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Exhibit (k)(1)
Form of Administration
Agreement
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT dated as of this ____ day of March, 1997, by
and between The Bank of New York, a New York banking corporation (the
"Administrator"), and Nextel STRYPES Trust (such trust and the trustees thereof
acting in their capacity as such being referred to herein as the "Trust"), a
trust organized under the laws of the State of Delaware under and by virtue of
an Amended and Restated Trust Agreement, dated as of February 27, 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, as amended (the
"Investment Company Act"), formed to purchase and hold certain zero-coupon U.S.
Government securities (the "U.S. Treasury Securities"), to enter into and hold a
forward purchase contract (the "Contract") with Cherrywood Holdings, Inc. and
Xxxxxx Investors, L.L.C. (the "Contracting Stockholders"), each being a
stockholder of Nextel Communications, Inc., and to issue Structured Yield
Product Exchangeable for Stock(SM) (the "STRYPES") 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 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:
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(SM) Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
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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 the services
hereinafter enumerated.
2.2 SERVICES OF ADMINISTRATOR. Subject to the supervision of the Trust,
the Administrator shall effect the matters set forth further 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, as
amended; (ii) have the power of the Trustees to sell the Contract or the U.S.
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) pay, or cause the Paying Agent to pay, out of moneys paid to the
Administrator pursuant to the Fund Expense Agreement dated the date hereof among
the Contracting Stockholders, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx") and the Administrator (the "Fund Expense Agreement"), but in
no event out of any assets of the Trust, the fees and expenses of the Trust
incurred in connection with the offering of the STRYPES as specified in Schedule
I hereto;
(b) pay, or cause the Paying Agent to pay, out of moneys paid to the
Administrator pursuant to the Fund Expense Agreement, but in no event out of any
assets of the Trust, the fees and expenses of the Trust incurred in connection
with the organization of the Trust as specified in Schedule II hereto;
(c) instruct the Paying Agent to effect the transactions set forth
in Sections 2.6, 2.7 and 2.8 of the Trust Agreement and to otherwise perform the
duties of the Paying Agent referred to in the Trust Agreement;
(d) with the approval of the Trustees, engage legal and other
professional advisors, subject to clause 2.2 (iii) above;
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(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;
(f) (i) prepare and mail, file or publish, or, as appropriate,
direct the Paying Agent to prepare and mail, file or publish, any notices,
proxies, reports and other communications required to be mailed or published
pursuant to the Trust Agreement and the Investment Company Act,
(ii) keep all the books and records of the Trust (other than
those to be kept by the Paying Agent), and
(iii) prepare (or cause to be prepared) and, as necessary,
file (or cause to be filed) any and all reports, returns and other documents as
required under the Investment Company Act, the Securities Exchange Act of 1934,
as amended, or the Internal Revenue Code of 1986, as amended (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.;
(g) at the request of the Trust 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 Trust, legal or other appropriate proceedings to enforce any
and all rights and remedies of the Trust;
(h) receive and review on behalf of the Trust all notices, reports,
certificates and other documents regarding the Contract and the U.S. Treasury
Securities;
(i) make 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 Trust; and
(j) in conjunction with the Trust, determine and publish, in such
manner as the Trust shall direct in writing, the Trust's net asset value in
accordance with 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
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to be taken by it in good faith in accordance with the directions of the Trust
or of any Trustee or (iii) in connection with the performance of its duties
under Section 2.2(j) 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 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.
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 March 25, 1997, between the Administrator, as custodian, and the Trust, as
paying agent under the Paying Agent Agreement, dated as of March __, 1997,
between the Administrator, as paying agent, and the Trust, and as collateral
agent under the Security and Pledge Agreement, dated as of March __, 1997, among
the Administrator, as collateral agent, the Contracting Stockholders and the
Trust, and for the payment of Trust expenses pursuant to Section 2.2(a), (b) and
(e) 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.
3.2 ADDITIONAL SERVICES. If and to the extent that the Trust 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 Trust from time to
time.
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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 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 Security and Pledge Agreement, (iv) upon termination of the
Custodian Agreement or (v) upon the resignation or removal of the Custodian.
(c) This Agreement may be terminated by either party hereto 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
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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 Trust 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 shall survive
the termination of this Agreement.
ARTICLE V
RECORDS AND REPORTS
5.1 BOOKS AND RECORDS; INSPECTION AND COPYING. The Administrator shall
keep appropriate, and reasonably detailed and accurate, books and records of all
its activities pursuant to this Agreement. The Trust 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 the
Trust all information it receives and compiles with respect to the Contract and
the U.S. 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 Trust has given its 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
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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: Nextel STRYPES Trust
c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
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: Xxxxxxxxxxx X. Xxxxxxxx
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. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York applicable to
agreements made and to be performed wholly within such State.
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
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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 executed in several counterparts,
each of which shall be an original and all of which shall constitute but 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.
NEXTEL STRYPES TRUST
By:
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Xxxxxx X. Xxxxxxx,
as Managing Trustee
THE BANK OF NEW YORK
By:
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Name:
Title:
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