EXHIBIT (k)(i)
FORM OF TRANSFER AGENCY, REGISTRAR
AND DIVIDEND DISBURSING AGENCY AGREEMENT
AGREEMENT dated the ___ day of August, 2003, by and between XXXXXXX
RREEF REAL ESTATE FUND II, INC., a Maryland corporation (the "Fund"), and
XXXXXXX INVESTMENT SERVICE COMPANY, a Delaware corporation ("Service Company").
WHEREAS, the Fund wants to appoint Service Company as transfer agent,
dividend disbursing agent, and agent for the dividend reinvestment and cash
purchase plan, and Service Company wants to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Scope of Appointment.
A. Subject to the terms and conditions set forth in this
Agreement, the Fund hereby employs and appoints
Service Company to act as transfer agent for the
Fund's authorized and issued shares of its common
stock ("Shares"), dividend disbursing agent and
dividend reinvestment and cash purchase plan agent,
effective as of the date hereof.
B. Service Company hereby accepts such employment and
appointment and agrees that it will act as the Fund's
transfer agent, dividend disbursing agent, and
dividend reinvestment and cash purchase plan agent.
C. Service Company agrees that it will perform the
following services:
(1) Issue and record the appropriate number of
Shares as authorized and hold such Shares in
the appropriate Shareholder account;
(2) Effect transfers of Shares by the registered
owners thereof upon receipt of appropriate
instructions;
(3) Prepare and transmit payments for dividends
and distributions declared by the Fund;
(4) Act as agent for Shareholders pursuant to
the dividend reinvestment and cash purchase
plan in substantially the form attached as
Exhibit C hereto, as amended from time to
time;
(5) Issue replacement certificates for those
certificates alleged to have been lost,
stolen or destroyed upon receipt by Service
Company of indemnification satisfactory to
Service Company, and, at its option, may
issue replacement certificates in exchange
for, and upon surrender of, mutilated
certificates upon presentation thereof and
without such indemnity.
D. In addition, Service Company agrees that it will
perform all the usual and ordinary services of
transfer agent, dividend disbursing agent and
dividend reinvestment and cash purchase plan agent,
including, without limitation, as applicable, the
following: issuing, transferring and canceling share
certificates, maintaining all shareholder accounts,
preparing shareholder meeting lists, mailing proxies,
receiving and tabulating proxies, mailing shareholder
reports and prospectuses, mailing notices to
shareholders, withholding federal income taxes,
preparing and mailing checks for disbursement of
income and capital gains dividends, preparing and
filing all required U.S. Treasury Department
information returns for all shareholders, preparing
and mailing confirmation forms to shareholders and
dealers with respect to all purchases and
liquidations of Fund shares and other transactions in
shareholder accounts for which confirmations are
required, recording reinvestments of dividends and
distributions in Fund shares, recording repurchases
and redemptions of Fund shares, and preparing and
mailing checks for payments upon repurchase and
redemption and for disbursements to systematic
withdrawal plan shareholders.
E. Service Company agrees to provide the necessary
facilities, equipment and personnel to perform its
duties and obligations hereunder in accordance with
industry practice.
F. The Fund agrees to use all reasonable efforts to
deliver to Service Company in Kansas City, Missouri,
as soon as they are available, all its shareholder
account records.
2. Compensation and Expenses.
A. In consideration for the services provided hereunder
by Service Company, the Fund will pay to Service
Company from time to time the compensation set forth
in a separate schedule to be agreed to by the Fund
and Service Company. The initial agreement regarding
compensation is attached as Exhibit A.
B. The Fund agrees to promptly reimburse Service Company
for all reasonable out-of-pocket expenses or advances
incurred by Service Company in connection with the
performance of services under this Agreement
including, but not limited to, postage (and first
class mail insurance in connection with mailing share
certificates); overnight delivery expenses; paper
stock for reports and statements; stationery; forms,
including tax forms, check forms, and continuous
forms; proxy cards; envelopes; labels; cost of
insertion of materials in mailing envelopes by
outside firms; telephone line expenses incurred in
answering inquiries from brokers, dealers or
shareholders; record retention; database searches
conducted to comply with Lost Shareholder rules; and
proxy solicitations as required by the Fund. Service
Company may, at its option,
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arrange to have various service providers submit
invoices directly to the Fund for payment of
out-of-pocket expenses reimbursable hereunder.
C. Service Company shall be contractually bound
hereunder by the terms of any publicly announced fee
cap or waiver of its fee or by the terms of any
written document provided to the Fund's Board
announcing a fee cap or waiver of its fee, or any
limitation of the Fund's expenses, as if such fee
cap, fee waiver or expense limitation were fully set
forth herein.
