Exhibit 2.k.(v)
FUND EXPENSE AGREEMENT
Agreement dated as of September __, 1997 between Bear, Xxxxxxx
& Co. Inc. ("Bear, Xxxxxxx & Co. Inc.") and The Bank of New York (the "Service
Provider"), in its capacities as administrator, custodian and paying agent and
collateral agent for Mandatory Common Exchange Trust (the "Trust").
WHEREAS the Trust is a business trust formed under the laws of
the State of Delaware pursuant to a Trust Agreement dated as of October 4, 1996,
as amended and restated as of September 11, 1997, (the "Trust Agreement"); and
WHEREAS, Bear, Xxxxxxx & Co. Inc., as sponsor under the Trust
Agreement, desires to make provision for the payment of certain initial and on
going expenses of the Trust;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained in this Agreement, the parties agree as follows.
1. Definitions. (a) Capitalized terms used herein and not
defined herein shall have the meanings ascribed thereto in the Trust Agreement.
(b) The following terms shall have the following meanings.
"Additional Expense" means an Ordinary Expense the incurring
of which will require the Service Provider to provide the Additional Expense
Notice pursuant to Section 3(a) hereof and any Ordinary Expense incurred
thereafter.
"Additional Expense Notice" means the notice required to be
given by the Service Provider to Bear, Xxxxxxx & Co., Inc. pursuant to Section
3(a)(i) hereof.
"Closing Date" shall have the meaning ascribed thereto in the
Underwriting Agreement.
"Ordinary Expense" of the Trust means any expense of the
Trusts other than any expense of the Trust arising under Section 6.6 of the
Administration Agreement, Section 7 of the Custodian Agreement, Section 5.4(b)
of the Paying Agent Agreement and Section 7.6 of the Trust Agreement and Section
9 of the Collateral Agreement.
"Up-front Fee Amount" means the amount set forth as such on
Schedule I hereto payable as a one-time payment to the Service Provider in
respect of its collective services as Administrator, Custodian and Paying Agent
and Collateral Agent for the entire term of the Trust.
"Up-front Expense Amount" means the amount set forth as such
on Schedule I hereto payable as a one-time payment to the Service Provider in
respect of Ordinary Expenses anticipated to be incurred by the Administrator on
behalf of the Trust, pursuant to the Administration Agreement, during the term
of the Trust.
2. Agreement to Pay Up-front Fees and Expenses. Bear, Xxxxxxx
& Co., Inc. agrees to pay to the Service Provider in New York Clearing House
funds on the Closing Date (as defined in the Underwriting Agreement) the
Up-front Fee Amount and the Up-front Expense Amount.
3. Agreement to Pay Additional Expenses. (a) Prior to
incurring any Ordinary Expense on behalf of the Trust that, together with all
prior ordinary expenses incurred by the Administrator on behalf of the Trust,
would cause the aggregate amount of Ordinary Expenses of the Trust to exceed the
Up-front Expense Amount, the Administrator shall provide to Bear, Xxxxxxx & Co.,
Inc. (i) prompt written notice to the effect that the aggregate amount of
Ordinary Expenses of the Trust will exceed the Up-front Expense Amount, and (ii)
an accounting, in such detail as shall be reasonably acceptable to Bear, Xxxxxxx
& Co., Inc., of all Ordinary Expenses incurred on behalf of the Trust through
the date of the Additional Expense Notice.
(b) From and after the date of the Additional Expense Notice,
the Service Provider agrees that it will not, without the prior written consent
of Bear, Xxxxxxx & Co., Inc., incur on behalf of the Trust (i) any single
expense in excess of $______ or (ii) in any calendar {period}, expenses
aggregating in excess of $_____. Subject to the foregoing, the Service Provider
shall give notice to Bear, Xxxxxxx & Co., Inc. in writing promptly following the
incurring of any Additional Expense. Such notice shall be accompanied by any
demand, xxxx, invoice or other similar document in respect f such Additional
Expense.
