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EXHIBIT 2.k.(v)
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FUND EXPENSE 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 THE SELLER AND THE UNDERWRITERS
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"), Xxxxxxx, Xxxxx & Co. ("Xxxxxxx Sachs"),
Xxxxxxx Xxxxx Xxxxxx ("Xxxxxxx Xxxxx Xxxxxx", and together with Xxxxxxx Sachs,
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, the Seller and the Underwriters desire 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.
"Xxxxxxx Xxxxx" has the meaning specified in the preamble to this
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.
"Xxxxxxx Xxxxx Barney" has the meaning specified in the preamble to
this 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.
"Underwriters" has the meaning specified in the preamble 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 and
the Underwriters agree to pay or cause to be paid to the Service Provider in
Federal (immediately available) funds at the First Time of Delivery respective
proportional shares of the Up-Front Fee Amount and the Up-Front Expense Amount
as set forth in the following table:
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Proportional Share
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The Seller 50%
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The Underwriters 50%
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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 and the Underwriters (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 Xxxxxxx Xxxxx, for itself and
for the Seller and Xxxxxxx Xxxxx Barney, 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 Xxxxxxx
Xxxxx, for the Seller and the Underwriters, 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 or true and complete copies thereof in respect
of such Additional Expense.
(c) Subject to the first sentence of Section 2.2(b), the Seller and the
Underwriters agree, severally in the respective proportional shares as set forth
in the table in Section 2.2(a), but not jointly agrees to pay to the Service
Provider from time to time the amount of any Additional Expense. The Seller and
the Underwriters 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 and the Underwriters 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. Xxxxxxx Xxxxx may, at its sole discretion, elect to pay
such additional 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 Section 2.2 (a).
(d) Xxxxxxx Sachs may for the Seller and for the Underwriters contest in
good faith the reasonableness of any Additional Expense and Xxxxxxx Xxxxx and
The Trust 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 and the Underwriters
shall pay their respective proportional amounts as set forth in the table in
Section 2.2(a). 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 and the Underwriters.
Section 2.3. Condition to Payments. The Seller's and the Underwriters'
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 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. Trust Termination; Refund of Unused Expense Funds. In
consideration of the agreements of the Seller and the Underwriters 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 and the Underwriters
in Federal (immediately available) funds their respective proportional shares as
set forth in the table in Section 2.2(a) of the amount of such excess; and
(b) the Trust shall reimburse the Seller and the Underwriters for any
payments made by the Seller under this Agreement by paying over to the Seller
and the Underwriters prior to the termination of the Trust, their respective
proportional shares as set forth in the table in Section 2.2(a) of 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 and the Underwriters their respective proportional shares as set forth in
the table in Section 2.2(a) of 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 and the Underwriters.
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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 Xxxxxxx Sachs 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
Barney 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. (000) 000-0000, 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. (302)
738-7210, 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, each of 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, each of 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, each of
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 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:
XXXXXXX, SACHS & CO.
By:
---------------------------------
Name:
Title:
XXXXXXX XXXXX XXXXXX INC.
By:
---------------------------------
Name:
Title:
THE SERVICE PROVIDER:
THE CHASE MANHATTAN BANK,
as Service Provider
By:
---------------------------------
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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