3. Representations and Warranties of Service Company. Service
Company represents and warrants to the Fund that:
A. It is a corporation duly organized and existing and
in good standing under the laws of the State of
Delaware.
B. It is duly qualified to carry on its business in the
State of Missouri.
C. It is empowered under applicable laws and by its
Certificate of Incorporation and Bylaws to enter into
and perform the services contemplated in this
Agreement.
D. All requisite corporate action has been taken to
authorize it to enter into and perform this
Agreement.
E. It has and will continue to have and maintain the
necessary facilities, equipment and personnel to
perform its duties and obligations under this
Agreement.
F. It is, and will continue to be, registered as a
transfer agent under the Securities Exchange Act of
1934, and will perform its obligations under this
Agreement in compliance with applicable law.
4. Representations and Warranties of Fund. The Fund represents
and warrants to Service Company that:
A. It is a corporation duly organized and existing and
in good standing under the laws of the State of
Maryland.
B. It is empowered under applicable laws and by its
Articles of Incorporation and By-Laws to enter into
and perform this Agreement.
C. All requisite corporate action has been taken to
authorize it to enter into and perform this
Agreement.
D. It is a closed-end investment company registered
under the Investment Company Act of 1940.
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E. To the extent required by federal securities laws, a
registration statement under the Securities Act of
1933 was made effective, and appropriate state
securities law filings have been made with respect to
all shares of the Fund offered for sale at any time
and from time to time.
5. Efficient Operation of Service Company System. In connection
with the performance of its services under this Agreement,
Service Company is responsible for the accurate and efficient
functioning of its system at all times, including, as
applicable:
(1) The accuracy of the entries in Service
Company's records reflecting purchase and
redemption orders and other instructions
received by Service Company from dealers,
shareholders, the Fund or its principal
underwriter.
(2) The timely availability and the accuracy of
shareholder lists, shareholder account
verifications, confirmations and other
shareholder account information to be
produced from Service Company's records or
data.
(3) The accurate and timely issuance of dividend
and distribution checks in accordance with
instructions received from the Fund.
(4) The accuracy of redemption transactions and
payments in accordance with redemption
instructions received from dealers,
shareholders or the Fund or other authorized
persons.
(5) The deposit daily in the Fund's appropriate
special bank account of all checks and
payments received from dealers or
shareholders for investment in shares.
(6) The requiring of proper forms of
instructions, signatures and signature
guarantees and any necessary documents
supporting the rightfulness of transfers,
redemptions, repurchases and other
shareholder account transactions, all in
conformance with Service Company's present
procedures, with such changes as may be
deemed reasonably appropriate by Service
Company or as may be reasonably approved by
or on behalf of the Fund.
(7) The maintenance of a current duplicate set
of the Fund's essential or required records,
as agreed upon from time to time by the Fund
and Service Company, at a secure distant
location, in form available and usable
forthwith in the event of any breakdown or
disaster disrupting its main operation.
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6. Indemnification.
A. The Fund shall indemnify and hold Service Company
harmless from and against any and all claims,
actions, suits, losses, damages, costs, charges,
counsel fees, payments, expenses and liabilities
arising out of or attributable to any action or
omission by Service Company pursuant to this
Agreement or in connection with the agency
relationship created by this Agreement, provided that
Service Company has acted in good faith, without
negligence and without willful misconduct, and
without breach of any representation or warranty of
Service Company hereunder.
B. Service Company shall indemnify and hold the Fund
harmless from and against any and all claims,
actions, suits, losses, damages, costs, charges,
counsel fees, payments, expenses and liabilities
arising out of or attributable to any action or
omission by Service Company pursuant to this
Agreement or in connection with the agency
relationship created by this Agreement, provided that
the Fund has acted in good faith, without negligence
and without willful misconduct, and without breach of
any representation or warranty of the Fund hereunder.
C. In order that the indemnification provisions
contained in this Section 6 shall apply, upon the
assertion of a claim for which either party (the
"Indemnifying Party") may be required to provide
indemnification hereunder, the party seeking
indemnification (the "Indemnitee") shall promptly
notify the Indemnifying Party of such assertion, and
shall keep such party advised with respect to all
developments concerning such claim. The Indemnifying
Party shall be entitled to assume control of the
defense and the negotiations, if any, regarding
settlement of the claim. If the Indemnifying Party
assumes control, the Indemnitee shall have the option
to participate in the defense and negotiations of
such claim at its own expense. The Indemnitee shall
in no event confess, admit to, compromise, or settle
any claim for which the Indemnifying Party may be
required to indemnify it except with the prior
written consent of the Indemnifying Party, which
shall not be unreasonably withheld.
