Exhibit k.4
ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made as of the 25/th/ day of November, 2002, by and between
CDC IXIS Asset Management Services, Inc., a Massachusetts corporation ("CIS"),
and AEW Real Estate Income Fund (the "Trust").
WITNESSETH:
WHEREAS, the Trust is registered as a closed-end management investment
company under the Securities Act of 1933 and the Investment Company Act of 1940,
as amended (the "1940 Act"); and
WHEREAS, the Trust desires to employ CIS to provide certain
administrative services to the Trust in the manner and on the terms set forth in
this Agreement, and CIS wishes to perform such services;
NOW, THEREFORE, in consideration of the premises and covenants
hereinafter contained, the parties hereby agree as follows:
1. Appointment and Acceptance. The Trust hereby employs CIS to act as
Administrator of the Trust on the terms set forth in this agreement. CIS hereby
accepts such employment and agrees to furnish the services and to assume the
obligations herein set forth for the compensation herein provided. The Trust
will initially consist of classes of shares listed on Schedule A to this
Agreement. In the event that the Trust establishes additional classes of shares
with respect to which such Trust wishes to employ CIS to act as Administrator
hereunder, the Trust shall notify CIS in writing. Upon written acceptance by
CIS, such classes of shares shall become subject to the provisions of this
Agreement to the same extent as the existing classes of shares, except to the
extent that such provisions (including those relating to the compensation and
expenses payable by the Trust) may be modified with respect to each additional
class in writing by the Trust and CIS at the time of the addition of the class.
2. Services Provided by CIS.
(a) CIS shall perform or arrange for the performance of the various
administrative and clerical services listed in Schedule B hereto. The
administrative services provided hereunder shall be subject to the
control, supervision and direction of the Trust and the review and
comment by the Trust's auditors and legal counsel and shall be
performed in accordance with procedures that may be established from
time to time between the Trust and CIS. CIS shall provide the office
space, facilities, equipment and the personnel required by it to
perform the services contemplated herein.
(b) In providing any or all of the services listed in Schedule B hereto,
and in satisfaction of its obligations to provide such services, CIS
may enter into agreements with one or more other third parties to
provide such services to the Trust; provided, however, that CIS shall
be as fully responsible to the Trust for the acts and omissions of any
such third party service providers as it would be for its own acts or
omissions hereunder.
3. Compensation and Expenses.
(a) For the services provided by CIS hereunder, the Trust shall pay CIS the
greater of the following:
(1) an annual minimum fee payable in equal monthly installments equal
to $150,000; or
(2) a monthly fee (accrued daily) based on the Trust's average daily
managed assets during the calendar month, such fee being calculated at
the annualized rates set forth below:
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Average Daily Managed Assets Annualized Fee Rate
As a % of Average Daily Managed
Assets
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$0 - $300 million 0.0600%
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Over $300 million 0.0575%
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(b) In addition, the Trust shall reimburse CIS for its reasonable
out-of-pocket expenses as well as any other advances incurred by CIS
with the consent of the Trust with respect to its provision of services
hereunder.
(c) For any period less than a full calendar month, any fees payable to CIS
for such period shall be pro-rated for such lesser period. All of the
foregoing fees and expenses will be billed monthly in arrears by CIS.
The Trust shall pay such fees and reimburse such expenses promptly upon
receipt of an invoice therefor and, in no event, later than five (5)
business days after receipt of the invoice.
(d) The Trust agrees promptly to reimburse CIS for any equipment and
supplies specially ordered by or for the Trust through CIS at the
request or with the consent of the Trust, and for any other expenses
not contemplated by this Agreement that CIS may incur on behalf of, at
the request of, or with the consent of the Trust.
(e) The Trust will bear all expenses that are incurred in its operation and
not specifically assumed by CIS. Expenses to be borne by the Trust,
include, but are not limited to: organizational expenses; cost of
services of independent accountants and outside legal and tax counsel
(including such counsel's review of the Trust's registration statement,
proxy materials, stock exchange listing, federal and state tax
qualification as a regulated investment company and other reports and
materials prepared by CIS under this Agreement); cost of any services
contracted for by the Trust directly from parties other than CIS; cost
of brokerage fees, commissions and transfer taxes in connection with
the purchase and sale of securities for the Trust; investment advisory
fees; taxes, insurance premiums and other fees and expenses applicable
to its operation; costs incidental to any meetings of shareholders
including, but not limited to, legal and accounting fees, proxy filing
fees and the costs of preparation, printing and mailing of any proxy
materials; costs incidental to Board meetings, including fees and
expenses of Board members; the salary and expenses of any
non-affiliated officer or director/trustee or any employee of the
Trust; costs incidental to the preparation, printing and distribution
of the Trust's registration statements and any amendments thereto and
shareholder reports; cost of typesetting and printing of prospectuses;
cost of preparation and filing of the Trust's tax returns, Form N-2,
Form N-SAR and other applicable
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SEC-required forms, and all notices, registrations and amendments
associated with applicable federal and state tax and securities laws;
all applicable registration fees and filing fees required under federal
and state securities laws; costs and fees associated with the Trusts
listing on any stock exchange; fidelity bond and directors' and
officers' liability insurance; and cost of independent pricing services
used in computing the Trust's net asset value.
