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Exhibit 99.2.K.(i)
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT dated as of this day of November, 1997
by and between The Bank of New York, a New York banking corporation (the
"Administrator"), and DECS Trust II (such trust and the trustees thereof acting
in their capacity as such being referred to herein as the "Trust"), a statutory
business trust organized under the Business Trust Act of the State of Delaware
pursuant to a Declaration of Trust dated as of September 2, 1997, as amended
and restated as of October 22, 1997 (the "Trust Agreement").
WITNESSETH
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 forward purchase contracts
with one or more existing shareholders (the "Sellers") of Royal Group
Technologies Limited (the "Company") (individually, a "Contract" and
collectively, the "Contracts") and to issue DECS 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 Trust under the Trust
Agreement and the Investment Company Act and to undertake certain services on
behalf of and subject to the supervision of the Trust 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 Trust, 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.
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2.2. Services of Administrator. Subject to the supervision of the Trust,
the Administrator shall on behalf of the Trust take the actions set forth in
Sections 2.6, 2.7 and 2.8 of the Trust Agreement, to the extent such
responsibilities can lawfully be delegated to the Administrator; 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 Treasury Securities except as provided in Section 2.8 of the Trust
Agreement; or (iii) have the power to select the independent public accountants
for the Trust. Additionally, the Administrator shall be responsible for
rendering the following services:
(a) instructing the Paying Agent on behalf of the Trust to take the
actions set forth in Sections 2.6, 2.7, 2.8 and 3.5 of the Trust Agreement and
to otherwise perform the duties of the Paying Agent referred to in the Trust
Agreement;
(b) with the approval of the Trustees, engaging legal and other
professional advisors, other than the Trust's independent public accountants as
provided in clause 2.2 (iii) above;
(c) receiving all demands, bills and invoices for expenses incurred by or
on behalf of the Trust and pay the same, or causing the Paying Agent to pay the
same, out of moneys paid to the Administrator pursuant to the Fund Expense
Agreement dated the date hereof between Salomon Brothers Inc and The Bank of
New York (the "Fund Expense Agreement") but in no event out of any assets of
the Trust, and giving notice to Salomon Brothers Inc pursuant to the Fund
Indemnity Agreement dated the date hereof between Salomon Brothers Inc and the
Trust (the "Fund Indemnity Agreement") of any claim for Indemnification
Expenses (as defined in the Fund Indemnity Agreement) or any threatened claim
for Indemnification Expenses;
(d) (i) keeping or causing to be kept all the books and records of the
Trust (other than those to be kept by the Paying Agent), and (ii) preparing
and, as necessary, mailing, filing or publishing, or, as appropriate, directing
the Paying Agent or causing the legal and other professional advisors engaged
pursuant to Section 2.2(b) to prepare and, as necessary, mail, file or publish,
any and all notices, proxies, reports and other communications and documents as
required under the Trust Agreement, the Investment Company Act, the Securities
Exchange Act of 1934, or the Code, or, as reasonably requested by the Trustees,
under any other applicable laws, rules or regulations or otherwise; provided,
however, that responsibility for the adequacy and accuracy of any such reports,
returns, etc. shall be that of the Trustees and provided, further, that the
Administrator shall have no liability for the adequacy or accuracy of such
reports, returns, etc.;
(e) 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, instituting and prosecuting, in accordance with
the instructions of the Trustees, legal or other appropriate proceedings to
enforce any and all rights and remedies of the Trust;
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(f) receiving and reviewing on behalf of the Trust all notices, reports,
certificates and other documents regarding the Contracts and the Treasury
Securities;
(g) making or causing 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 the
Trustees; and
(h) in conjunction with the Trustees, determining and publishing, in such
manner as the Trustees shall direct in writing, the Trust's net asset value in
accordance with Section 8.2(c) of the Trust Agreement and the Trust's policy as
set forth in the Prospectus.
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(h) 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 as 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 person's acts or
omissions). Without limiting the generality of the preceding sentence, the
Administrator (i) may select and employ independent public accountants
acceptable to the Trustees (other than the independent public 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 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(d)(ii) and 2.2(g) hereof.
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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. (a) For services to be rendered by the Administrator
(i) pursuant to this Agreement, (ii) as custodian under the Custodian
Agreement, dated as of October 8, 1997, between the Administrator, as
custodian, and the Trust, (iii) as paying agent under the Paying Agent
Agreement, dated as of November , 1997, between the Administrator, as paying
agent, and the Trust, (iv) as collateral agent under the Collateral Agreements,
dated as of November , 1997, among the Administrator, as collateral agent,
each of the Sellers and the Trust, and (v) as collateral agent under the
Collateral Agent Agreements, dated as of November , 1997, among the
Administrator, as collateral agent, [1260333 Ontario Limited] as pledgor, CIBC
Mellon Trust Company, as sub-collateral agent, and the Trust, and for the
payment of Trust expenses pursuant to Section 2.2(c) hereof, the Administrator
shall receive only such fees and expenses as shall be paid to it pursuant to
the terms of the Fund Expense Agreement and shall have no recourse to the
assets of the Trust for the payment of any such amounts.
(b) In connection with the performance of the services referred to in
Section 3.1(a) hereof, the Administrator, as such or in any other capacity,
shall not be required to advance, expend or risk its own funds or otherwise
incur or become exposed to financial liability in the performance of its duties
hereunder or under the other agreements referred to in Section 3.1(a) hereof.
3.2. Additional Services. If and to the extent that the Trustee 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 Trustees to the Administrator if any of the following
events shall occur:
(i) If the Administrator shall violate or default in the
performance of any provision of this Agreement, the Trust Agreement or
the Investment Company Act, and
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after notice of such violation or default, shall not cure such violation
or 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 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 Trustee.
(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 all Collateral Agreements, (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 Trustees 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 Administrator.
Any obligation to indemnify the Administrator pursuant to Section 6.6 hereof
shall survive the termination of this Agreement.
ARTICLE V
RECORDS AND REPORTS
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5.1. Books and Records; Inspection and Copying. The Administrator shall
keep, or cause to be kept, appropriate, and reasonably detailed and accurate,
books and records of all its activities pursuant to this Agreement. The
Trustees 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 receives and compiles with respect to
the Contracts 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 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: DECS Trust II
c/o Puglisi and Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
0
Xxx Xxxxxxxxxxxxx: Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx,
Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. 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.
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 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.
DECS TRUST II
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Xxxxxx X. Xxxxxxx, as Trustee
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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Xxxxxxx X. Xxxxxx III, as Trustee
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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Xxxxx X. X'Xxxxx, as Trustee
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
THE BANK OF NEW YORK
By:
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Name:
Title:
