SHAREHOLDER SERVICING AGREEMENT
SHAREHOLDER SERVICING AGREEMENT (the "Agreement"), dated as of August
26, 2003, between Deutsche Asset Management, Inc. (the "Investment Manager")
and UBS Securities LLC ("UBS Securities").
WHEREAS, Xxxxxxx RREEF Real Estate Fund II, Inc. (the "Fund") is a
closed-end, non-diversified management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), and its shares of
common stock are registered under the Securities Act of 1933, as amended; and
WHEREAS, the Investment Manager is the investment manager of the Fund
pursuant to an Investment Management Agreement (the "Investment Management
Agreement") dated as of an even date of this Agreement; and
WHEREAS, the Investment Manager desires to retain UBS Securities to
provide shareholder servicing and market information with respect to the Fund,
and UBS Securities is willing to render such services;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth below, the parties hereto agree as follows:
1. The Investment Manager hereby employs UBS Securities, for the period and on
the terms and conditions set forth herein, to provide the following services
(the "Services"):
(a) At the request of and as specified by the Investment Manager,
undertake to make available public information pertaining to the Fund on an
ongoing basis and to communicate to investors and prospective investors the
Fund's features and benefits (including periodic seminars or conference calls,
responses to questions from current or prospective shareholders and specific
shareholder contact where appropriate), provided that Services shall not include
customary market research information provided by UBS Securities or its
registered broker-dealer affiliates in the ordinary course of their business.
(b) At the request of and as specified by the Investment Manager,
make available to investors and prospective investors market price, net asset
value, yield and other information regarding the Fund (provided that Services
shall not include customary market research information provided by UBS
Securities or its registered broker-dealer affiliates in the ordinary course of
their business), if reasonably obtainable, for the purpose of maintaining the
visibility of the Fund in the investor community.
(c) At the request of the Investment Manager or the Fund, provide
certain economic research and statistical information and reports, if reasonably
obtainable, on behalf of the Investment Manager or the Fund and consult with
representatives of the Investment Manager and/or Directors of the Fund in
connection therewith, which information and reports
shall include: (i) statistical and financial market information with respect to
the Fund's market performance; and (ii) comparative information regarding the
Fund and other closed-end management investment companies with respect to (x)
the net asset value of their respective shares, (y) the respective market
performance of the Fund and such other companies, and (z) other relevant
performance indicators.
(d) At the request of the Investment Manager or the Fund, provide
information to and consult with the Investment Manager and/or the Board of
Directors of the Fund with respect to applicable strategies designed to address
market value discounts, which may include share repurchases, tender offers,
modifications to dividend policies or capital structure, repositioning or
restructuring of the Fund, conversion of the Fund to an open-end investment
company, liquidation or merger; including providing information concerning the
use and impact of the above strategic alternatives by other market participants.
(e) At the request of the Investment Manager or the Fund, UBS
Securities shall limit or cease any action or service provided hereunder to the
extent and for the time period requested by the Investment Manager or the Fund;
provided, however, that pending termination of this Agreement as provided for in
Section 5 hereof, any such limitation or cessation shall not relieve the
Investment Manager of its payment obligations pursuant to Section 2 hereof.
(f) UBS Securities will promptly notify the Investment Manager or
the Fund, as the case may be, if it learns of any material inaccuracy or
misstatement in, or material omission from, any written information provided by
UBS Securities to the Investment Manager or the Fund in connection with the
performance of Services by UBS Securities under this Agreement. UBS Securities
acknowledges that in performing the Services under this Agreement, it will
comply in all material respects with all applicable laws, rules and regulations.
2. The Investment Manager will pay UBS Securities a fee computed weekly and
payable quarterly at an annualized rate of 0.10% of the average daily total
managed assets of the Fund (including assets attributable to any preferred
shares or other financial leverage of the Fund that may be outstanding).
