1
Exhibit 2.k.(i)
-------------------------------------------------------------------------------
ADMINISTRATION AGREEMENT
Between
THE CHASE MANHATTAN BANK,
As Administrator,
and
EXPRESS SCRIPTS AUTOMATIC EXCHANGE SECURITY TRUST
----------------------
Dated as of November __, 2000
----------------------
-------------------------------------------------------------------------------
2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms...................................................1
Section 1.2. Interpretation..................................................2
ARTICLE II
APPOINTMENT OF ADMINISTRATOR
Section 2.1. Appointment of Administrator; Acceptance of Appointment.........3
Section 2.2. Services of Administrator.......................................3
Section 2.3. Power of Attorney...............................................5
Section 2.4. Delivery of Certain Documents...................................5
ARTICLE III
THE ADMINISTRATOR
Section 3.1. Conditions to Duties of the Administrator.......................5
Section 3.2 Merger..........................................................5
Section 3.3. Compensation....................................................6
Section 3.4. Indemnification.................................................6
ARTICLE IV
RESIGNATION AND REMOVAL OF ADMINISTRATOR
Section 4.1. Removal.........................................................6
Section 4.2. Resignation.....................................................7
Section 4.3. Appointment of Successor........................................7
Section 4.4. Effectiveness of Resignation or Removal.........................8
Section 4.5. Acceptance by Successor.........................................8
-i-
3
ARTICLE V
RECORDS AND REPORTS
Section 5.1. Books and Records; Inspection and Copying.......................8
Section 5.2. Access to Information...........................................8
ARTICLE VI
MISCELLANEOUS
Section 6.1. Term of Agreement...............................................9
Section 6.2. No Assumption of Liability......................................9
Section 6.3. Notices.........................................................9
Section 6.4. Governing Law; Severability.....................................9
Section 6.5. Amendments; Waivers............................................10
Section 6.6. Non-Assignability..............................................10
Section 6.7. Provisions of Law to Control...................................10
Section 6.8. No Third Party Rights; Successors and Assigns..................10
Section 6.9. Counterparts...................................................10
-ii-
4
ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT, dated as of November _____, 2000, between
The Chase Manhattan Bank, a New York banking corporation (the
"Administrator"), and Express Scripts Automatic Exchange Security Trust, 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 November __, 2000 (such
trust and the trustees thereof acting in their capacity as such being referred
to in this Agreement as the "Trust").
WITNESSETH:
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 an existing shareholder of Express
Scripts, Inc. (the "Company") and to issue $_______ Trust Issued Automatic
Exchange Securities (the "Securities") to the public in accordance with the
terms and conditions of the Trust Agreement referred to below; and
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 in this Agreement; 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 set forth in
this Agreement;
NOW, THEREFORE, the parties, intending to be bound, agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms.
(a) Capitalized terms used and not otherwise defined in this
Agreement have the respective meanings specified in the Trust Agreement.
5
(b) As used in this Agreement, the following terms have the following
meanings:
"Administrator" has the meaning specified in the preamble to this
Agreement.
"Agreement" means this Administration Agreement.
"Company" has the meaning specified in the recitals to this
Agreement.
"Contract" has the meaning specified in the recitals to this
Agreement.
"Indemnification Expenses" has the meaning specified in the Indemnity
Agreement.
"Investment Company Act" has the meaning specified in the recitals to
this Agreement.
"Securities" has the meaning specified in the recitals to this
Agreement.
"Treasury Securities" has the meaning specified in the recitals to
this Agreement.
"Trust" has the meaning specified in the preamble to this Agreement.
"Trust Agreement" means the Amended and Restated Trust Agreement,
dated as of November ___, 2000, constituting the Trust.
Section 1.2. Interpretation.
(a) When a reference is made in this Agreement to Articles,
Sections, Exhibits or Schedules, such reference is to Articles or Sections of,
or Exhibits or Schedules to, this Agreement unless otherwise indicated.
(b) The table of contents and headings contained in this
Agreement are for reference purposes only and are not part of this Agreement
and shall not be deemed to limit or otherwise affect any of the provisions of
this Agreement.
-2-
6
(c) Whenever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation".
(d) Any reference to any statute, regulation or agreement is a
reference to such statute, regulation or agreement as supplemented or amended
from time to time.
