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Exhibit 2.k.(ii)
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PAYING AGENT AGREEMENT
Between
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
As Paying Agent,
and
NBCi AUTOMATIC COMMON EXCHANGE SECURITY TRUST
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Dated as of February __, 2000
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms...................................................1
Section 1.2. Interpretation..................................................2
ARTICLE II
PAYING AGENT
Section 2.1. Appointment of Paying Agent; Acceptance of Appointment..........2
Section 2.2. Certificates and Notices........................................3
Section 2.3. Payments and Investments........................................3
Section 2.4. Instructions from Administrator.................................3
ARTICLE III
TRANSFER AGENT AND REGISTRAR
Section 3.1. Original Issue of Certificates..................................3
Section 3.2. Registry of Holders.............................................3
Section 3.3. Registration of Transfer of the Securities......................4
Section 3.4. Lost Certificates...............................................4
Section 3.5. Disposition of Canceled Certificates; Records...................4
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE TRUST
Section 4.1. Representations and Warranties of the Trust.....................4
ARTICLE V
DUTIES AND RIGHTS OF PAYING AGENT
Section 5.1. Duties..........................................................5
Section 5.2. Conditions to the Duties of the Paying Agent....................5
Section 5.3. Merger..........................................................5
Section 5.4. Disclaimer......................................................6
Section 5.5. Compensation....................................................6
Section 5.6. Indemnification.................................................6
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ARTICLE VI
RESIGNATION AND REMOVAL OF THE PAYING AGENT
Section 6.1. Removal.........................................................6
Section 6.2. Resignation.....................................................7
Section 6.3. Appointment of Successor........................................7
Section 6.4. Effectiveness of Resignation or Removal.........................7
Section 6.5. Acceptance by Successor.........................................8
Section 6.6. Survival........................................................8
ARTICLE VII
MISCELLANEOUS
Section 7.1. Term of Agreement...............................................8
Section 7.2. No Assumption of Liability......................................8
Section 7.3. Notices.........................................................8
Section 7.4. Governing Law; Severability.....................................9
Section 7.5. Amendments; Waivers.............................................9
Section 7.6. Non-Assignability...............................................9
Section 7.7. Provisions of Law to Control....................................9
Section 7.8. No Third Party Rights; Successors and Assigns...................9
Section 7.9. Counterparts....................................................9
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PAYING AGENT AGREEMENT
PAYING AGENT AGREEMENT, dated as of February __, 2000, between
ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability company
(the "Paying Agent"), and 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").
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 certain U.S. treasury
securities (the "Treasury Securities"), to enter into and hold a forward
purchase contract (the "Contract") with an existing shareholder of NBC Internet,
Inc. (the "Company") and to issue $[-] Trust Automatic Common Exchange
Securities (the "Securities") to the public in accordance with the terms and
conditions of the Trust Agreement referred to below; and
WHEREAS, the Trust desires to engage the services of the Paying
Agent to assume certain duties and responsibilities as the transfer agent,
registrar and paying agent with respect to the Securities upon the terms and
conditions of this Agreement; and
WHEREAS, the Paying Agent is qualified and willing to assume such
duties and responsibilities, subject to the supervision of the Trustees, on the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, the parties, 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 Paying Agent Agreement.
"Company" has the meaning specified in the recitals to this
Agreement.
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"Contract" has the meaning specified in the recitals to this
Agreement.
"Investment Company Act" has the meaning specified in the
recitals to this Agreement.
"Paying Agent" has the meaning specified in the preamble to
this Agreement.
"Securities" has the meaning specified in the recitals to
this Agreement.
"Treasury Securities" has the meaning specified in the
recitals to this Agreement.
"Trust" has the meaning specified in the preamble to this
Agreement.
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated as of February __, 2000, constituting 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
PAYING AGENT
Section 2.1. Appointment of Paying Agent; Acceptance of
Appointment. The Trust hereby appoints the Paying Agent, and the Paying Agent
hereby accepts such appointment, to provide the services enumerated in this
Agreement. The Paying Agent agrees to act in accordance with its standard
procedures and the written instructions of the Administrator and the provisions
set forth in this Article II as Paying Agent with respect to the Securities.
