INVESTMENT SUB-ADVISORY AGREEMENT
THIS INVESTMENT SUB-ADVISORY AGREEMENT ("Agreement") is
made as of the 18th day of November, 2009 by and among RMR Asia
Pacific Real Estate Fund, a Delaware statutory trust
(the "Fund"), RMR Advisors, Inc., a Massachusetts corporation
(the "Advisor"), and MacarthurCook Investment Managers Limited,
an indirect subsidiary of AIMS Securities Holdings Pty Ltd
(the "Sub-Advisor").
RECITALS
WHEREAS, the Advisor and the Sub-Advisor are each
registered under the Investment Advisers Act of 1940 (the
"Advisers Act") as an investment advisor and engage in the
business of acting as an investment adviser; and
WHEREAS, the Advisor is responsible for developing,
implementing and supervising an investment program for the Fund,
which is registered as a non-diversified, closed-end, management
investment company under the Investment Company Act of 1940
(the "1940 Act"), pursuant to an Investment Advisory Agreement
dated June 16, 2009 between the Fund and Advisor (the "Advisory
Agreement"); and
WHEREAS, the Sub-Advisor currently serves as the Fund's
interim investment sub-adviser pursuant to an Amended and
Restated Interim Investment Sub-Advisory Agreement, dated July
16, 2009, entered into pursuant to Rule 15a-4 under the 1940
Act; and
WHEREAS, the Fund desires to employ the Sub-Advisor
for, and the Sub-Advisor desires to provide, investment
advisory services to the Fund upon the terms and conditions
hereinafter set forth;
NOW THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
1. Investment Description, Appointment. The Fund
desires to employ its capital by investing and reinvesting
in investments of the kind and in accordance with the
investment objectives, policies and limitations specified in
its Agreement and Declaration of Trust, as amended from time
to time ("Charter"), its prospectus, including the statement
of additional information ("Prospectus") filed with the U.S.
Securities and Exchange Commission ("SEC") as part of the
Fund's Registration Statement on Form N-2, as amended from
time to time ("Registration Statement"), and in the manner
and to the extent as may from time to time be approved by
the Board of Trustees of the Fund (the "Board"). Copies
of the Charter, the Prospectus and the Registration Statement
have been or will be submitted to the Sub-Advisor. The Fund
agrees to provide copies of all amendments to the Charter and
the Registration Statement to the Sub-Advisor on an on-going
basis. The Fund hereby appoints the Sub-Advisor to act as
the sub-adviser to the Fund. The Sub-Advisor accepts the
appointment and agrees to furnish the services for the
compensation set forth below.
2. Services as Sub-Advisor. Subject to the
supervision, direction and approval of the Board and the
Advisor, the Sub-Advisor will:
(a) manage the Fund's holdings in accordance with
the Fund's investment objectives and policies as stated
in the Charter, Prospectus, and directions from the Board
provided to the Sub-Advisor;
(b) make investment decisions for the Fund in
accordance with the Fund's investment objectives and policies
as stated in the Charter, Prospectus, and directions from
the Board provided to the Sub-Advisor;
(c) place purchase and sale orders for portfolio
transactions for the Fund;
(d) provide research services to the Fund;
(e) vote all proxies and respond to all corporate
actions for portfolio securities in accordance with the
Sub-Advisor's written proxy voting policies and procedures,
which policies and procedures (including amendments thereof)
are to be approved by the Board, and provided to the Fund
and the Advisor;
(f) report regularly to the Advisor and to the Board
and provide such information, and make appropriate persons
available for the purpose of reviewing with representatives
of the Advisor and the Board on a regular basis at reasonable
times its activities hereunder, including without limitation,
review of the general investment strategies of the Fund, the
performance of the Fund in relation to standard industry
indices, stock market and interest rate considerations and
general conditions affecting the marketplace, and the
placement and execution of portfolio transactions and provide
various other reports and information from time to time as
reasonably requested by the Advisor or the Board;
(g) act upon reasonable instructions from the Advisor
which, in the reasonable determination of the Sub-Advisor,
are not inconsistent with the Sub-Advisor's fiduciary duties
under this Agreement;
(h) comply with its obligations as a service provider
to the Fund in accordance with Rule 38a-1 of the Rules and
Regulations under the 1940 Act;
(i) provide the Advisor with the reports, documents
and evidence necessary for the Advisor to comply with its
obligations as a service provider to the Fund in accordance
with Rule 38a-1 of the Rules and Regulations under the 1940
Act;
(j) maintain books and records with respect to the
Fund's securities transactions and render to the Advisor and
the Board such periodic and special reports with respect
thereto as they may request;
(k) provide the necessary information and manage Fund
assets in such a manner as to (i) enable the Fund to satisfy
the requirements for qualification as a regulated investment
company under Subchapter M of the Internal Revenue Code of
1986, as amended, (ii) ensure the Fund's compliance under
Section 19(a) of the 1940 Act and the rules thereunder with
respect to the required written statement to accompany certain
dividend payments; and (iii) facilitate Fund compliance with
reporting and other tax-related provisions of applicable law
and the Fund policies and procedures; and
(l) furnish the Advisor from time to time with copies
of all material amendments to its Form ADV, if any.