(c) Subject to the first sentence of paragraph (b) of this
Section 3, Bear, Xxxxxxx & Co. Inc. agrees to pay to the Service Provider from
time to time the amount of any Additional Expense. Payment by Bear, Xxxxxxx &
Co., Inc. of any Additional Expense shall be made in New York Clearing House
funds by the later of (i) five Business Days after the receipt by Bear, Xxxxxxx
& Co., Inc. of written notice from the Service Provider of the incurring thereof
or (ii) the due date for the payment of such Additional Expense.
(d) Bear, Xxxxxxx & Co., Inc. may contest in good faith the
reasonableness of Additional Expense and the parties shall attempt to resolve
amicably the disagreement; provided that if the parties cannot resolve the
dispute by the due date hereunder with respect to such Additional Expense,
subject to the first sentence of paragraph (b) of this Section 3, Bear, Xxxxxxx
& Co., Inc. shall pay the amount of such Additional Expense subject to later
adjustment and credit if such dispute is resolved in favor of Bear, Xxxxxxx &
Co., Inc.
4. Condition to Payment. Bear, Xxxxxxx & Co., Inc.'s
obligations under paragraphs 2 and 3 hereof shall be subject to the condition
that the Trust Issued Mandatory Exchange Securities shall have been issued and
paid for on the Closing Date.
5. Trust Termination; Refund of Unused Expense Funds. If at
the termination of the Trust in accordance with Section 8.3 of the Trust
Agreement the aggregate amount of Ordinary Expenses incurred by the Service
Provider on behalf of the Trust through the date of termination shall be less
than the Up-front Expense Amount, the Service Provider shall, promptly following
the date of such termination, pay to Bear, Xxxxxxx & Co., Inc. in New York
Clearing House funds the amount of such excess.
6. Termination of Administration Agreement. In the event of
the termination of the Administration Agreement in accordance with Section 4.1
thereof, the Service Provider shall promptly pay to Bear, Xxxxxxx & Co., Inc.
the portion of its Up-front Fee Amount ratable for the period from the date of
the termination of the Administration Agreement to the Exchange Date together
with any unexpended portion of the Up-front Expense Amount.
7. Statements and Reports. The Service Provider shall collect
and safekeep all demands, bills, invoices or other written communications
received from third parties in connection with any Ordinary Expenses and shall
prepare and maintain adequate books and records showing all receipts and
disbursements of funds in connection therewith. Bear, Xxxxxxx & Co., Inc. shall
have the right to inspect and to copy, at its expense, all such documents, books
and records at all reasonable times and from time to time during the term of
this Agreement.
8. Term of Contract. This Agreement, shall continue in effect
until the termination of the Trust in accordance with Section 8.3 of the Trust
Agreement.
9. No Assignment. No party to this Agreement may assign its
rights or delegate its duties hereunder without the prior written consent of the
other party.
10. The Service Provider agrees that it will not consent to
any amendment to any of the Administration Agreement, the Custodian Agreement or
the Paying Agent Agreement or the Collateral Agreement without the prior written
consent of Bear, Xxxxxxx & Co., Inc.
11. Entire Agreement. This Agreement contains the entire
agreement among the parties with respect to the matters contained herein and
supersedes all prior agreements or understandings. No amendment or modification
of this Agreement shall be valid unless the amendment or modification is in
writing and is signed by all the parties to this Agreement.
12. Notices. All notices, demands, reports, statements,
approvals or consents given by any party under this Agreement shall be in
writing and shall be delivered in person or by telecopy or other facsimile
communication or sent by first-class U.S. mail, registered or certified, postage
prepaid, to the appropriate party at its address on the signature pages hereof
or at such other address subsequently notified to the other parties hereto. Any
party may change its address for purposes hereof by delivering a written notice
of the change to the other parties. All notices given under this Agreement shall
be deemed received (a) in the case of hand delivery, ont he day of delivery, (b)
in the case of telecopy or other facsimile communication, on the day of
transmission, and (c) in the case of mailing, ont he third day after such notice
was deposited in the mail.
13. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
14. Governing Law. This Agreement shall be governed by and be
construed in accordance with the laws of the State of New York.
15. Counterparts. This Agreement may be signed in counterpart
with all of such counterparts constituting one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their authorized representatives the date first above written.
BEAR, XXXXXXX & CO. INC.
By: ____________________
Address;
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
THE BANK OF NEW YORK
By: ___________________
Address;
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