Without limiting the generality of the foregoing, ChaseMellon Shareholder
Services, L.L.C., as Paying Agent, agrees that it shall establish and maintain
the Trust Account as provided in the Trust Agreement, subject to the provisions
of Section 2.3.
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Section 2.2. Certificates and Notices. The Trustees shall deliver,
or cause to be delivered, 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.
Section 2.3. Payments and Investments. The Paying Agent shall make
payments out of the Trust Account as provided for in Article III of the Trust
Agreement. The Paying Agent shall effect the transactions set forth in Sections
2.3, 2.4, 2.5 and 8.3 of the Trust Agreement upon receipt of written
instructions to do so from the Administrator and shall invest monies on deposit
in the Trust Account in Temporary Investments in accordance with Section 3.5 of
the Trust Agreement. Except as otherwise specifically provided in this Agreement
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 upon maturity to the payment of the next succeeding Quarterly
Distribution on the Securities. All such Temporary Investments shall be selected
from time to time by the Trustees or by the Administrator pursuant to standing
instructions from the Trustees to the Administrator, and the Paying Agent shall
have no liability to the Trust or any Holder or any other Person with respect to
the payment or performance of any such Temporary Investment.
Section 2.4. Instructions from Administrator. The Paying Agent shall
receive and execute all written instructions from the Administrator.
ARTICLE III
TRANSFER AGENT AND REGISTRAR
Section 3.1. Original Issue of Certificates. On the date the
Securities are originally issued and sold pursuant to the Underwriting
Agreement, certificates for the 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 manually by
the Paying Agent. At no time shall the aggregate number of Securities
represented by such countersigned certificates exceed the number of then
outstanding Securities.
Section 3.2. Registry of Holders. The Paying Agent shall maintain
a registry of the Holders of the Securities. In case of any written request or
demand for the inspection of the registry 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 whether to permit or refuse such inspection; provided,
however, that the Paying Agent reserves the right to exhibit the transfer books
or other books to any Person if it is advised by its counsel that its failure to
do so would be unlawful.
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Section 3.3. Registration of Transfer of the Securities. The
Paying Agent shall register Securities for transfer or exchange, and shall
countersign and deliver new certificates in the name of the designated
transferee or transferees, upon surrender of the old certificates as provided in
Section 5.2 of the Trust Agreement.
Section 3.4. Lost Certificates. The Paying Agent shall issue and
register replacement certificates for certificates represented to have been
destroyed, stolen or lost or for mutilated certificates, in each case as
provided in Section 5.3 of the Trust Agreement. Any request by the Trustees 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 any applicable provisions
of the law and the Trust Agreement and resolutions of the Trustees.
Section 3.5. Disposition of Canceled Certificates; Records. The
Paying Agent shall retain certificates that 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 seek to secure instructions as to permitting or refusing
such inspection; provided, however, that the Paying Agent reserves the right 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
Section 4.1. 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 New York and the Trustees have full power under the
Trust Agreement to execute and deliver this Agreement on behalf of
the Trust and to authorize, create and issue the 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;
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(c) the form of the certificate evidencing the
Securities complies with all applicable laws of the State of New
York;
(d) the Securities have been duly and validly
authorized, executed and delivered by the Trust and are validly
issued;
(e) the offer and sale of the Securities has been
registered under the Securities Act and 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 Securities;
(f) the execution and delivery of this Agreement and the
issuance and delivery of the 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 Securities.
ARTICLE V
DUTIES AND RIGHTS OF PAYING AGENT
Section 5.1. Duties. 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.
Section 5.2. Conditions to the Duties of the Paying Agent. The
provisions of Section 8.1(a) of the Collateral Agreement shall apply, mutatis
mutandis, to the Paying Agent in the performance of its duties hereunder as if
it were the Collateral Agent acting under the Collateral Agreement.
