EXHIBIT (k)(2)
FORM OF
PAYING AGENT AGREEMENT
This PAYING AGENT AGREEMENT dated as of this December [ ], 2001 by
and between The Bank of New York, a New York banking corporation (the "Paying
Agent"), and Equity Securities Trust II (such trust and the trustees thereof
acting in their capacity as such being referred to herein as the "Trust"), a
statutory business trust organized under the Business Trust Act of the State of
Delaware pursuant to a Declaration of Trust dated as of October 30, 2001, as
amended and restated as of December [ ], 2001 (the "Trust Agreement").
WITNESSETH
WHEREAS the Trust is a non-diversified, closed-end management
investment company, as defined in the Investment Company Act of 1940 (the
"Investment Company Act"), formed to purchase and hold the U.S. treasury
securities (the "Treasury Securities"), to enter into and hold forward contracts
with one or more existing shareholders of Cablevision Systems Corporation
(individually, a "Contract" and collectively, the "Contracts") and to issue
Equity Trust Securities to the public in accordance with the terms and
conditions of the Trust Agreement;
WHEREAS the Trustees desire to engage the services of the Paying
Agent to assume certain responsibilities and to perform certain duties as the
transfer agent, registrar and paying agent with respect to the Equity Trust
Securities upon the terms and conditions of this Agreement; and
WHEREAS the Paying Agent is qualified and willing to assume such
responsibilities and to perform such duties, subject to the supervision of the
Trustees, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Capitalized terms not otherwise defined herein
shall have the respective meanings specified in the Trust Agreement.
ARTICLE II
PAYING AGENT
2.1 Appointment of Paying Agent and Acceptance. The Trust
Agreement provides that The Bank of New York shall act as the initial Paying
Agent. The Bank of New York hereby accepts such appointment and agrees to act in
accordance with its standard procedures and the provisions of the Trust
Agreement and the provisions set forth in this Article II as Paying Agent with
respect to the Equity Trust Securities. Without limiting the generality of the
foregoing, The Bank of New York, as Paying Agent, agrees that it shall establish
and maintain the Trust Account, subject to the provisions of Section 2.3 hereof.
2.2 Certificates and Notices. The Trustees shall deliver to the
Paying Agent the certificates and notices required to be delivered to the Paying
Agent pursuant to the Trust Agreement, and the Paying Agent shall mail or
publish such certificates or notices as required by the Trust Agreement, but the
Paying Agent shall have no responsibility to confirm or verify the accuracy of
certificates or notices of the Trustees so delivered.
2.3 Payments and Investments. The Paying Agent shall make payments
out of the Trust Account as provided in Section 3.3 of the Trust Agreement. The
Paying Agent on behalf of the Trust shall effect the transactions set forth in
Sections 2.6, 2.7, 2.8, 3.5 and 8.3 of the Trust Agreement upon instructions to
do so from the Administrator (except that with respect to its obligations under
Section 8.3 of the Trust Agreement, the Paying Agent shall act without
instructions from the Administrator) and shall invest moneys on deposit in the
Trust Account in the Temporary Investment in accordance with Section 3.5 of the
Trust Agreement. Except as otherwise specifically provided herein or in the
Trust Agreement, the Paying Agent shall not have the power to sell, transfer or
otherwise dispose of any Temporary Investment prior to the maturity thereof, or
to acquire additional Temporary Investments. The Paying Agent shall hold any
Temporary Investment to its maturity and shall apply the proceeds thereof paid
upon maturity to the payment of the next succeeding Quarterly Distribution. All
such Temporary Investments shall be selected by the Trustees from time to time
or pursuant to standing instructions from the Trustees, and the Paying Agent
shall have no liability to the Trust or any Holder or any other Person with
respect to any such Temporary Investment.
2.4 Instructions from Administrator. The Paying Agent shall
execute all instructions received from an officer of the Administrator, except
to the extent that they conflict with or are contrary to the terms of the Trust
Agreement or this Agreement.
ARTICLE III
TRANSFER AGENT AND REGISTRAR
3.1 Original Issue of Certificates. On the date Equity Trust
Securities sold pursuant to the Underwriting Agreement are originally issued,
certificates for such Equity Trust Securities shall be issued by the Trust, and,
at the request of the Trustees, registered in such names and such denominations
as the Underwriters shall have previously requested of the Trustees, executed
manually or in facsimile by the Managing Trustee and countersigned by the Paying
Agent. At no time shall the aggregate number of Equity Trust Securities
represented by such countersigned certificates exceed the number of then
outstanding Equity Trust Securities except as permitted by Section 3.4 hereof.
