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Exhibit 99.2.K(v)
FUND EXPENSE AGREEMENT
Agreement dated as of November , 1997 between Salomon Brothers Inc
("Salomon") and The Bank of New York (the "Service Provider"), in its
capacities as administrator, custodian, paying agent and collateral agent for
DECS Trust II (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 September 2, 1997, as amended and restated as of October 22, 1997
(the "Trust Agreement"); and
WHEREAS, Salomon 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:
. 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 Salomon 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. Salomon 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 Salomon (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 Salomon, 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 Salomon,
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 Salomon in writing
promptly following the incurring of 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 paragraph (b) of this Section 3,
Salomon agrees to pay to the Service Provider from time to time the amount of
any Additional Expense. Payment by Salomon 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 Salomon of written notice from the Service Provider of the
incurring thereof or (ii) the due date for the payment of such Additional
Expense.
(d) Salomon 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, Salomon shall pay the amount
of such Additional Expense, subject to later adjustment and credit if such
dispute is resolved in favor of Salomon.
4. Condition to Payment. The obligations of Salomon 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 Salomon 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 Salomon (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. Salomon 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 Salomon.
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 Salomon shall be furnished to Cleary, Gottlieb, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
Check, 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.
SALOMON BROTHERS INC
By:
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Address: Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ S, ▇▇▇▇▇▇▇▇▇
THE BANK OF NEW YORK
By:
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Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
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SCHEDULE I
to Fund Expense Agreement
Up-front Fee Amount:
Up-front Expense Amount: