EXHIBIT (K)(4)
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XXXXXXX RREEF REAL ESTATE FUND II, INC.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
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BROKER-DEALER AGREEMENT
dated as of November ___, 2003
Relating to
Auction Preferred Stock
of
Xxxxxxx RREEF Real Estate Fund II, Inc.
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DEUTSCHE BANK SECURITIES INC.
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Broker-Dealer Agreement dated as of November __, 2003, among Xxxxxxx
RREEF Real Estate Fund II, Inc., a Maryland Corporation (the "Fund"), Deutsche
Bank Trust Company Americas, a New York corporation (the "Auction Agent") (not
in its individual capacity, but solely as agent of the Fund, pursuant to
authority granted to it in the Auction Agency Agreement (as defined below) and
Deutsche Bank Securities Inc. (together with its successors and assigns,
"DEUTSCHE BANK").
Whereas the Fund proposes to issue 2,800 shares of Series M Auction
Preferred Stock, 2,800 shares of Series T Auction Preferred Stock, 2,800
shares of Series W Auction Preferred Stock, 2,800 shares of Series Th Auction
Preferred Stock and 2,800 shares of Series F Auction Preferred Stock, par value
$.01 per share, liquidation preference $25,000 per share (together the
"Preferred Shares"), pursuant to the Fund's Articles of Incorporation and the
Articles Supplementary (as defined below).
The Fund's Articles Supplementary provide that, for each series of
Preferred Shares then outstanding, the Applicable Rate on the Preferred Shares
for each Dividend Period after the initial Dividend Period shall be equal to the
rate per annum that results from an Auction for Outstanding Preferred Shares of
each such series on the respective Auction Date therefor next preceding the
period from and after the Date of Original Issue to and including the last day
of the initial Dividend Period. The Board of Directors of the Fund has adopted a
resolution appointing Deutsche Bank Trust Company Americas as Auction Agent for
purposes of the Auction Procedures.
The Auction Procedures require the participation of one or more
Broker-Dealers for Preferred Shares.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Fund, the Auction Agent and DEUTSCHE BANK agree
as follows:
1. Definitions and Rules Of Construction.
1.1. Terms Defined By Reference to the Articles Supplementary.
Capitalized terms not defined herein shall have the respective meanings
specified in the Articles Supplementary.
1.2. Terms Defined Herein.
As used herein, the following terms shall have the following meanings,
unless the context otherwise requires:
(a) "Articles Supplementary" shall mean the Articles
Supplementary by which the Fund's Board of Directors will classify ______ shares
of authorized and unissued preferred stock, $.01 par value, and authorize the
issuance of such preferred stock designated _____ shares of Series M Auction
Preferred Stock, _____ shares Series T Auction Preferred Stock, _____ shares of
Series W Auction Preferred Stock, _____ shares of Series Th Auction Preferred
Stock and _____ shares of Series F Auction Preferred Stock, as such Articles
Supplementary, were filed by the Fund on November __, 2003 with the State
Department of Assessments and Taxation of the State of Maryland, and as may be
amended from time to time.
(b) "Auction" shall have the meaning specified in Section
2.1 of the Auction Agency Agreement.
(c) "Auction Procedures" shall mean the Auction
Procedures that are set forth in Part II of the Article Supplementary.
(d) "Authorized Officer" shall mean each Managing
Director, Vice President, Assistant Vice President and Associate of the Auction
Agent and every other officer or employee of the Auction Agent designated as an
"Authorized Officer" for purposes of this Agreement in a communication to
DEUTSCHE BANK.
(e) "Broker-Dealer Agreement" shall mean this Agreement
and any substantially similar agreement between the Auction Agent and a
Broker-Dealer.
(f) "DEUTSCHE BANK Officer" shall mean each officer or
employee of DEUTSCHE BANK designated as a "DEUTSCHE BANK Officer" for purposes
of this Agreement in a communication to the Auction Agent.
(g) "Settlement Procedures" shall mean the Settlement
Procedures attached hereto as Exhibit A.
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.
2. Notification of Dividend.
The provisions contained in Section 4 of Part I of the Articles
Supplementary concerning the notification of a Special Dividend Period will be
followed by the Auction Agent and DEUTSCHE BANK, and the provisions contained
therein are incorporated herein by
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reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions were set forth fully herein.
