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EXHIBIT (k)(5)
FORM OF FUND EXPENSE
AGREEMENT
FUND EXPENSE AGREEMENT
Agreement dated as of March __, 1997 among Cherrywood Holdings, Inc.
and Xxxxxx Investors, L.L.C. (each, a "Contracting Stockholder" and,
collectively, the "Contracting Stockholders"), Xxxxxxx Xxxxx & Co., Inc.
("Xxxxxxx Xxxxx") and The Bank of New York (the "Service Provider"), in its
capacities as administrator, custodian, paying agent and collateral agent for
Nextel STRYPES Trust (the "Trust").
WHEREAS, the Trust is a trust formed under the laws of the State of
Delaware pursuant to a Trust Agreement dated as of October 25, 1995, as amended
and restated as of February 27, 1997 (the "Trust Agreement"); and
WHEREAS, the Contracting Stockholders and Xxxxxxx Xxxxx desire 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.
"Closing Time" shall have the meaning ascribed thereto in the Purchase
Agreement.
"Offering Expense Amount" means the amount set forth as such on
Schedule I hereto as the fees and expenses of the Trust incurred in connection
with the offering of the STRYPES.
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"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 and Section 7.6 of the Trust Agreement.
"Organizational Expense Amount" means the amount set forth as such on
Schedule II hereto as the fees and expenses of the Trust incurred in connection
with the organization of the Trust.
"Up-front Fee Amount" means the amount set forth as such on Schedule
III 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 IV 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 OFFERING, ORGANIZATIONAL AND
UP-FRONT EXPENSES. The Contracting Stockholders jointly and severally agree to
pay to the Service Provider in Federal (same day) funds at the Closing Time the
Up-front Fee Amount, the Offering Expense Amount, the Organizational Expense
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 and to each
Contracting Stockholder (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 and the Contracting Stockholders, 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 and each Contracting Stockholder, incur on behalf of the Trust (i)
any single expense in excess of $___________ or (ii) in any calendar [quarter]
expenses aggregating in excess of $___________. Subject to the foregoing, the
Service Provider shall give notice to Xxxxxxx Xxxxx and each Contracting
Stockholder in writing promptly following the incurring of any Additional
Expense. Such notice to Xxxxxxx Xxxxx shall be accompanied by any demand, xxxx,
invoice or other similar document in respect of such Additional Expense.
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(c) Subject to the first sentence of paragraph (b) of this Section 3,
Xxxxxxx Xxxxx 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 (next-day) funds by the later of (i)
five Business Days after the receipt by Xxxxxxx Xxxxx from the Service Provider
of notice of the incurring thereof or (ii) the due date for the payment of such
Additional Expense.
(d) The Contracting Stockholders jointly and severally agree to
reimburse Xxxxxxx Xxxxx from time to time for the amount of any Additional
Expense paid by Xxxxxxx Xxxxx pursuant to paragraph (c) of this Section 3.
Xxxxxxx Xxxxx shall be reimbursed for any such Additional Expense in New York
Clearing House (next-day) funds by the later of (i) five Business Days after the
receipt by the Contracting Stockholders from the Service Provider of notice of
the incurring thereof or (ii) the due date for the payment of such Additional
Expense.
(e) Xxxxxxx Xxxxx or the Contracting Stockholders 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 shall pay the amount of such Additional Expense, and the
Contracting Stockholders shall reimburse Xxxxxxx Xxxxx for the amount so paid,
subject to later adjustment and credit if such dispute is resolved in favor of
Xxxxxxx Xxxxx or the Contracting Stockholders, as the case may be.
4. CONDITION TO PAYMENT. The obligations of the Contracting
Stockholders under Sections 2 and 3 hereof and the obligations of Xxxxxxx Xxxxx
under Section 3 hereof shall be subject to the condition that the Structured
Yield Product Exchangeable for Stock(SM) (the "STRYPES") issued by the Trust
shall have been issued and paid for at the Closing Time.
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 each Contracting Stockholder in New York Clearing
House funds such Contracting Stockholder's pro rata share of 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 each Contracting Stockholder
in New York Clearing House funds such Contracting Stockholder's pro rata share
of (i) the portion of the Service Provider's Up-front Fee Amount ratable for the
period from the date of the termination of
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(SM) Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
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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 and
each Contracting Stockholder 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
parties.
10. AMENDMENTS. The Service Provider agrees that it will not consent to
any amendment of the Administration Agreement, the Custodian Agreement, the
Paying Agent Agreement or the Collateral Agreement without the prior written
consent of Xxxxxxx Xxxxx and each Contracting Stockholder.
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, 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.
14. GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of New York applicable
to agreements made and to be performed wholly within such State.
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15. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their authorized representatives the date first above written.
CHERRYWOOD HOLDINGS, INC.
By:_________________________________
Address: x/x Xxxxxx Xxxxxxxx, X.X.X.
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
XXXXXX INVESTORS, L.L.C.
By:________________________________
Address: x/x Xxxxxx Xxxxxxxx, X.X.X.
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
XXXXXXX XXXXX & CO., INC.
By:__________________________________
Address: World Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
THE BANK OF NEW YORK
By:__________________________________
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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