Exhibit (K)(5)
LEND LEASE HYPERION HIGH-YIELD
CMBS FUND, INC.
FORM OF 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 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
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.
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: Xxxxxx Xxxxxxxx
Title: Secretary
[SEAL] HYPERION CAPITAL MANAGEMENT, INC.
By:________________________________________
Name: Xxxxxxxx X. Xxx
Title: President
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 tile 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. Negotiate contracts and tees 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.