3. The Auction.
3.1. Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) On each Auction Date, the provisions of the Auction
Procedures will be followed by the Auction Agent for the purpose of determining
the Applicable Rate for the Preferred Shares, for each Dividend Period. Each
periodic operation of such procedures is hereinafter referred to as 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 of this Agreement to the same
extent as if such provisions were set forth fully herein.
(c) DEUTSCHE BANK agrees to act as, and assumes the
obligations of and limitations and restrictions placed upon, a Broker-Dealer
under this Agreement. DEUTSCHE BANK understands that other Persons meeting the
requirements specified in the definition of "Broker-Dealer" contained in Section
17 of Part I of the Articles Supplementary may execute a Broker-Dealer Agreement
and participate as Broker-Dealers in Auctions.
(d) DEUTSCHE BANK and other Broker-Dealers may
participate in Auctions for their own accounts. However, the Fund, by notice to
DEUTSCHE BANK and all other Broker-Dealers, may prohibit all Broker-Dealers from
submitting Bids in Auctions for their own accounts, provided that Broker-Dealers
may continue to submit Hold Orders and Sell Orders. The Auction Agent shall have
no duty or liability with respect to the enforcement of this Section 3.1(d).
3.2. Preparation for Each Auction.
(a) Not later than 9:30 A.M. on each Auction Date for the
Preferred Shares, the Auction Agent shall advise DEUTSCHE BANK by telephone of
the `AA' Financial Composite Commercial Paper Rate or the Treasury Index Rate,
as the case may be, and the Maximum Rate in effect on such Auction Date.
(b) The Auction Agent from time to time may request
DEUTSCHE BANK to provide it with a list of the respective customers DEUTSCHE
BANK believes are Beneficial Owners of Preferred Shares. DEUTSCHE BANK shall
comply with any such request, and the Auction Agent shall keep confidential any
such information, including information received as to the identity of Bidders
in any Auction, and shall not disclose any such information so provided to any
Person other than the Fund; and such information shall not be used by the
Auction Agent or its officers, employees, agents or representatives for any
purpose other than such purposes as are described herein. The Auction Agent
shall transmit any list of customers DEUTSCHE BANK believes are Beneficial
Owners of Preferred Shares and information related thereto only to its officers,
employees, agents or representatives who need to know such information for the
purposes of acting in accordance with this Agreement, and the
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Auction Agent shall prevent the transmission of such information to others and
shall cause its officers, employees, agents and representatives to abide by the
foregoing confidentiality restrictions; provided, however, that the Auction
Agent shall have no responsibility or liability for the actions of any of its
officers, employees, agents or representatives after they have left the employ
of the Auction Agent.
3.3. Auction Schedule; Method of Submission of Orders.
(a) Auction Agent shall conduct Auctions for Preferred
Shares in accordance with the schedule set forth below. Such schedule may be
changed at any time by the Auction Agent with the consent of the Fund, which
consent shall not be withheld unreasonably. The Auction Agent shall give notice
of any such change to DEUTSCHE BANK. Such notice shall be received prior to the
first Auction Date on which any such change shall be effective.
Time Event
By 9:30 A.M. Auction Agent shall advise the Fund and the
Broker-Dealers of the 'AA' Financial
Composite Commercial Paper Rate or the
Treasury Index Rate, as the case may be, and
the Maximum Rate as set forth in Section
3.2(a) hereof.
9:30 A.M. - 1:30 P.M. Auction Agent shall assemble information
communicated to it by Broker-Dealers as
provided in Section 2(a) of Part II of the
Articles Supplementary. Submission Deadline
is 1:30 P.M.
Not earlier than 1:30 P.M. Auction Agent shall make determinations
pursuant to Section 4(a) of Part II of the
Articles Supplementary.
By approximately 3:00 P.M. Auction Agent shall advise the Fund of the
results of the Auction as provided in Section
4(b) of Part II of the Articles Supplementary.
Submitted Bids and Submitted Sell Orders will
be accepted and rejected in whole or in part
and Preferred Shares will be allocated as
provided in Section 5 of Part II of the
Articles Supplementary. Auction Agent shall
give notice of the Auction results as set
forth in Section 3.4(a) hereof.
(b) DEUTSCHE BANK agrees to maintain a list of Potential
Beneficial Owners and to contact the Potential Beneficial Owners on such list on
or prior to each Auction Date for the purposes set forth in Section 2 of Part II
of the Articles Supplementary.
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(c) DEUTSCHE BANK shall submit Orders to the Auction
Agent in writing in substantially the form attached hereto as Exhibit B.
DEUTSCHE BANK shall submit separate Orders to the Auction Agent for each
Potential Beneficial Owner or Beneficial Owner on whose behalf DEUTSCHE BANK is
submitting an Order and shall not net or aggregate the Orders of Potential
Beneficial Owners or Beneficial Owners on whose behalf DEUTSCHE BANK is
submitting Orders.
(d) DEUTSCHE BANK shall deliver to the Auction Agent (i)
a written notice, substantially in the form attached hereto as Exhibit C, of
transfers of Preferred Shares, made through DEUTSCHE BANK by an Existing Holder
to another Person other than pursuant to an Auction, and (ii) a written notice,
substantially in the form attached hereto as Exhibit D, of the failure of
Preferred Shares to be transferred to or by any Person that purchased or sold
Preferred Shares through DEUTSCHE BANK pursuant to an Auction. The Auction Agent
is not required to accept any notice delivered pursuant to the terms of the
foregoing sentence with respect to an Auction unless it is received by the
Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable
Auction Date.
3.4. Notice of Auction Results.
(a) On each Auction Date, the Auction Agent shall notify
DEUTSCHE BANK by telephone of the results of the Auction. By approximately 11:30
A.M. on the Business Day next succeeding such Auction Date, the Auction Agent
shall notify DEUTSCHE BANK in writing of the disposition of all Orders submitted
by DEUTSCHE BANK in the Auction held on such Auction Date.
(b) DEUTSCHE BANK shall notify each Beneficial Owner,
Potential Beneficial Owner, Existing Holder or Potential Holder on whose behalf
DEUTSCHE BANK has submitted an Order as set forth in paragraph (b) of the
Settlement Procedures and take such other action as is required of DEUTSCHE BANK
pursuant to the Settlement Procedures.
If any Beneficial Owner or Existing Holder selling Preferred Shares in
an Auction fails to deliver such shares, the Broker-Dealer of any Person that
was to have purchased Preferred Shares in such Auction may deliver to such
Person a number of whole shares of Preferred Shares that is less than the number
of shares that otherwise was to be purchased by such Person. In such event, the
number of Preferred Shares to be so delivered shall be determined by such
Broker-Dealer. Delivery of such lesser number of shares shall constitute good
delivery. Upon the occurrence of any such failure to deliver shares, such
Broker-Dealer shall deliver to the Auction Agent the notice required by Section
3.3(d)(ii) hereof. Notwithstanding the foregoing terms of this Section 3.4(b),
any delivery or non-delivery of Preferred Shares which represents any departure
from the results of an Auction, as determined by the Auction Agent, shall be of
no effect unless and until the Auction Agent shall have been notified of such
delivery or non-delivery in accordance with the terms of Section 3.3(d) hereof.
The Auction Agent shall have no duty or liability with respect to enforcement of
this Section 3.4(b).
3.5. Service Charge to be Paid to DEUTSCHE BANK.
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On the Business Day next succeeding each Auction Date, the Auction
Agent shall pay to DEUTSCHE BANK from moneys received from the Fund an amount
equal to: (a) in the case of any Auction Date immediately preceding a Dividend
Period of less than one year, the product of (i) a fraction the numerator of
which is the number of days in such Dividend Period (calculated by counting the
first day of such Dividend Period but excluding the last day thereof) and the
denominator of which is 360, times (ii) 1/4 of 1%, times (iii) $25,000, times
(iv) the sum of (A) the aggregate number of Preferred Shares placed by DEUTSCHE
BANK in the applicable Auction that were (x) the subject of a Submitted Bid of a
Beneficial Owner submitted by DEUTSCHE BANK and continued to be held as a result
of such submission and (y) the subject of a Submitted Bid of a Potential
Beneficial Owner submitted by DEUTSCHE BANK and were purchased as a result of
such submission plus (B) the aggregate number of Preferred Shares subject to
valid Hold Orders (determined in accordance with Section 2 of Part II of the
Articles Supplementary) submitted to the Auction Agent by DEUTSCHE BANK plus (C)
the number of Preferred Shares deemed to be subject to Hold Orders by Beneficial
Owners pursuant to Section 2 of Part II of the Articles Supplementary that were
acquired by DEUTSCHE BANK for its own account or were acquired by such
Beneficial Owners through DEUTSCHE BANK; and (b) in the case of any Auction Date
immediately preceding a Special Dividend Period of one year or longer, that
amount as mutually agreed upon by the Fund and DEUTSCHE BANK, based on the
selling concession that would be applicable to an underwriting of fixed or
variable rate preferred shares with a similar final maturity or variable rate
dividend period, at the commencement of such Special Dividend Period.
For purposes of subclause (a)(iv)(C) of the foregoing sentence, if any
Beneficial Owner who acquired Preferred Shares through DEUTSCHE BANK transfers
those shares to another Person other than pursuant to an Auction, then the
Broker-Dealer for the shares so transferred shall continue to be DEUTSCHE BANK,
provided, however, that if the transfer was effected by, or if the transferee
is, a Broker-Dealer other than DEUTSCHE BANK, then such Broker-Dealer shall be
the Broker-Dealer for such shares.
4. The Auction Agent.
4.1. 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.
(b) The Auction Agent undertakes to perform such duties
and only such duties as are set forth specifically in this Agreement, 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 by it, or for any error of judgment made by it in the performance of its
duties under this Agreement. The Auction Agent shall not be liable for any error
of judgment made in good faith unless the Auction Agent shall have been
negligent in ascertaining (or failing to ascertain) the pertinent facts.
4.2. Rights of the Auction Agent.
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(a) The Auction Agent may rely upon, and shall be
protected in acting or refraining from acting upon, any communication authorized
by this Agreement and any written instruction, notice, request, direction,
consent, report, certificate, share certificate or other instrument, paper or
document reasonably believed by it to be genuine. The Auction Agent shall not be
liable for acting upon any telephone communication authorized by this Agreement
which the Auction Agent reasonably believes in good faith to have been given by
the Fund or by DEUTSCHE BANK. The Auction Agent may record telephone
communications with DEUTSCHE BANK.
(b) The Auction Agent may consult with counsel of its own
choice, 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.
4.3. Auction Agent's Disclaimer.
The Auction Agent makes no representation as to the validity or
adequacy of this Agreement or the Preferred Shares.
5. Miscellaneous.
5.1. Termination.
Any party may terminate this Agreement at any time upon five days'
prior written notice to the other party; provided, however, that if the
Broker-Dealer is Deutsche Bank neither Deutsche Bank nor the Auction Agent may
terminate this Agreement without first obtaining the prior written consent of
the Fund to such termination, which consent shall not be withheld unreasonably.
5.2. Participant in Securities Depository; Payment of Dividends in
Same-Day Funds.
(a) DEUTSCHE BANK is, and shall remain for the term of
this Agreement, a member of, or a participant in, the Securities Depository (or
an affiliate of such a member or participant).
(b) DEUTSCHE BANK represents that it (or if DEUTSCHE BANK
does not act as Agent Member, one of its affiliates) shall make all dividend
payments on the Preferred Shares available in same-day funds on each Dividend
Payment Date to customers that use DEUTSCHE BANK (or its affiliate) as Agent
Member.
5.3. Agent Member.
At the date hereof, DEUTSCHE BANK is a participant of the Securities
Depository.
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5.4. Communications.
Except for (i) communications authorized to be made by telephone
pursuant to this Agreement or the Auction Procedures and (ii) communications in
connection with the Auctions (other than those expressly required to be in
writing), all notices, requests and other communications to any party hereunder
shall be in writing (including telecopy or similar writing) and shall be given
to such party at its address or telecopier number set forth below:
If to the Fund,
addressed to:
Xxxxxxx RREEF Real Estate Fund II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:President
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Auction Agent,
addressed to:
Deutsche Bank Trust Company Americas
Corporate Trust and Agency Group
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Rate Securities
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to DEUTSCHE BANK,
addressed to:
Deutsche Bank Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
or such other address or telecopier number as such party hereafter may
specify for such purpose by notice to the other party. Each such notice, request
or communication shall be effective when delivered at the address specified
herein. Communications shall be given on behalf of DEUTSCHE BANK by a DEUTSCHE
BANK Officer and on behalf of the Auction Agent by an Authorized Officer.
DEUTSCHE BANK may record telephone communications with the Auction Agent.
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5.5. Entire Agreement.
This Agreement contains the entire agreement between the parties
relating to the subject matter hereof, and there are no other representations,
endorsements, promises, agreements or understandings, oral, written or implied,
between the parties relating to the subject matter hereof.