In providing these services, the Sub-Advisor will (i) conduct
a continual program of investment, evaluation and, if
appropriate, sale and reinvestment of the Fund's assets,
and (ii) conform with all applicable provisions of Federal
Securities Laws as defined in Rule 38a-1(e)(1) of the 1940
Act and rules and regulations of the SEC in all material
respects and in addition will conduct its activities under
this Agreement in accordance with any applicable laws and
regulations of any governmental authority pertaining to its
investment advisory activities.
3. Covenants of the Sub-Advisor. The Sub-Advisor
shall:
(a) fully cooperate in any regulatory investigation,
examination, or inspection of the Fund. Subject to the
approval of the Board, the Fund will reimburse the Sub-Advisor
for expenses incurred in connection with such cooperation
in the regulatory investigation, examination or inspection
with respect to matters other than the Sub-Advisor's
performance of responsibilities and duties under this
Agreement;
(b) provide such information to the Fund and the
Advisor as the Fund or the Advisor deems necessary for the
Fund to comply with the 1940 Act and the rules and
regulations thereunder and maintain the effectiveness
of Registration Statement;
(c) promptly notify the Fund and the Advisor:
(1) in the event that the Sub-Advisor becomes aware of
any event that makes any statement of a material fact
relating to the Sub-Advisor in the Fund's Registration
Statement or any Prospectus contained therein (or any
amendment or supplement to any of the foregoing) untrue
or which requires the making of any additions to or changes
in the Fund's Registration Statement or Prospectus (or
any amendment or supplement to any of the foregoing) in
order to state a material fact relating to the Sub-Advisor
required by the Securities Act of 1933, as amended (the
"1933 Act"), the 1940 Act, the Advisers Act, or the rules
and regulations thereunder to be stated therein or necessary
in order to make the statements relating to the Sub-Advisor
therein (in the case of the Prospectus, in the light of the
circumstances under which they were made), not misleading or
of the necessity to amend or supplement the Registration
Statement or the Prospectus (or any amendment or supplement
to any of the foregoing) to comply with the 1933 Act, the
1940 Act, the Advisers Act, and the rules and regulations
thereunder, or any other law or order of any court or
regulatory body; or (2) if it (i) receives notice from any
governmental authority, agency or body of its ceasing to have
maintained its required status as a registered investment
advisor; (ii) receives notice that a governmental authority,
agency or body intends to investigate it under any law,
rule, or regulation applicable to the Sub-Advisor in
connection with its investment activities, including any
routine examination or proceeding in the ordinary course
of business; (iii) will cease to be a registered investment
advisor under the Advisers Act; and (iv) becomes aware of
the commencement by any governmental, regulatory or law
enforcement authority, agency or body of any investigation,
examination or other proceeding directly involving the
Sub-Advisor, its members, managers, officers or employees,
that would affect the Sub-Advisor's ability to perform
under this Agreement;
(d) promptly notify the Fund and the Advisor of
(1) any change in the investment professionals of the
Sub-Advisor providing services to the Fund hereunder;
(2) any prospective change in approach to the Sub-Advisor's
management of the Fund's assets; and (3) any other material
change in the Sub-Advisor's business activities or
circumstances that could reasonably be expected to adversely
affect the Sub-Advisor's ability to discharge its
obligations under this Agreement;
(e) treat confidentially and as proprietary
information of the Fund all records and other information
relative to the Fund, and pertaining to the Fund's prior,
