Exhibit 2.k.(i)
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT dated as of this ____ day of
_______, 1997 by and between The Bank of New York, a New York banking
corporation (the "Administrator"), and Mandatory Common Exchange Trust (the
"Trust"), a business trust organized under the laws of the State of Delaware
under and by virtue of a Trust Agreement, dated as of ______, 1997 (the "Trust
Agreement").
W I T N E S S E T H
WHEREAS, the Trust is a non-diversified, closed-end management
investment company, as defined in the Investment Company Act of 1940 (the
"Investment Company Act"), formed to purchase and hold certain U.S. treasury
securities (the "Treasury Securities"), to enter into and hold a forward
contract with an existing shareholder (the "Seller") of FIRSTPLUS Financial
Group, Inc. (the "Contract") and to issue Trust Issued Mandatory Exchange
Securities (the "TIMES") in accordance with the terms and conditions of the
Trust Agreement;
WHEREAS, the Trust desires to engage the services of the
Administrator to assume certain duties and responsibilities of the Trustees
under the Trust Agreement and the Investment Company Act and to undertake
certain services on behalf of and subject to the supervision of the Trustees as
provided herein; and
WHEREAS, the Administrator is qualified and willing to assume
such duties and responsibilities and to undertake to render such services,
subject to the supervision of the Trustees, on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. Capitalized terms not otherwise defined
herein shall have the respective meanings specified in the Trust Agreement.
ARTICLE II
ENGAGEMENT OF ADMINISTRATOR
2.1 ENGAGEMENT. The Trust hereby engages the Administrator,
and the Administrator hereby agrees to be so engaged, to provide or cause the
provision of the services hereinafter enumerated.
2.2 SERVICES OF ADMINISTRATOR. Subject to the supervision of
the Trustees, the Administrator shall on behalf of the Trust take the actions
set forth in Sections 2.3, 2.4 and 2.5 of the Trust Agreement, to the extent
such responsibilities can lawfully be delegated to the Administrator, and to
effectuate the terms of the Contract; provided, however, that the Administrator
shall not (i) render investment advisory services to the Trust as defined in the
Investment Company Act or the Investment Advisers Act of 1940; (ii) have the
power of the Trustees to sell the Contract or the Treasury Securities except as
provided in Sections 2.5 of the Trust Agreement; or (iii) have the power to
select the independent public accountants or counsel for the Trust.
Additionally, the Administrator shall be responsible for rendering the following
services:
(a) instruct the Paying Agent to pay out of the Net Proceeds
of the sale of the TIMES the fees and expenses of the Trust incurred in
connection with the offering of the Securities as specified in Schedule I
hereto;
(b) instruct the Paying Agent to pay out of the Net Proceeds
of the sale of the TIMES the fees and expenses of the Trust incurred in
connection with the organization of the Trust as specified in Schedule II
hereto;
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(c) instruct the Paying Agent on behalf of the Trust to take
the actions set forth in Sections 2.3, 2.4 and 2.5 of the Trust Agreement and to
otherwise perform the duties of the Paying Agent referred to in the Trust
Agreement and the Paying Agent Agreement and coordinate, monitor and supervise
the activities of those providing services to the Trust;
(d) with the approval of the Trustees, engage legal and other
professional advisors, other than the Trust's independent accountants as
provided in clause 2.2 (iii) above;
(e) receive all demands, bills and invoices for expenses
incurred by or on behalf of the Trust and pay the same, or cause the Paying
Agent to pay the same, out of moneys paid to the Administrator pursuant to the
Fund Expense Agreement but in no event out of any assets of the Trust, and give
notice to [the Underwriter][and the Seller] pursuant to the Fund Indemnity
Agreement of any claim for Indemnification Expenses (as defined in the Fund
Indemnity Agreement) or any threatened claim for Indemnification Expenses;
(f) (i) keep or cause to be kept all the books and records of
the Trust (other than those to be kept by the Paying Agent), and (ii) cause the
legal and other professional advisors engaged pursuant to Section 2.2(d) to
prepare and, as necessary, file any and all reports, returns and other documents
as required under the Investment Company Act, the Securities Exchange Act of
1934, or the Internal Revenue Code of 1986 as amended, or, as reasonably
requested by the Trustees, under any other applicable laws, rules or regulations
or otherwise;
(g) at the request of the Trustees and upon being furnished
with such reasonable security and indemnity against any related expense or
liability as the Administrator may require, institute and prosecute, in
accordance with the instructions of the Trustees, legal or other appropriate
proceedings to enforce any and all rights and remedies of the Trust;
(h) prepare, receive and review on behalf of the Trust all
notices, reports, certificates and other documents regarding the Contract and
the Treasury Securities;
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(i) make or cause to be made all necessary arrangements with
respect to meetings of Trustees and meetings of Holders, including, without
limitation, the preparation of notices, proxies and minutes, subject to the
approval of Trustees;
(j) respond to inquiries by Holders;
(k) in conjunction with the Trustees, determine and publish,
in such manner as the Trustees shall direct in writing, the Trust's net asset
value in accordance with Section 8.2(a) of the Trust Agreement and the Trust's
policy.
