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Exhibit 2.k.(i)
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ADMINISTRATION AGREEMENT
Between
THE CHASE MANHATTAN BANK,
As Administrator,
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
APPOINTMENT OF ADMINISTRATOR
Section 2.1. Appointment of Administrator; Acceptance of Appointment.....................................2
Section 2.2. Services of Administrator...................................................................2
Section 2.3. Power of Attorney...........................................................................4
Section 2.4. Delivery of Certain Documents...............................................................4
ARTICLE III
THE ADMINISTRATOR
Section 3.1. Conditions to Duties of the Administrator...................................................4
Section 3.2. Merger. ....................................................................................5
Section 3.3. Compensation................................................................................5
Section 3.4. Indemnification.............................................................................5
ARTICLE IV
RESIGNATION AND REMOVAL OF ADMINISTRATOR
Section 4.1. Removal.....................................................................................5
Section 4.2. Resignation.................................................................................6
Section 4.3. Appointment of Successor....................................................................6
Section 4.4. Effectiveness of Resignation or Removal.....................................................7
Section 4.5. Acceptance by Successor.....................................................................7
ARTICLE V
RECORDS AND REPORTS
Section 5.1. Books and Records; Inspection and Copying...................................................7
Section 5.2. Access to Information.......................................................................7
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ARTICLE VI
MISCELLANEOUS
Section 6.1. Term of Contract............................................................................7
Section 6.2. No Assumption of Liability..................................................................7
Section 6.3. Notices.....................................................................................8
Section 6.4. Governing Law; Severability.................................................................8
Section 6.5. Amendments; Waivers.........................................................................8
Section 6.6. Non-Assignability...........................................................................8
Section 6.7. Provisions of Law to Control................................................................8
Section 6.8. No Third Party Rights; Successors and Assigns...............................................9
Section 6.9. Counterparts................................................................................9
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ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT, dated as of February __, 2000, between The
Chase Manhattan Bank, a New York banking corporation (the "Administrator"), 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 Administrator
to assume certain duties and responsibilities of the Trustees of the Trust
under the Trust Agreement and the Investment Company Act and to undertake
certain services on behalf of and subject to the supervision of the Trustees as
provided in this Agreement; and
WHEREAS, the Administrator is qualified and willing to assume such
duties and responsibilities and to undertake to render such services, 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:
"Administrator" has the meaning specified in the preamble to
this Agreement.
"Agreement" means this Administration Agreement.
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"Company" has the meaning specified in the recitals to this
Agreement.
"Contract" has the meaning specified in the recitals to this
Agreement.
"Indemnification Expenses" has the meaning specified in the
Indemnity Agreement.
"Investment Company Act" has the meaning specified in the
recitals 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
APPOINTMENT OF ADMINISTRATOR
Section 2.1. Appointment of Administrator; Acceptance of Appointment.
The Trust hereby appoints the Administrator, and the Administrator hereby
accepts such appointment, to provide the services enumerated in this Agreement.
Section 2.2. Services of Administrator. Subject to the supervision of
the Trustees, the Administrator shall effect the matters set forth further in
Sections 2.3, 2.4 and 2.5 of the Trust Agreement, to the extent such
responsibilities can lawfully be delegated to the Administrator; provided,
however, that the Administrator shall not
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(i) render investment advisory services to the Trust as defined in the
Investment Company Act or the Investment Advisers Act of 1940; (ii) have the
power to sell the Contract or the Treasury Securities except as provided in
Sections 2.5 of the Trust Agreement; or (iii) have the power to select the
independent public accountants for the Trust. Additionally, the Administrator
shall be responsible for rendering the following services:
(a) if so directed by the Seller, instruct the Paying Agent
to pay, from the amounts payable to the Seller pursuant to the
Contract, the fees and expenses of the Trust incurred in connection
with the public offering of the Securities and the costs and expenses
incurred in connection with the organization of the Trust;
(b) instruct the Paying Agent to effect the transactions set
forth in Sections 2.3, 2.4 and 2.5 and Article III of the Trust
Agreement;
(c) with the approval of the Trustees, engage legal and other
professional advisors, subject to clause 2.2(iii) above;
(d) when the Trust is required to select and engage an
independent investment banking firm under the Contract, to select and
