LEND LEASE HYPERION HIGH-YIELD
CMBS FUND, INC.
INVESTMENT ADVISORY AGREEMENT
AGREEMENT dated as of January 1, 2000 between Lend Lease Hyperion
High-Yield CMBS Fund, Inc. (the "Fund"), a Maryland corporation, and Lend Lease
Hyperion Capital Advisors, L.L.C. (the "Adviser"), a Delaware limited liability
corporation.
WHEREAS, the Fund is engaged in business as a non-diversified,
closed-end management investment company registered under the Investment Company
Act of 1940 (collectively, with the rules and regulations promulgated
thereunder, the "1940 Act");
WHEREAS, the Adviser is a registered investment adviser under the
Investment Adviser's Act of 1940, with the rules and regulations promulgated
thereunder;
NOW, THEREFORE, in consideration of the mutual promises and
agreements herein contained and other good and valuable consideration, the
receipt of which is hereby acknowledged, it is agreed by and between the parties
hereto as follows:
1. In General
The Adviser agrees, all as more fully set forth herein, to act as
investment adviser to the Fund with respect to the investment and the
reinvestment of the Fund's assets.
2. Duties and Obligations of the Adviser with Respect to
Investments of Assets of the Fund
(a) Subject to the succeeding provisions of this paragraph and
subject to the direction and general control of the Fund's Board of Directors,
the Adviser shall act as investment adviser for and supervise and manage the
investment and reinvestment of the portfolio's assets and in connection
therewith have complete discretion in purchasing and selling securities and
other assets for the Fund and in voting and exercising all other rights
appertaining to such securities and other assets on behalf of the Fund. To carry
out such decisions, the Adviser is hereby authorized, as agent for the Fund and
attorney-in-fact for the Fund's account and at the Fund's risk and in the Fund's
name, to place such orders for the investment and reinvestment of the Fund's
assets.
(b) In the performance of its duties under this Agreement, the
Adviser shall at all times conform to, and act in accordance with, any
requirements imposed by (i) the provisions of the 1940 Act, and of any rules or
regulations in force thereunder; (ii) any other applicable provision of law;
(iii) the provisions of the Articles of Incorporation and By-Laws
299812.5
of the Fund, as such documents are amended from time to time; (iv) the Fund's
Registration Statement filed with the 1940 Act and the Securities Act of 1933,
including the Prospectus and Statement of Additional Information forming a part
thereof (the "Registration Statement"); and (v) any policies and determinations
established by the Board of Directors of the Fund.
(c) The Adviser shall report to the Fund's Board of Directors at
each meeting thereof all changes in the Fund's portfolio and will also keep the
Fund in touch with important developments affecting the portfolio and, on the
Adviser's initiative, will furnish the Fund from time to time with such
information as the Adviser may believe appropriate for this purpose, whether
concerning the individual entities whose securities are included in the
portfolio, the activities in which such entities engage, Federal income tax
policies applicable to the Fund's investments, or the conditions prevailing in
the financial markets or the economy generally. The Adviser shall also furnish
the Fund with such statistical and analytical information with respect to the
portfolio securities as it may believe appropriate or as the Fund may reasonably
request.
(d) The Adviser may from time to time employ, subcontract with or
otherwise associate itself with entirely at its expense, such persons as it
believes to be particularly fitted to assist it in the execution of its duties
hereunder.
(e) The Adviser will bear all costs and expenses of its partners
and employees and any overhead incurred in connection with its duties hereunder
and shall bear the costs of any salaries or directors' fees of any officers or
directors of the Fund who are affiliated persons (as defined in the Act) of the
Adviser.
(f) The Adviser shall give the Fund the benefit of its best
judgment and effort in rendering services hereunder, but the Adviser 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 a loss
resulting from 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 under this Agreement.
(g) Nothing in this Agreement shall prevent the Adviser or any
director, officer, employee or other affiliate thereof from acting as investment
adviser for any other person, firm or corporation, or from engaging in any other
lawful activity, and shall not in any way limit or restrict the Adviser or any
of its partners, 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 Adviser will
undertake no activities which, in its judgment, will adversely affect the
performance of its obligations under this Agreement.