3. The Investment Manager acknowledges that the Services of UBS Securities
provided for hereunder do not include any advice as to the value of securities
or regarding the advisability of purchasing or selling any securities for the
Fund's portfolio. No provision of this Agreement shall be considered as
creating, nor shall any provision create, any obligation on the part of UBS
Securities, and UBS Securities is not hereby agreeing, to: (i) furnish any
advice or make any recommendations regarding the purchase or sale of portfolio
securities or (ii) render any opinions, valuations or recommendations of any
kind or to perform any such similar services in connection with providing the
Services described in Section 1 hereof, it being understood between the parties
hereto that any such advice, recommendations or such similar activities if, and
to the extent, agreed to be performed by UBS Securities shall be the subject of
a separate agreement with the Investment Manager, including, but not limited to,
separate agreements with respect to any indemnification of UBS Securities.
4. Nothing herein shall be construed as prohibiting UBS Securities or its
affiliates from providing similar or other services to any other clients
(including other registered investment companies or other investment managers),
so long as Services provided by UBS Securities to the Investment Manager and the
Fund are not impaired thereby. Neither this Agreement nor the performance of the
Services hereunder shall be considered to constitute a partnership, association
or joint venture between UBS Securities and the Investment Manager. In addition,
nothing in this Agreement shall be construed to constitute UBS Securities as the
agent or employee of the Investment Manager or the Investment Manager as the
agent or employee of UBS Securities, and neither party shall make any
representation to the contrary.
5. This Agreement shall continue coterminously with and so long as the
Investment Management Agreement, dated August , 2003, remains in effect between
the Fund and the Investment Manager, or any similar investment management
agreement with a successor in interest or affiliate of the Investment Manager
remains in effect, as, and to the extent, that such investment management
agreement is renewed periodically in accordance with the 1940 Act. This
Agreement may not be assigned, except by operation of law or in connection with
the sale of all or substantially all of the assets or of the equity securities
of one of the parties hereto, without the other party's prior consent.
6. The Investment Manager will furnish UBS Securities with such information as
UBS Securities believes appropriate to its assignment hereunder (all such
information so furnished being the "Information"). The Investment Manager
recognizes and confirms that UBS Securities (a) will use and rely primarily on
the Information and on information available from generally recognized public
sources in performing the Services contemplated by this Agreement without having
independently verified the same and (b) does not assume responsibility for the
accuracy or completeness of the Information and such other information. To the
best of the Investment Manager's knowledge, the Information to be furnished by
the Investment Manager when delivered, will be true and correct in all material
respects and will not contain any material misstatement of fact or omit to state
any material fact necessary to make the statements contained therein not
misleading. The Investment Manager will promptly notify UBS Securities if it
learns of any material inaccuracy or misstatement in, or material omission from,
any Information delivered to UBS Securities. UBS Securities acknowledges that
certain of the Information provided by the Investment Manager may be proprietary
to the Investment Manager and hereby agrees that it will not disclose (other
than as may be required by applicable law or regulatory proceeding) to any third
party any Information provided to UBS Securities by the Investment Manager and
specifically identified in writing by the Investment Manager, prior to or at the
time of its delivery, as confidential or proprietary.
7. It is understood that UBS Securities is being engaged hereunder solely to
provide the Services described above to the Investment Manager and to the Fund
and that UBS Securities is not acting as an agent or fiduciary of, and shall
have no duties or liability to the current or future shareholders of the Fund or
any other third party in connection with its engagement hereunder, all of which
are hereby expressly waived.
8. The Investment Manager agrees that UBS Securities shall have no liability to
the Investment Manager or the Fund for any act or omission to act by UBS
Securities in the course of its performance under this Agreement, in the absence
of gross negligence, bad faith or willful misconduct on the part of UBS
Securities. The Investment Manager agrees to the indemnification and other
agreements set forth in the Indemnification Agreement attached hereto, the
provisions of which are incorporated herein by reference and shall survive the
termination, expiration or supersession of this Agreement.
9. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK FOR CONTRACTS TO BE PERFORMED ENTIRELY THEREIN AND WITHOUT REGARD TO
THE CHOICE OF LAW PRINCIPLES THEREOF.
10. EACH OF THE INVESTMENT MANAGER AND UBS SECURITIES AGREE THAT ANY ACTION OR
PROCEEDING BASED HEREON, OR ARISING OUT OF UBS SECURITIES'S ENGAGEMENT
HEREUNDER, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN XXX XXXXXX XX XXX
XXXXX XX XXX XXXX LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE INVESTMENT
MANAGER AND UBS SECURITIES EACH HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK
AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
FOR THE PURPOSE OF ANY SUCH ACTION OR PROCEEDING AS SET FORTH ABOVE AND
IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH ACTION OR PROCEEDING. EACH OF THE INVESTMENT MANAGER AND UBS
SECURITIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
11. The Investment Manager and UBS Securities each hereby irrevocably waive any
right they may have to a trial by jury in respect of any claim based upon or
arising out of this Agreement or the transactions contemplated hereby.
