EXHIBIT 99(K)(1)
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT dated as of this ____ day of November, 1998
(this "Agreement"), by and between The Bank of New York, a New York banking
corporation (the "Administrator"), and ANZ Exchangeable Preferred Trust II (such
trust and the trustees thereof acting in their capacity as such being referred
to herein as the "Trust"), a business trust created pursuant to the Business
Trust Act of the State of Delaware (Chapter 38, Title 12, of the Delaware Code,
12 Del.C. (Sections 3801 et seq.)), and governed by an Amended and Restated
Trust Agreement, by and among ML IBK Positions, Inc., as sponsor, Xxxxx
Xxxxxxxxx, as depositor, the Trustees named therein and the Holders from time to
time, dated as of November 6, 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, as amended (the
"Investment Company Act"), created for the purposes of issuing Trust Units
Exchangeable for Preference SharesSM ("TrUEPrSSM") in accordance with the terms
and conditions of the Trust Agreement and investing the proceeds thereof in and
holding Mandatorily Redeemable Debt Securities due 2048 (the "Debt Securities")
issued by Aldobrandini (UK) Company, a special purpose unlimited liability
company incorporated under the laws of England and Wales and domiciled in the
United Kingdom (the "U.K. Company");
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:
------------------------------
/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 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 2.06 and 2.07 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 TrUEPrS; 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 to the Trust:
(a) pay, or cause the Paying Agent (as defined herein) to pay,
Xxxxxxx Xxxxx & Co., Inc. ("Xxxxxxx Xxxxx"), out of the facility fee paid
on the Issue Date to the Trust by the U.K. Company in connection with the
investment by the Trust in the Debt Securities, but in no event out of the
Trust Estate, certain fees and expenses of the Trust incurred by Xxxxxxx
Xxxxx in connection with the offering of the TrUEPrS and the organization
of the Trust (the "Reimbursed Up-Front Expenses") pursuant to the Trust
Reimbursement Agreement as specified in Schedule I hereof;
(b) pay, or cause the Paying Agent to pay, out of the facility
fee to be paid on the Issue Date to the Trust by the U.K. Company in
connection with the investment by the Trust in the Debt Securities, but in
no event out of the Trust Estate, the fees and expenses of the Trust
incurred in connection with the offering of the TrUEPrS and the
organization of the Trust other than Reimbursed Up-Front Expenses and
certain fees and expenses of the Trust for the quarterly period ending
January 14, 1999 ("Other Up-Front Expenses") as specified in Schedule II
hereof;
(c) pay, or cause the Paying Agent to pay, all demands, bills and
invoices for ongoing fees and expenses of the Trust (the "Ongoing
Expenses") incurred by or on behalf of the Trust, including those specified
in Schedule III for the quarterly dividend period commencing January 15,
1999, out of moneys payable to the Administrator pursuant to the Trust
Expense Agreement and, in the case of the fees and
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expenses of the Trust for the quarterly dividend period commencing January
15, 1999, also out of the facility fee referred to in clause (b) above, but
in no event out of the Trust Estate;
(d) instruct the Paying Agent on behalf of the Trust to take the
actions set forth in Sections 2.06, 2.07, 7.02 and 7.03 and Article III of
the Trust Agreement and to otherwise perform the duties of the Paying Agent
referred to in the Trust Agreement;
(e) calculate on a quarterly basis the Trust's Estimated Expense
and Cash Balance (each as defined in the Expense and Indemnity Agreement,
dated as of November __, 1998 (the "Expense and Indemnity Agreement"),
among the Trust, the U.K. Company, the Jersey Subsidiary, the Jersey
Holding Company, the Jersey Charitable Trust and the ANZ Affiliate) and
provide such calculations to the U.K. Company and the ANZ Affiliate
pursuant to Section 5 of the Expense and Indemnity Agreement;
(f) 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, to perform services on behalf of the
Trust;
(g) give notice to the U.K. Company and the ANZ Affiliate of any
claim for fees and expenses, including any indemnification expenses,
pursuant to Sections 2 and 3 of the Expense and Indemnity Agreement, and
pay, or cause the Paying Agent to pay, all demands, bills and invoices for
such fees and expenses incurred by or on behalf of the Trust, out of moneys
paid to the Administrator pursuant to the Expense and Indemnity Agreement,
but in no event out of the Trust Estate;
(h) (i) cause the legal and other professional advisors engaged
pursuant to Section 2.2(f) to prepare and mail, file or publish, or, as
appropriate, direct the Paying Agent to prepare and mail, file or publish,
any notices, proxies, reports, statements and other communications required
to be mailed or published pursuant to the Trust Agreement and the
Investment Company Act,
(ii) 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
(iii) cause the legal and other professional advisors
engaged pursuant to Section 2.2(f) to prepare and, as necessary,
file any and all reports, returns and other documents as required
under the Investment Company Act, the Securities Act of 1933, as
amended (the "Securities Act"), the Securities Exchange Act of
1934, as amended (the "Exchange Act"), 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; provided, however, that responsibility for the
adequacy and accuracy of any such reports, returns and other
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documents 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 and other documents;
(i) 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;
(j) review on behalf of the Trust all notices, reports,
certificates and other documents regarding the TrUEPrS and the Debt
Securities;
(k) 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 the Trust;