ARTICLE II
APPOINTMENT OF ADMINISTRATOR
Section 2.1. Appointment of Administrator; Acceptance of
Appointment. The Trust hereby appoints the Administrator, and the Administrator
hereby accepts such appointment, to provide the services enumerated in this
Agreement.
Section 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 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) if so directed by the Seller, instruct the Paying Agent to pay,
from the amounts payable to the Seller pursuant to the Contract, the fees
and expenses of the Trust incurred in connection with the public offering
of the Securities and the costs and expenses incurred in connection with
the organization of the Trust;
(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) with the approval of the Trustees, engage legal and other
professional advisors, subject to clause 2.2(iii) above;
(d) when the Trust is required to select and engage an independent
investment banking firm under the 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;
-3-
7
(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
Expense Agreement but in no event out of any assets of the Trust, except
as provided in Section 2.2(a), and give notice to the Seller (as defined
in the Expense Agreement) of any claim for Indemnification Expenses or any
threatened claim for Indemnification Expenses as provided in Section
2.4(b) of the Indemnity Agreement;
(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 or 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 (the
"Securities Exchange Act"), or the Internal Revenue Code of 1986, 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 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
-4-
8
(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.
Section 2.3. 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 Section 2.2(f)(iii) and 2.2(i).
Section 2.4. Delivery of Certain Documents. The Trust will
deliver to the Administrator, promptly following the execution of this
Agreement: (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
THE ADMINISTRATOR
Section 3.1. Conditions to Duties of the Administrator. The
provisions of Section 8.1(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 such provisions, 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 2.2(iii)
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.
Section 3.2. Merger. Any corporation or association into which
the Administrator may be converted or merged or with which it may be
consolidated, or to which it may sell or transfer its agency business and
assets as a whole or substantially as a whole, or any corporation or
association resulting from any such conversion, merger, consolidation, sale or
transfer to which it is a party, shall be and become the successor
Administrator hereunder without the execution or filing of any instrument or
any further act, deed or conveyance on the part of any of the parties hereto,
provided that such corporation or association meets the requirements set forth
in the Trust Agreement.
-5-
9
Section 3.3. Compensation.
(a) 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) of this Agreement, the Administrator shall receive only such fees
and expenses as shall be paid to it pursuant to the terms of the Expense
Agreement and shall have no recourse to the assets of the Trust for the
payment of any such amounts.
(b) 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.
Section 3.4. 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 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 and the termination
of this Agreement.
ARTICLE IV
RESIGNATION AND REMOVAL OF ADMINISTRATOR
Section 4.1. Removal.
(a) Subject to Section 4.4, the Trust may remove the Administrator by
written notice at any time 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
-6-
10
(ii) if the Administrator ceases to meet the requirements set
forth in Section 2.2(a) of the Trust Agreement; or
(iii) if the Administrator shall be adjudged bankrupt or
insolvent by a court of competent jurisdiction, or a receiver,
conservator, liquidator, or trustee shall be appointed for or with respect
to the Administrator, or for all or substantially all of its property, 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
(iv) 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 for 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
(v) 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; or
(vi) at any time upon 60 days' prior written notice.
If any of the events specified in clauses (ii), (iii), (iv) or (v) of this
Section 4.1(a) shall occur, the Administrator shall give immediate written
notice thereof to the Trust.
(b) Subject to Section 4.4, the Administrator shall be removed
immediately upon (i) termination of the Trust Agreement, (ii) termination
of the Paying Agent Agreement, (iii) termination of the Collateral
Agreement, (iv) termination of the Custodian Agreement, or (v) the
resignation or removal of the Paying Agent, the Collateral Agent or the
Custodian.
Section 4.2. Resignation. Subject to Section 4.4, the
Administrator may at any time resign by giving 60 days' written notice by
registered or certified mail to the Trust in accordance with the provisions of
Section 6.3. Such resignation shall take effect upon the appointment of a
successor Administrator by the Trust.
Section 4.3. Appointment of Successor. If the Administrator
hereunder shall resign or be removed, a successor may be appointed by the Trust
by an instrument or concurrent instruments in writing signed by the Trustees.
Every such successor
-7-
11
Administrator appointed pursuant to the provisions of this Agreement shall
satisfy the requirements set forth in Section 2.2(a) of the Trust Agreement.
Section 4.4. Effectiveness of Resignation or Removal. No
resignation or removal of the Administrator shall be effective until 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 or by the Trust to the Administrator of any such
resignation or removal, 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.
