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Exhibit 2.k.(v)
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FUND EXPENSE AGREEMENT
Among
NYLIFE LLC,
THE CHASE MANHATTAN BANK,
for Itself and Its Affiliate
and
EXPRESS SCRIPTS AUTOMATIC EXCHANGE SECURITY TRUST
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Dated as of November ____, 2000
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms................................................1
Section 1.2. Interpretation...............................................2
ARTICLE II
PAYMENTS BY SELLER
Section 2.1 Agreement to Pay Up-Front Fees and Expenses..................3
Section 2.2 Agreement to Pay Additional Expenses.........................3
Section 2.3 Condition to Payment.........................................3
ARTICLE III
CERTAIN AGREEMENTS OF THE SERVICE PROVIDER
Section 3.1. Statements and Reports.......................................4
Section 3.2. Trust Termination; Refund of Unused Expense Funds............4
Section 3.3. Termination of Administration Agreement......................5
Section 3.4. Amendments to Other Agreements...............................5
Section 3.5. Payment to ChaseMellon Shareholder Services, L.L.C...........5
ARTICLE IV
MISCELLANEOUS
Section 4.1. Term of Contract.............................................5
Section 4.2. No Assumption of Liability...................................5
Section 4.3. Notices......................................................6
Section 4.4. Governing Law; Severability..................................6
Section 4.5. Entire Agreement.............................................6
Section 4.5. Amendments; Waivers..........................................6
Section 4.7. Non-Assignability............................................7
Section 4.8. No Third Party Rights; Successors and Assigns................7
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Section 4.9. Counterparts.................................................7
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FUND EXPENSE AGREEMENT
FUND EXPENSE AGREEMENT, dated as of November __, 2000, among NYLIFE
LLC ("Seller"), 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, X.XX., in its capacity as Paying
Agent for 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"), and the Trust.
WITNESSETH:
WHEREAS, the Trust is a trust organized under the laws of the State of
New York under and by virtue of the Amended and Restated Trust Agreement, dated
as of November __, 2000 (the "Trust Agreement"); and
WHEREAS, Seller desires to make provision for the payment of certain initial
and on-going expenses of the Trust;
NOW, THEREFORE, the parties to this Agreement, 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.
(b) As used in this Agreement, the following terms have the
following meanings:
"Additional Expense" means the Ordinary Expense the incurrence of
which will require the Service Provider to provide the Additional Expense
Notice pursuant to Section 2.2(a) and any Ordinary Expense incurred thereafter.
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"Additional Expense Notice" has the meaning specified in Section
2.2(a).
"Agreement" means this Fund Expense Agreement.
"Ordinary Expense" of the Trust means any expense of the Trust other
than any expense of the Trust arising under Section 3.4 of the Administration
Agreement, Section 3.5 or 3.6 of the Custodian Agreement, Section 5.6 of the
Paying Agent Agreement or Section 7.6 of the Trust Agreement.
"Seller" has the meaning specified in the preamble to this Agreement.
"Service Provider" has the meaning specified in the preamble to this
Agreement.
"Trust" has the meaning specified in the preamble to this Agreement.
"Trust Agreement" has the meaning specified in the recitals to this
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.
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.
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(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
PAYMENTS BY SELLER
Section 2.1. Agreement to Pay Up-Front Fees and Expenses.
Seller agrees to pay or cause to be paid to the Service Provider in Federal
(immediately available) funds at the First Time of Delivery the Up-Front Fee
Amount and the Up-Front Expense Amount.
Section 2.2. Agreement to Pay Additional Expenses.
(a) Before incurring on behalf of the Trust any Ordinary
Expense 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 Seller (i) prompt written notice (the "Additional
Expense 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 Seller, 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 Seller, 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, the Service Provider shall give notice to Seller in
writing promptly after incurring 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 Section 2.2(b), Seller
agrees to pay to the Service Provider from time to time the amount of any
Additional Expense. Seller shall pay any such Additional Expense in Federal
(immediately available) funds by the later of (i) five Business Days after the
receipt by Seller from the Service Provider of
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notice of the incurrence of such Additional Expense, or (ii) the due date for
the payment of such Additional Expense.
(d) Seller may contest in good faith the reasonableness of any
Additional Expense and the parties shall attempt in good faith to resolve
amicably the disagreement; provided that if the parties cannot resolve the
dispute by the due date specified in Section 2.2(c) with respect to such
Additional Expense, then subject to the first sentence of Section 2.2(b),
Seller shall pay the amount of such Additional Expense as provided in Section
2.2(c) subject to later adjustment and credit if such dispute is resolved in
favor of Seller.
Section 2.3. Condition to Payment. The Seller's obligation under
Sections 2.1 and 2.2 shall be subject to the condition that the Securities that
are deliverable under the Underwriting Agreement at the First Time of Delivery
shall have been delivered and paid for at the First Time of Delivery.
