or demand for the inspection of the share
transfer books of the Fund or any other books in the possession of
the Auction Agent, the Auction Agent will notify the Fund and secure
instructions as to permitting or refusing such inspection. The
Auction Agent reserves the right, however, to exhibit the share
transfer books or other books to any Person in case it is advised by
its counsel that its failure to do so would be unlawful.
4.7 Return of Funds. Any funds deposited with the Auction Agent
hereunder by the Fund for any reason, including but not limited to
redemption of shares of TAPS of any series, that remain unpaid after
90 days shall be repaid to the Fund upon the written request of the
Fund, together with interest, if any, earned thereon.
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5. Representations and Warranties of the Fund
The Fund represents and warrants to the Auction Agent that:
(a) the Fund is a duly organized and existing business trust in
good standing under the laws of the State of Massachusetts and
has full corporate power or all requisite power to execute and
deliver the Agreement and to authorize, create and issue the
shares of TAPS of each series and the shares of TAPS of each
series when issued, will be duly authorized, validly issued,
fully paid and nonassessable;
(b) the Agreement has been duly and validly authorized, executed
and delivered by the Fund and constitutes the legal, valid and
binding obligation of the Fund;
(c) the form of the certificate evidencing the shares of TAPS of
each series complies or will comply with all applicable laws
of the State of Massachusetts;
(d) when issued, the shares of TAPS of each series will have been
duly registered under the Securities Act of 1933, as amended,
and no further action by or before any governmental body or
authority of the United States or of any state thereof is
required in connection with the execution and delivery of the
Agreement or will have been required in connection with the
issuance of the shares of TAPS of each series; and
(e) the execution and delivery of the Agreement and the issuance
and delivery of the shares of TAPS of each series do not and
will not conflict with, violate or result in a breach of, the
terms, conditions or provisions of, or constitute a default
under, the Declaration of Trust (as amended by one or more
Statements) or the By-Laws of the Fund, any law or regulation,
any order or decree of any court or public authority having
jurisdiction, or any mortgage, indenture, contract, agreement
or undertaking to which the Fund is a party or by which it is
bound the effect of which conflict, violation, default or
breach would be material to the Fund or the Fund and its
subsidiaries taken as a whole.
6. The Auction Agent
6.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the Fund
hereunder and owes no fiduciary duties to any other Person by
reason of this Agreement.
12
(b) The Auction Agent undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement
and the Broker-Dealer Agreements, and no implied covenants or
obligations shall be read into this Agreement against the
Auction Agent.
(c) In the absence of bad faith or negligence on its part, the
Auction Agent shall not be liable for any action taken,
suffered, or omitted or for any error of judgment made by it
in the performance of its duties under this Agreement except
that the Auction Agent shall be liable for any error of
judgment made in good faith if the Auction Agent shall have
been negligent in ascertaining the pertinent facts.
(d) Any funds deposited with the Auction Agent hereunder by the
Fund for any reason, including the payment of dividends or the
redemption of shares of TAPS of any series, that remain with
the Auction Agent after 90 days shall be repaid to the Fund as
provided in Section 4.7 hereof.
6.2 Rights of the Auction Agent.
(a) The Auction Agent may rely and shall be protected in acting or
refraining from acting upon any communication authorized
hereby and upon any written instruction, notice, request,
direction, consent, report, certificate, share certificate or
other instrument, paper or document believed by it to be
genuine. The Auction Agent shall not be liable for acting upon
any telephone communication authorized hereby which the
Auction Agent believes in good faith to have been given by the
Fund or by any Broker-Dealer. The Auction Agent may record
telephone communications with the Fund or with any
Broker-Dealer.
(b) The Auction Agent may consult with counsel reasonably
acceptable to the Fund and the advice of such counsel shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or
risk its own funds or otherwise incur or become exposed to
financial liability in the performance of its duties
hereunder.
(d) The Auction Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or
attorneys and shall not be responsible for any misconduct on
the part of any agent or attorney appointed by it with due
care hereunder except as set forth above in Section 6.1(c).
13
6.3 Auction Agent's Disclaimer. The Auction Agent makes no
representation as to the validity or adequacy of this Agreement
(except as to the Auction Agent's duties hereunder and that the
Auction Agent hereby represents that this Agreement has been duly
authorized, executed and delivered by the Auction Agent and
constitutes a legal and binding obligation of the Auction Agent).