current or potential shareholders with respect to their
investment in the Fund, in a manner consistent with the
Privacy Policy of the Fund as provided to the Sub-Advisor
from time to time, and will not use such records and
information for any purpose other than performance of
its responsibilities and duties hereunder, except after
prior notification to and approval in writing by the Fund,
which approval shall not be unreasonably withheld and may
not be withheld where the Sub-Advisor may be exposed to
civil or criminal contempt proceedings for failure to
comply, when requested to divulge such information by
duly constituted authorities, or when so requested by
the Fund;
(f) promptly notify the Fund of the occurrence of
any event that would disqualify it from serving as an
investment adviser to an investment company pursuant to
Section 9(a) of the 1940 Act;
(g) notify the Fund of any change in the
controlling shareholders of the Sub-Advisor, or any change
in ownership constituting an "assignment" for purposes
of the 1940 Act, immediately upon the occurrence or
public disclosure of the anticipated occurrence of such
change; and
(h) procure the grant to the Fund of a royalty
free license to the Fund and the Advisor to display the
trademarked "MacarthurCook" [or "AIMS"] logo during the
term of this Agreement, on the condition that the
Sub-Advisor is provided with a copy of any material in
which the logo appears and if the use of the logo is
reasonably deemed by the Sub-Adviser to be materially
adverse to its reputation, such use shall cease.
4. Representations and Warranties of the
Sub-Advisor. The Sub-Advisor represents and warrants
that it is registered with the SEC under the Advisers
Act. The Sub-Advisor will notify the Advisor immediately
if the Sub-Advisor ceases to be so registered as an
investment advisor. The Sub-Advisor further represents
that the Sub-Advisor (a) is duly organized and validly
existing under the laws of the country of its organization
with the power to own and possess its assets and carry
on its business as it is now being conducted, (b) has the
authority to enter into and perform the services
contemplated by this Agreement, (c) is not prohibited
by the 1940 Act or the Advisers Act from performing the
services contemplated by this Agreement, and (d) has met,
and will continue to seek to meet for the duration of
this Agreement, any other applicable federal or state
requirements or requirements under any foreign law, and
the applicable requirements of any regulatory or industry
self-regulatory agency, necessary to be met in order to
perform its services under this Agreement. In addition,
the Sub-Advisor represents that it has provided Advisor
and the Fund with a true and correct copy of the
Sub-Advisor's Form ADV in its entirety. The Sub-Advisor
will furnish the Advisor from time to time with copies
of all material amendments to its Form ADV, if any.
5. Standard of Care. The Sub-Advisor shall give
the Fund the benefit of its best judgment and effort
in rendering services. The Sub-Advisor shall not be
liable for any act or omission or for any loss sustained
by the Fund in connection with the matters to which
this Agreement relates, except those involving the
Sub-Advisor's willful misfeasance, bad faith or gross
negligence in the performance of its duties, or the
reckless disregard of its obligations and duties under
this Agreement.
6. Advisor's Covenants. The Advisor shall:
(a) if known to the Advisor, notify the
Sub-Advisor of the existence of a material event of
default by the Fund under a material agreement
(including under any underwriting agreement), any
material dispute to which the Fund is a party, any
material litigation by or against the Fund, or any
other material event involving the Fund in each case
of which the Advisor reasonably believes the
Sub-Advisor ought to be made aware; and
(b) at the Sub-Advisor's reasonable request,
consult with the Sub-Advisor on the Sub-Advisor's
duties described in Section 2(k)(i) above.