2.3 CERTAIN RIGHTS OF THE ADMINISTRATOR. In connection with
the performance of its duties under this Agreement, the Administrator shall not
be liable to the Trust, the Trustees or any Holder (i) for any action taken or
for refraining from taking any action hereunder except in the case of its
willful misfeasance, bad faith, gross negligence or the reckless disregard of
its duties hereunder, (ii) with respect to any action taken or omitted to be
taken by it in good faith in accordance with the directions of the Trustees or
of any Trustee or (iii) in connection with the performance of its duties under
Section 2.2(k) hereof, for good faith reliance upon information furnished by
third parties selected by the Administrator with due care. The Administrator
shall under no circumstances be liable for any punitive, exemplary, indirect
or consequential damages. The Administrator may consult with counsel and the
written advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon. The Administrator may perform its duties
and exercise its rights hereunder either directly or by or through agents or
attorneys appointed with due care by it but shall be liable for the acts and
omissions of such persons to the same extent as if the functions had been
performed by the Administrator itself (except to the extent that the Trustees
shall have directed the Administrator to retain such persons, in which event
the Administrator shall not be liable for such persons' acts or omissions).
Without limiting the generality of the preceding sentence, the Administrator (i)
may select and employ independent accountants acceptable to the Trustees (other
than the independent public accountants referred
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to in clause (iii) of Section 2.2 of this Agreement and Section 2.5(d) of the
accountants referred to in clause (iii) of Section 2.2 of this Agreement and
Section 2.5(d) of the Trust Agreement) to keep the financial books and records
of the Trust, to prepare the financial statements of the Trust and to prepare
Trust tax returns, and (ii) may select and engage attorneys acceptable to the
Trustees to prepare annual, semiannual and periodical reports, notices of
meetings and proxy statements, annual reports to holders of the Securities and
other documents required under the Investment Company Act or the Securities
Exchange Act of 1934. The Administrator shall not be liable and shall be fully
protected in acting upon any writing or document reasonably believed by it to be
genuine and to have been given, signed or made by the proper person or persons
and shall not be held to have any notice of any change of authority of any
person until receipt of written notice thereof from a Trustee.
2.4 POWER OF ATTORNEY. The Trustees hereby appoint the
Administrator, acting through any duly appointed officer, the attorney-in-fact
and agent of the Trust for the purpose of performing the duties prescribed in
Sections 2.2(f)(ii) and 2.2(i).
2.5 DELIVERY OF CERTAIN DOCUMENTS. The Trust will deliver to
the Administrator, promptly following the execution hereof: (a) a complete
conformed copy of the registration statement of the Trust under the Securities
Act and the Investment Company Act, including all amendments, exhibits and
schedules thereto; and (b) the XXXXX access codes (Central index Key, CIK
Confirmation Code, Password and Password Modification Access Code) employed to
file such registration statement.
ARTICLE III
COMPENSATION OF ADMINISTRATOR
3.1 COMPENSATION. For services to be rendered by the
Administrator pursuant to this Agreement, as custodian under the Custodian
Agreement, dated as of September __, 1997, between the Administrator, as
custodian, and the Trust, as paying agent under the Paying Agent Agreement,
dated as of September __, 1997, between the Administrator, as paying agent, and
the Trust, and as
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collateral agent under the Collateral Agreement, dated as of September __, 1997,
among the Administrator, as collateral agent, the Seller and the Trust, and for
the payment of Trust expenses pursuant to Section 2.2(e) hereof, the
Administrator shall receive only such fees and expenses as shall be paid to it
pursuant to the Fund Expenses Agreement and shall have no recourse to the assets
of the Trust for the payment of any such amounts.