7. Certain Covenants of Service Company and Fund.
A. The Fund shall promptly furnish to Service Company
the following:
(1) A certified copy of the resolution of the
Board of Directors of the Fund authorizing
the appointment of Service Company as
Transfer Agent, Dividend Disbursing Agent
and Dividend Reinvestment and Cash Purchase
Plan Agent, and the execution of this
Agreement.
(2) A copy of the Articles of Incorporation and
By-Laws of the Fund and all amendments
thereto.
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(3) A copy of the Fund's most recent
Registration Statement filed with the
Securities and Exchange Commission.
(4) Specimens of the signatures of the officers
of the Fund authorized to sign written
instructions and requests on behalf of the
Fund.
B. All requisite steps will be taken by the Fund from
time to time when and as necessary to register the
Fund's shares for sale in all states in which Fund's
shares shall at the time be offered for sale and
require registration. If at any time the Fund
receives notice of any stop order or other proceeding
in any such state affecting such registration or the
sale of the Fund's shares, or of any stop order or
other proceeding under the Federal securities laws
affecting the sale of the Fund's shares, the Fund
will give prompt notice thereof to Service Company.
C. Service Company hereby agrees to establish and
maintain facilities and procedures reasonably
acceptable to the Fund for safekeeping of share
certificates, check forms, and facsimile signature
imprinting devices, if any; and for the preparation
or use, and for keeping account of, such
certificates, forms and devices. Further, Service
Company agrees to carry insurance, as specified in
Exhibit B hereto, with insurers reasonably acceptable
to the Fund and in minimum amounts that are
reasonably acceptable to the Fund, which will not be
changed without the consent of the Fund, which
consent shall not be unreasonably withheld, and which
will be expanded in coverage or increased in amounts
from time to time if and when reasonably requested by
the Fund. If Service Company determines that it is
unable to obtain any such insurance upon commercially
reasonable terms, it shall promptly so advise the
Fund in writing. In such event, the Fund shall have
the right to terminate this Agreement upon 30 days
notice.
D. To the extent required by Section 31 of the
Investment Company Act of 1940 and Rules thereunder,
Service Company agrees that all records maintained by
Service Company relating to the services to be
performed by Service Company under this Agreement are
the property of the Fund and will be preserved and
will be surrendered promptly to the Fund on request.
E. In case of any request or demand for the inspection
of the Shareholder records of the Fund, Service
Company will endeavor to notify the Fund and to
secure instructions from an authorized officer of the
Fund as to such inspection. Service Company reserves
the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its
counsel that it may be held liable for the failure to
exhibit the Shareholder records to such person.
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F. Service Company agrees to furnish the Fund annual
reports of its financial condition, consisting of a
balance sheet, earnings statement and any other
reasonably available financial information reasonably
requested by the Fund. The annual financial
statements will be certified by Service Company's
certified public accountants.
G. Service Company represents and agrees that it will
use all reasonable efforts to keep current on the
trends of the investment company industry relating to
shareholder services and will use all reasonable
efforts to continue to modernize and improve its
system without additional cost to Fund.
H. Service Company will permit the Fund and its
authorized representatives to make periodic
inspections of its operations at reasonable times
during business hours.
I. If Service Company is prevented from complying,
either totally or in part, with any of the terms or
provisions of this Agreement, by reason of fire,
flood, storm, strike, lockout or other labor trouble,
riot, war, rebellion, accidents, acts of God,
equipment, utility or transmission failure or damage,
and/or any other cause or casualty beyond the
reasonable control of Service Company, whether
similar to the foregoing matters or not, then upon
written notice to the Fund, the requirements of this
Agreement that are affected by such disability, to
the extent so affected, shall be suspended during the
period of such disability; provided, however, that
Service Company shall make reasonable effort to
remove such disability as soon as possible. During
such period, the Fund may seek alternate sources of
service without liability hereunder; and Service
Company will use all reasonable efforts to assist the
Fund to obtain alternate sources of service. Service
Company shall have no liability to the Fund for
nonperformance because of the reasons set forth in
this Section 7.I; but if a disability that, in Fund's
reasonable belief, materially affects Service
Company's ability to perform its obligations under
this Agreement continues for a period of 30 days,
then the Fund shall have the right to terminate this
Agreement upon 10 days written notice to Service
Company.