6.4 Compensation, Expenses and Indemnification.
(a) The Fund shall pay the Auction Agent from time to time
reasonable compensation for all services rendered by it under
this Agreement and the Broker-Dealer Agreement in such amounts
as may be agreed to by the Fund and the Auction Agent from
time to time.
(b) The Fund shall reimburse the Auction Agent upon its request
for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by the Auction Agent in accordance
with any provision of this Agreement and the Broker-Dealer
Agreements (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except
any expense or disbursement attributable to its negligence or
bad faith.
(c) The Fund shall indemnify the Auction Agent for and hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or
in connection with its agency under this Agreement and the
Broker-Dealer Agreements, including the costs and expenses of
defending itself against any claim or liability in connection
with its exercise or performance of its duties hereunder and
thereunder for which indemnification is provided by this
subsection.
7. Miscellaneous
7.1 Term of Agreement.
(a) The term of this Agreement is unlimited unless it shall be
terminated as provided in this Section 7.1. The Fund may
terminate this Agreement any time by so notifying the Auction
Agent, provided that the Fund has entered into an agreement in
substantially the form of this Agreement with a successor
auction agent. The Auction Agent may terminate this Agreement
upon written notice to the Fund, such termination to be
effective on the earlier of (i) the date specified in such
notice which shall not be earlier than 45 days after the
giving of such notice or (ii) the date on which a successor
Auction Agent is appointed by the Fund pursuant to an
agreement containing substantially the same terms and
conditions as this Agreement.
14
(b) Except as otherwise provided in this paragraph (b), the
respective rights and duties of the Fund and the Auction Agent
under this Agreement shall cease upon termination of this
Agreement. The Fund's obligations under Section 6.4 hereof and
its representations and warranties contained in Section 5
hereof and the Auction Agent's obligations and liabilities
under Sections 2.9 and 4.5 hereof shall survive the
termination hereof. Upon termination of this Agreement, the
Auction Agent shall, at the Fund's request, promptly deliver
to the Fund copies of all books and records maintained by it
in connection with its duties hereunder.
7.2 Communications. Except for (a) communications authorized to be by
telephone pursuant to this Agreement or the Auction Procedures and
(b) communications in connection with Auctions (other than those
expressly required to be in writing) and unless otherwise specified
by the terms of this Agreement all notices, requests and other
communications to any party hereunder shall be in writing (including
telecopy or similar writing) given to such person at its address or
telecopy number set forth below:
If to the Fund, addressed:
Nuveen Real Estate Income Fund
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone No.: (000) 000-0000
If to the Auction Agent, addressed:
Bankers Trust Company
Corporate Trust and Agency Group
000 Xxxxx Xxx, 0xx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: Auction Rate/Remarketed Securities
Telephone No.: (000) 000-0000
or to such other address as the party to whom the communication is addressed
shall have previously communicated to the other party. Communications shall be
given on behalf of the Fund by a Fund Officer and on behalf of the Auction Agent
by an Authorized Officer. Communications shall be effective when received at the
proper address.
15
7.3 Entire Agreement. This Agreement contains the entire agreement among
the parties relating to the subject matter hereof, and there are no
other representations, endorsements, promises, agreements or
understandings, oral, written or inferred, between the parties. This
Agreement supersedes all prior agreements between the parties
relating to the subject matter of this Agreement.
7.4 Benefits. Nothing herein, express or implied, shall give to any
Person, other than the Fund, the Auction Agent and their respective
successors and assigns, any benefit of any legal or equitable right,
remedy or claim hereunder.
7.5 Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or
in part, except by a written instrument signed by a duly
authorized representative of the party to be charged.
(b) Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party
shall not constitute a waiver of any such rights or remedies
with respect to any subsequent breach.
7.6 Successors and Assigns. This Agreement shall be binding upon, inure
to the benefit of, and be enforceable by, the respective successors
of each of the Fund and the Auction Agent.
7.7 Severability. If any clause, provision or section hereof shall be
ruled invalid or unenforceable by any court of competent
jurisdiction, the invalidity or unenforceability of such clause,
provision or section shall not affect any of the remaining clauses,
provisions or sections hereof.
