GENERAL MOTORS TRUST COMPANY,
AS TRUSTEE FOR
GENERAL MOTORS EMPLOYEES GLOBAL GROUP PENSION TRUST
000 XXXXX XXXXXX, XXX XXXX, X.X. 00000
March 15, 2000
Lend Lease Hyperion High-Yield CMBS Fund, Inc.
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Re: Subscription Agreement to purchase shares of common stock, par
value $.001 of Lend Lease Hyperion High Yield CMBS Fund, Inc. (the
"Fund")
Dear Sir or Madam:
In connection with our above-referenced subscription of shares of the
Fund, the Subscription Agreement is hereby amended and modified as follows:
(capitalized terms used herein and not otherwise defined have the meanings set
forth in the Subscription Agreement.)
1. In lieu of the statements, representations and warranties in (a) of
the first paragraph of Section 2 and (b) of the fourth paragraph of Section 2
(collectively, the "Covered Provisions") of the Subscription Agreement, the
Investor states that:
(a) The Investor is a group trust ( the "Trust") that was organized
for the benefit of certain trusts (the "Plan Trusts") under certain
employee benefit plans of General Motors Corporation, Delphi Automotive
Systems Corporation and their respective affiliates (the "Plans"). The Plan
Trusts are the sole beneficiaries of the Trust;
2
Xxxxx 00, 0000
(x) The funds used or to be used by the Trust for the purpose of
acquiring an interest in the Fund were or are to be contributed to the
Trust for such purpose by the Plan Trusts; the Trust had and has no right
to require such funds to be contributed to it; however, the decision that
the Plan Trusts contribute such funds to the Trust and that the Trust
acquire an interest in the Fund was made under the authority of the "named
fiduciary" (as such term is defined in ERISA) with respect to investments
of the Plans, which is the same person who usually passes on such matters
for the Plan Trusts and, accordingly, was the result of one study and
investigation;
(c) The named fiduciary of the Plans with respect to investments has
the authority to dissolve the Trust and/or require the Trust to transfer an
interest in the Fund to the Plan Trusts (or any other trust maintained
under the Plans) at any time; and
(d) Subject to the circumstances as described above (including the
authority of the named fiduciary of the Plans with respect to investments),
the Trust makes the statements, representations and warranties in the
Covered Provisions.
2. For purposes of Section 2 of the Subscription Agreement, the
Investment Officer is Xxxxx X. Xxxxxx, Portfolio Manager, General Motors
Investment Management Corporation.
3. Replace the representations and warranties in Section 2(j) with the
following: "The Fund has provided the Investor, and covenants to provide
Investor in the future, with true, complete and correct copies of the form of
all letters, agreements, undertakings and other documents (collectively referred
to as "Side Letters") by and among the Fund, its adviser or any person acting
with respect to either, on the one hand, and any investor, on the other hand,
relating to such investor's purchase of Fund Shares or any terms, conditions,
operations, obligations or other understandings affecting the Fund. Investor
may elect to receive, be covered by or be subject to any rights, benefits,
provisions or modifications extended to other investors, which will
automatically be offered to the Investor."
4. Add the following undertaking as Section 4: "The Adviser will cause
the Fund (and any company controlled thereby) not to engage in any transaction
that would result in an affiliated person or promoter of or principal
underwriter for the Fund or any affiliated person of such a
3
March 15, 2000
person, promoter, or principal underwriter, acting as principal to be in
violation of Section 17 of the 1940 Act."
General Motors Trust Company, as trustee for
General Motors Employes Global Group Pension
Trust
By: /s/ Xxxx Xxx
---------------------------------------
Name: Xxxx Xxx
Title: Managing Director, North American
Fixed Income
AGREED AND ACCEPTED:
LEND LEASE HYPERION HIGH-YIELD CMBS FUND, INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Secretary & Compliance Officer
LEND LEASE HYPERION CAPITAL ADVISORS, L.L.C.
as adviser to the Fund
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Secretary & Compliance Officer
A-1
LEND LEASE HYPERION HIGH-YIELD CMBS FUND, INC.