7. Services to Other Companies and Accounts.
The Fund understands that the Sub-Advisor and its
affiliates [now act, will continue to act and] [Confirm]
may in the future act as investment adviser or fiduciary
to other managed accounts and as investment adviser or
property manager to other investment companies or trusts.
Nothing in this Agreement shall prevent the Sub-Advisor
or any director, officer, employee or other affiliate of
the Sub-Advisor from acting as investment adviser,
property manager, fiduciary or administrator for any
other person, firm or corporation, or from engaging in
any lawful activity, and shall not in any way limit or
restrict the Sub-Advisor or any of its directors,
officers, employees or agents from buying, selling or
trading any securities for its or their own accounts
or for the accounts of others for whom it or they may
be acting; provided, however, that the Sub-Advisor will
undertake no activities which, in its judgment, will
adversely affect the performance of its obligations
under this Agreement and further provided that that
whenever the Fund and one or more other clients advised
by the Sub-Advisor have available funds for investment,
investments suitable and appropriate for each will be
allocated in accordance with a formula believed to be
equitable to each client. The Fund recognizes that in
some cases this procedure may adversely affect the size
of the position obtainable for the Fund. In addition,
the Fund understands that the persons employed by the
Sub-Advisor to assist in the performance of the
Sub-Advisor's duties under this Agreement will not
devote their full time to such service and nothing
contained in this Agreement shall be deemed to limit
or restrict the right of the Sub-Advisor or any
affiliate of the Sub-Advisor to engage in and devote
time and attention to other businesses or to render
services of whatever kind or nature. The Sub-Advisor
acknowledges that the 1940 Act and the Advisers Act
contain provisions that apply to the activities of the
affiliates of the Sub-Advisor and undertakes to take
such steps and implement such procedures as are
reasonably designed to ensure compliance with such
provisions.
8. Portfolio Transactions and Brokerage.
Subject to the supervision of the Board, the Sub-Advisor
is authorized, for the purchase and sale of the Fund's
portfolio securities, to employ such securities dealers
and brokers and to negotiate brokerage commissions on
behalf of the Fund as may, in the judgment of the
Sub-Advisor, implement the policy of the Fund to
obtain the best net results taking into account such
factors as: the net price available; the reliability,
integrity and financial condition of the broker; the
size of and difficulty in executing the order; and
the value of the expected contribution of the broker
to the Fund's investment performance on a continuing
basis. The Fund understands that the cost of the
brokerage commissions in any transaction may be
greater than that available from other brokers if
the difference is reasonably justified by other
aspects of the services offered. Subject to such
policies and procedures as the Board may determine,
the Sub-Advisor may cause the Fund to pay a broker
that provides research services to the Sub-Advisor
an amount of commission for effecting a portfolio
investment transaction in excess of the amount of
commission another broker would have charged for
effecting that transaction, if the Sub-Advisor
determines in good faith that such amount of
commission was reasonable in relation to the value
of the research service provided by such broker
viewed in terms of either that particular transaction
or the Sub-Advisor's ongoing responsibilities under
this Agreement. The Fund understands that research
and investment information provided at no cost to the
Sub-Advisor by brokers that are paid by the Fund will
be available to benefit other accounts advised by the
Sub-Advisor and its affiliates. In the allocation of
the Fund's brokerage business the Sub-Advisor is
authorized to consider, subject to any policies and
procedures as the Board may determine and applicable
law, such factors as necessary to ensure the continued
receipt of research or brokerage services the
Sub-Advisor believes are useful in its decision-making
or trade execution processes.
The Sub-Advisor acknowledges that
brokerage and principal transactions between the Fund
and the Sub-Advisor or its affiliates are strictly
regulated under the 1940 Act, the Advisers Act, and
the rules thereunder, and undertakes to take such steps
and implement such procedures as are reasonably
designed to ensure compliance with such provisions.
