Exhibit 2.k.(v)
S&C Draft of February 16, 1999
FUND EXPENSE AGREEMENT
FUND EXPENSE AGREEMENT, dated as of February 17, 1999, among
Xxxxxxx, Xxxxx & Co. ("Xxxxxxx Sachs"), The Chase Manhattan Bank (the "Service
Provider"), for itself in its capacities as administrator, custodian and
collateral agent and for its affiliate, ChaseMellon Shareholder Services, L.L.C.
in its capacity as Paying Agent for Xxxxx Xxxxxx Automatic Common Exchange
Security Trust II (the "Trust"), and the Trust.
WHEREAS the Trust is a trust formed under the laws of the
State of New York pursuant to a Trust Agreement, as amended and restated as of
February 17, 1999 (the "Trust Agreement"); and
WHEREAS, Xxxxxxx Sachs desires to make provisions 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 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 pursuant to Section 3(a)(i)
hereof.
"First Time of Delivery" shall have the meaning ascribed
thereto in the Underwriting Agreement.
-1-
"Ordinary Expense" of the Trust means any expense of the Trust
other than any expense of the Trust arising under Section 6.6 of the
Administration Agreement, Section 15 of the Custodian Agreement, Section 5.4(b)
of the Paying Agent Agreement, or 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 services, as Administrator, Custodian and Collateral Agent, and
those of ChaseMellon Shareholder Services, L.L.C., as Paying 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 Sachs
agrees to pay or cause to be paid to the Service Provider in Federal (same day)
funds at the First Time of Delivery 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 (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 Sachs,
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, incur on behalf of the Trust (i) any single expense in excess
of $1,000 or (ii) in any calendar period, expenses aggregating in excess of
$3,000. Subject to the foregoing,
-2-
the Service Provider shall give notice to Xxxxxxx Sachs 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 Sachs, agrees to pay to the Service Provider from time to
time the amount of any Additional Expense. Payment by Xxxxxxx Xxxxx 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 Sachs from the Service
Provider of notice of the incurring thereof or (ii) the due date for the payment
of such Additional Expense.
(d) Xxxxxxx Xxxxx 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 Sachs shall pay the amount
of such Additional Expense subject to later adjustment and credit if such
dispute is resolved in favor of Xxxxxxx Xxxxx.
4. Condition to Payment. Xxxxxxx Sachs' obligations under
paragraphs 2 and 3 hereof shall be subject to the condition that the Securities
shall have been issued and paid for at the First Time of Delivery.
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 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 Xxxxxxx Sachs the portion of
its Up- front Fee Amount ratable for the period from the date of the
-3-
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
Additional Expenses and shall prepare and maintain adequate books and records
showing all receipts and disbursements of funds in connection therewith. Xxxxxxx
Xxxxx 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. Reimbursement from Excess Funds. In consideration of the
agreements of Xxxxxxx Sachs in this Agreement, the Trust agrees that it shall
reimburse Xxxxxxx Xxxxx for any payments made hereunder by paying over to
Xxxxxxx Sachs, prior to the termination of the Trust, any funds held by the
Trust after satisfaction in full of the obligation of the Trust to pay
distributions in respect of the Securities, the obligation of the Trust to
distribute cash and Common Stock to the holders of the Securities of the Trust
on the Exchange Date, and satisfaction or provision for all other obligations
and liabilities of the Trust, whether present or future, contingent or
otherwise, as principal or surety or otherwise.
9. 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.
10. 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.
11. Amendments. The Service Provider agrees that it will not
consent to any amendment of the Administration Agreement, the Custodian
Agreement or the Collateral Agreement without the prior written consent of
Xxxxxxx
Xxxxx.
12. Payment to ChaseMellon Shareholder Services, L.L.C. The
Service Provider agrees that it shall pay over to ChaseMellon Shareholder
Services, L.L.C. that portion of
-4-
the payments made to the Service Provider hereunder that is due and payable to
ChaseMellon Shareholder Services, L.L.C. in connection with its role as Paying
Agent for the Trust.
13. 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.
14. 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, 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.
15. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
16. Governing Law. This Agreement shall be governed by and be
construed in accordance with the laws of the State of New York.
17. Counterparts. This Agreement may be signed in
counterparts with all of such counterparts constituting one and the same
instrument.
-5-
IN WITNESS WHEREOF, the parties have caused this Fund Expense
Agreement to be executed by their authorized representatives the date first
above written.
XXXXXXX, SACHS & CO.
By ___________________________________
Address: 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
XXXXX XXXXXX AUTOMATIC COMMON
EXCHANGE SECURITY TRUST II
______________________________________
Name: Xxxxxxx X. Xxxxxx III
as Trustee
______________________________________
Address: Department of Economics
University of Delaware
Xxxxxx, Xxxxxxxx 00000
______________________________________
Name: Xxxxx X. X'Xxxxx
as Trustee
Address: Center for Economic
Education and
Entrepreneurship
University of Delaware
Xxxxxx, Xxxxxxxx 00000
-6-
______________________________________
Name: Xxxxxx X. Xxxxxxx
as Trustee
Address: Department of Finance
University of Delaware
Xxxxxx, Xxxxxxxx 00000
-7-
THE CHASE MANHATTAN BANK
By____________________________________
Name:
Title:
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
-8-
SCHEDULE I
Up-front Fee Amount: $230,000
Up-front Expense Amount:
Trustees Fees $ 36,000
Wall Street Concepts Fees $ 3,000
Accounting Fees $ 96,500
Other $ 15,000
--------
Total Up-front Expense Amount $150,500
========
-9-