SUBSCRIPTION AGREEMENT
The undersigned investor ("Investor") hereby subscribes to purchase for
shares of common stock in Lend Lease Hyperion High-Yield CMBS Fund, Inc. (the
"Fund") (such shares hereinafter referred to as "Fund Shares") in the
Subscription Amount set forth on the signature page hereof ("Subscription
Amount"). Unless otherwise defined herein, or unless the context requires
otherwise, the defined terms used herein have the same meaning as used in the
Private Placement Memorandum of the Fund (the "Private Placement Memorandum").
The Investor acknowledges that (i) this subscription, when received by the
Fund, will be irrevocable, (ii) the Fund may reject the subscription in its
absolute and sole discretion at any time prior to the delivery and payment for
the Shares (the "Closing"), and (iii) this subscription will only be deemed to
have been accepted upon confirmation that this Subscription Agreement has been
accepted by the Fund, when payment for the Fund Shares has been made in
accordance with the Trade Payment Authorization Form included as part of this
booklet and when the Fund deposits, receives and acknowledges payment of the
Subscription Amount by delivering a countersigned duplicate copy of this
Agreement at the Closing. With this subscription, the Investor tenders the
following completed and duly executed documents: (a) a completed Subscription
Agreement; and (b) an Investor Qualification Statement, and (c) a Trade Payment
Authorization Form. The Subscription Amount must be paid by check or wire
transfer payable according to instructions provided in the Trade Payment
Authorization Form.
1. Investor Acknowledgments and Representations
---------------------------------------------
The Investor hereby acknowledges, represents, and warrants to, and agrees
with the Fund as follows:
This offering is being made in reliance upon an exemption from
registration under the Securities Act of 1933, as amended, and the
regulations thereunder (the "Securities Act") for an offer and sale of
securities that do not involve a public offering. The Fund Shares offered
hereby are subject to restrictions on transferability and may not be
transferred, sold or otherwise disposed of, except as permitted under the
Securities Act and applicable state securities laws pursuant to
registration or exemption therefrom. There is currently no public or other
market for the Fund Shares, and none is expected to develop. Each
prospective investor should proceed only on the assumption that such
prospective investor may have to bear the economic risk of an investment in
the securities offered hereby for an indefinite period of time and bear the
risk of a loss of the entire investment.
The Fund has not registered as a Dealer with the New York State
Attorney General, on the grounds that the sale of the Fund Shares is not
a public offering within the meaning of (S) 359-e of the New York General
Business Law.
In making an investment decision, investors must rely on their own
examination of the fund and the terms of this offering, including the
merits and risks involved. Investors must also rely on their relationship
with the principals of the offering to obtain information about the
background and experience of the principals that the Investors consider
material to an investment in the Fund.
The Fund Shares have not been issued or sold in reliance on
Paragraph (13) of Code Section 10-5-9 of `The Georgia Securities Act of
1973', and may not be sold or transferred except in a transaction which is
exempt under such act or pursuant to an effective registration under such
act.
2. Additional Representations and Warranties.
-----------------------------------------
The Investor hereby represents and confirms that: (a) the Investor was not
formed for the specific purpose of acquiring the Fund Shares, and has total
assets in excess of $5,000,000; (b) the Investor is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it
was formed; (c) the Investor has the power and authority to carry on the
business in which it is engaged and to purchase the Fund Shares; and (d) the
execution and delivery of this Subscription Agreement and all other documents
and agreements relating to this investment by the Investor have been duly
authorized by all necessary action and constitute the legal, valid and binding
obligations of the Investor enforceable in accordance with their terms.
The undersigned hereby represents and confirms that, if executing this
Subscription Agreement in a representative or fiduciary capacity, has full power
and authority to execute and deliver this Subscription Agreement in such
capacity and on behalf of the subscribing partnership, trust, corporation, or
other entity for whom the undersigned is executing this Subscription Agreement,
and such partnership, trust, corporation, or other entity has full right and
and power to perform pursuant to this Subscription Agreement and make an
investment in the Fund and has its principal place of business at the address
set forth or the signature page hereof and such entity has not been formed for
the specific purpose of acquiring Fund Shares.
The Investor hereby confirms that if the Investor is a corporation; (a) the
Investor is a widely held "C" corporation (i.e., 5 or fewer individuals do not
hold 50% or more of the stock of the corporation) or (b) the Investor has
discussed with its tax advisors the specific tax consequences to it that would
result from the ownership of Fund Shares.
The Investor hereby acknowledges and represents that (a) the Investment
Officer for the Investor has received and read a copy of the Private Placement
Memorandum and the Statement of Additional Information (the "SAI") and has had
an opportunity to ask questions concerning the
matters stated in the Private Placement Memorandum and the SAI and has relied
only upon the information contained therein; (b) the Investor is purchasing the
Fund Shares for its own account, for investment, and not with a view to, or for
resale, fractionalization or further distribution; (c) the Investor, its
advisers, if any, and any designated representatives, if any, have such
knowledge and experience in financial and business matters necessary to evaluate
evaluator the investment in the Fund, and have carefully, reviewed and
understand the risks associated with investments in the Fund, which are set
forth in the Private Placement Memorandum.
The Investor has adequate means of providing for current and anticipated
financial needs and contingencies, is able to bear the economic risk for an
indefinite period of time and has no need for liquidity of the investment in the
Fund Shares and could afford complete loss of such investment.
The Investor is not subscribing for Fund Shares as a result of or
subsequent to any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio, or presented at any seminar or meeting, or any solicitation
of a subscription by a person not previously known to the Subscriber in
connection with investments in securities generally.
The Investor specifically acknowledges that by signing this Subscription
Agreement, the Investor authorizes the Fund to cause the Investor to become a
shareholder in the Fund.
In addition to the transfer restrictions imposed by federal and state
securities laws and the Private Placement Memorandum, Georgia investors agree
that, pursuant to Section 10-5-9(13) of the Georgia Securities Act of 1973, the
Fund Shares have been purchased for investment for such investor's own account.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York. The Investor hereby expressly submits to the
jurisdiction of all federal and state courts located in the State of New York
and consents that any process or notice of motion or other application to any of
said courts or a judge thereof may be served within or without such court's
jurisdiction by registered mail or by personal service, provided a reasonable
time for appearance is allowed. The Investor also waives any claim that the
Supreme Court of the State of New York for the County of New York or the Federal
District Court for the Southern District of New York is an inconvenient forum.
Each of Lend Lease Real Estate Investments, Inc. and Hyperion Capital
Management, Inc. represents and warrants that:
(a) Organization and Standing of the Fund. The Fund is duly and
-------------------------------------
validly organized and validly existing as a corporation under the laws of the
State of Maryland, and has all requisite power and authority under the Articles
of Incorporation, Bylaws, and such laws to enter into and carry out the terms of
the Subscription Agreements, to conduct its business as described in the
Articles of Incorporation and the Bylaws, each as amended, and the Private
Placement Memorandum and to issue and sell Fund Shares. The Fund is also duly
and validly authorized to do business in the State of New York. There is no
jurisdiction other than Maryland
-4-
or New York in which the Fund must be formed or qualified to enable it to
engage in the business in which it is or will be engaged.
(b) Investment Company Act. The Fund is duly and validly registered
----------------------
as a closed-end management investment company under the Investment Company Act
of 1940, as amended.
(c) Compliance with Other Instruments, etc. The Fund is not in
--------------------------------------
violation of any term of the Articles of Incorporation or Bylaws, each as
amended, or the Subscription Agreements, and the Fund is not in violation of any
term of any other mortgage, indenture, contract, agreement, instrument,
judgment, decree, order, statute, rule or regulation applicable to it. The
execution and delivery of the Subscription Agreements do not result in the
violation of, constitute a default under or conflict with any mortgage,
indenture, contract, agreement, instrument, judgment, decree, order, statute,
rule or regulation applicable to the Fund or result in the creation of any
mortgage, lien, encumbrance or charge upon any of the properties or assets of
the Fund.
(d) Governmental and Regulatory Approval. Neither the execution and
------------------------------------
delivery of the Subscription Agreements nor the offer, issuance or sale of the
Fund Shares requires any consent, approval or authorization from, or filing,
registration or qualification with, any Federal, state or local governmental or
regulatory authority (including, without limitation, registration under the
Securities Act) on the part of the Fund not heretofore obtained or made, except
for: (i) compliance by the Fund with the filing requirements of any applicable
state securities ("Blue Sky") laws; and (ii) compliance by the Fund with the
filing requirements under Regulation D under the Securities Act.
(e) Litigation. There are no actions, proceedings or investigations
----------
pending or threatened (or any basis therefor known to the Fund) against the
Fund, its adviser, Lend Lease Real Estate Investments, Inc. or Hyperion Capital
Management, Inc. which would result in any material adverse change in the
business, prospects, condition, affairs or operations of the Fund or in any
material liability on the part of the Fund or the adviser.
(f) Disclosure. None of the Private Placement Memorandum, Statement
----------
of Additional Information or the Subscription Agreements contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading in light
of the circumstances under which they are or were made.
(g) Fund Liabilities. Except as set forth in the Private Placement
----------------
Memorandum, the Fund has not engaged in any transactions (other than offering
under the Private Placement Memorandum) and does not have any liabilities or
obligations of any nature, whether accrued, absolute, contingent or otherwise
(including, without limitation, liabilities as guarantor or otherwise with
respect to obligations of others) and whether due or to become due (other than
liabilities and obligations arising out of the offering under the Private
Placement Memorandum).
-5-
(h) Issuance of the Fund Shares. All action required to be taken
---------------------------
by the Fund as a condition to the issuance and sale of the Shares purchased by
the Investor has been taken, and such Shares are duly and validly issued, fully
paid and nonassessable.
(i) Articles of Incorporation. The Articles of Incorporation, and
-------------------------
any amendments thereto, have been duly filed for record with the Secretary of
State of Maryland, and the Fund shall deliver complete and correct copies of
such to the Investor immediately following the Closing.
(j) Side Letters. The Fund has provided the Investor with true,
------------
complete and correct copies of the form of all letters, agreements,
undertakings, and other documents by and among the Fund, its adviser or any
person acting with respect to either, on the one hand, and any Investor, on the
other hand, relating to such Investor's purchase of Fund Shares or any terms,
conditions, operations, obligations or other understandings affecting the Fund.
3. The Investor understands and acknowledges the following: (a) the
minimum Subscription Amount is $1 million; (b) the Fund must receive
subscriptions acceptable to it in its sole discretion, in a minimum amount
of $40 million (the "Minimum Amount") in order for the closing to occur; (c)
the Closing for the offering is subject to the Fund's receipt of subscriptions
for the Minimum Amount on or before June 13, 2000 (the "Termination Date"); (d)
subject to the receipt of subscriptions for the Minimum Amount, the Fund will
either accept or reject subscriptions and at each Closing will countersign the
Subscription Agreements for accepted subscriptions and provide duplicate copies
of such agreements to the subscribers; and (e) if subscriptions for at least
the Minimum Amount have been accepted prior to the Termination Date, the Closing
shall be held with respect to the Shares sold. Thereafter, the remaining Shares
will continue to be offered and sold and additional Closings may from time to
time be conducted with respect to additional Shares sold, until the Termination
Date.
4. At the Closing, the Investor will pay to the Fund $7,700,000 of its
Subscription Amount. The Investor hereby agrees to make additional payments to
the Fund thereafter, in accordance with and subject to the following terms, in
the aggregate amount equal to $42,300,000, as required by the Adviser to make
additional investments in the Fund in accordance with the investment objectives
and policies set forth in the Private Placement Memorandum and the SAI. All such
payments will be made at such time and of such amounts as the Adviser requires
in a written notice (the "Payment Notice") given to the Investor at the address
or by telecopier at the telecopy number of the Investor set forth on the
signature page of this Subscription Agreement at least five (5) days prior to
the Payment Date specified in the Payment Notice. On the Payment Date specified
on the Payment Notice, the Investor shall pay the amount so specified by wire
transfer of immediately available funds to the bank account specified in the
Payment Notice.