4. Limitation of Liability; Indemnification.
(a) CIS shall not be liable to the Trust for any error of judgment or
mistake of law or for any loss arising out of any act or omission by
CIS, or any persons engaged pursuant to Section 2(b) hereof, including
officers, agents, and employees of CIS and its affiliates, in the
performance of its duties hereunder; provided, however, that nothing
contained herein shall be construed to protect CIS against any
liability to the Trust, or the shareholders to which CIS shall
otherwise be subject by reason of its willful misfeasance, bad faith,
or negligence in the performance of its duties or the reckless
disregard of its obligations and duties hereunder.
(b) CIS will indemnify and hold harmless the Trust, their officers,
employees, and agents and any persons who control the Trust (the "Trust
Indemnified Parties") and hold each of them harmless from any losses,
claims, damages, liabilities, or actions in respect thereof to which
the Trust Indemnified Parties may become subject, including amounts
paid in settlement with the prior written consent of CIS, insofar as
such losses, claims, damages, liabilities, or actions in respect
thereof arise out of or result from the failure of CIS to comply with
the terms of this Agreement.
CIS will reimburse the Trust for reasonable legal or other expenses
reasonably incurred by the Trust in connection with investigating or
defending against any such loss, claim, damage, liability, or action.
CIS shall not be liable to the Trust for any action taken or omitted by
the Trust in bad faith or with willful misfeasance or negligence or
with reckless disregard by the Trust of their respective obligations
and duties hereunder. The indemnities herein shall, upon the same terms
and conditions, extend to and inure to the benefit of each of the
officers of the Trust and any person controlling the Trust.
(c) The obligations set forth in this Section 4 shall survive the
termination of this Agreement.
5. Activities of CIS Not Exclusive; Dual Interests.
(a) The services of CIS under this Agreement are not to be deemed
exclusive, and CIS and any person controlled by or under common control
with CIS shall be free to render similar services to others.
(b) It is understood that any of the officers, employees, and agents of the
Trust may be a shareholder, director, officer, employee, or agent of,
or be otherwise interested in, CIS, any affiliated person of CIS, any
organization in which CIS may have an interest, or any organization
that may have an interest in the Trust. Except as otherwise provided by
specific provisions of applicable law, the existence of any such dual
interest shall not affect the validity of this Agreement or any of the
transactions hereunder.
6. Representations and Warranties.
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(a) The Trust represents and warrants to CIS that this Agreement has been
duly authorized and, when executed and delivered, will constitute a
legal, valid, and binding obligation of the Trust, enforceable against
the Trust in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, and other laws of general
application affecting the rights and remedies of creditors and secured
parties.
(b) CIS represents and warrants to the Trust that this Agreement has been
duly authorized by CIS and, when executed and delivered by CIS, will
constitute a legal, valid, and binding obligation of CIS, enforceable
against CIS in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, and other laws of general
application affecting the rights and remedies of creditors and secured
parties.
7. Duration and Termination of this Agreement.
(a) This Agreement shall become effective as of the date first above
written and, unless otherwise terminated, shall continue indefinitely;
provided, however, that this Agreement may be terminated at any time
without the payment of any penalty by either party on not less than
sixty (60) days' written notice to the other party.
(b) This Agreement shall automatically terminate for the Trust in the
attached Schedule A upon the termination of the Trust's Investment
Management Agreement.
(c) Unless otherwise terminated, this Agreement shall continue in effect
for one year from the date of execution, and from year to year
thereafter so long as such continuance is specifically approved at
least annually by the Board of Trustees of the Trust.
(d) CIS hereby agrees that any books and records prepared hereunder with
respect to the Trust are the property of the Trust and shall be readily
accessible to the Trust and their respective trustees, officers and
agents during normal business hours. CIS further agrees that, upon the
termination of this Agreement or otherwise upon request, CIS will
surrender promptly to the Trust copies of all such books and records.
8. Amendments and Waivers. This Agreement may be amended by the parties
hereto only if such amendment is specifically approved by the Trust's Board of
Trustees, and such amendment is set forth in a written instrument executed by
each of the parties hereto. At any time, any of the provisions hereof may be
waived by the written mutual consent of the parties hereto.
