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EXHIBIT 2.K.(i)
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of this ___ day of
May, 1997, by and between The Bank of New York, a New York banking corporation
(the "Administrator"), and Xxxxxxx X. Xxxxxx III, Xxxxx X. X'Xxxxx and Xxxxxx
X. Xxxxxxx (collectively, the "Trustees"), not in their individual capacities
but solely as Trustees of Automatic Common Exchange Security Trust II (the
"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 May __, 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
(the "Investment Company Act"), formed to purchase and hold certain U.S.
treasury securities (the "Treasury Securities"), to enter into and hold forward
purchase contracts (the "Contracts") with one or more existing shareholders of
Republic Industries, 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 Trustees desire 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:
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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 Trustees hereby engage the
Administrator, and the Administrator hereby agrees to be so
engaged, 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 Net Proceeds
of the sale of the Securities the fees and expenses of the Trust
incurred in connection with the offering of the Securities as
specified in Schedule I to the Fund Expense Agreement;
(b) instruct the Paying Agent to pay out of the Net Proceeds
of the sale of the Securities the fees and expenses of the Trust
incurred in connection with the organization of the Trust as specified
in Schedule I to the Fund Expense Agreement;
(c) instruct the Paying Agent to effect the transactions set
forth in Sections 2.3, 2.4 and 2.5 of the Trust Agreement and to
otherwise perform the duties of the Paying Agent referred to in the
Trust Agreement;
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(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 Bank of New York (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 Xxxxxxx,
Sachs & Co. pursuant to the Fund Indemnity Agreement dated the date
hereof between Xxxxxxx, Xxxxx & Co. and the Trustees (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 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
reports, returns, etc. 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, etc.;
(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;
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(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 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.
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
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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
Trustees shall request the Administrator to render services for the Trust,
other than those to be rendered by the Administrator hereunder, and if the
Administrator agrees to render such services, such additional services shall be
compensated separately on terms to be agreed upon between the Administrator and
the Trustees from time to time.
ARTICLE IV
TERMINATION
4.1 Termination.
(a) This Agreement shall terminate immediately upon written
notice of termination from the Trustees to the Administrator if any of the
following events shall occur:
(i) If the Administrator shall violate any provision
of this Agreement, the Trust Agreement, or the Investment Company Act,
and after notice of such violation, shall not cure such default within
30 days; or
(ii) If the Administrator shall be adjudged bankrupt or
insolvent by a court of competent juris diction, 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
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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 Trustees.
(b) Notwithstanding anything to the contrary contained
herein, this Agreement shall terminate immediately (i) upon termination of the
Trust Agreement, (ii) upon termination of the Paying Agent Agreement, (iii)
upon termination of the Collateral Agreement, (iv) upon termination of the
Custodian Agreement or (v) upon the resignation or removal of the Custodian.
(c) 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 appropriate, and reasonably
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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 Contracts 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
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,
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certified or registered, return receipt requested, postage prepaid, to the
following addresses of the parties hereto:
The Trust: 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 Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
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 Trustees 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 Trustees,
or any act or omission in the course of, connected with or arising out of any
services to be rendered hereunder, provided that the Administrator shall not be
indemnified and held harmless from and against any such loss, damages, cost,
expense, liability or claim incurred by reason of its willful misfeasance, bad
faith, or gross negligence in the
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performance of its duties, or its reckless disregard of its duties and
obligations hereunder.
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.
TRUSTEES
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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 BANK OF NEW YORK
By
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Name:
Title:
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