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EXHIBIT 2(k)(5)
FUND EXPENSE AGREEMENT
Agreement dated as of March [ ], 1998 between Xxxxx Xxxxxx
Inc. ("Xxxxx Xxxxxx") and The Bank of New York (the "Service Provider"), in its
capacities as administrator, custodian, paying agent and collateral agent for
DECS Trust III (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 22, 1998, as amended and restated as of March [
], 1998 (the "Trust Agreement"); and
WHEREAS 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 Xxxxx Xxxxxx 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.
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2. Agreement to Pay Up-front Fees and Expenses. 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 Xxxxx Xxxxxx
(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 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 Xxxxx Xxxxxx, 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
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, Xxxxx Xxxxxx agrees to pay to the Service Provider from time to time
the amount of any Additional Expense. Payment by Xxxxx Xxxxxx 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 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) Xxxxx Xxxxxx 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, Xxxxx Xxxxxx shall pay the
amount of such Additional Expense, subject to later adjustment and credit if
such dispute is resolved in favor of Xxxxx Xxxxxx.
4. Condition to Payment. The obligations of 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 Xxxxx Xxxxxx 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 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. Xxxxx Xxxxxx 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 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 Xxxxx Xxxxxx shall be furnished to
Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxx X. Xxxxxxxx, provided that 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. 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 as of the date first above
written.
XXXXX XXXXXX INC.
By:___________________________________
Name:
Title:
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
THE BANK OF NEW YORK
By:___________________________________
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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SCHEDULE I
to Fund Expense Agreement
Up-front Fee Amount: $[ ]
Up-front Expense Amount: $[ ]
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