-6-
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement this 15/th/ day of March, 2000.
Dollar Amount of Subscription Amount: $50,000,000
General Motors Trust Company, as trustee for
General Motors Employes Global Group Pension Trust
---------------------------------------------------
Print Full Legal Name of Partnership, Corporation, Trust,
Employee Benefit Plan or Other Entity (if applicable).
By /s/ Xxxx Xxx
__________________________________________________
(Signature of Authorized Signatory)
Name: Xxxx Xxx
Title: Managing Director, North American Fixed Income
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Employer Identification
Number (if applicable): 00-0000000
Date and State of Incorporation or Organization (if
applicable): not applicable
Date on which Taxable Year Ends: September 30
Telecopy Number: 000-000-0000 (Xxxxxxxxx X. Xxxxxx)
000-000-0000 (Xxxxx X. Xxxxxx
000-000-0000 (Xxxx Xxxx)
000-000-0000 (Xx Xxxxx)
ACCEPTED AS OF
THE DATE HEREOF:
Lend Lease Hyperion
High-Yield CMBS Fund, Inc.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Secretary & Compliance Officer
-7-
A-2
LEND LEASE HYPERION HIGH-YIELD CMBS FUND, INC.
INVESTOR QUALIFICATION STATEMENT
The shares of common stock of Lend Lease Hyperion High-Yield CMBS
Fund, Inc. (the "Fund") (such shares hereinafter referred to as "Fund Shares")
are being offered to a limited number of qualified institutional accredited
investors, without registration under the Securities Act of 1933, as amended
(the "Act"), in reliance on the private offering exemption pursuant to Section
4(2) of the Act and Regulation D, and without registration under the securities
laws of the states in which the Fund Shares are offered and sold in reliance on
applicable state securities exemptions.
The information and representations provided in this Investor
Qualification Statement will be used to determine whether the Investor is
qualified to purchase the Fund Shares under Regulation D and applicable state
securities laws and rules.
General Information
-------------------
1. Full legal name of Investor:
General Motors Trust Company, as trustee for
General Motors Employes Global Group Pension Trust
2. Address of principal place of business:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
3. Name, title, business address and telephone number of officer to whom
all correspondence should be addressed:
Xxxx Xxx
Managing Director, North American Fixed Income
General Motors Trust Company
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
000-000-0000
-8-
4. Investor's federal tax identification number:
00-0000000
5. Date and state of incorporation:
not applicable
6. Date on which taxable year ends:
September 30
7. Nature of Investor's business:
pension trust
Accredited Institutional Investor Information
---------------------------------------------
Initial all appropriate spaces below to indicate the basis on which the
undersigned qualifies as an accredited investor.
[_] The undersigned hereby certifies that it is a bank as defined in section
3(a)(2) of the Securities Act of 1933.
[_] The undersigned hereby certifies that it is a savings and loan association
or building and loan association, cooperative bank, homestead association,
or similar institution, which is supervised and examined by state or
federal authority having supervision over any such institution, whether
acting in its individual or fiduciary capacity.
[_] The undersigned hereby certifies that it is a broker or dealer registered
pursuant to section 15 of the Securities Exchange Act of 1934.
[_] The undersigned hereby certifies that it is an insurance company as defined
in section 2(13) of the Securities Act.
[_] The undersigned hereby certifies that it is an investment company
registered under the Investment Company Act of 1940 or a business
development company as defined in section 2(a)(48) of that act.
[_] The undersigned hereby certifies that it is a Small Business Investment
Company licensed by the U.S. Small Business Administration under section
301(c) or (d) of the Small Business Investment Act of 1958.