3.2 ADDITIONAL SERVICES. If and to the extent that the
Trustees shall request the Administrator to render services for the Trust, other
than those to be rendered by the Administrator hereunder, and if the
Administrator agrees to render such services, such additional services shall be
compensated separately on terms to be agreed upon between the Administrator and
the Trustees from time to time.
ARTICLE IV
TERMINATION
4.1 TERMINATION.
(a) This Agreement shall terminate immediately upon written
notice of termination from the Trust to the Administrator if any of the
following events shall occur:
(i) If the Administrator shall violate any provision
of this Agreement, the Trust Agreement, or the Investment Company Act, and after
notice of such violation, shall not cure such default within 30 days; or
(ii) If the Administrator shall be adjudged
bankrupt or insolvent by a court of competent jurisdiction, or an order shall be
made by a court of competent jurisdiction for the appointment of a receiver,
liquidator, or trustee of the Administrator, or of all or substantially all of
its property by reason of the foregoing, or approving any petition filed against
the Administrator for its reorganization, and such adjudication or order shall
remain in force or unstayed for a period of 30 days; or
(iii) If the Administrator shall institute
proceedings for voluntary bankruptcy, or shall file a
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petition seeking reorganization under the Federal bankruptcy laws, or for relief
under any law for the relief of debtors, or shall consent to the appointment of
a receiver of the Administrator or of all or substantially all of its property,
or shall make a general assignment for the benefit of its creditors, or shall
admit in writing its inability to pay its debts generally as they become due; or
(iv) Upon the voluntary or involuntary dissolution of
the Administrator, or unless the Trust shall have given its prior written
consent thereto, the merger or consolidation of the Administrator with any other
entity.
If any of the events specified in clauses (ii), (iii) or (iv)
of this Section 4.1(a) shall occur, the Administrator shall give immediate
written notice thereof to the Trust.
(b) Notwithstanding anything to the contrary contained herein,
this Agreement shall terminate immediately (i) upon termination of the Trust
Agreement, (ii) upon termination of the Paying Agent Agreement, (iii) upon
termination of the Collateral Agreement, (iv) upon termination of the Custodian
Agreement or (v) upon the resignation or removal of the Custodian.
(c) The Trustees may remove the Administrator, or the
Administrator may resign, and thereby terminate this Agreement without penalty
upon 60 days' prior written notice to the other party hereto; provided that
neither party hereto may terminate this Agreement pursuant to this Section
4.1(c) unless a successor Administrator shall have been appointed and shall have
accepted the duties of the Administrator. If, within 30 days after notice by the
Administrator to the Trust of termination of this Agreement, no successor
Administrator shall have been selected and accepted the duties of the
Administrator, the Administrator may apply to a court of competent jurisdiction
for the appointment of a successor Administrator.
4.2 EFFECT OF TERMINATION. The Administrator shall forthwith
upon termination of this Agreement deliver to the Trustees any records or
other property of the Trust then in the possession or custody of the Admin-
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istrator. The Administration shall pay over to any successor administrator any
remaining portion of the one-time, up-front amount paid to the Administrator at
the closing of the offering of the TIMES with respect to its ongoing fees and
anticipated expenses of the Trust. Any obligation to indemnify the Administrator
pursuant to Section 6.6 shall survive the termination of this Agreement.
ARTICLE V
RECORDS AND REPORTS
5.1 BOOKS AND RECORDS; INSPECTION AND COPYING. The
Administrator shall keep, or cause to be keep, appropriate, and reasonably
detailed and accurate, books and records of all its activities pursuant to this
Agreement. The Trustees and their representatives shall have the right to
inspect such books and records during the Administrator's normal business hours
upon reasonable request, and to make copies of the same at the expense of the
Trust.
5.2 ACCESS TO INFORMATION. The Administrator shall make
available to each of the Trustees all information it generates, receives or
compiles with respect to the Contract and the Treasury Securities, the moneys
available to the Trust, the financial condition of the Trust and all other
relevant matters concerning the Trust.