Section 4.5. Acceptance by Successor. Every successor
Administrator appointed hereunder shall execute, acknowledge and deliver to its
predecessor and also to the Trust an instrument in writing accepting such
appointment hereunder, whereupon such successor, without any further act, deed
or conveyance, shall become fully vested with all the estates, properties,
rights, powers, duties and obligations of its predecessors. Such predecessor
shall, nevertheless, on the written request of its successor or the Trust,
execute and deliver an instrument transferring to such successor all the
estates, properties, rights and powers of such predecessor hereunder. Every
predecessor Administrator shall forthwith deliver all records or other property
of the Trust then in its possession or custody to its successor.
ARTICLE V
RECORDS AND REPORTS
Section 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.
Section 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.
-8-
12
ARTICLE VI
MISCELLANEOUS
Section 6.1. Term of Agreement. This Agreement shall continue in
effect until the completion of liquidation of the Trust in accordance with
Section 8.3(c) of the Trust Agreement.
Section 6.2. No Assumption of Liability. By executing this
Agreement, none of the Trustees assumes any personal liability hereunder.
Section 6.3. Notices.
(a) All notices and other communications provided for in this
Agreement, unless otherwise specified, shall be in writing (including
transmittals by telex or telecopier) given at the addresses set forth in
the following sentences or at such other addresses as may be designated by
notice duly given in accordance with this Section 9.3 to each other party
hereto. Until such notice is given, (i) notices to the Administrator shall
be directed to it at The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Telecopier No. (000) 000-0000, Attention: Collateral
Management Services; (ii) notices to the Trust or the Trustees shall be
directed to the Trustees at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000, Telecopier: (000) 000-0000; and (iii) notices to Seller
shall be directed to it at NYLIFE LLC., 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Telecopier ____________, Attention: ______.
(b) Each such notice given pursuant to Section 6.3(a) shall be
effective (i) if sent by certified mail (return receipt requested), 72
hours after being deposited in the United States mail, postage prepaid;
(ii) if given by telex or telecopier, when such telex or telecopied notice
is transmitted (with electronic confirmation of transmission or verbal
confirmation of receipt); or (iii) if given by any other means, when
delivered at the address specified in this Section 6.3.
Section 6.4. Governing Law; Severability. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
To the extent permitted by law, the unenforceability or invalidity of any
provision or provisions of this Agreement shall not render any other provision
or provisions contained in this Agreement unenforceable or invalid.
Section 6.5. Amendments; Waivers. Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in
writing and
-9-
13
signed, in the case of an amendment, by the Administrator and the Trust or, in
the case of a waiver, by the party against whom the waiver is to be effective.
No failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies provided in
this Agreement shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 6.6. 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, and any purported
assignment without such consent shall be void.
Section 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 contained in this Agreement conflict with any applicable provisions
of the Investment Company Act or such rules and regulations, the latter shall
control.
Section 6.8. No Third Party Rights; Successors and Assigns. This
Agreement is not intended and shall not be construed to create any rights in
any person other than the Administrator and the Trust and their respective
successors and assigns and no person shall assert any rights as third party
beneficiary hereunder. Whenever any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such party.
All the covenants and agreements contained in this Agreement by or on behalf of
the Administrator and the Trust shall bind, and inure to the benefit of, their
respective successors and assigns whether so expressed or not, and shall be
enforceable by and inure to the benefit of the Trust and its successors and
assigns.
Section 6.9. Counterparts. This Agreement may be executed,
acknowledged and delivered in any number of counterparts, each of which shall
be an original, but all of which shall constitute a single agreement, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
-10-
14
IN WITNESS WHEREOF, the parties hereto have caused this Administration
Agreement to be duly executed and delivered as of the first date set forth
above.
THE ADMINISTRATOR:
THE CHASE MANHATTAN BANK,
as Administrator
By:
--------------------------------
Name:
Title:
THE TRUST:
EXPRESS SCRIPTS AUTOMATIC
EXCHANGE SECURITY TRUST
By:
--------------------------------
Xxxxxx X. Xxxxxxx,
as Trustee
By:
--------------------------------
Xxxxxxx X. Latam, III,
as Trustee
By:
--------------------------------
Xxxxx X. X'Xxxxx,
as Trustee
-11-
