EXHIBIT (k)(5)
FORM OF FUND EXPENSE AGREEMENT
Agreement dated as of February 8, 2002 between Xxxxxxx Xxxxx Xxxxxx
Inc. ("XXXXXXX XXXXX BARNEY") and The Bank of New York (the "SERVICE PROVIDER"),
in its capacities as administrator, custodian, paying agent and collateral agent
for DECS Trust IX (the "TRUST").
WHEREAS the Trust is a statutory business trust organized under the
Business Trust Act of the State of Delaware pursuant to a Declaration of Trust
dated as of January 7, 2002, as amended and restated January 22, 2002 (the
"TRUST AGREEMENT"); and
WHEREAS Xxxxxxx Xxxxx Xxxxxx desires to make provision for the
payment of certain initial and ongoing 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 the 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 Xxxxxxx Xxxxx Barney 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 Trust other
than any expense of the Trust arising under Sections 2.2(e) and 6.6 of the
Administration Agreement, Section 15 of the Custodian Agreement, Section 5.4(b)
of the Paying Agent Agreement and Section 7.6 of the Trust 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, 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. Xxxxxxx Xxxxx Xxxxxx
agrees to pay to the Service Provider in New York Clearing House funds on the
Closing Date 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 Xxxxxxx Xxxxx Barney (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 Xxxxxxx Xxxxx
Xxxxxx, 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
Xxxxxxx Xxxxx Barney, incur on behalf of the Trust (i) any single expense in
excess of $3,000 or (ii) in any calendar quarter, expenses aggregating in excess
of $15,000. Subject to the foregoing, the Service Provider shall give notice to
Xxxxxxx Xxxxx Xxxxxx 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 of such Additional Expense.
(c) Subject to the first sentence of paragraph (b) of this Section
3, Xxxxxxx Xxxxx Xxxxxx agrees to pay to the Service Provider from time to time
the amount of any Additional Expense. Payment by Xxxxxxx Xxxxx Barney 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 Xxxxxxx Xxxxx Xxxxxx of written
notice from the Service Provider of the incurring thereof or (ii) the due date
for the payment of such Additional Expense.
(d) Xxxxxxx Xxxxx Barney may contest in good faith the
reasonableness of any 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, Xxxxxxx Xxxxx
Xxxxxx shall pay the amount of such Additional Expense, subject to later
adjustment and credit if such dispute is resolved in favor of Xxxxxxx Xxxxx
Barney.
4. CONDITION TO PAYMENT. The obligations of Xxxxxxx Xxxxx Xxxxxx
hereunder shall be subject to the condition that the Trust's DECS 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 Xxxxxxx Xxxxx Barney in New York Clearing House
funds the amount of such excess.
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6. TERMINATION OF ADMINISTRATION AGREEMENT. If the Administration
Agreement is terminated in accordance with Section 4.1 thereof, the Service
Provider shall promptly pay to Xxxxxxx Xxxxx Xxxxxx (i) the ratable portion of
its Up-front Fee Amount for the period from the date of the termination of the
Administration Agreement to the Exchange Date and (ii) 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 Additional
Expenses and shall prepare and maintain adequate books and records showing all
receipts and disbursements of funds in connection therewith. Xxxxxxx Xxxxx
Barney 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. AMENDMENTS. The Service Provider agrees that it will not consent
to any amendment to any of the Administration Agreement, the Custodian
Agreement, the Paying Agent Agreement or the Collateral Agreement without the
prior written consent of Xxxxxxx Xxxxx Xxxxxx.
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. A copy of any
communication to Xxxxxxx Xxxxx Barney shall be furnished to Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx X. Check, Esq., provided that in each case the failure to furnish such
copy shall not affect the effectiveness of any such communication. 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, on the 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, on the 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.
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14. GOVERNING LAW. This Agreement shall be governed by and be
construed in accordance with the laws of the State of New York.
15. FORCE MAJEURE. The Service Provider shall not be liable for any
claims, losses, liabilities, damages or expenses (including attorneys' fees and
expenses) due to forces beyond the reasonable control of the Service Provider,
including without limitation strikes, work stoppages, acts of war or terrorism,
insurrection, revolution, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; provided that this provision shall not protect
the Service Provider against any liability to which it would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties hereunder.
16. COUNTERPARTS. This Agreement may be signed in counterpart with
all of such counterparts constituting one and the same instrument.
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SCHEDULE I
to Fund Expense Agreement
Up-front Fee Amount: $[115,000]
Up-front Expense Amount: $[179,500]