(l) in conjunction with the Trust, determine and publish (or
cause to be determined and published), in such manner as the Trust shall
direct in writing, the Trust's net asset value in accordance with Section
7.02(c) of the Trust Agreement and the Trust's policy as set forth in the
Prospectus; and
(m) as soon as reasonably practicable after the applicable
Exchange Event, if any, notify DTC and publish (or cause to be published) a
notice in The Wall Street Journal or another daily newspaper of national
circulation in the United States stating the Exchange Date, whether
American Depositary Receipts or cash, as applicable, will be delivered in
exchange for the TrUEPrS and such other information as the Administrator
deems advisable.
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 Trust or of any Trustee or
(iii) in connection with the performance of its duties under Section 2.2(l)
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
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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 to in clause (iii) of the first sentence of Section 2.2 of
this Agreement and Section 2.05(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, semi-annual and periodical
reports, notices of meetings and proxy statements, annual reports to holders of
the TrUEPrS and other documents required under the Investment Company Act, the
Securities Act or the Exchange Act. 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, as its attorney-in-fact and agent for
the purpose of performing the duties prescribed in Sections 2.2(h)(iii) and
2.2(k).
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
pursuant to this Agreement, as custodian under the Custodian Agreement, dated as
of November 6, 1998 (the "Custodian Agreement"), between the Administrator, as
custodian, and the Trust, and as paying agent, transfer agent and registrar (the
"Paying Agent") under the Paying Agent Agreement, dated as of November __, 1998,
between the Administrator, as the Paying Agent, and the Trust, the Administrator
shall receive its compensation only from the facility fee referred to in Section
2.2(b) hereof and from the payments under the Trust Expense Agreement and the
Expense and Indemnity Agreement and shall have no recourse to the Trust Estate
for its compensation.
(b) In connection with the performance of the services referred to in
Section 3.1(a), 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).
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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.
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 violation 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 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 Custodian Agreement
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or (iv) upon the resignation or removal of the Custodian and no successor
Custodian is appointed pursuant to Section 9 or 10 of the Custodian Agreement.
(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 no termination of this
Agreement pursuant to this Section 4.1(c) or otherwise shall be effective 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 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, or cause to be kept, appropriate, and reasonably detailed and accurate,
books and records of all its activities pursuant to this Agreement. The Trust
or any of its designated agents 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 and its designated agents all information it receives and compiles with
respect to the TrUEPrS and the Debt 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; SUCCESSORS AND ASSIGNS. 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. This Agreement shall be binding
on and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
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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. All notices, demands, reports, statements, approvals or
consents given by any party under this Agreement shall be directed as follows
(or to such other address for a particular party as shall be specified by such
party in a like notice given pursuant to this Section 6.3):
The Trust: ANZ Exchangeable Preferred Trust II
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
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
The ANZ Affiliate: ANZMB Limited
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxx,
Xxxxxx XX0 0XX
Telecopier: 00-000-000-0000
Attention: Company Secretary
The U.K. Company: Aldobrandini (UK) Company
x/x Xxxxxxxxxx & Xxxxxx
Xxx Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Telecopier: 00-000-000-0000
Attention: Company Secretary
Except as otherwise specifically provided herein, all notices, reports and
other communications provided for hereunder shall be in writing and, 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, shall be deemed to have been duly given if either (i)
personally delivered (including delivery by courier service or by Federal
Express or any other nationally recognized overnight delivery service for next
day delivery in the United States) to the offices set forth above, in which case
they shall be deemed
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received on the first Business Day by which delivery shall have been made to
said offices, (ii) transmitted by any standard form of telecommunication to the
offices set forth above, in which case they shall be deemed received on the
first Business Day by which a standard confirmation that such transmission
occurred is received by the transmitting party (unless such confirmation states
that such transmission occurred after 5:00 P.M. on such first Business Day, in
which case delivery shall be deemed to have been received on the immediately
succeeding Business Day), or (iii) sent by certified or registered mail, return
receipt requested to the offices set forth above, in which case they shall be
deemed received when receipted for unless acknowledgment of receipt is refused
(in which case delivery shall be deemed to have been received on the first
Business Day on which such acknowledgment is refused).