9. Notices. All notices or other communications hereunder to either party
shall be in writing and shall be deemed to be received on the earlier of the
date actually received or on the fourth day after the postmark if such notice is
mailed first class postage prepaid. Notices shall be sent to the addresses set
forth below or to such other address as either party may designate by written
notice to the other.
If to CIS:
CDC IXIS Asset Management Services, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
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Attention: President
With a copy to: General Counsel
If to the Trust:
AEW Real Estate Income Fund
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: President
With a copy to: Secretary
Notice shall also be deemed sufficient if given electronically or by telex,
telecopier, telegram, or other similar means of same day delivery (with a
confirming copy by mail as provided herein).
10. Additional Provisions
(a) Entire Agreement. This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes any prior
arrangements, agreements, or understandings.
(b) Severability. If any term or provision of this Agreement or the application
thereof to any person or circumstance is held to be invalid or
unenforceable to any extent, the remainder of this Agreement or the
application of such provision to other persons or circumstances shall not
be affected thereby and shall be enforced to the fullest extent permitted
by law.
(c) Governing Law. The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of The Commonwealth of
Massachusetts as then in effect.
(d) Counterparts. This Agreement may be executed by the parties hereto in one
or more counterparts, and, if so executed, the separate instruments shall
constitute one agreement.
(e) Headings. Headings used in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
CDC IXIS ASSET MANAGEMENT SERVICES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxx
Title: President & Chief Executive Officer
AEW REAL ESTATE INCOME FUND
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: President
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Schedule A
Trust
AEW REAL ESTATE INCOME FUND
Common Shares, $0.00001 par value
Auction Market Preferred Shares
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Schedule B
Description of Services Provided
CIS shall perform or arrange for the performance of the following administration
and clerical services:
Corporate Secretarial Services
1. provide Secretary and Assistant Secretaries for the Trust and other
officers as requested;
2. maintain general corporate calendar, tracking all legal and
regulatory compliance through annual cycles;
3. prepare Board materials for quarterly Board meetings and Board
committee meetings, including agenda and background materials for
annual review of advisory fees, presentation of issues to the
Board, prepare minutes and follow-up on matters raised at meetings;
4. maintain charter documents for the Trust;
5. prepare organizational Board meeting materials for the Trust and
any new share classes;
6. draft contracts, assisting in negotiation and planning, as
appropriate, for example advisory agreements, underwriting and
placement agreements, transfer agency and custodian agreements, and
various other agreements and amendments;
7. prepare and file proxy solicitation materials for annual or special
meeting of shareholders, oversee solicitation and tabulation
efforts, conduct annual and special shareholder meetings and
provide legal presence at meetings;
Registration and Disclosure Assistance Services
8. prepare and file any necessary amendments to the Trust's
registration statement, including updating prospectuses and SAIs;
9. prepare and file prospectus and SAI supplements, as needed;
10. prepare and file other regulatory documents, including N-SARs,
N-CSRs, and annual and semi-annual reports, and proxy statements;
11. negotiate, obtain and file fidelity bonds and monitor compliance
with Rule 17g-1 and Rule 17d-1(7) under the 1940 Act;
12. negotiate, obtain and monitor directors' and officers' errors and
omissions policies;
13. prepare and file shareholder meeting materials (including proxy
statement for annual or special shareholder meeting) and assist
with all shareholder communications;
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Legal Consulting and Planning Services
14. provide general legal advice on matters relating to portfolio
management, trust operations including compliance with Regulation
F-D, sales and trading of the Trust's shares, development of
advertising materials during offering period, changing or improving
disclosure, and any potential changes in the Trust's investment
policies, operations, or structure;
15. communicate significant emerging regulatory and legislative
developments to the Adviser, the Trust and the Board and provide
related planning assistance;
16. develop or assist in developing guidelines and procedures to
improve overall compliance by the Trust;
17. provide advice with regard to litigation matters, routine fund
examinations and investigations by regulatory agencies, stock
exchanges and rating agencies;
18. provide advice regarding long-term planning for the Trust,
including creation of share classes, leverage issues, corporate
structural changes, mergers, acquisitions, and other asset
gathering plans;
19. provide advice regarding share repurchases and other strategies to
manage trading price discount;
20. maintain effective communications with fund counsel and counsel to
the independent Trustees, if any;
21. create and implement timing and responsibility system for outside
legal counsel when necessary to implement major projects and the
legal management of such projects;
22. monitor activities and billing practices of counsel performing
services for the Trust or in connection with related Trust
activities;
23. provide consultation and advice for resolving compliance questions
along with the Adviser, its counsel, the Trust and Trust counsel;
24. provide active involvement with the management of SEC, relevant
stock exchange and other regulatory examinations;
25. maintain the Trust's Code of Ethics and monitor compliance of
personnel;
26. assist in the preparation and filing of Forms 3, 4 and 5 pursuant
to Section 16 of the Securities Exchange Act of 1934 and Section
30(f) of the 1940 Act for the officers and trustees of the Trust,
such filings to be based on information provided by those persons
and the Trust's investment adviser;
Transfer Agent Monitoring Services
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27. monitor the content of confirmations, statements, annual and
semi-annual reports, disclosure statements and shareholder
administrative communications relative to conformance with
regulatory requirements and are distributed within the mandated
time frames;
28. review and monitor transfer agent activity relative to regulatory
compliance, integrity of the Trust and shareholders systemic
weaknesses, and potential liability and fraud;
29. review and monitor the investigation, research and resolution of
customer and other complaints, promoting equitable treatment of all
parties;
30. consult with transfer agent and other staff regarding requirements
related to annual or special meeting of shareholders, distribution
issues including payment programs, sub-transfer agent arrangements
and other regulatory issues;
31. review implementation of any stock purchase or dividend
reinvestment programs authorized by the Board of Trustees;
Treasury Financial Services
32. provide Treasurer and Assistant Treasurers for the Trust as
requested;
33. oversee the generation of portfolio schedules utilizing data from
the Trust's Custodian;
34. oversee the creation of financial statements and financial
highlight tables;
35. maintain and update the notes to the financials;
36. supply the Trust's Custodian with a listing of audit reports and
schedules;
37. coordinate with external auditors for annual audit;
38. review financial statements for completeness accuracy and full
disclosure;
39. coordinate ROCSOP adjustments with auditors;
40. determine and monitor expense accrual for each fund;
41. verify management and other fees calculated by the Custodian;
42. review fund waivers and deferrals;
43. calculate total returns for the Trust and respective classes using
the Fundstation system;
44. oversee and review custodial bank services including maintenance of
books and records;
45. provide service bureaus and rating agencies with the Trust's
statistical information;
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46. oversee the determination and publication of the Trust's net asset
value, share prices and dividend rates;
47. monitor and regularly report to the Trustees the difference between
the Trust's net asset value and share price;
48. review the calculation, submit for approval by an officer of the
Trust, and arrange for the payment of the Trust's expenses;
49. oversee and review the calculation of fees paid to the Trust's
Adviser, underwriter, custodian and transfer agent and submit to an
officer for Trust approval;
50. prepare such financial information and reports as may be required by
any stock exchange or exchanges on which the Trust's shares are
listed, and such other information and reports required by such
stock exchanges as may be mutually agreed upon;
51. prepare such financial information and reports as may be required by
any banks from which the Trust borrows funds;
Treasury Regulatory Services
52. prepare and file annual and semi-annual N-SAR and N-CSR forms and
shareholder reports with the SEC;
53. provide Trustees with condensed portfolio information;
54. review securities lending activity;
55. review pricing errors;
56. review fair value pricing;
57. review stale pricing;
58. review collateral segregation;
59. provide weekly summaries of pricing overrides to management;
60. provide a review of expense caps and management fee waivers to
management;
61. review short sales;
62. review derivatives positions;
63. review brokerage commissions;
64. review dividends and capital gain distributions;
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Treasury Tax Services
65. provide annual tax information (Form 1099) for each fund or class of
shares to shareholders and transfer agents;
66. calculate distribution of capital gains, income and spill back
requirements;
67. provide estimates of capital gains;
68. provide Form 1099 information to vendors;
69. provide service bureaus, brokers and various parties with tax
information noticed;
70. prepare and file excise tax returns;
71. prepare and file income tax returns;
72. prepare tax identification number filings;
73. perform IRS sub-chapter M testing for 25% diversification, 50%
diversification, 90% gross income, 90% income distribution
requirement (annually), and 98% excise distribution requirement
(annually);
Treasury Compliance Services
74. perform periodic oversight review to ensure investment manager
compliance with investment policies and limitations;
75. obtain and review investment manager certification on adhering to
all investment policies, restrictions and guidelines;
76. review weekly designated collateral on all fund derivative and
delayed delivery positions;
77. monitor and report on the Trust's issuance of preferred shares,
including performing any tests necessary to ensure compliance with
the asset coverage tests of the 1940 Act and prepare any maintenance
reports required by the Board or rating agencies in connection with
their rating the Trust's securities;
Treasury Special Services
78. administer daily review of securities lending program(s);
79. ensure semiannual review of Trust for opportunities with lending and
review of current income levels;
80. establish opportunities with investment manager and brokers for
directed commission programs;
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81. monitor line of credit arrangement and payment of commitment fees;
82. maintain Trustee payments and monitor deferred compensation
arrangements to the extent a deferral plan exists for the Trust;
83. provide Trustees with Form 1099 information;
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