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EXHIBIT 2.k.(vi)
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FUND INDEMNITY AGREEMENT
Among
CNET INVESTMENTS II, INC.,
XXXXXXX, XXXXX & CO.,
XXXXXXX XXXXX BARNEY
THE CHASE MANHATTAN BANK,
for Itself and Its Affiliate
and
NBCi AUTOMATIC COMMON EXCHANGE SECURITY TRUST
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Dated as of February __, 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 AND UNDERWRITERS
Section 2.1. Agreement to Pay Indemnification Expenses............................2
Section 2.2. Condition to Payments................................................3
ARTICLE III
CERTAIN AGREEMENTS OF THE SERVICE PROVIDER
Section 3.1. Statements and Reports...............................................3
Section 3.2. Amendments...........................................................3
Section 3.3. Payment to ChaseMellon Shareholder Services, L.L.C...................3
ARTICLE IV
MISCELLANEOUS
Section 4.1. Term of Contract.....................................................4
Section 4.2. No Assumption of Liability...........................................4
Section 4.3. Notice...............................................................4
Section 4.4. Governing Law; Severability..........................................4
Section 4.5. Entire Agreement.....................................................4
Section 4.6. Amendments; Waivers..................................................5
Section 4.7. Non-Assignability....................................................5
Section 4.8. No Third Party Rights; Successors and Assigns........................5
Section 4.9. Counterparts.........................................................5
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FUND INDEMNITY AGREEMENT
FUND INDEMNITY AGREEMENT, dated as of February __, 2000, among CNET
Investments II, Inc., a Delaware corporation (the "Seller"), Xxxxxxx, Xxxxx &
Co., ("Xxxxxxx Sachs"), Xxxxxxx Xxxxx Xxxxxx Inc. ("Xxxxxxx Xxxxx Barney", and,
together with Xxxxxxx Xxxxx, the "Underwriters"), 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,
L.L.C., in its capacity as Paying Agent for NBCi 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 February
__, 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 February __, 2000 (the "Trust Agreement"); and
WHEREAS, Seller and the Underwriters desire to make provision for the
payment of certain indemnification 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:
"Agreement" means this Fund Indemnity Agreement.
"Claimant" has the meaning specified in Section 2.1(b).
"Xxxxxxx Xxxxx" has the meaning specified in the preamble to this
Agreement.
"Indemnification Expenses" has the meaning specified in Section
2.1(a).
"Xxxxxxx Xxxxx Barney" has the meaning specified in the Preamble to
this 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.
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"Trust Agreement" has the meaning specified in the recitals to this
Agreement.
"Underwriters" has the meaning specified in the preamble to this
Agreement.
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.
ARTICLE II
PAYMENTS BY SELLER
Section 2.1. Agreement to Pay Indemnification Expenses.
(a) Seller and the Underwriters severally, in their respective proportional
shares set forth in the table below in this Section 2.1(a), and not jointly,
agree to pay to and indemnify the Trust, and hold the Trust harmless from,
any expenses of the Trust arising under Section 2.2(g) or 3.4 of the
Administration Agreement, Section 8.1(a)(v) of the Collateral Agreement, Section
3.5 or 3.6 of the Custodian Agreement, Section 5.6 of the Paying Agent Agreement
and the last sentence of Section 7.6 of the Trust Agreement (collectively,
"Indemnification Expenses"). Subject to Section 2.1(b), Seller and the
Underwriters shall pay any Indemnification Expense in Federal (immediately
available) funds no later than five Business Days after the receipt by Seller,
pursuant to Section 2.1(b), of written notice of any claim for Indemnification
Expenses. Xxxxxxx Xxxxx may, at its sole discretion, elect to pay any such
Indemnification Expense in the first instance, for the Seller
and the Underwriters, and if Xxxxxxx Sachs so elects, the Seller and the
Underwriters agree to reimburse Xxxxxxx Xxxxx for their respective proportional
share thereof as set forth in the table below:
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Proportional Share
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The Seller 50%
The Underwriters 50%
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(b) The Trustees shall give notice to, or cause notice to be given to,
Seller and the Underwriters in writing of any claim for Indemnification Expenses
or any threatened claim for Indemnification Expenses immediately upon their
acquiring knowledge of such claim, event or occurrence. Such written notice
shall be accompanied by any demand, xxxx, invoice or other communication
received from any third party claimant (a "Claimant") in respect of such
Indemnification Expense.
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(c) The Trust agrees that Seller and the Underwriters may, and Seller and
the Underwriters are jointly authorized on behalf of the Trust to, contest in
good faith with any Claimant any amount contained in any claim for
Indemnification Expense, provided that if, within such time period as the Trust
shall determine to be reasonable, Seller and the Underwriters and such Claimant
are unable to resolve amicably any disagreement regarding such claim for
Indemnification Expense, Seller and the Underwriters shall retain counsel
reasonably satisfactory to the Trust to represent the Trust in any resulting
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. It is understood that Seller and the Underwriters shall not, in
respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel). Seller and the Underwriters shall not be liable for any settlement of
any proceeding effected without their written consent, but if settled with such
consent or if there be a final judgment for the Claimant, Seller and the
Underwriters agree to indemnify the Trustees and the Trust from and against any
loss or liability by reason of such settlement or judgment.
Section 2.2. Condition to Payments. Seller's and Underwriters' obligations
under Section 2.1 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 issued 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 claim for
Indemnification Expenses; and
(ii) prepare and maintain adequate books and records showing all
receipts and disbursements of funds in connection therewith.
(b) Seller and the Underwriters shall have the right to inspect and to
copy, each at its own 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. 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 and the Underwriters.
Section 3.3. 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
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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
shall be directed to it at CNET Investments II, Inc., 000 Xxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Telecopier No. (000) 000-0000, Attention: Chief
Executive Officer; (ii) notices to Xxxxxxx Xxxxx shall be directed to it at 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopier No. (000) 000-0000,
Attention: Xxxxxxx X. Xxxxxxxx; (iii) notices to Xxxxxxx Xxxxx Xxxxxx shall be
directed to it at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopier No:
(000) 000-0000, Attention: IBD Legal; (iv) 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. (212)
946-3638, Attention: Pledged Asset Control Services; and (v) notices to the
Trust or the Trustees shall be directed to the Trustees at 000 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Telecopier No. (000) 000-0000, 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 or five days after being
deposited in the mail of another country, 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.
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.
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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 the Seller, the
Underwriters 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 the Seller,the Underwriters 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 the Seller, the Underwriters 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 Indemnity Agreement
to be duly executed and delivered as of the first date set forth above.
CNET INVESTMENTS II, INC.
By:
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Name:
Title:
XXXXXXX, SACHS & CO.
By:
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Name:
Title:
XXXXXXX XXXXX XXXXXX INC.
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:
AMDOCS AUTOMATIC COMMON 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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