J. Service Company may apply to the Fund for
instructions, and may consult with counsel to the
Fund at the Fund's expense or with its own counsel at
its own expense, with respect to any legal question
arising in connection with the services contemplated
by this Agreement. Service Company may act, or not
act, in reliance upon such instructions or upon the
opinion of counsel and it will not be liable for any
action taken or omitted by it in good faith in
reliance upon such instructions or upon the opinion
of counsel.
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8. Future Amendments of Articles of Incorporation and By-Laws.
Fund will promptly file with Service Company copies of all
material amendments to its Articles of Incorporation and
By-Laws and Registration Statement made after the date of this
Agreement.
9. Instructions, Opinion of Counsel and Signatures. At any time
Service Company may apply to any officer of the Fund for
instructions, and may consult with legal counsel for the Fund
at the expense of the Fund, or with its own legal counsel at
its own expense, with respect to any matter arising in
connection with the agency; and it will not be liable for any
action taken or omitted by it in good faith in reliance upon
such instructions or upon the opinion of such counsel. Service
Company is authorized to act on the orders, directions or
instructions of such persons as the Board of the Fund shall
from time to time designate by resolution. Service Company
will be protected in acting upon any paper or document,
including any orders, directions or instructions, reasonably
believed by it to be genuine and to have been signed by the
proper person or persons; and Service Company will not be held
to have notice of any change of authority of any person so
authorized by the Fund until receipt of written notice thereof
from the Fund. Service Company will also be protected in
recognizing share certificates that it reasonably believes to
bear the proper manual or facsimile signatures of the officers
of the Fund, and the proper countersignature of any former
Transfer Agent or Registrar, or of a Co-Transfer Agent or
Co-Registrar.
10. Records. Service Company will maintain customary records in
connection with its agency, and particularly will maintain
those records required to be maintained pursuant to
sub-paragraph (2)(iv) of paragraph (b) of Rule 31a-1 under the
Investment Company Act of 1940, if any.
11. Disposition of Books, Records and Cancelled Certificates.
Service Company will send periodically to the Fund, or to
where designated by the Secretary or an Assistant Secretary of
the Fund, all books, documents, and all records no longer
deemed needed for current purposes and share certificates
which have been cancelled in transfer or in exchange, upon the
understanding that such books, documents, records, and share
certificates will not be destroyed by the Fund without the
consent of Service Company (which consent will not be
unreasonably withheld), but will be safely stored for possible
future reference.
12. Provisions Relating to Dividend Disbursing Agency.
A. Service Company will, at the expense of the Fund,
provide a special form of check containing the
imprint of any device or other matter desired by the
Fund. Said checks must, however, be of a form and
size convenient for use by Service Company.
B. If the Fund wants to include additional printed
matter, financial statements, etc., with the dividend
checks, the same will be furnished to
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Service Company within a reasonable time prior to the
date of mailing of the dividend checks, at the
expense of the Fund.
C. If the Fund wants its distributions mailed in any
special form of envelopes, sufficient supply of the
same will be furnished to Service Company but the
size and form of said envelopes will be subject to
the approval of Service Company. If stamped envelopes
are used, they must be furnished by Fund; or, if
postage stamps are to be affixed to the envelopes,
the stamps or the cash necessary for such stamps must
be furnished by the Fund.
D. Service Company will maintain one or more deposit
accounts as Agent for Fund, into which the funds for
payment of dividends, distributions, redemptions or
other disbursements provided for hereunder will be
deposited, and against which checks will be drawn.
13. Termination of Agreement.
A. This Agreement may be terminated by either party upon
sixty (60) days prior written notice to the other
party.
B. The Fund, in addition to any other rights and
remedies, shall have the right to terminate this
Agreement forthwith upon the occurrence at any time
of any of the following events:
(1) Any interruption or cessation of operations
by Service Company or its assigns which
materially interferes with the business
operation of Fund.
(2) The bankruptcy of Service Company or its
assigns or the appointment of a receiver for
Service Company or its assigns.
(3) Any merger, consolidation or sale of
substantially all the assets of Service
Company or its assigns.
(4) The acquisition of a controlling interest in
Service Company or its assigns, by any
broker, dealer, investment adviser or
investment company except as may presently
exist.
(5) Failure by Service Company or its assigns to
perform its duties in accordance with this
Agreement, which failure materially
adversely affects the business operations of
Fund and which failure continues for thirty
(30) days after written notice from the
Fund.
(6) The registration of Service Company or its
assigns as a transfer agent under the
Securities Exchange Act of 1934 is revoked,
terminated or suspended for any reason.