5.6. Benefits.
Nothing in this Agreement, express or implied, shall give to any
person, other than the Fund, the Auction Agent and DEUTSCHE BANK and their
respective successors and assigns, any benefit of any legal or equitable right,
remedy or claim under this Agreement.
5.7. Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled 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 to this Agreement to exercise
any right or remedy hereunder in the event of a breach of this Agreement by the
other party shall not constitute a waiver of any such right or remedy with
respect to any subsequent breach.
5.8. Successors and Assigns.
(a) This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the respective successors and permitted
assigns of each of DEUTSCHE BANK and the Auction Agent. This Agreement may not
be assigned by either party hereto absent the prior written consent of the other
party; provided, however, that this Agreement may be assigned by the Auction
Agent to a successor Auction Agent selected by the Fund without the consent of
DEUTSCHE BANK.
5.9. Severability.
If any clause, provision or section of this Agreement 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
remaining clause, provision or section hereof.
5.10. 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.
5.11. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said state.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
XXXXXXX RREEF REAL ESTATE FUND II,
INC.
_______________________________________
By:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS
_______________________________________
By:
Title:
DEUTSCHE BANK SECURITIES INC.
_______________________________________
By:
Title:
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EXHIBIT A
SETTLEMENT PROCEDURES
Capitalized terms used herein have the respective meanings specified in
the Articles Supplementary.
(a) On each Auction Date, the Auction Agent shall notify
by telephone the Broker-Dealers that participated in the Auction held on such
Auction Date and submitted an Order on behalf of an Existing Holder or Potential
Holder of:
(i) the Applicable Rate fixed for the next succeeding
Dividend Period;
(ii) whether Sufficient Clearing Bids existed for the
determination of the Applicable Rate;
(iii) if such Broker-Dealer submitted a Bid or a Sell Order
on behalf of an Existing Holder, whether such Bid or Sell Order was
accepted or rejected, in whole or in part, and the number of shares, if
any, of Preferred Shares then outstanding to be sold by such Existing
Holder;
(iv) if such Broker-Dealer submitted a Bid on behalf of a
Potential Holder, whether such Bid was accepted or rejected, in whole
or in part, and the number of shares, if any, of Preferred Shares to be
purchased by such Potential Holder;
(v) if the aggregate number of shares of Preferred Shares
to be sold by all Existing Holders on whose behalf such Broker-Dealer
submitted Bid or Sell Orders exceeds the aggregate number of shares of
Preferred Shares to be purchased by all Potential Holders on whose
behalf such Broker-Dealer submitted a Bid, the name or names of one or
more other Broker-Dealers (and the Agent member, if any, of each such
other Broker-Dealer) and the number of shares of Preferred Shares to be
(x) purchased from one or more Existing Holders on whose behalf such
other Broker-Dealers submitted Bids or Sell Orders or (y) sold to one
or more Potential Holders on whose behalf such other Broker-Dealers
submitted Bids; and
(vi) the scheduled Auction Date of the next succeeding
Auction.
(b) On each Auction Date, each Broker-Dealer that
submitted an Order on behalf of any Existing Holder or Potential Holder shall:
(i) advise each Existing Holder and Potential Holder on
whose behalf such Broker-Dealer submitted a Bid or Sell Order whether
such Bid or Sell Order was accepted or rejected, in whole or in part;
(ii) instruct each Potential Holder on whose behalf such
Broker-Dealer submitted a Bid that was accepted, in whole or in part,
to instruct such Bidder's Agent Member to pay to such Broker-Dealer (or
its Agent Member) through the Securities
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Depository the amount necessary to purchase the number of shares of
Preferred Shares to be purchased pursuant to such Bid against receipt
of such shares;
(iii) instruct each Existing Holder on whose behalf such
Broker-Dealer submitted a Bid that was accepted, in whole or in part,
or a Sell Order that was accepted, in whole or in part, to instruct
such Bidder's Agent Member to deliver to such Broker-Dealer (or its
Agent Member) through the Securities Depository the number of shares of
Preferred Shares to be sold pursuant to such Bid or Sell Order against
payment therefor;
(iv) advise each Existing Holder on whose behalf such
Broker-Dealer submitted an Order and each Potential Holder on whose
behalf such Broker-Dealer submitted a Bid of the Applicable Rate for
the next succeeding Dividend Period;
(v) advise each Existing Holder on whose behalf such
Broker-Dealer submitted an Order of the Auction Date of the next
succeeding Auction; and
(vi) advise each Potential Holder on whose behalf such
Broker-Dealer submitted a Bid that was accepted, in whole or in part,
of the Auction Date of the next succeeding Auction.