engage such a firm, subject to the requirements of the Contract
(including Section 8.1 thereof) and inform the Trustees promptly after
making such selection and engagement;
(e) receive all demands, bills and invoices for expenses
incurred by or on behalf of the Trust, and pay the same, or cause the
Paying Agent to pay the same, out of moneys paid to the Administrator
pursuant to the Expense Agreement but in no event out of any assets of
the Trust, except as provided in Section 2.2(a), and give notice to
the Seller (as defined in the Expense Agreement) of any claim for
Indemnification Expenses or any threatened claim for Indemnification
Expenses as provided in Section 2.4(b) of the Indemnity Agreement;
(f) (i) prepare and mail, file or publish, or, as
appropriate, direct the Paying Agent to prepare and mail, file or
publish, any notices, proxies, reports and other communications
required to be mailed or published pursuant to the Trust Agreement or
the Investment Company Act, (ii) keep (or cause to be kept) all the
books and records of the Trust (other than those to be kept by the
Paying Agent), and (iii) prepare (or cause to be prepared) and, as
necessary, file (or cause to be filed) any and all reports, returns
and other documents as required under the Investment Company Act, the
Securities Exchange Act of 1934, or the Code, or, as reasonably
requested by the Trustees, under any other applicable laws, rules or
regulations or otherwise; provided, however, that responsibility for
the adequacy and accuracy of any such notices, proxies, reports,
communications, books, records, returns and other documents shall be
that of the Trustees; and provided further, however, that the
Administrator shall have no liability for the adequacy or accuracy of
such notices, proxies, reports, communications, books, records,
returns and other documents;
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(g) at the request of the Trustees and upon being furnished
with such reasonable security and indemnity against any related
expense or liability as the Administrator may require, institute and
prosecute, in accordance with the instructions of the Trustees, legal
or other appropriate proceedings to enforce any and all rights and
remedies of the Trust;
(h) receive and review on behalf of the Trust all notices,
reports, certificates and other documents regarding the Contract and
the Treasury Securities;
(i) make all necessary arrangements with respect to meetings
of Trustees and meetings of Holders, including, without limitation,
the preparation of notices, proxies and minutes, subject to the
approval of Trustees; and
(j) in conjunction with the Trustees, determine and publish,
in such manner as the Trustees shall direct in writing, the Trust's
net asset value in accordance with the Trust's policy as set forth in
the Prospectus.
Section 2.3. Power of Attorney. The Trust hereby appoints the
Administrator, acting through any duly appointed officer, as its
attorney-in-fact and agent for the purpose of performing the duties prescribed
in Section 2.2(f)(iii) and 2.2(i).
Section 2.4. Delivery of Certain Documents. The Trust will deliver to
the Administrator, promptly following the execution of this Agreement: (a) a
complete conformed copy of the registration statement of the Trust under the
Securities Act and the Investment Company Act, including all amendments,
exhibits and schedules thereto and (b) the XXXXX access codes (Central Index
Key, CIK Confirmation Code, Password and Password Modification Access Code)
employed to file such registration statement.
ARTICLE III
THE ADMINISTRATOR
Section 3.1. Conditions to Duties of the Administrator. The provisions
of Section 8.1(a) of the Collateral Agreement shall apply, mutatis mutandis, to
the Administrator in the performance of its duties hereunder as if it were the
Collateral Agent acting under the Collateral Agreement. Without limiting the
generality of such provisions, the Administrator (i) at its own cost, may
select and employ independent accountants acceptable to the Trustees (other
than the independent public accountants referred to in clause 2.2(iii) of this
Agreement and Section 2.2(d) of the Trust Agreement) to keep the financial
books and records of the Trust, to prepare the financial statements of the
Trust and to prepare Trust tax returns, and (ii) should the Trustees fail to do
so, may select and engage attorneys acceptable to the Trustees to prepare
annual, semiannual and periodical reports, notices of meetings and proxy
statements, annual reports to Holders of the Securities and other documents
required under the Investment Company Act or the Securities Exchange Act of
1934.
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Section 3.2. Merger. Any corporation or association into which the
Administrator 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 or association resulting from
any such conversion, merger, consolidation, sale or transfer to which it is a
party, shall be and become the successor Administrator hereunder without the
execution or filing of any instrument or any further act, deed or conveyance on
the part of any of the parties hereto, provided that such corporation or
association meets the requirements set forth in the Trust Agreement.
Section 3.3. Compensation.
(a) For services to be rendered by the Administrator pursuant to this
Agreement, and for the payment of Trust expenses pursuant to Section 2.2(e) of
this Agreement, the Administrator shall receive only such fees and expenses as
shall be paid to it pursuant to the terms of the Expense Agreement and shall
have no recourse to the assets of the Trust for the payment of any such
amounts.
(b) If and to the extent that the Trust shall request the
Administrator to render services for the Trust, other than those to be rendered
by the Administrator hereunder, and if the Administrator agrees to render such
services, such additional services shall be compensated separately on terms to
be agreed upon between the Administrator and the Trust from time to time.
