EXHIBIT (2)(k)(i)
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT dated as of this ____ day of May,
1998 by and between The Bank of New York, a New York banking corporation (the
"Administrator"), and Peak TrENDS Trust (the "Trust"), a business trust
organized under the laws of the State of Delaware under and by virtue of a
Declaration of Trust, dated as of ________, 1998, as amended and restated as of
________, 1998 (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 Peak International
Limited (the "Contract") and to issue Trust Enhanced Dividend Securities (the
"TrENDS") 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 of
the Trust (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) pay out of the monies paid to the Administrator pursuant to
the Fund Expense Agreement all ongoing fees and expenses of the Trust as
specified on Schedule A hereto;
(b) 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;
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(c) 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;
(d) 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
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation 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;
(e) (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(c) 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 Reve nue Code of 1986 as amended, or, as reasonably
requested by the Trustees, under any other applicable laws, rules or regulations
or otherwise;
(f) 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;
(g) prepare, receive and review on behalf of the Trust all
notices, reports, certificates and other documents regarding the Contract and
the Treasury Securities;
(h) 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;
(i) respond to inquiries by Holders;
(j) 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(c) of the Trust Agreement and the Trust's policy.
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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(j)
hereof, for good faith reliance upon information furnished by third parties
selected by the Administra tor 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 accoun tants acceptable to the Trustees (other than the
independent accountants referred to in clause (iii) of Section 2.2 of this
Agreement and Section 8.5 of the Trust Agreement) to keep the financial books
and records of the Trust, to prepare the financial state ments of the Trust and
to prepare Trust tax returns, and (ii) may select and engage attorneys
acceptable to the Trustees to prepare annual, semi-annual 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 Trust hereby appoints 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(e)(ii) and 2.2(h).
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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. For services to be rendered by the
Administrator pursuant to this Agreement, as custodian under the Custodian
Agreement, dated as of , 1998, between the Administrator, as custodian, and the
Trust, as paying agent under the Paying Agent Agreement, dated as of , 1998,
between the Administrator, as paying agent, and the Trust, and as collateral
agent under the Collateral Agreement, dated as of , 1998, among the Adminis
trator, as collateral agent, the Seller and the Trust, and for the payment of
Trust expenses pursuant to Section 2.2(d) hereof, the Administrator shall
receive only such fees and expense as shall be paid to it pursuant to 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 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.
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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, agency or other entity of competent jurisdiction, or an
order shall be made by a court, agency or other entity of competent jurisdiction
for the appointment of a receiver, liquidator, trustee or a person of similar
function 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, rehabilitation, liquidation or similar
relief 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 commence or become subjected to similar proceedings applicable to banks, 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 or
liquidation 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.
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(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 Trust 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 Admin istrator 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 Trust any records or other property
of the Trust then in the possession or custody of the Administrator. 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 TrENDS 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.
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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 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 per mitted 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
Invest ment 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: Peak TrENDS Trust
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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: Xxxxxx 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 without giving effect to the principles of conflicts of 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
(includ ing the reasonable 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 informa tion 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.
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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.
PEAK TrENDS TRUST
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as Trustee
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as Trustee
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as Trustee
THE BANK OF NEW YORK
By
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Name:
Title:
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ADMINISTRATION AGREEMENT
SCHEDULE A
Accountants Expenses $
Miscellaneous Ongoing
Expenses $
Miscellaneous BONY
Expenses $
Fidelity Bond Coverage $
Legal Expenses $
Trustees' Fees $
BONY Fees $