(c) On the basis of the information provided to it
pursuant to paragraph (a) above, each Broker-Dealer that submitted a
Bid or Sell Order shall allocate any funds received by it pursuant to
paragraph (b)(ii) above, and any shares of Preferred Shares received by
it pursuant to paragraph (b)(iii) above, among the Potential Holders,
if any, on whose behalf such Broker-Dealer submitted Bids, the Existing
Holders, if any, on whose behalf such Broker-Dealer submitted Bids or
Sell Orders, and any Broker-Dealers identified to it by the Auction
Agent pursuant to paragraph (a)(v) above.
(d) On the Business Day after the Auction Date, the
Securities Depository shall execute the transactions described above,
debiting and crediting the accounts of the respective Agent Members as
necessary to effect the purchases and sale of shares of Preferred
Shares as determined in the Auction for such series.
(e) Any delivery or nondelivery of shares which shall
represent any departure from the results of an Auction, as determined
by the Auction Agent, shall be of no effect unless and until the
Auction Agent shall have been notified of such delivery or nondelivery
in accordance with the provisions of the Auction Agency Agreement and
the Broker-Dealer Agreement.
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EXHIBIT B
DEUTSCHE BANK TRUST COMPANY AMERICAS
AUCTION BID FORM
Submit To: Issue:
Deutsche Bank Trust Company Americas Auction Preferred Stock
Xxxxxxx RREEF Real Estate Fund II, Inc. Corporate Trust ("Preferred Shares")
and Agency Group
___________________
New York, NY ______
Attention: Auction Rate Securities
Telecopier No.: (201) ___-____
Telephone No.: (201) ___-____
The undersigned Broker-Dealer submits the following Order on
behalf of the Bidder listed below:
Name of Bidder: ______________________
BENEFICIAL OWNER
Shares of Series ___ now held
HOLD ______________________________
BID at rate of _____________________
SELL _______________________________
POTENTIAL BENEFICIAL OWNER
# of shares of Series ___
BID at rate of __________ Notes:
(1) If submitting more than one Bid for one Bidder, use
additional Auction Bid Forms.
(2) If one or more Bids covering in the aggregate more than
the number of outstanding shares held by any Beneficial Owner are submitted,
such bid shall be considered valid in the order of priority set forth in the
Auction Procedures on the above issue.
(3) A Hold or Sell Order may be placed only by a Beneficial
Owner covering a number of shares not greater than the number of shares
currently held.
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(4) Potential Beneficial Owners may make only Bids, each of
which must specify a rate. If more than one Bid is submitted on behalf of any
Potential Beneficial Owner, each Bid submitted shall be a separate Bid with the
rate specified.
(5) Bids may contain no more than three figures to the right
of the decimal point (.001 of 1%). Fractions will not be accepted.
NAME OF BROKER-DEALER ________________________________
Authorized Signature _________________________________
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EXHIBIT C
(Note: To be used only for transfers made other than pursuant to an Auction)
TRANSFER FORM
Re: Xxxxxxx RREEF Real Estate Fund II, Inc.
Auction Preferred Stock ("Preferred Shares")
We are (check one):
[ ] the Existing Holder named below;
[ ] the Broker-Dealer for such Existing Holder; or
[ ] the Agent Member for such Existing Holder.
We hereby notify you that such Beneficial Owner has
transferred shares of Series ___ Preferred Shares to _________________________.
_________________________________
(Name of Existing Holder)
_________________________________
(Name of Broker-Dealer)
_________________________________
(Name of Agent Member)
By:
_________________________________
Printed Name:
Title:
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EXHIBIT D
(Note: To be used only for failures to deliver or to pay for
Preferred Shares sold pursuant to an Auction)
NOTICE OF A FAILURE TO DELIVER
We are a Broker-Dealer for ___________________ (the
"Purchaser"), which purchased ________ shares of Series ___ Preferred Shares of
Xxxxxxx RREEF Real Estate Fund II, Inc. in the Auction held
on ____________________ from the seller of such shares.
We hereby notify you that (check one):
_____ the Seller failed to deliver such shares to the
Purchaser.
_____ the Purchaser failed to make payment to the Seller upon
delivery of such shares.
Name:
__________________________________
(Name of Broker-Dealer)
By:
__________________________________
Printed Name:
Title:
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