6.4 GOVERNING 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, 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, and any reasonable expense (including
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) incurred in connection with any such loss,
damages, cost, liability or claim, provided that the Administrator shall not be
indemnified and held harmless from and against any such loss, damages, cost,
liability, claim or reasonable expense 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. Notwithstanding
the foregoing, it is understood that (i) the Trust shall not, in respect of the
legal expenses of the Administrator in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel), (ii) the Trust
shall not be liable for any settlement of any proceeding effected without the
written consent of the Trust, but if settled with such consent or if there be a
final judgment for the third party claimant, the Trust agrees to indemnify the
Administrator from and against any loss or liability by reason of such
settlement or judgment, (iii) the Trust may not pay any amounts to the
Administrator under this Section 6.6 from the Trust Estate and (iv) the Trust
shall not be liable for any loss, damages, cost, liability or claim or any
expense (including the reasonable costs of investigation, preparation for and
defense of legal and/or administrative proceedings related to a claim against
the Administrator and reasonable attorneys' fees and disbursements) in an amount
in excess of the amount received by the Trust under the Trust Expense Agreement
and the
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Expense and Indemnity Agreement in connection with such loss, damages, cost,
liability or claim.
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.
ANZ EXCHANGEABLE PREFERRED TRUST II
By: ____________________________
Xxxxxx X. Xxxxxxx
Managing Trustee
THE BANK OF NEW YORK
By:_________________________
Name:
Title:
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SCHEDULE I
Reimbursed Up-Front Expenses
Item Amount
---- ------
SEC Registration Fee $ 63,940.00
NASD Fee 23,500.00
-----------
Total $ 87,440.00
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SCHEDULE II
Other Up-Front Expenses
Item Amount
---- -----------
NYSE Original Listing Fee $ 58,314.00
NYSE Continuing Listing Fee 2,000.00
Printing:
N-2 100,000.00
Trust Securities Certificates 2,200.00
Legal Fees:
Xxxxx & Wood LLP 14,080.00
Xxxxxxxx & Xxxxxxxx 10,000.00
Xxxxxxxx, Xxxxxx & Finger 30,000.00
Xxxxx, Xxxxxx & Xxxxxx 10,000.00
Accountants' Fee:
McGladrey & Xxxxxx LLP ___
Deloitte & Touche LLP 5,000.00
Pricewaterhouse Coopers 10,000.00
Rating Agency Fees
Moody's 20,000.00
Standard & Poors 20,010.00
Administrative Fees:
Initial Acceptance Fee 7,500.00
Payable In Advance On Closing 11,000.00
Trustees' Fees Payable In Advance 3,000.00
Blue Sky Fees 2,000.00
Fee For Tombstone Advertisement 25,000.00
RL&f Service Corp (Delaware Agent) 100.00
Security Interest Ucc Filing Fees 1,000.00
Miscellaneous:
Fees 28,026.00
Expenses 10,000.00
-----------
Total $369,230.00
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SCHEDULE III
On-Going Expenses
1/15/99 4/14/99
Service Provider Description of Services Date Payable Amount
---------------------------------------- ---------------------------------- ---------------------- ---------------
New York Stock Exchange Continuing Listing Fee January 1, 1999 $16,170.00
Xxxxx & Wood LLP Legal Fees January 15, 1999 20,000.00
McGladrey & Xxxxxx LLP Accountant's Fee January 15, 1999 4,000.00
Deloitte & Touche LLP Independent Public Accountant's January 15, 1999 3,750.00
Fee
Bank of New York Administrator's Fee January 15, 1999 10,000.00
Bank of New York Paying Agent's Fee January 15, 1999 1,250.00
Bank of New York Custodian's Fee January 15, 1999 2,500.00
Bank of New York Collateral Agent's Fee January 15, 1999 2,500.00
Bank of New York Mailing Of Reports To Shareholders January 15, 1999 3,750.00
Trustees Trustees' Fees January 15, 1999 3,000.00
Other Miscellaneous January 15, 1999 5,000.00
----------
----------
TOTAL $55,750.00
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