Without limiting the foregoing, the Sub-Advisor
undertakes to provide the Fund and the Advisor a
report summarizing the Sub-Advisor's allocation of
the Fund's brokerage transactions, including such
information as the Board or the Advisor may reasonably
request, on a quarterly basis or at such times as
the Fund or the Advisor may reasonably request.
9. Compensation of the Sub-Advisor. In
consideration of the sub-advisory services rendered
pursuant to this Agreement, the Advisor will pay to
the Sub-Advisor from the "Advisory Fee" as defined
in the Advisory Agreement an amount equal to 0.375%
per annum of the value of the Fund's managed assets
as defined in the Prospectus. For any period less
than a month during which this Agreement is in effect,
the fee shall be prorated according to the proportion
which such period bears to a full month of 28, 29, 30
or 31 days, as the case may be. Such fee will be due
and payable by the Advisor in arrears within ten
business days after the receipt thereof from the Fund.
10. Fee Waiver. Pursuant to the Advisory
Agreement, the Advisor has agreed to waive a portion
of the Advisory Fee until May 25, 2012 (the "Waiver
Period"). Notwithstanding the provisions of the
above Section 9, during the Waiver Period, the
Sub-Advisor likewise agrees to waive a portion of
the fee provided for in Section 9 such that during
the Waiver Period, the fee payable to the Sub-Advisor
should be equal to 0.25% per annum of the value of
the Fund's managed assets, which is to be payable
in the same manner as in Section 9.
11. Books and Records. In compliance with
the requirements of Rule 31a-3 of the 1940 Act,
the Sub-Advisor agrees that all books and records
which it maintains for the Fund are the property
of the Fund and further agrees to surrender promptly
to the Advisor or the Fund any such books, records
or information upon the Advisor's or the Fund's
request. The Sub-Advisor further agrees to preserve
for the periods prescribed by Rule 31a-2 under the
1940 Act the records required to be maintained by
Rule 31a-1 under the 1940 Act.
12. Code of Ethics. The Sub-Advisor has
adopted a written code of ethics complying with
the requirements of Rule 17j-l(b), (c), (d), and (e)
under the 1940 Act and will provide Advisor and the
Fund with a copy of such code (including any amendments
thereof). Within 45 days of the end of each calendar
year during which this Agreement remains in effect, the
chief compliance officer of the Sub-Advisor shall
certify to the Fund that the Sub-Advisor has complied
with the requirements of Rule 17j-1 during the
previous year; and that there have been no material
violations of the Sub-Advisor's code of ethics or,
if any such violation has occurred, the nature of
such violation and of the action taken in response
to such violation.
13. Duration and Termination. This Agreement
shall become effective on the date first set forth
above and continue until June 16, 2011. Thereafter,
this Agreement will continue from year to year, or
for such longer terms as may be approved by the Board
(including a majority of the Trustees who are not
"interested persons" of the Advisor, as defined by
the 0000 Xxx) and as may be permitted by the 1940
Act, but only so long as such continuation is
specifically approved at least as often as required
by the 1940 Act, as it may be amended from time to
time.
So long as the 1940 Act requires
these provisions respectively: (i) this Agreement may
be terminated by the Fund at any time without penalty
upon giving the Sub-Advisor sixty days' notice and upon
payment by the Advisor of any unpaid compensation to
the Sub-Advisor described in Section 9, above, earned
prior to such termination, provided that such
termination by the Fund shall be directed or
approved by the vote of a majority of the Trustees
of the Fund in office at the time or by the vote of
the holders of a "majority" (as defined in the 0000
Xxx) of the voting securities of the Fund at the time
outstanding and entitled to vote; or by the Sub-Advisor
on 120 days' prior notice to the Fund, (ii) this
Agreement shall terminate automatically in the event
of its assignment (as "assignment" is defined in the
1940 Act).
14. Amendment. No amendment of this Agreement
shall be effective unless it is in writing and signed
by the party against which enforcement of the amendment
is sought.
15. Indemnification.
(a) Other than by reason of willful misfeasance,
bad faith, or gross negligence, in the performance of
its or their duties, or by reason of the reckless
disregard of its or their obligations and duties under
this Agreement, none of the Sub-Advisor or any of its
officers, members, partners, stockholders, agents or
employees shall have any liability to the Fund or any
security holder of the Fund for any loss incurred in
connection with recommendations or investments made or
other action taken on behalf of the Fund due to errors
of judgment or by reason of its advice, including action
taken or omitted prior to a written notice of termination.
The Sub-Advisor hereby indemnifies the Fund and Advisor
and each of their respective trustees, directors, officers,
members, managers, employees and agents for all damages,
claims and/or losses occasioned by reason of its willful
misfeasance, bad faith, or gross negligence in the
performance of its duties, or by reason of its reckless
disregard of its obligations and duties hereunder.
(b) Other than by reason of willful misfeasance,
bad faith, or gross negligence, in the performance of
its or their duties, or by reason of the reckless disregard
of its or their obligations and duties under such this
Agreement, none of the Advisor or any of its officers,
members, partners, stockholders, agents or employees
shall have any liability to the Sub-Advisor for any loss
incurred by the Sub-Advisor in connection with this
Agreement. The Advisor hereby indemnifies the Sub-Advisor
and each of its trustees, directors, officers, members,
managers, employees and agents for all damages, claims
and/or losses occasioned by reason of its willful
misfeasance, bad faith, or gross negligence in the performance
of its duties, or by reason of its reckless disregard of
its obligations and duties hereunder.
16. Expenses. During the term of this Agreement,
the Sub-Advisor will bear all costs and expenses of its
employees and any overhead incurred in connection with
its duties hereunder and shall bear the costs of any
salaries, expenses or fees of affiliated persons (as
defined in the 0000 Xxx) of the Sub-Advisor.
17. Governing Law. This Agreement shall be
construed in accordance with the laws of the State of
Delaware for contracts to be performed entirely therein
without reference to choice of law principles and in
accordance with the applicable provisions of the 1940 Act.
18. Jurisdiction; Venue; Consent to Service of
Process.
(a) Each of the Fund, the Advisor and Sub-Advisor
(each, a "Party") irrevocably and unconditionally submits
to the exclusive jurisdiction of the United States
District Court for the District of Delaware, or if such
court will not accept jurisdiction, the Chancery Court
of the State of Delaware, or any court of competent civil
jurisdiction sitting in Delaware (all of the above courts,
"Delaware Courts"). In any action, suit or other
proceeding brought in the Delaware Courts, each of the
Parties irrevocably and unconditionally waives and agrees
not to assert by way of motion, as a defense or otherwise
any claims that it is not subject to the jurisdiction of
the Delaware Courts, that such action, suit or other
proceeding is brought in an inconvenient forum or that
the venue of such action, suit or other proceeding is
improper. Each of the Parties also hereby agrees that
any final and unappealable judgment against a Party in
connection with any action, suit or other proceeding
shall be conclusive and binding on such Party and that
such award or judgment may be enforced in any court of
competent jurisdiction, either within or outside of the
United States. A certified or exemplified copy of such
award or judgment shall be conclusive evidence of the
fact and amount of such award or judgment.
(b) Each Party irrevocably consents to the
service of process in the manner provided for the giving
of notices pursuant to Section 19 of this Agreement.
Nothing in this Section 18 shall affect the right of
any Party to serve process in any other manner permitted
by law.
19. Notices. Any notice under this Agreement
shall be in writing to the other party at such address
as the other party may designate from time to time for
the receipt of notices 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.
IN WITNESS WHEREOF, the parties hereto have
caused the foregoing instrument to be executed by their
duly authorized officers and their respective seals to
be hereunto affixed, all as of the day and the year first
above written. The parties hereto have caused this
Agreement to be executed as of the date and year first
above written.
RMR ASIA PACIFIC REAL ESTATE FUND
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
RMR ADVISORS, INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
MACARTHURCOOK INVESTMENT MANAGERS LIMITED
By: /s/ Xxxx Xxxxxx-Apps
Name: Xxxx Xxxxxx-Apps
Title: Executive Director