Section 5.3. Merger. Any corporation, association or limited
liability company into which the Paying Agent may be converted or merged or with
which it may be consolidated, or to which it may sell or transfer its agency
business and assets as a whole or substantially as a whole, or any corporation,
association or limited liability company resulting from any such conversion,
merger, consolidation, sale or transfer to which it is a party, shall be and
become the successor Paying Agent hereunder without the execution or filing of
any instrument or further act, deed or conveyance on the part of any of the
parties hereto, provided that such corporation, association or limited liability
company meets the requirements set forth in the Trust Agreement, and provided
further that the Trustees have given their prior written consent to the
Administrator with respect to any such merger, conversion, consolidation, sale
or transfer.
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Section 5.4. Disclaimer. The Paying Agent makes no representation as
to (a) the first two recitals of this Agreement or (b) the validity or adequacy
of the Securities.
Section 5.5. Compensation. For services to be rendered by the Paying
Agent pursuant to this Agreement, the Paying Agent shall receive only such fees
and expenses as shall be paid to it pursuant to the terms of the Expense
Agreement and the Indemnity Agreement and shall have no recourse to the assets
of the Trust for the payment of any such amounts.
Section 5.6. Indemnification. The Trust shall indemnify and hold the
Paying Agent harmless from and against any loss, damages, cost or expense
(including the costs of investigation, preparation for and defense of legal
and/or administrative proceedings related to a claim against it and reasonable
attorneys' fees and disbursements), liability or claim incurred by reason of any
inaccuracy in information furnished to the Paying Agent by the Trust, or any act
or omission in the course of, connected with or arising out of any services to
be rendered hereunder, provided that the Paying Agent shall not be indemnified
and held harmless from and against any such loss, damages, cost, expense,
liability or claim incurred by reason of its willful misfeasance, bad faith or
gross negligence in the performance of its duties, or its reckless disregard of
its duties and obligations hereunder. In no case will the Paying Agent be liable
for special, indirect, incidental or consequential loss or damages of any kind
whatsoever (including but not limited to lost profits), even if the Paying Agent
has been advised of the possibility of such damages.
ARTICLE VI
RESIGNATION AND REMOVAL OF THE PAYING AGENT
Section 6.1. Removal.
(a) Subject to Section 6.4, the Trust may remove the Paying Agent by
written notice at any time if any of the following events shall occur:
(i) If the Paying Agent shall violate any provision of
this Agreement, the Trust Agreement or the Investment Company Act
and, after notice of such violation, shall not cure such default
within 30 days; or
(ii) If the Paying Agent ceases to meet the requirements
set forth in Section 2.2(a) of the Trust Agreement; or
(iii) If the Paying Agent shall be adjudged bankrupt or
insolvent by a court of competent jurisdiction, or a receiver,
conservator, liquidator, or trustee shall be appointed for or with
respect to the Paying Agent, or for all or substantially all of its
property, or a court of competent jurisdiction shall approve any
petition filed against the Paying Agent for its reorganization, and
such adjudication or order shall remain in force or unstayed for a
period of 30 days; or
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(iv) If the Paying Agent shall institute proceedings for
voluntary bankruptcy, or shall file a petition seeking
reorganization under the Federal bankruptcy laws, or for relief
under any law for the relief of debtors, or shall consent to the
appointment of a receiver or conservator for or in respect of the
Paying Agent for all or substantially all of its property, or shall
make a general assignment for the benefit of its creditors, or shall
admit in writing its inability to pay its debts generally as they
become due; or
(v) Upon the voluntary or involuntary dissolution of the
Paying Agent or, unless the Trust shall have given its prior written
consent thereto, the merger or consolidation of the Paying Agent
with any other entity; or
(vi) at any time upon 60 days' prior written notice.
If any of the events specified in clauses (ii), (iii), (iv) or (v) of this
Section 6.1(a) shall occur, the Paying Agent shall give immediate written notice
thereof to the Trust.
(b) Subject to Section 6.4, the Paying Agent shall be removed
immediately upon (i) termination of the Trust Agreement, (ii) termination of the
Administration Agreement, (iii) termination of the Collateral Agreement, (iv)
termination of the Custodian Agreement, or (v) the resignation or removal of the
Administrator, the Collateral Agent or the Custodian.
Section 6.2. Resignation. Subject to Section 6.4, the Paying Agent
may at any time resign by giving 60 days' written notice by registered or
certified mail to the Trust in accordance with the provisions of Section 6.3.
Such resignation shall take effect upon the appointment of a successor Paying
Agent by the Trust.
Section 6.3. Appointment of Successor. If the Paying Agent
hereunder shall resign or be removed, a successor may be appointed by the Trust
by an instrument or concurrent instruments in writing signed by the Trustees.
Every such successor Paying Agent appointed pursuant to the provisions of this
Agreement shall satisfy the requirements set forth in Section 2.2(a) of the
Trust Agreement.
Section 6.4. Effectiveness of Resignation or Removal. No
resignation or removal of the Paying Agent shall be effective until a successor
Paying Agent shall have been appointed and shall have accepted the duties of the
Paying Agent. If, within 30 days after notice by the Paying Agent to the Trust
or by the Trust to the Paying Agent of any such resignation or removal, 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, and the Trust shall pay all
fees and expenses, including but not limited to the cost of legal counsel,
reasonably incurred by the Paying Agent in applying to such court for the
appointment of a successor Paying Agent.
Section 6.5. Acceptance by Successor. Every successor Paying Agent
appointed hereunder shall execute, acknowledge and deliver to its predecessor
and also to the Trust an instrument in writing accepting such appointment
hereunder, whereupon such successor, without any further act, deed or
conveyance, shall become fully vested with
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all the estates, properties, rights, powers, duties and obligations of its
predecessors. Such predecessor shall, nevertheless, on the written request of
its successor or the Trust, execute and deliver an instrument transferring to
such successor all the estates, properties, rights and powers of such
predecessor hereunder. Every predecessor Paying Agent shall forthwith 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.
Section 6.6. Survival. The Trust's representations, warranties,
covenants and obligations to the Paying Agent under Article IV and Sections 5.5
and 5.6 shall survive the termination of this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Term of Agreement. 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 7.2. No Assumption of Liability. By executing this
Agreement, none of the Trustees assumes any personal liability hereunder.
Section 7.3. Notices.
(a) All notices and other communications provided for in this
Agreement, unless otherwise specified, shall be in writing (including
transmittals by telex or telecopier) given at the addresses set forth in the
following sentences or at such other addresses as may be designated by notice
duly given in accordance with this Section 7.3 to each other party hereto. Until
such notice is given, (i) notices to the Paying Agent shall be directed to it at
ChaseMellon Shareholder Services, L.L.C., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; and (ii)
notices to the Trust or the Trustees shall be directed to the Trustees at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to the Administrator at The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
Pledged Asset Control Services.
(b) Each such notice given pursuant to Section 7.3(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 7.3.
Section 7.4. 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
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Agreement shall not render any other provision or provisions contained in this
Agreement unenforceable or invalid.
Section 7.5. Amendments; Waivers. Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in writing
and signed, in the case of an amendment, by the Paying Agent 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 hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
provided in this Agreement shall be cumulative and not exclusive of any rights
or remedies provided by law. The Trustees shall notify the Paying Agent of any
change in the Trust Agreement prior to the effective date of any such change.
Section 7.6. Non-Assignability. This Agreement and the rights and
obligations of the parties hereunder 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 7.7. Provisions of Law to Control. This Agreement shall be
subject to the applicable provisions of the Investment Company Act and the rules
and regulations of the Commission thereunder. To the extent that any provisions
contained in this Agreement conflict with any applicable provisions of the
Investment Company Act or such rules and regulations, the latter shall control.
Section 7.8. 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 Paying Agent and the Trust and their respective successors
and assigns and no person shall assert any rights as third party beneficiary
hereunder. Whenever any of the parties hereto is referred to, such reference
shall be deemed to include the successors and assigns of such party. All the
covenants and agreements contained in this Agreement by or on behalf of the
Paying Agent and 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 Trust and its successors and
assigns.
Section 7.9. 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 thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Paying Agent
Agreement to be duly executed and delivered as of the first date set forth
above.
THE PAYING AGENT:
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C., as Paying Agent
By:
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Name:
Title:
THE TRUST:
NBCi AUTOMATIC COMMON
EXCHANGE SECURITY TRUST
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III,
as Trustee
By:
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▇▇▇▇▇ ▇. ▇'▇▇▇▇▇,
as Trustee
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Trustee