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EXHIBIT 2.k.(v)
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FUND EXPENSE AGREEMENT
Among
CNET INVESTMENTS II, INC.
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 THE SELLER
Section 2.1. Agreement to Pay Up-Front Fees and Expenses............................2
Section 2.2. Agreement to Pay Additional Expenses...................................3
Section 2.3. Condition to Payments..................................................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.............................................................4
Section 3.5. Payment to ChaseMellon Shareholder Services, L.L.C.....................5
ARTICLE IV
MISCELLANEOUS
Section 4.1. Term of Contract.......................................................5
Section 4.2. No Assumption of Liability.............................................5
Section 4.3. Notice.................................................................5
Section 4.4. Governing Law; Severability............................................5
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 February __, 2000, among CNET
Investments II, Inc. (the "Seller"), 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, the Seller 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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"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.
"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.
ARTICLE II
PAYMENTS BY THE SELLER
Section 2.1. Agreement to Pay Up-Front Fees and Expenses. The Seller agrees
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.
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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 the Seller (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 the Seller, 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 the
Seller, 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 the Seller
in writing promptly after incurring 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 Section 2.2(b), the Seller agrees to
pay to the Service Provider from time to time the amount of any Additional
Expense. The Seller shall pay any such Additional Expense in Federal
(immediately available) funds by the later of (i) five Business Days after the
receipt by the Seller 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) The Seller 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), the
Seller 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 the Seller.
Section 2.3. Condition to Payments. The Seller's obligations under Sections
2.1 and 2.2 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.
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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) The Seller 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 the Seller 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 the Seller in Federal
(immediately available) funds the amount of such excess; and
(b) the Trust shall reimburse the Seller for any payments made by the
Seller under this Agreement by paying over to the Seller, 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, Ordinary Shares,
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 the
Seller 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
Custodian Agreement or the Collateral Agreement without the prior written
consent of the Seller.
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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 the
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 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 (iii) 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; (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
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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 the Seller, 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 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 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.
CNET INVESTMENTS II, 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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SCHEDULE I
Expenses of Organization of the Trust and the
Public Offering of the Securities
Up-Front Fee Amount: $
Up-Front Expense Amount:
Trustees Fees
Wall Street Concepts Fees
Accounting Fees
Fidelity Bond
Other $
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Total Up-Front Expense Amount $
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