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C. In the event of termination, the Fund will promptly
pay Service Company all amounts due to Service
Company hereunder. Upon termination of this
Agreement, Service Company shall deliver all
shareholder and account records pertaining to the
Fund either to the Fund or as directed in writing by
the Fund.
14. Assignment.
A. Neither this Agreement nor any rights or obligations
hereunder may be assigned by Service Company without
the written consent of the Fund; provided, however,
no assignment will relieve Service Company of any of
its obligations hereunder.
B. This Agreement including, without limitation, the
provisions of Section 6 will inure to the benefit of
and be binding upon the parties and their respective
successors and assigns.
C. Service Company is authorized by the Fund to use the
system services of DST Systems, Inc. and the system
and other services, including data entry, of
Administrative Management Group, Inc.
15. Confidentiality.
A. Except as otherwise required by law, Service Company
will keep confidential all records of and information
in its possession relating to the Fund or its
shareholders or shareholder accounts and will not
disclose the same to any person except at the request
or with the consent of the Fund.
B. Except as otherwise required by law, the Fund will
keep confidential all financial statements and other
financial records (other than statements and records
relating solely to the Fund's business dealings with
Service Company) and all manuals, systems and other
technical information and data, not publicly
disclosed, relating to Service Company's operations
and programs furnished to it by Service Company
pursuant to this Agreement and will not disclose the
same to any person except at the request or with the
consent of Service Company. Notwithstanding anything
to the contrary in this Section, if an attempt is
made pursuant to subpoena or other legal process to
require the Fund to disclose or produce any of the
aforementioned manuals, systems or other technical
information and data, Fund shall give Service Company
prompt notice thereof prior to disclosure or
production so that Service Company may, at its
expense, resist such attempt.
16. Survival of Representations and Warranties. All
representations and warranties by either party herein
contained will survive the execution and delivery of this
Agreement.
17. Miscellaneous.
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A. This Agreement is executed and delivered in the State
of New York and shall be governed by the laws of said
state.
B. No provisions of this Agreement may be amended or
modified in any manner except by a written agreement
properly authorized and executed by both parties
hereto.
C. The captions in this Agreement are included for
convenience of reference only, and in no way define
or limit any of the provisions hereof or otherwise
affect their construction or effect.
D. This Agreement shall become effective as of the date
hereof.
E. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed
an original but all of which together shall
constitute one and the same instrument.
F. If any part, term or provision of this Agreement is
held by the courts to be illegal, in conflict with
any law or otherwise invalid, the remaining portion
or portions shall be considered severable and not be
affected, and the rights and obligations of the
parties shall be construed and enforced as if the
Agreement did not contain the particular part, term
or provision held to be illegal or invalid.
G. This Agreement, together with the Exhibits, is the
entire contract between the parties relating to the
subject matter hereof and supersedes all prior
agreements between the parties.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officer as of the day and year
first set forth above.
XXXXXXX RREEF REAL ESTATE FUND II, INC.
By: ____________________________________
Name:
Title:
XXXXXXX INVESTMENT SERVICE COMPANY
By: ____________________________________
Name:
Title:
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EXHIBIT A
FEE SCHEDULE
- Minimum annual fee of $16,200
- If Fund exceeds the minimum annual fee, an annual per account charge, as
follows:
$7.50 per open account
$2.50 per closed account
Out-of-pocket expenses will be reimbursed by the Fund in accordance with
paragraph 2.B of this Agreement.
Items not included in the services and fees set forth in this Agreement,
including, but not limited to, services associated with stock splits, rights
offerings, or other special projects, will be billed separately after a review
of the requirements and scope of the services to be provided.
The term of this fee schedule is for a period of three years, commencing from
the effective date of the Agency Agreement.
EXHIBIT B
INSURANCE COVERAGE
DESCRIPTION OF POLICY:
BROKERS BLANKET BOND, STANDARD FORM 14
Covering losses caused by dishonesty of employees, physical loss of securities
on or outside of premises while in possession of authorized person, loss caused
by forgery or alteration of checks or similar instruments.
ERRORS AND OMISSIONS INSURANCE
Covering replacement of destroyed records and computer errors and omissions.
SPECIAL FORGERY BOND
Covering losses through forgery or alteration of checks or drafts of customers
processed by insured but drawn on or against them.
MAIL INSURANCE (APPLIES TO ALL FULL SERVICE OPERATIONS)
Provides indemnity for the following types of securities lost in the mails:
- Non-negotiable securities mailed to domestic locations via registered mail.
- Non-negotiable securities mailed to domestic locations via first-class or
certified mail.
- Non-negotiable securities mailed to foreign locations via registered mail.
- Negotiable securities mailed to all locations via registered mail.
