EQUITABLE REAL ESTATE HYPERION HIGH-YIELD
COMMERCIAL MORTGAGE FUND, INC.
ADMINISTRATIVE SERVICES CONTRACT
AGREEMENT dated as of September [ ], 1995 between Equitable
Real Estate Hyperion High-Yield Commercial Mortgage Fund, Inc. (the "Fund"), a
Maryland corporation, and Equitable Real Estate Hyperion Capital Advisors,
L.L.C. (the "Administrator"), 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, Equitable Real Estate Hyperion Capital Advisors,
L.L.C. has entered into an Investment Advisory Agreement with the Fund as of
September , 1995 to engage in the business of investing and reinvesting the
Fund's assets in securities of the type, and in accordance with the limitations,
specified in the Fund's Articles of Incorporation, By-Laws and Registration
Statement filed with the Securities and Exchange Commission under the 1940 Act
and the Securities Act of 1933, including the Prospectus forming a part thereof
(the "Registration Statement"), all as from time to time in effect, and in such
manner and to such extent as may from time to time be authorized by the Board of
Directors;
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 Administrator agrees, all as more fully set forth herein,
to act as admistrator to the Fund with respect to the investment and the
reinvestment of the Fund's assets.
2. Duties and Obligations of the Administrator
(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 Administrator shall act as administrator to provide all management and
administrative services reasonably necessary for the Fund's operation, other
than those services Equitable Real Estate Hyperion Capital Advisors, L.L.C.
provides to the Fund pursuant to the Investment Management Contract. The
services to be provided by the Administrator shall include but not be limited to
those enumerated on Exhibit A hereto. The personnel providing these services may
be the Administrator's employees or employees of its affiliates or of other
organizations. The
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Administrator shall make periodic reports to the Fund's Board of Directors in
the performance of its obligations under this Agreement.
(b) The Administrator 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. While this agreement is in effect, the
Administrator or persons or its affiliates other than the Fund ("the
affiliates"), will provide persons satisfactory to Board of Directors to be
elected or appointed officers or employees of the Fund. These shall be a
president, a secretary, a treasurer, and such additional officers and employees
as may be necessary for the conduct of Fund business.
(c) The Administrator or its affiliates will also provide
persons, who may be Fund officers, to (i) supervise the performance of
bookkeeping and related services and calculation of net asset value and yield by
the Fund bookkeeping agent, (ii) prepare reports to and the filings with
regulatory authorities, and (iii) perform such clerical, other office and
shareholder services for the Fund as it may from time to time request. Such
personnel may be employees of the Administrator or employees of the
Administrator affiliates or of other organizations. Notwithstanding the
preceding, the Administrator shall not be required to perform any accounting
services not expressly provided for herein. The Fund will pay to the
Administrator the cost of such personnel for rendering such services at such
rates as shall from time to time be agreed upon between the parties, provided
that the Fund shall not bear or pay any costs in respect of any services
performed for the Fund by officers of the Administrator's affiliates.
(d) The Administrator or its affiliates will also furnish the
Fund such administrative and management supervision and assistance and such
office facilities as it may believe appropriate or as the Fund may reasonably
request subject to the requirements of any applicable regulatory authority. The
Administrator or its affiliates will also pay the expenses of promoting the sale
of Fund shares (other than the costs of preparing, printing and filing the
Registration Statement, printing copies of the prospectus contained therein and
complying with other applicable regulatory requirements), except to the extent
that the Fund is permitted to bear such expenses under a plan that may in the
future be adopted pursuant to Rule 12b-1 under the 1940 Act or a similar rule.
(e) The Administrator shall give the Fund the benefit of its
best judgment and efforts in rendering these services hereunder but the
Administrator shall not be liable hereunder for any mistake of judgment or for
any other cause, provided that nothing herein shall protect the Administrator
against any liability to the Fund or to its security holders by reason of
willful misfeasance, bad faith or gross negligence in the performance of its
duties hereunder, or by reason of its reckless disregard of its obligations and
duties hereunder.
(f) Nothing in this Agreement shall prevent the Administrator
or any director, officer, employee or other affiliate thereof from acting as
administrator for any other person, firm or corporation, or from engaging in any
other lawful activity, and shall not in any way
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limit or restrict the Administrator 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 Administrator will undertake no activities which, in
its judgment, will adversely affect the performance of its obligations under
this Agreement.
3. Compensation of the Administrator
The Fund agrees to pay the Administrator a fee of .20% of the
Fund's average daily net assets. The Administrator's fee will be accrued daily,
and will be payable on the last day of each calendar month for services
performed hereunder during that month or on such other schedule as may be used
may be agreed in writing. Any portion of this fee may be used for distribution
of Fund shares, or for making servicing payments to organizations whose
customers or clients are Fund shareholders. The Administrator may waive its
right to any fee to which it is entitled hereunder, provided such waiver is
delivered to the Fund in writing.
4. Duration and Termination
(a) This Agreement will become effective on the date hereof
and will remain in effect thereafter for successive twelve-month periods
(computed from each August ), provided that such continuation is specifically
approved at least annually by the Board of Directors and by a majority of those
of the 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, of any such person who is party to this Agreement. 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, or (ii) by a vote of a majority of the entire Board of Directors on sixty
days' written notice to the Administrator, or (iii) by the Administrator 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. 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.
5. 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.
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6. 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.
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] EQUITABLE REAL ESTATE HYPERION HIGH-YIELD
COMMERCIAL MORTGAGE FUND, INC.
By:
Name:
Title:
[SEAL] EQUITABLE REAL ESTATE HYPERION CAPITAL
ADVISORS, L.L.C.
By:
Name:
Title:
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Exhibit A
Administration Services To Be Performed
By Equitable Real Estate Hyperion Capital Advisors, L.L.C.
Administration Services
1. In conjunction with Fund counsel, prepare and file all
Post-Effective Amendments to the Registration Statement, all
state and federal tax returns and all other required
regulatory filings.
2. In conjunction with Fund counsel, prepare and file all Blue Sky
filings, reports and renewals.
3. Coordinate, but not pay for, required Fidelity Bond and
Directors and Officers Insurance (if any) and monitor their
compliance with Investment Company Act.
4. Coordinate the preparation and distribution of all materials for
Directors, including the agenda for meetings and all exhibits thereto,
and actual and projected quarterly summaries.
5. Coordinate the activities of the Fund's Manager, Custodian, Legal
Counsel and Independent Accountants.
6. Prepare and file all periodic reports to shareholders and proxies and
provide support for shareholder meetings.
7. Monitor daily and periodic compliance with respect to all requirements
and restrictions of the Investment Company Act, the Internal Revenue
Code and the Prospectus.
8. Monitor daily the Fund's bookkeeping services agent's calculation of
all income and expense accruals, sales and redemptions of capital
shares outstanding.
9. Evaluate expenses, project future expenses, and process payments of
expenses.
10. Monitor and evaluate performance of accounting and accounting related
services by Fund's bookkeeping services agent. Nothing herein shall be
construed to require you to perform any accounting services not
expressly provided for in this Agreement.
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