12. This Agreement (including the attached Indemnification Agreement) embodies
the entire agreement and understanding between the parties hereto and supersedes
all prior agreements and understandings relating to the subject matter hereof.
If any provision of this Agreement is determined to be invalid or unenforceable
in any respect, such determination will not affect such provision in any other
respect or any other provision of this Agreement, which will remain in full
force and effect. This Agreement may not be amended or otherwise modified or
waived except by an instrument in writing signed by both UBS Securities and the
Investment Manager.
13. All notices required or permitted to be sent under this Agreement shall be
sent, if to the Investment Manager:
Deutsche Asset Management, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Legal Officer
or if to UBS Securities:
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Legal Officer
or such other name or address as may be given in writing to the other parties.
Any notice shall be deemed to be given or received on the third day after
deposit in the U.S. mail with certified postage prepaid or when actually
received, whether by hand, express delivery service or facsimile transmission,
whichever is earlier.
14. This Agreement may be exercised on separate counterparts, each of which is
deemed to be an original and all of which taken together constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Shareholder Servicing Agreement as of the date first above written.
DEUTSCHE ASSET MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
UBS SECURITIES LLC
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
By: /s/ Xxxx X. Reit
-----------------------------
Name: Xxxx X. Reit
Title: Executive Director
UBS SECURITIES LLC INDEMNIFICATION AGREEMENT
August 26, 2003
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
In connection with the engagement of UBS Securities LLC ("UBS
Securities") to provide the Services to the undersigned (the "Company") with the
matters set forth in the Shareholder Servicing Agreement dated August , 2003
between the Company and UBS Securities (the "Agreement"), in the event that UBS
Securities becomes involved in any capacity in any claim, suit, action,
proceeding, investigation or inquiry (including, without limitation, any
shareholder or derivative action or arbitration proceeding) (collectively, a
"Proceeding") in connection with or arising out of the Agreement or the Services
to be provided thereunder, the Company agrees to indemnify, defend and hold UBS
Securities harmless to the fullest extent permitted by law, from and against any
losses, claims, damages, liabilities and expenses in connection with or arising
out of the Agreement or the Services to be provided thereunder (a "Covered
Claim"), except to the extent that it shall be determined by a court of
competent jurisdiction in a judgment that has become final in that it is no
longer subject to appeal or other review, that such losses, claims, damages,
liabilities and expenses resulted solely from the gross negligence, bad faith or
willful misconduct of UBS Securities. In addition, in the event that UBS
Securities becomes involved in any capacity in any Proceeding which relates to a
Covered Claim, the Company will reimburse UBS Securities for its legal and other
expenses (including the reasonable cost of any investigation and preparation) as
such expenses are incurred by UBS Securities in connection therewith. If such
indemnification were not to be available for any reason, the Company agrees to
contribute to the losses, claims, damages, liabilities and expenses involved (i)
in the proportion appropriate to reflect the relative benefits received or
sought to be received by the Company and its stockholders, on the one hand, and
UBS Securities, on the other hand, in the matters contemplated by the Agreement
or (ii) if (but only if and to the extent) the allocation provided for in clause
(i) is for any reason held unenforceable, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company and its stockholders, on the one hand, and the
party entitled to contribution, on the other hand, as well as any other relevant
equitable considerations; provided, that in no event shall the Company
contribute less than the amount necessary to assure that UBS Securities is not
liable for losses, claims, damages, liabilities and expenses in excess of the
amount of fees actually received by UBS Securities pursuant to the Agreement.