ARTICLE VI
MISCELLANEOUS
6.1 BINDING EFFECT. Any corporation into which the
Administrator may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Administrator shall be a party, shall be the successor Administrator
hereunder and under the Trust Agreement without the execution or filing of any
paper, instrument or further act to be done on the part of the parties hereto,
provided that such corporation meets the requirements set forth in the Trust
Agreement and provided
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further that the Trustees have given their prior written consent to the
Administrator with respect to any such merger, conversion or consolidation. This
Agreement shall be binding on and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
6.2 ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties with respect to the matters contained herein and
supersedes all prior agreements or understandings, whether oral or written. This
Agreement shall not be amended, changed, modified, or discharged, in whole or in
part, except by an instrument in writing signed by both parties hereto, or their
respective successors or permitted assigns.
6.3 NOTICES. Any notice, report or other communication
required or permitted to be given hereunder shall be in writing, and shall,
unless some other method of giving such notice, report or other communication is
accepted by the party to whom it is to be given or is required by the Trust
Agreement or the Investment Company Act, be given by being mailed by U.S. first
class mail, certified or registered, return receipt requested, postage prepaid,
to the following addresses of the parties hereto:
The Trust: Mandatory Common Exchange Trust
c/o Xxxxxx X. Xxxxxxx, Managing
Trustee
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
The Administrator: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Any party may at any time give written notice to the other
party that it wishes to change its address for the purposes of this Section 6.3.
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6.4 APPLICABLE LAW. The provisions of this Agreement shall be
construed and interpreted in accordance with the laws of the State of New York
as at the time in effect except to the extent such law is preempted by federal
law.
6.5 NON-ASSIGNABILITY. This Agreement and the rights and
obligations of the parties hereunder may not be assigned or delegated by either
party without the prior written consent of the other party.
6.6 INDEMNIFICATION. The Trust shall indemnify and hold the
Administrator harmless from and against any loss, damages, cost or expense
(including the costs of investigation, preparation for and defense of legal
and/or administrative proceedings related to a claim against it and reasonable
attorneys' fees and disbursements), liability or claim incurred by reason of any
inaccuracy in information furnished to the Administrator by the Trustees, or any
act or omission in the course of, connected with or arising out of any services
to be rendered hereunder, provided that the Administrator shall not be
indemnified and held harmless from and against any such loss, damages, cost,
expense, liability or claim incurred by reason of its willful misfeasance, bad
faith, or gross negligence in the performance of its duties, or its reckless
disregard of its duties and obligations hereunder.
6.7 PROVISIONS OF LAW TO CONTROL. This Agreement shall be
subject to the applicable provisions of the Investment Company Act and the rules
and regulations of the Commission thereunder. To the extent that any provisions
herein contained conflict with any applicable provisions of the Investment
Company Act or of such rules and regulations, the latter shall control.
6.8 COUNTERPARTS. This Agreement may be signed in counterparts
with all counterparts constituting one and the same instrument.
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IN WITNESS WHEREOF the parties have hereunto executed this
Administration Agreement as of the day and year first above written.
MANDATORY COMMON EXCHANGE TRUST
_______________________________
as Trustee
THE BANK OF NEW YORK
By____________________________
Name:
Title:
ADMINISTRATION AGREEMENT
SCHEDULE I
Cost incurred by the Trust in connection with the offering of the Securities:
Registration Fees $ [ ]
American Stock Exchange listing fee [ ]
Printing (other than certificates) [ ]
Engraving and printing certificates [ ]
Fees and expenses of qualification under
state securities laws (excluding fees of
counsel) [ ]
Accounting fees and expenses [10,000]
Legal fees and expenses [ ]
NASD fee [ ]
Miscellaneous [ ]
---------
Total $[10,000]
=========
* To be confirmed with D&T on 9/11/97
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ADMINISTRATION AGREEMENT
SCHEDULE II
Cost incurred by the Trust in connection with the organization of the Trust:
Registration fees $ [ ]
Filing fees [ ]
Accounting fees and expenses [ ]
Legal fees and expenses [ ]
Miscellaneous [ ]
Total [ ]
-------
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