Section 3.4. Indemnification. The Trust shall indemnify and hold the
Administrator 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 Administrator 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 Administrator 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. Such indemnity shall survive
the resignation, removal or discharge of the Administrator and the termination
of this Agreement.
ARTICLE IV
RESIGNATION AND REMOVAL OF ADMINISTRATOR
Section 4.1. Removal.
(a) Subject to Section 4.4, the Trust may remove the Administrator by
written notice at any time if any of the following events shall occur:
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(i) If the Administrator 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 Administrator ceases to meet the requirements set
forth in Section 2.2(a) of the Trust Agreement; or
(iii) If the Administrator 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 Administrator, or for all or substantially all of its
property, or a court of competent jurisdiction shall approve any
petition filed against the Administrator for its reorganization, and
such adjudication or order shall remain in force or unstayed for a
period of 30 days; or
(iv) If the Administrator 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 Administrator 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
Administrator or, unless the Trust shall have given its prior written
consent thereto, the merger or consolidation of the Administrator 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 4.1(a) shall occur, the Administrator shall give immediate written
notice thereof to the Trust.
(b) Subject to Section 4.4, the Administrator shall be removed
immediately upon (i) termination of the Trust Agreement, (ii) termination of
the Paying Agent Agreement, (iii) termination of the Collateral Agreement, (iv)
termination of the Custodian Agreement, or (v) the resignation or removal of
the Paying Agent, the Collateral Agent or the Custodian.
Section 4.2. Resignation. Subject to Section 4.4, the Administrator
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
Administrator by the Trust.
Section 4.3. Appointment of Successor. If the Administrator 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 Administrator appointed pursuant to the provisions of this
Agreement shall satisfy the requirements set forth in Section 2.2(a) of the
Trust Agreement.
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Section 4.4. Effectiveness of Resignation or Removal. No resignation
or removal of the Administrator shall be effective until a successor
Administrator shall have been appointed and shall have accepted the duties of
the Administrator. If, within 30 days after notice by the Administrator to the
Trust or by the Trust to the Administrator of any such resignation or removal,
no successor Administrator shall have been selected and accepted the duties of
the Administrator, the Administrator may apply to a court of competent
jurisdiction for the appointment of a successor Administrator.
Section 4.5. Acceptance by Successor. Every successor Administrator
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 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
Administrator shall forthwith deliver all records or other property of the
Trust then in its possession or custody to its successor.
ARTICLE V
RECORDS AND REPORTS
Section 5.1. Books and Records; Inspection and Copying. The
Administrator shall keep (or cause to be kept) appropriate, and reasonably
detailed and accurate, books and records of all its activities pursuant to this
Agreement. The Trustees shall have the right to inspect such books and records
during the Administrator's normal business hours upon reasonable request, and
to make copies of the same at the expense of the Trust.
Section 5.2. Access to Information. The Administrator shall make
available to each of the Trustees all information it receives and compiles with
respect to the Contract and the Treasury Securities, the monies available to
the Trust, the financial condition of the Trust and all other relevant matters
concerning the Trust.
ARTICLE VI
MISCELLANEOUS
Section 6.1. 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 6.2. No Assumption of Liability. By executing this Agreement,
none of the Trustees assumes any personal liability hereunder.
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Section 6.3. 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 9.3 to each other party hereto.
Until such notice is given, (i) notices to the Administrator 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: Collateral Management
Services; (ii) notices to the Trust or the Trustees shall be directed to the
Trustees at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Telecopier:
(000) 000-0000; and (iii) notices to Seller shall be directed to it at CNET
Investments, Inc., 000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Telecopier No. (000) 000-0000, Attention: Chief Executive Officer.
(b) Each such notice given pursuant to Section 6.3(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 6.3.
Section 6.4. 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 6.5. 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 Administrator 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.
Section 6.6. 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 6.7. 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.
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Section 6.8. 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 Administrator 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 Administrator 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 6.9. 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 Administration
Agreement to be duly executed and delivered as of the first date set forth
above.
THE ADMINISTRATOR:
THE CHASE MANHATTAN BANK,
as Administrator
By:
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Name:
Title:
THE TRUST:
NBCi AUTOMATIC COMMON
EXCHANGE SECURITY TRUST
By:
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Xxxxxxx X. Xxxxxx, III,
as Trustee
By:
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Xxxxx X. X'Xxxxx,
as Trustee
By:
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Xxxxxx X. Xxxxxxx,
as Trustee