3.2 Registry of Holders. The Paying Agent shall maintain a
registry of the Holders of the Equity Trust Securities.
3.3 Registration of Transfer of Equity Trust Securities. Equity
Trust Securities shall be registered for transfer or exchange, and new
certificates shall be issued, in the name of the designated transferee or
transferees, upon surrender of the old certificates in form deemed by the Paying
Agent properly endorsed for transfer with (a) all necessary endorsers'
signatures guaranteed in such manner and form as the Paying
Agent may require by a guarantor reasonably believed by the Paying Agent to be
responsible, (b) such assurances as the Paying Agent shall deem necessary or
appropriate to evidence the genuineness and effectiveness of each necessary
endorsement and (c) satisfactory evidence of compliance with all applicable laws
relating to the collection of taxes or funds necessary for the payment of such
taxes.
3.4 Lost Certificates. If there shall be delivered to the Paying
Agent (a) evidence to its satisfaction of the destruction, loss or theft of any
certificate for Equity Trust Securities and (b) such security or indemnity as
may be required by it to hold it and any of its agents harmless, then, in the
absence of notice to the Paying Agent that such certificate has been acquired by
a bona fide purchaser, the Managing Trustee shall execute and upon its request
the Paying Agent shall countersign and deliver, in lieu of any such destroyed,
lost or stolen certificate, a new certificate of like tenor bearing a number not
contemporaneously outstanding. Any request by the Managing Trustee to the Paying
Agent to issue a replacement or new certificate pursuant to this Section 3.4
shall be deemed to be a representation and warranty by the Trust to the Paying
Agent that such issuance will comply with provisions of law, the Trust Agreement
and the resolutions adopted by the Trustees with respect to lost securities. If,
after the delivery of such new certificate, a bona fide purchaser of the
original certificate in lieu of which such new certificate was issued presents
for payment such original certificate, the Trust and the Paying Agent shall be
entitled to recover such new certificate from the person to whom it was
delivered or any transferee thereof, except a bona fide purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by the Trust or the Paying
Agent in connection therewith. Upon the issuance of any new certificate under
this Section 3.4, the Trust and the Paying Agent may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Paying Agent) connected therewith.
3.5 Transfer Books. The Paying Agent shall maintain the transfer
books listing the Holders of the Equity Trust Securities. In case of any written
request or demand for the inspection of the transfer books of the Trust or any
other books in the possession of the Paying Agent, the Paying Agent will notify
the Trustees and secure instructions as to permitting or refusing such
inspection. The Paying Agent reserves the right, however, to exhibit the
transfer books or other books to any person in case it is advised by its counsel
that its failure to do so would be unlawful.
3.6 Disposition of Canceled Certificates, Records. The Paying
Agent shall retain certificates which have been canceled in transfer or in
exchange and accompanying documentation in accordance with applicable rules and
regulations of the Commission for six calendar years from the date of such
cancellation, and shall make such records available during this period at any
time, or from time to time, for reasonable periodic, special, or other
examinations by representatives of the Commission and the Board of Governors of
the Federal Reserve System. Thereafter such records shall not be destroyed by
the Paying Agent but will be safely stored for possible future reference. In
case of any request or demand for the inspection of the register of the Trust or
any other books in the possession of the Paying Agent, the Paying Agent will
notify the Trustees and secure instructions as to permitting or refusing such
inspection. The Paying Agent reserves the right, however, to exhibit the
register or other records to any person in case it is advised by its counsel
that its failure to do so would (i) be unlawful, or
(ii) expose it to liability, unless the Trustees shall have offered
indemnification satisfactory to the Paying Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to the Paying Agent that:
(a) the Trust is a validly existing trust under the laws of the
State of Delaware and the Trustees have full power under the
Trust Agreement to execute and deliver this Agreement and to
authorize, create and issue the Equity Trust Securities;
(b) this Agreement has been duly and validly authorized, executed
and delivered by the Trust and constitutes the valid and
binding agreement of the Trust, enforceable against the Trust
in accordance with its terms, subject as to such
enforceability to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equitable principles;
(c) the form of the certificate evidencing the Equity Trust
Securities complies with all applicable laws of the State of
Delaware and the State of New York;
(d) the Equity Trust Securities have been duly and validly
authorized, executed and delivered by the Trust and are
validly issued;
(e) the Equity Trust Securities have been registered under the
Securities Act of 1933, the Trust has been registered under
the Investment Company Act, and no further action by or before
any governmental body or authority of the United States or of
any state thereof is required in connection with the execution
and delivery of this Agreement or the issuance of the Equity
Trust Securities;
(f) the execution and delivery of this Agreement and the issuance
and delivery of the Equity Trust Securities do not and will
not conflict with, violate, or result in a breach of, the
terms, conditions or provisions of, or constitute a default
under, the Trust Agreement, any law or regulation, any order
or decree of any court or public authority having jurisdiction
over the Trust, or any mortgage, indenture, contract,
agreement or undertaking to which the Trust is a party or by
which it is bound; and
(g) no taxes are payable upon or in respect of the execution of
this Agreement or the issuance of the Equity Trust Securities.
