Exhibit 2.k.(i)
S&C Draft of February 16, 1999
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of February 17, 1999,
by and between The Chase Manhattan Bank, a New York banking corporation (the
"Administrator"), and Xxxxx Xxxxxx Automatic Common Exchange Security Trust II,
a trust organized under the laws of the State of New York under and by virtue of
an Amended and Restated Trust Agreement, dated as of February 17, 1999 (the
"Trust Agreement") (such trust and the trustees thereof acting in their capacity
as such being referred herein as the "Trust").
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
purchase contract (the "Contract") with The Xxxxx Xxxxxx 1994 Trust (the
"Seller"), an existing stockholder of The Xxxxx Xxxxxx Companies Inc. (the
"Company"), and to issue $____ Trust Automatic Common Exchange Securities (the
"Securities") 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 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 accepts such engagement, to provide the services
hereinafter enumerated.
2.2 Services of Administrator. Subject to the supervision of
the Trustees, the Administrator shall effect the matters set forth further 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; 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
for the Trust. Additionally, the Administrator shall be responsible for
rendering the following services:
(a) instruct the Paying Agent to pay out of the assets of the
Trust, the fees and expenses of the Trust to the extent specified in
Section 3.2 of the Trust Agreement;
(b) instruct the Paying Agent to effect the transactions set
forth in Sections 2.3, 2.4 and 2.5 and Article III of the Trust
Agreement;
(c) when the Trust is required to select and engage an
independent investment banking firm under the
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Contract, to select and engage such a firm, subject to the requirements
of the Contract (including Section 8.1 thereof) and inform the Trustees
promptly after making such selection and engagement;
(d) with the approval of the Trustees, engage legal and other
professional advisors, subject to 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 dated the date hereof between
Xxxxxxx, Sachs & Co., and The Chase Manhattan Bank (the "Fund Expense
Agreement") but in no event out of any assets of the Trust except as
provided in paragraphs (a) and (b) hereof, and give notice to the
Seller pursuant to the Fund Indemnity Agreement dated the date hereof
between the Seller 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;
(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 (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) 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, 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 notices, proxies, reports, communications, books, records,
returns and other documents shall be that of the Trustees; and provided
further, however, that the Administrator shall have no liability for
the adequacy
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or accuracy of such notices, proxies, reports, communications, books,
records, returns and other documents;
(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) receive and review on behalf of the Trust all notices,
reports, certificates and other documents regarding the Contract and
the 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
Trustees; and
(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 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(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
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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. 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 notice of any change of authority of any person until receipt of written
notice thereof from a Trustee. In addition, the provisions of Section 9(a) of
the Collateral Agreement shall apply, mutatis mutandis, to the Administrator in
the performance of its duties hereunder as if it were the Collateral Agent
acting under the Collateral Agreement. Without limiting the generality of the
preceding sentences, the Administrator (i) at its own cost, may select and
employ independent 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 2.2(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) should the Trustees fail to do so,
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, as amended.
2.4 Power of Attorney. The Trust hereby appoints the
Administrator, acting through any duly appointed officer, its attorney-in-fact
and agent for the purpose of performing the duties prescribed in Section
2.2(f)(iii) and 2.2(i).
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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 of 1933, as amended, 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.
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ARTICLE III
COMPENSATION OF ADMINISTRATOR
3.1 Compensation. For services to be rendered by the
Administrator pursuant to this Agreement, 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 terms of the Fund
Expense Agreement and shall have no recourse to the assets of the Trust for the
payment of any such amounts. No provision of this Administration Agreement shall
require the Administrator to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
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
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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 juris diction, or a receiver,
conservator, liquidator, or trustee for the Administrator or for all or
substantially all of its property shall be appointed, or a court of
competent jurisdiction shall approve 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 or
conservator for or in respect of the Administrator or 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.
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(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 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 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 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 Contract and the Treasury Securities, the monies available to the
Trust, the financial condition of the Trust and all other relevant matters
concerning the Trust.
ARTICLE VI
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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:
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The Trust: Xxxxx Xxxxxx Automatic Common
Exchange Security Trust II
c/o Xxxxxx X. Xxxxxxx,
Managing Trustee
Xxxxxxx & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
The Administrator: The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Collateral Management
Services
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 Trust, or any
act or omission in the course of, connected with or arising out of any services
to be rendered hereunder, provided that the
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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. Such
indemnity shall survive the resignation, removal or discharge of the
Administrator.
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.
XXXXX XXXXXX AUTOMATIC COMMON
EXCHANGE SECURITY TRUST II
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Xxxxxxx X. Xxxxxx III,
as Trustee
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Xxxxx X. X'Xxxxx,
as Trustee
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Xxxxxx X. Xxxxxxx,
as Trustee
THE CHASE MANHATTAN BANK
By
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Name:
Title:
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