[_] The undersigned hereby certifies that it is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of a state or its political
-9-
subdivisions for the benefit of its employees, if such plan has total
assets in excess of $5,000,000.
[X] The undersigned hereby certifies that it is an employee benefit plan within
the meaning of the Employee Retirement Income Security Act of 1974 if the
investment decision is made by a plan fiduciary, as defined in section
3(21) of such act, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or if the employee
benefit plan has total assets in excess of $5,000,000; or, if a self-
directed plan, with investment decisions made solely by persons described
as accredited investors herein.
[_] The undersigned hereby certifies that it is a private business development
company as defined in section 202(a)(22) of the Investment Advisers Act of
1940.
[_] The undersigned hereby certifies that it is an organization described in
section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts
or similar business trust, or partnership, not formed for the specific
purpose of acquiring the securities offered, with total assets in excess of
$5,000,000.
Additional Representations and Warranties
-----------------------------------------
The Investor makes the following additional representations and
warranties:
1. The Investor, if a corporation, is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
incorporated.
2. The Investor, if a corporation, has the corporate power and
authority to carry on the business in which it is engaged and to purchase the
Fund Shares.
3. The undersigned, if executing this Subscription Agreement in a
representative or fiduciary capacity, has full power and authority to execute
and deliver this Subscription Agreement in such capacity and on behalf of the
subscribing partnership, trust, corporation, or other entity for whom the
undersigned is executing this Subscription Agreement, and such partnership,
trust, corporation, or other entity has full right and power to perform pursuant
to this Subscription Agreement and make an investment in the Fund.
4. The execution and delivery of the Subscription Agreement, the
Investor Qualification Statement, and all other documents and agreements
relating to an investment by the Investor in the Fund have been duly authorized
by all necessary corporate action and constitute the legal, valid and binding
obligations of the Investor enforceable in accordance with their terms.
5. The execution and delivery of the Subscription Agreement, the
Investor Qualification Statement, and all other documents and agreements
relating to an investment by the Investor in the Fund do not, and the
performance of the terms thereof will not, contravene any
-10-
provision of existing law or regulations, or of the charter or bylaws of the
Investor, and will not conflict with or result in any breach of the terms,
conditions or provisions of, or constitute a default under, or result in or
permit the creation or imposition of any lien, charge or encumbrance upon any of
the properties of the Investor pursuant to, any indenture, mortgage or other
agreement or instrument or any judgment, decree, order or decision to which the
Investor is a party or by which it is bound.
6. Under existing law, no approval, authorization, license, permit or
other action by or filing with, any Federal, state, municipal or other
governmental commission, board or agency is required on the part of the Investor
in connection with the execution and delivery by the Investor of the
Subscription Agreement, the Investor Qualification Statement, or any other
documents or agreements relating to an investment by the Investor in the Fund,
or the consummation of the transactions contemplated thereby.
7. The Investor, by execution of the Investor Qualification
Statement, hereby certifies that the information, representations and warranties
provided by it hereunder are true, accurate and correct.
-11-
IN WITNESS WHEREOF, the undersigned has executed this Investor
Qualification Statement this 15/th/ day of March, 2000.
Dollar Amount of Subscription Amount: $50,000,000
General Motors Trust Company, as trustee for
General Motors Employes Global Group Pension Trust
---------------------------------------------------
Print Full Legal Name of Partnership, Corporation, Trust,
Employee Benefit Plan or Other Entity (if applicable).
By: /s/ Xxxx Xxx
-------------------------------------------------------
(Signature of Authorized Signatory)
Name: Xxxx Xxx
Title: Managing Director, North American Fixed Income
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Employer Identification
Number (if applicable): 00-0000000
Date and State of Incorporation or Organization (if
applicable): not applicable
Date on which Taxable Year Ends: September 30
ACCEPTED AS OF
THE DATE HEREOF:
Lend Lease Hyperion
High-Yield CMBS Fund, Inc.
By: /s/ Xxxxxx Xxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxx
Title: Secretary & Compliance Officer
-12-