ARTICLE V
DUTIES AND RIGHTS
5.1 Duties.
(a) The Paying Agent is acting solely as agent for the Trust
hereunder and owes no fiduciary duties to any other Person by
reason of this Agreement.
(b) In the absence of bad faith, gross negligence or willful
misfeasance on its part in the performance of its duties
hereunder or its reckless disregard of its duties and
obligations hereunder, the Paying Agent shall not be liable
for any action taken, suffered, or omitted in the performance
of its duties under this Agreement or in accordance with any
direction or request of the Managing Trustee not inconsistent
with the provisions of this Agreement. The Paying Agent shall
under no circumstances be liable for any punitive, exemplary,
indirect or consequential damages hereunder.
(c) The Paying Agent shall treat as subject to withholding
payments made to Holders as appropriate under United States
federal tax law and shall retain all related documentation as
required by law. The Paying Agent shall obtain any forms or
certifications and may remit such amounts to applicable
jurisdictions as described in Section 8.2(b) of the Trust
Agreement, as requested by the Trustees.
5.2. Rights; Force Majeure.
(a) The Paying Agent may rely and shall be protected in acting or
refraining from acting upon any communication authorized
hereby and upon any written instruction, notice, request,
direction, consent, report, certificate, share certificate or
other instrument, paper or document reasonably believed by it
to be genuine. The Paying Agent shall not be liable for acting
upon any telephone communication authorized hereby which the
Paying Agent believes in good faith to have been given by the
Trustees.
(b) The Paying Agent shall not be liable for any claims, losses,
liabilities, damages or expenses (including attorneys' fees
and expenses) due to forces beyond the reasonable control of
the Paying Agent, including without limitation strikes, work
stoppages, acts of war or terrorism, insurrection, revolution,
nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services;
provided that this provision shall not protect the Paying
Agent against any liability to which it would otherwise be
subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of
its reckless disregard of its obligations and duties
hereunder.
(c) The Paying Agent may consult with legal counsel and the advice
of such counsel shall be full and complete authorization and
protection in respect of
any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(d) The Paying Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or
attorneys appointed with due care by it hereunder.
5.3 Disclaimer. The Paying Agent makes no representations as to
(a) the first two recitals of this Agreement or (b) the validity or adequacy of
the Equity Trust Securities.
5.4 Compensation, Expenses and Indemnification.
(a) The Paying Agent shall receive for all services rendered by it
under this Agreement and, upon the prior written approval of
the Trustees, for all expenses, disbursements and advances
incurred or made by the Paying Agent in accordance with any
provision of this Agreement (including the reasonable
compensation and the expenses and disbursements of its agents
and counsel), the compensation set forth in Section 3.1 of the
Administration Agreement.
(b) The Trust shall indemnify the Paying Agent for and hold it
harmless against any loss, liability, claim or expense
(including the costs of investigation, preparation for and
defense of legal and/or administrative proceedings relating to
a claim against it and reasonable attorneys' fees and
disbursements) arising out of or in connection with the
performance of its obligations under this Agreement, except
for loss, liability, claim or expense arising under Section
5.1(c), provided such loss, liability or expense is not the
result of gross negligence, willful misfeasance or bad faith
on its part in the performance of its duties hereunder or its
reckless disregard of its duties or obligations hereunder,
including the costs and expenses of defending itself against
any claim or liability in connection with its exercise or
performance of any of its duties or obligations hereunder and
thereunder. The indemnification provided by this Section
5.4(b) shall survive the termination of this Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Term of Agreement.