7.8 Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
7.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
7.10 Declaration of Trust. The Fund's Declaration is on file with the
Secretary of State of the Commonwealth of Massachusetts. This
Agreement has been executed on behalf of the Fund by the Vice
President and Treasurer of the Fund acting in such capacity and not
individually, and the obligations of the Fund set forth in this
Agreement are not binding upon any of the Fund's trustees, officers
or shareholders individually, but are binding only upon the assets
and property of the Fund.
16
[Signature Page Follows]
17
IN WITNESS WHEREOF, the parties hereto have caused this Auction Agent
Agreement to be duly executed and delivered by their proper authorized officers
as of the date first above written.
NUVEEN REAL ESTATE INCOME FUND
By:_____________________________
Name:
Title:
BANKERS TRUST COMPANY
By:_____________________________
Name:
Title:
18
EXHIBIT A
BROKER-DEALER AGREEMENT
A-1
EXHIBIT B
SETTLEMENT PROCEDURES
X-0
XXXXXXX X
XXXX XX XXXXXXXXX
X-0
XXXXXXX X
NUVEEN REAL ESTATE INCOME FUND
NOTICE OF AUCTION DATE FOR
TAXABLE AUCTIONED PREFERRED SHARES ("TAPS")
NOTICE IS HEREBY GIVEN that the Auction Date of the next Auction for the TAPS
Series M, T, W and F of NUVEEN REAL ESTATE INCOME FUND (the "Fund") is scheduled
to be _______________ and the next Dividend Payment Date for the Fund's TAPS
Series M, T, W and F will be _______________.
D-1
EXHIBIT E
NUVEEN REAL ESTATE INCOME FUND
NOTICE OF PROPOSED DESIGNATION OF
SPECIAL RATE PERIOD FOR
TAXABLE AUCTIONED PREFERRED SHARES
NOTICE IS HEREBY GIVEN that NUVEEN REAL ESTATE INCOME FUND (the "Fund") proposes
to exercise its option to designate the Dividend Period of its Series __ Taxable
Auctioned Preferred Shares ("TAPS") commencing [the first day of the proposed
Special Rate Period] and ending [the last day of the proposed Special Rate
Period] as a Special Rate Period.
By 9:00 A.M., New York City time, on the Business Day next preceding the first
day of such proposed Special Rate Period, the Fund will notify the Auction Agent
for the TAPS of either (a) its determination to exercise such option,
designating the length of such Special Rate Period and the terms of the Specific
Redemption Provisions, if any, or (b) its determination not to exercise such
option.
NUVEEN REAL ESTATE INCOME FUND
Dated:__________________________
E-1
EXHIBIT F
NUVEEN REAL ESTATE INCOME FUND
NOTICE OF DESIGNATION OF SPECIAL RATE PERIOD OF
TAXABLE AUCTIONED PREFERRED SHARES
NOTICE IS HEREBY GIVEN that NUVEEN REAL ESTATE INCOME FUND (the "Fund") has
determined to designate the Dividend Period of its Series __ Taxable Auctioned
Preferred Shares ("TAPS") commencing on [the first day of the Special Rate
Period] and ending on (the last day of the Special Rate Period] as a Special
Rate Period.
The Special Rate Period will be _____ [days] year(s]].
The Auction Date for the Special Rate Period is (the Business Day next preceding
the first day of such Special Rate Period].
The scheduled Dividend Payment Dates for such series of TAPS during such Special
Rate Period will be ____________________.
[Specific Redemption Provisions, if applicable.]
[The Special Rate Period shall not commence if on such Auction Date Sufficient
Clearing Bids shall not exist.]
NUVEEN REAL ESTATE INCOME FUND
Dated:___________________________
F-1
EXHIBIT G
NUVEEN REAL ESTATE INCOME FUND
NOTICE OF DETERMINATION NOT TO DESIGNATE
SPECIAL RATE PERIOD OF
TAXABLE AUCTIONED PREFERRED SHARES
NOTICE IS HEREBY GIVEN that NUVEEN REAL ESTATE INCOME FUND (the "Fund") has
determined not to exercise its option to designate a Special Rate Period of its
Series __ Taxable Auctioned Preferred Shares. Accordingly, the next succeeding
Dividend Period of such series will be a Standard Rate Period.
NUVEEN REAL ESTATE INCOME FUND
Dated:_______________________
G-1