Relative fault shall be determined by reference to, among other things, whether
any alleged untrue statement or omission or any other alleged conduct relates to
information provided by the Company or other conduct by the Company (or its
employees or other agents), on the one hand, or by UBS Securities, on the other
hand. The Company will not settle any Proceeding in respect of which indemnity
may be sought hereunder, whether or not UBS Securities is an actual or potential
party to such Proceeding, without UBS Securities's prior written consent. For
purposes of this
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Indemnification Agreement, UBS Securities shall include UBS Securities LLC, any
of its affiliates, each other person, if any, controlling UBS Securities or any
of its affiliates, their respective officers, current and former directors,
employees and agents, and the successors and assigns of all of the foregoing
persons. The foregoing indemnity and contribution agreement shall be in addition
to any rights that any indemnified party may have at common law or otherwise.
If any Proceeding is brought against UBS Securities in respect of which
indemnity may be sought against the Company pursuant to the foregoing paragraph,
UBS Securities shall promptly notify the Company in writing of the institution
of such Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to UBS Securities
and payment of all fees and expenses; provided, however, that the omission to so
notify the Company shall not relieve the Company from any liability which the
Company may have to UBS Securities or otherwise, unless and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the Company. UBS Securities shall have the right to employ its own counsel in
any such case, but the fees and expenses of such counsel shall be at the expense
of UBS Securities unless the employment of such counsel shall have been
authorized in writing by the Company in connection with the defense of such
Proceeding or the Company shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to have charge of the defense of
such Proceeding or UBS Securities shall have reasonably concluded that there may
be defenses available to it which are different from, additional to or in
conflict with those available to the Company (in which case the Company shall
not have the right to direct the defense of such Proceeding on behalf of UBS
Securities), in any of which events such fees and expenses shall be borne by the
Company and paid as incurred (it being understood, however, that the Company
shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction). The Company shall not be liable for any
settlement of any Proceeding effected without its written consent but if settled
with the written consent of the Company, the Company agrees to indemnify and
hold harmless UBS Securities from and against any loss or liability by reason of
such settlement. Notwithstanding the foregoing sentence, if at any time UBS
Securities shall have requested the Company to reimburse UBS Securities for fees
and expenses of counsel as contemplated by the second sentence of this
paragraph, then the Company agrees that it shall be liable for any settlement of
any Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by the Company of the
aforesaid request, (ii) the Company shall not have reimbursed UBS Securities in
accordance with such request prior to the date of such settlement and (iii) UBS
Securities shall have given the Company at least 30 days' prior notice of its
intention to settle. The Company shall not, without its prior written consent,
effect any settlement of any pending or threatened Proceeding in respect of
which UBS Securities is or could have been a party and indemnity could have been
sought hereunder by UBS Securities, unless such settlement includes an
unconditional release of UBS Securities from all liability on claims that are
the subject matter of such Proceeding and does not include an admission of
fault, culpability or a failure to act, by or on behalf of UBS Securities.
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The Company agrees that neither UBS Securities nor any of its
affiliates, directors, agents, employees or controlling persons shall have any
liability to the Company or any person asserting claims on behalf of or in right
of the Company in connection with or as a result of a Covered Claim, except to
the extent that it shall be determined by a court of competent jurisdiction in a
judgment that has become final in that it is no longer subject to appeal or
other review that any losses, claims, damages, liabilities or expenses incurred
by the Company resulted solely from the gross negligence, bad faith or willful
misconduct of UBS Securities in performing the Services.
THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE
OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS
AGREEMENT ("CLAIM"), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW,
NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE
COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH
COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS,
AND THE COMPANY AND UBS SECURITIES CONSENT TO THE JURISDICTION OF SUCH COURTS
AND PERSONAL SERVICE WITH RESPECT THERETO. THE COMPANY HEREBY CONSENTS TO
PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING
OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY AND THIRD PARTY
AGAINST UBS SECURITIES OR ANY INDEMNIFIED PARTY. EACH OF UBS SECURITIES AND THE
COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO
THIS AGREEMENT. THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR
CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY
SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE COMPANY AND MAY BE ENFORCED
IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE COMPANY IS OR MAY BE
SUBJECT, BY SUIT UPON SUCH JUDGMENT.
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The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of UBS Securities's engagement. This
Indemnification Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same agreement.
Very truly yours,
DEUTSCHE ASSET MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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Accepted and agreed to as of
the date first above written:
UBS SECURITIES LLC
By /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
By /s/ Xxxx X. Reit
-------------------------------
Name: Xxxx X. Reit
Title: Executive Director
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