(a) The term of this Agreement is unlimited unless terminated as
provided in this Section 6.1 or unless the Trust is
terminated, in which case this Agreement shall terminate ten
days after the date of termination of the Trust. This
Agreement may be terminated by either party hereto without
penalty upon 60 days' prior written notice to the other party
hereto; provided that neither party hereto may terminate this
Agreement pursuant to this Section 6.1(a) unless a successor
Paying Agent shall have been appointed and shall have accepted
the duties of the Paying Agent. The termination of the
Administration Agreement or the resignation or removal of the
Custodian shall cause the termination of this Agreement
simultaneously therewith. If, within 30 days after notice by
the Paying Agent of termination of this Agreement, no
successor Paying Agent shall have been selected and accepted
the duties of the Paying Agent, the Paying Agent may apply to
a court of competent jurisdiction for the appointment of a
successor Paying Agent.
(b) Except as otherwise provided in this paragraph (b), the
respective rights and duties of the Trust and the Paying Agent
under this Agreement shall cease upon termination of this
Agreement. The Trust's representations, warranties, covenants
and obligations to the Paying Agent under Sections 4 and 5.4
hereof shall survive the termination hereof. Upon termination
of the Agreement, the Paying Agent shall, at the Trust's
request, promptly deliver to the Trust or to any successor
Paying Agent as requested by the Trust (i) copies of all books
and records maintained by it and (ii) any funds deposited with
the Paying Agent by the Trust.
6.2 Communications. Except for communications authorized to be
made by telephone pursuant to this Agreement, all notices, requests and other
communications to any party hereunder shall be in writing (including telecopy or
similar writing) and given to such person at its address or telecopy number set
forth below:
If to the Trust, Equity Securities Trust II
addressed: c/o Puglisi & Associates
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to the Administrator if the duties of the Administrator are being
performed by a Person other than the Person performing the obligations of the
Paying Agent.
If to the Paying Agent, The Bank of New York
addressed: ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
or such other address or telecopy number as such party may hereafter specify for
such purposes by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Trust by the Trustees (or by the
Administrator, provided that the Trust shall not have delivered to the Paying
Agent an instrument in writing revoking the authorization of the Administrator
to act for it pursuant hereto) and on behalf of the Paying Agent by a Senior
Vice President or Vice President of the Paying Agent assigned to its Corporate
Trust Department.
6.3 Entire Agreement. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof, and there are no
other representations, endorsements, promises, agreements or understandings,
oral, written or inferred, between the parties relating to the subject matter
hereof.
6.4 No Third Party Beneficiaries. Nothing herein, express or
implied, shall give to any Person, other than the Trustees, the Paying Agent and
their respective successors and assigns, any benefit of any legal or equitable
right, remedy or claim hereunder.
6.5 Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or
in part, except by a written instrument signed by a duly
authorized representative of the party to be charged. The
Trust shall notify the Paying Agent of any change in the Trust
Agreement prior to the effective date of any such change.
(b) Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party
shall not constitute a waiver of any such right or remedy with
respect to any subsequent breach.
6.6 Successors and Assigns. Any corporation into which the Paying
Agent may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Paying Agent shall be a party, shall be the successor Paying Agent under the
Trust Agreement without the execution or filing of any paper, instrument or
further act to be done on the part of the parties hereto, provided that such
corporation meets the requirements set forth in the Trust Agreement and provided
further that the Trust has given its prior written consent to the Paying Agent
with respect to any such merger, conversion or consolidation. This Agreement
shall be binding upon, inure to the benefit of, and be enforceable by, the
respective successors of each of the Trust and the Paying Agent. This Agreement
shall not be assignable by either the Trust or the Paying Agent without the
prior written consent of the other party.
6.7 Severability. If any clause, provision or section hereof shall
be ruled invalid or unenforceable by any court of competent jurisdiction, the
invalidity or unenforceability of such clause, provision or section shall not
affect any of the remaining clauses, provisions or sections hereof.
6.8 Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
6.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to principles of conflicts of law.