299812.5
-2-
3. Fund Transactions and Brokerage
The Adviser is authorized, for the purchase and sale of the Fund's
portfolio securities, to employ such securities dealers as may, in the judgment
of the Adviser, implement the investment objectives and policies of the Fund to
obtain the best net results taking into account such factors as price, including
dealer spread, the size, type and difficulty of the transaction involved, the
firm's general execution and operational facilities and the firm's risk in
positioning the securities involved. Consistent with these investment objectives
and policies, the Adviser is authorized to direct the execution of the Fund's
portfolio transactions to dealers and brokers furnishing statistical information
or research deemed by the Adviser to be useful or valuable to the performance of
its investment advisory functions for the Fund.
It is understood that the Adviser will not be deemed to have acted
unlawfully, or to have breached a fiduciary duty to the Fund or be in breach of
any obligation owing to the Fund under this Agreement, or otherwise, solely by
reason of its having directed a securities transaction on behalf of the Fund to
a broker-dealer in compliance with the provisions of Section 28(e) of the
Securities Exchange Act of 1934.
4. Compensation of the Adviser
(a) The Fund agrees to pay to the Adviser for all services rendered
a fee computed and payable monthly in an amount equal to 0.50% of the Fund's
average weekly net assets on an annualized basis, for the then-current fiscal
year. 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. The Adviser may use
any portion of this fee for distribution of Fund shares or for making servicing
payments to organizations whose customers or clients are Fund shareholders. The
Adviser may waive its right to any fee to which it is entitled hereunder,
provided such waiver is delivered to the Fund in writing. Any reimbursement of
expenses to which the Fund may become entitled to pursuant to paragraph 2(c)
hereof, will be paid to the Fund at the same time as the Fund pays the Adviser
hereunder.
(b) For purposes of this Agreement, the average daily net assets of
the Fund shall mean the average daily value of the total assets of the Fund,
minus the accrued liabilities (including accrued expenses) of the Fund. The
average daily net assets of the Fund shall be calculated as set forth in the
current prospectus or pursuant to the procedures adopted by resolutions of the
Fund's Board of Directors for calculating the net asset value of the Fund's
shares or delegating such calculations to third parties.
299812.5
-3-
5. Duration and Termination
(a) This Agreement will become effective on the date hereof and
shall continue in effect until December 31, 2001 and thereafter for successive
twelve-month periods (computed from each May 1st), provided that such
continuation is specifically approved at least annually by (i) the Board of
Directors and by a majority of those directors who are neither party to this
Agreement nor, other than by their service as directors of the Fund, interested
persons (as defined in the 1940 Act and the rules thereunder) of any such person
who is party to this Agreement, cast in person at a meeting called for the
purpose of voting on such approval, and (ii) by the vote of more than 75% of the
outstanding shares of the Fund's Common Stock. Upon the effectiveness of this
Agreement, it shall supersede all previous agreements between the Adviser and
the Fund covering the subject matter hereof. This Agreement may be terminated at
any time, without the payment of any penalty, (i) by vote of a majority of the
Fund's outstanding voting securities, as defined in the 1940 Act and the rules
thereunder, or (ii) by a vote of a majority of the entire Board of Directors, on
sixty days' written notice to the Adviser, or (iii) by the Adviser on sixty
days' written notice to the Fund.
(b) This Agreement may not be transferred, assigned, sold or
in any manner hypothecated or pledged by either party and this Agreement shall
terminate automatically in the event of any such transfer, assignment, sale,
hypothecation or pledge by either party. The terms "transfer", "assignment" and
"sale" as used in this paragraph shall have the meanings ascribed thereto by
governing law and in applicable rules or regulations of the Securities and
Exchange Commission.
6. Amendment
This Agreement may not be amended without the approval of the
holders of more than 75% of the Fund's outstanding Common Stock.
7. 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 such notice 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.
8. Governing Law
This Agreement shall be construed in accordance with the laws of the
State of New York and in accordance with the applicable provisions of the 1940
Act.
299812.5
-4-
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.
[SEAL] LEND LEASE HYPERION HIGH-YIELD CMBS FUND, INC.
By:___________________________________________
Name:
Title:
[SEAL] LEND LEASE HYPERION CAPITAL ADVISORS, L.L.C.
By:___________________________________________
Name:
Title:
299812.5
-5-
