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EXHIBIT 2.k.(v)
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FUND EXPENSE AGREEMENT
Among
[SELLER[S]]
THE CHASE MANHATTAN BANK,
for Itself and Its Affiliate
and
AMERITRADE AUTOMATIC COMMON EXCHANGE SECURITY TRUST
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Dated as of , 1999
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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[S]]
Section 2.1. Agreement to Pay Up-Front Fees and Expenses.................................................3
Section 2.2. Agreement to Pay Additional Expenses........................................................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.....................................................4
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 Agreement...........................................................................5
Section 4.2. No Assumption of Liability..................................................................5
Section 4.3. Notices.....................................................................................5
Section 4.4. Governing Law; Severability.................................................................6
Section 4.5. Entire Agreement............................................................................6
Section 4.6. Amendments; Waivers.........................................................................6
Section 4.7. Non-Assignability...........................................................................6
Section 4.8. No Third Party Rights; Successors and Assigns...............................................6
Section 4.9. Counterparts................................................................................6
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FUND EXPENSE AGREEMENT
FUND EXPENSE AGREEMENT, dated as of , 1999, among
("[Seller[s]]") [revise as necessary], 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, ▇.▇▇.,
in its capacity as Paying Agent for Ameritrade Automatic Common 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
, 1999 (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 , 1999 (the "Trust Agreement"); and
WHEREAS, [Seller[s]] 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.
"Additional Expense Notice" has the meaning specified in
Section 2.2(a).
"Agreement" means this Fund Expense and Indemnity 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.
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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[s]]" 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.
(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.
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ARTICLE II
PAYMENTS BY [SELLER[S]]
Section 2.1. Agreement to Pay Up-Front Fees and Expenses. [Seller[s]]
agree[s] 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[s]] (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[s]], 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[s]], 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[s]]
in writing promptly after incurring any Additional Expense. Such notice shall be
accompanied by any demand, ▇▇▇▇, invoice or other similar document in respect of
such Additional Expense.
(c) Subject to the first sentence of Section 2.2(b), [Seller[s]]
agree[s] to pay to the Service Provider from time to time the amount of any
Additional Expense. [Seller[s]] shall pay any such Additional Expense in Federal
(immediately available) funds by the later of (i) five Business Days after the
receipt by [Seller[s]] from the Service Provider of notice of the incurrence of
such Additional Expense, or (ii) the due date for the payment of such Additional
Expense.
(d) [Seller[s]] 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[s]] 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[s]].
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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[s]] 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[s]] in this Agreement:
(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[s]] in Federal (immediately available)
funds the amount of such excess; and
(b) the Trust shall reimburse [Seller[s]] for any payments
made by [Seller[s]] under this Agreement by paying over to [Seller[s]],
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, Stock, 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[s]] 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
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Custodian Agreement or the Collateral Agreement without the prior
written consent of [Seller[s]].
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.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Term of Contract. This Agreement shall continue in effect
until the completion of the 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[s]] shall be directed to [it] [them] at [Seller[s]'[s] address]; (ii)
notices to the Service Provider (for itself or for the Paying Agent) shall be
directed to it at The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Pledged Asset Control
Services; and (iii) notices to the Trust or the Trustees shall be directed to
the Trustees at [▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 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
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Agreement shall not render any other provision or provisions contained in this
Agreement unenforceable or invalid.
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[s]], 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[s]], 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[s]], 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 have caused this Fund Expense Agreement
to be duly executed and delivered as of the first date set forth above.
[SELLER[S]]
By:
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([Seller[s]])
THE SERVICE PROVIDER:
THE CHASE MANHATTAN BANK,
as Service Provider
By:
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Name:
Title:
THE TRUST:
AMERITRADE AUTOMATIC COMMON
EXCHANGE SECURITY TRUST
By:
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[Name],
as Trustee
By:
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[Name],
as Trustee
By:
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[Name],
as Trustee
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SCHEDULE I
Expenses of Organization of the Trust and the
Public Offering of the Securities [REVISE AS NECESSARY]
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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