LEND LEASE HYPERION HIGH-YIELD
CMBS FUND, INC.
ADMINISTRATIVE SERVICES CONTRACT
AGREEMENT dated as of January 1, 2000 between Lend Lease Hyperion
High-Yield CMBS Fund, Inc. (the "Fund"), a Maryland corporation, and Hyperion
Capital Management, Inc. (the "Administrator"), a Delaware 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 Fund wishes to engage the Administrator to provide certain
services with respect to the administration of the Fund, and the Administrator
is willing to provide such services to the Fund on the terms and conditions
hereinafter set forth;
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
administrator 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 Lend Lease Hyperion Capital Advisors, L.L.C. provides to the
Fund pursuant to the Investment Management Contract or are provided by a
sub-administrator pursuant to a written contract with the Administrator. 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 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
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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 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
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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 .15% of the Fund's
average weekly 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 November 1st), provided that such continuation is specifically approved at
least annually by (i) the Board of Directors and of 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
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 this Agreement
and (ii) by the vote of more than 75% of the holders of the Fund's Common Stock.
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. Amendment
This Agreement may not be amended without the approval of the holders of
more than 75% of the shares of the Fund's outstanding Common Stock.
7. 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] LEND LEASE HYPERION HIGH-YIELD CMBS FUND, INC.
By:___________________________________________
Name:
Title:
[SEAL] HYPERION CAPITAL MANAGEMENT, INC.
By: __________________________________________
Name:
Title:
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Exhibit A
Administration Services To Be Performed
By Hyperion Capital Management, Inc.
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, reportsand 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. Negotiate contracts and fees with and 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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