Exhibit (k)(1)
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT dated as of this ____ day of __________,
1997, by and between The Bank of New York, a New York banking corporation (the
"Administrator"), and WBK STRYPES Trust, a business trust organized 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.))(such trust and the trustees
thereof acting in their capacity as such being referred to herein as the
"Trust"), under and by virtue of an Amended and Restated Trust Agreement, dated
as of _________ __, 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 The Bank of New York, as agent
and custodian for and on behalf of the Trust, National Australia Trustees
Limited ("National Australia Trustee"), acting as trustee of the trust
established pursuant to the Nominee Trust Agreement (hereinafter referred to as
the "Contracting Stockholder") and Australian Mutual Provident Society ("AMP"),
a stockholder of Westpac Banking Corporation, and to issue Structured Yield
Product Exchangeable for Stock(sm) (the "STRYPES") to the public 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:
Exhibit (k)(1)
ARTICLE I.
DEFINITIONS
1.1 DEFINITIONS. Capitalized terms not otherwise defined herein shall have
the respective meanings specified in the Trust Agreement or the Contract.
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 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, as amended; (ii) have the power of the Trustees to sell
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 to the Trust:
(a) pay, or cause the Paying Agent to pay, out of moneys paid to the
Administrator pursuant to the Fund Expense Agreement, dated as of _______ __,
1997, among AMP, Xxxxxxx Xxxxx & Co., Inc. ("Xxxxxxx Xxxxx") and the
Administrator (the "Fund Expense Agreement"), but in no event out of the Trust
Estate, 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 the
Trust Estate, the fees and expenses of the Trust incurred in connection with the
organization of the Trust as specified in Schedule II hereto;
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Exhibit (k)(1)
(c) instruct the Paying Agent on behalf of the Trust to take the
actions 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, other than the Trust's independent accountants as
provided in clause 2.2 (iii) above, to perform services on behalf of the Trust;
(e) pay all demands, bills and invoices for expenses incurred by or
on behalf of the Trust, 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 the Trust Estate and give notice to Xxxxxxx Xxxxx and AMP pursuant
to the fund indemnity agreement dated as of ______ __, 1997 (the "Fund Indemnity
Agreement"), among the Trust, AMP, and Xxxxxxx Xxxxx of any claim for
Indemnification Expenses (as defined in the Fund Indemnity Agreement) or any
threatened claim for Indemnification Expenses;
(f) (i) cause the legal and other professional advisors engaged
pursuant to Section 2.2(d) 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(d) 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, 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 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;
(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;
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Exhibit (k)(1)
(h) review on behalf of the Trust all notices, reports, certificates
and other documents regarding the Contract and the U.S. Treasury Securities;
(i) 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;
(j) 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 8.2(c) of the
Trust Agreement and the Trust's policy as set forth in the Prospectus;
(k) on or prior to the sixth Business Day preceding the Exchange
Date, notify the Depositary and publish (or cause to be published) a notice in
The Wall Street Journal or another daily newspaper of national circulation
stating whether the applicable percentage of the number or amount of each type
of Reference Security and other property constituting part of the Reference
Property or cash will be delivered in exchange for the STRYPES on the Exchange
Date;
(l) within ten Business Days following the occurrence of an event
that requires an adjustment to the Reference Property (or if the Administrator
is not aware of such occurrence, as soon as practicable after becoming so
aware), to provide written notice to the Holders of the occurrence of such event
and a statement in reasonable detail setting forth the amount or number of each
type of Reference Security and other property then constituting part of the
Reference Property;
(m) 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 the
Trust Estate, any ADR Expenses (as defined in the Fund Expense Agreement);
(n) calculate the U.S. Dollar Equivalent and the Cash Reorganization
Amount and convert promptly into U.S. dollars all cash received by it in
Australian dollars or other currency other than U.S. dollars in respect of
Reference Property at the exchange rate used to calculate the U.S. Dollar
Equivalent of such amounts; and
(o) take any necessary actions in the event that a Partial Cash
Distribution Event shall occur.
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
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Exhibit (k)(1)
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(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 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). 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. 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
2.5(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, semi-annual and periodical reports, notices of meetings and
proxy statements, annual reports to holders of STRYPES and other documents
required under the Investment Company Act or the Exchange Act.
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 Sections 2.2(f)(iii) and 2.2(i).
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.
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Exhibit (k)(1)
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 ______ __, 1997, between the Administrator, as custodian, and the Trust, for
services to be rendered by The Bank of New York (the "Paying Agent"), as paying
agent, transfer agent and registrar under the Paying Agent Agreement, dated as
of _______ __, 1997, between the Paying Agent 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 Trust Estate 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.
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
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Exhibit (k)(1)
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 Nominee Trust 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
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.
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Exhibit (k)(1)
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
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; 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.
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: WBK STRYPES Trust
c/o Puglisi & Associates
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Exhibit (k)(1)
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
00xx Xxxxx, Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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) to the offices set forth above, in which case they shall be deemed
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 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.
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Exhibit (k)(1)
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) and (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.
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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Exhibit (k)(1)
IN WITNESS WHEREOF the parties have hereunto executed this Administration
Agreement as of the day and year first above written.
WBK STRYPES TRUST
By:
--------------------------------
Xxxxxx X. Xxxxxxx,
as Managing Trustee
THE BANK OF NEW YORK
By:
--------------------------------
Name: Xxxxx Xxxxxxx
Title:
Exhibit (k)(1)
SCHEDULE I
Item
Amount
----
------
SEC Registration Fees
$294,092
NYSE Listing Fees
$ 72,620
NASD Fees
$ 30,500
Printing (other than STRYPES Certificates)
$100,000
Legal Fees
$ 80,000
Blue Sky Fees
$ 2,000
Miscellaneous
$ 10,000
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Total
589,212
Exhibit (k)(1)
SCHEDULE II
Item
Amount
----
------
STRYPES Certificates
$ 2,000
Fees and Expenses of Special Delaware
Counsel to the Trust
12,000
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Total
14,000