ARTICLE III
CERTAIN AGREEMENTS OF THE SERVICE PROVIDER
Section 3.1. Statements and Reports.
(a) The Service Provider shall
(i) 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
(ii) prepare and maintain adequate books and records
showing all receipts and disbursements of funds in connection
therewith.
(b) Seller 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.
Section 3.2. Trust Termination; Refund of Unused Expense Funds.
In consideration of the agreements of Seller in this Agreement:
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(a) 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 Seller
in Federal (immediately available) funds the amount of such excess; and
(b) the Trust shall reimburse Seller for any payments made by
Seller under this Agreement by paying over to Seller, 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, Shares, Marketable Securities and
other property to the holders of the Securities, and satisfaction of or
provision for all other obligations and liabilities of the Trust, whether
present or future, contingent or otherwise, as principal or surety or
otherwise.
Section 3.3. Termination of Administration Agreement. If the
Service Provider shall resign or be removed as Administrator pursuant to the
Administration Agreement, the Service Provider shall promptly repay to Seller a
ratable portion of the Up-Front Fee Amount for the period from the date of such
resignation or removal to the Exchange Date, together with any unexpended
portion of the Up-Front Expense Amount.
Section 3.4. Amendments to Other Agreements. 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 Seller.
Section 3.5. 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 the payments made to the Service Provider
under this Agreement that is due and payable to ChaseMellon Shareholder
Services, L.L.C. in connection with its role as Paying Agent for the Trust.
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ARTICLE IV
MISCELLANEOUS
Section 4.1. Term of Contract. 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 4.2. No Assumption of Liability. By executing this
Agreement, none of the Trustees assumes any personal liability under this
Agreement.
Section 4.3. Notices.
(a) All notices and other communications provided for in this
Agreement, unless otherwise specified, shall be in writing and shall be given
at the addresses set forth in the following sentence or at such other addresses
as may be designated by notice duly given in accordance with this Section 4.3
to each other party to this Agreement. Until such notice is given, (i) notices
to Seller shall be directed to it at NYLIFE LLC, 00 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Telecopier No. ______, Attention: ________; (ii) notices to the
Service Provider (for itself or for the Paying Agent) 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: Pledged Asset Control Services; and
(iii) notices to the Trust or the Trustees shall be directed to the Trustees at
000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Telecopier No. (302)
738-7210, Attention: Xxxxxx X. Xxxxxxx or the applicable Trustee.
(b) Each notice given pursuant to Section 4.3(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 4.3.
Section 4.4. 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.
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Section 4.5. Entire Agreement. Except as expressly set forth in
this Agreement, this Agreement constitutes the entire agreement among the
parties with respect to the subject matter of this Agreement and supersedes all
prior agreements, understandings and negotiations, both written and oral, among
the parties with respect to the subject matter of this Agreement.
Section 4.6. Amendments; Waivers. Any provision of this Agreement
may be amended or waived (either generally or in a particular instance and
either retrospectively or prospectively) if, and only if, such amendment or
waiver is in writing and signed, in the case of an amendment, by Seller, the
Service Provider 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 under this Agreement shall operate
as a waiver of such right, power or privilege nor shall any single or partial
exercise of any such right, power or privilege preclude any other or further
exercise of such right, power or privilege or the exercise of any other right,
power or privilege. The rights and remedies in this Agreement provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
Section 4.7. Non-Assignability. This Agreement and the rights and
obligations of the parties under this Agreement 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 4.8. 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 Seller, the Service Provider, the Trust and their
respective successors and assigns and no person shall assert any rights as
third party beneficiary under this Agreement. Whenever any of the parties to
this Agreement is referred to, such reference shall be deemed to include the
successors and assigns of such party. All the covenants and agreements in this
Agreement contained by or on behalf of Seller, the Service Provider, 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 Service Provider and its successors and assigns.
Section 4.9. 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 on each such counterpart were upon the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Fund Expense
Agreement to be duly executed and delivered as of the first date set forth
above.
NYLIFE LLC
By:
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Name:
Title:
THE SERVICE PROVIDER:
THE CHASE MANHATTAN BANK,
as Service Provider
By:
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Name:
Title:
THE TRUST:
EXPRESS SCRIPTS AUTOMATIC
EXCHANGE SECURITY TRUST
By:
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Xxxxxx X. Xxxxxxx,
as Trustee
By:
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Xxxxxxx X. Xxxxxx, III,
as Trustee
By:
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Xxxxx X. X'Xxxxx,
as Trustee
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SCHEDULE I
Expenses of Organization of the Trust and the
Public Offering of the Securities
Up-Front Fee Amount: $230,000
Up-Front Expense Amount:
Trustees Fees 36,000
Wall Street Concepts Fees 3,000
Accounting Fees 96,500
Fidelity Bond 1,500
Other 15,000
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Total Up-Front Expense Amount $152,000
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