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EXHIBIT 2.j.
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CUSTODIAN AGREEMENT
Between
THE CHASE MANHATTAN BANK,
As Custodian,
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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 CUSTODIAN
Section 2.1. Appointment of Custodian; Acceptance of Appointment...................2
Section 2.2. Transfer of Assets....................................................3
Section 2.3. Authorized Actions....................................................3
Section 2.4. Asset Disposition; Examinations.......................................3
Section 2.5. Rights of Set-Off; Banker's Lien......................................3
ARTICLE III THE CUSTODIAN
Section 3.1. Conditions to Duties of the Custodian.................................4
Section 3.2. Merger................................................................4
Section 3.3. Compensation..........................................................4
Section 3.4. Trust Agreement Validity..............................................4
Section 3.5. Litigation Obligations, Costs and Indemnity...........................4
Section 3.6. Indemnification.......................................................4
Section 3.7. Section 17(f) Qualification...........................................5
ARTICLE IV RESIGNATION AND REMOVAL OF CUSTODIAN
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...............................6
Section 4.5. Acceptance by Successor...............................................6
ARTICLE V MISCELLANEOUS
Section 5.1. Term of Contract......................................................6
Section 5.2. No Assumption of Liability............................................6
Section 5.3. Notices...............................................................7
Section 5.4. Governing Law; Severability...........................................7
Section 5.5. Amendments; Waivers...................................................7
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Section 5.6. Non-Assignability.....................................................7
Section 5.7. Provisions of Law to Control..........................................7
Section 5.8. No Third Party Rights; Successors and Assigns.........................8
Section 5.9. Counterparts..........................................................8
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CUSTODIAN AGREEMENT
CUSTODIAN AGREEMENT, dated as of February __, 2000, between The Chase
Manhattan Bank, a New York banking corporation (the "Custodian"), 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 NBCi 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 Custodian to
perform certain custodial duties and provide certain related services for the
Trust under the Trust Agreement and the Investment Company Act; and
WHEREAS, the Custodian is qualified and willing to assume such duties and
provide 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:
"Agreement" means this Custodian Agreement.
"Assets" has the meaning specified in Section 2.1.
"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.
"Custodian" has the meaning specified in the preamble to this
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 shall be 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 shall be a
reference to such statute, regulation or agreement as supplemented or amended
from time to time.
ARTICLE II
APPOINTMENT OF CUSTODIAN
Section 2.1. Appointment of Custodian; Acceptance of Appointment. The
Trust hereby appoints the Custodian, and the Custodian accepts such appointment,
as custodian of all of the property, including but not limited to, the Contract,
the Treasury Securities, any U.S. Government Securities delivered to the Trust
in connection with an extension of the Exchange Date, the Temporary Investments,
any cash and any other property at any time owned or held by the Trust
(collectively, the "Assets").
Section 2.2. Transfer of Assets. The Trust hereby deposits the Assets with
the Custodian and the Custodian hereby accepts such into its custody and the
Trust shall
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deliver to the Custodian all of the Assets, including all monies, securities and
other property received by the Trust at any time during the period of this
Agreement, subject to the following terms and conditions. The Custodian hereby
agrees that it shall hold the Assets in a segregated custody account, separate
and distinct from all other accounts, in accordance with Section 17(f) of, and
in such manner as shall constitute the segregation and holding in trust within
the meaning of, the Investment Company Act and the rules and regulations
thereunder. The Trustees authorize the Custodian, for any Assets held hereunder,
to use the services of any United States securities depository permitted to
perform such services for registered investment companies and their custodians
under Rule 17f-4 under the Investment Company Act and which have been approved
by the Trustees, including but not limited to, The Depository Trust Company and
the Federal Reserve Book Entry System. The Custodian shall invest monies on
deposit in such custody account in the Temporary Investments at the instruction
of the Paying Agent in accordance with Section 3.5 of the Trust Agreement.
Section 2.3. Authorized Actions. The Custodian shall take such actions
with respect to the Assets as are directed in writing, in accordance with the
provisions of Section 5.3 of this Agreement, by the Trustees or by any officer
of the Administrator or the Paying Agent and received by the Custodian from time
to time.
Section 2.4. Asset Disposition; Examinations. The Custodian shall have no
power or authority to assign, hypothecate, pledge or otherwise dispose of the
Assets, except pursuant to a written direction in accordance with Section 2.3 of
this Agreement and then only for the account of the Trust. The Assets shall be
subject to no lien or charge of any kind in favor of the Custodian for itself or
for any other Person claiming through the Custodian. The Custodian shall permit
actual examination of the Assets by the Trust's independent public accountant at
the end of each annual and semi-annual fiscal period of the Trust and at least
one other time during the fiscal year of the Trust chosen by such independent
public accountant and shall permit the inspection of the Assets by the
Commission through its employees or agents during the normal business hours of
the Custodian upon reasonable request.
Section 2.5. Rights of Set-Off; Banker's Lien. The Custodian hereby waives
all rights of set-off or banker's lien it may have with respect to the Assets
held by it as Custodian hereunder.
ARTICLE III
THE CUSTODIAN
Section 3.1. Conditions to Duties of the Custodian. The provisions of
Section 8.1(a) of the Collateral Agreement shall apply, mutatis mutandis, to the
Custodian in the performance of its duties hereunder as if it were the
Collateral Agent acting under the Collateral Agreement.
Section 3.2. Merger. Any corporation or association into which the
Custodian may be converted or merged or with which it may be consolidated, or to
which it may
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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 Custodian 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. For services to be rendered by the Custodian
pursuant to this Agreement, the Custodian shall receive only such fees and
expenses as shall be paid to it pursuant to the terms of the Indemnity Agreement
and shall have no recourse to the assets of the Trust for the payment of any
such amounts.
Section 3.4. Trust Agreement Validity. The Custodian shall not be
responsible for the validity or sufficiency of the Trust Agreement or the due
execution thereof, or for the form, character, genuineness, sufficiency, value
or validity of any of the Assets and the Custodian shall in no event assume or
incur any liability, duty or obligation to any Holder or to the Trustees, other
than as expressly provided for in this Agreement. The Custodian shall not be
responsible for or in respect of the validity of any signature by or on behalf
of the Trustees.
Section 3.5. Litigation Obligations, Costs and Indemnity. The Custodian
shall not be under any obligation to appear in, prosecute or defend any action
which in its opinion may involve it in expense or liability, unless it shall be
furnished with such reasonable security and indemnity against such expense or
liability as it may require.
Section 3.6. Indemnification. The Trust shall indemnify and hold the
Custodian 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 Custodian 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 Custodian 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 Custodian and the termination of this Agreement.
Section 3.7. Section 17(f) Qualification. The Custodian hereby represents
that it is qualified to act as a custodian under Section 17(f) of the Investment
Company Act.
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ARTICLE IV
RESIGNATION AND REMOVAL OF CUSTODIAN
Section 4.1. Removal.
(a) Subject to Section 4.4, the Trust may remove the Custodian by written
notice at any time if any of the following events shall occur:
(i) If the Custodian 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 Custodian ceases to meet the requirements set forth in
Section 2.2(a) of the Trust Agreement; or
(iii) If the Custodian 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 Custodian, or for all
or substantially all of its property, or a court of competent jurisdiction
shall approve any petition filed against the Custodian for its
reorganization, and such adjudication or order shall remain in force or
unstayed for a period of 30 days; or
(iv) If the Custodian 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 Custodian 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 Custodian or,
unless the Trust shall have given its prior written consent thereto, the
merger or consolidation of the Custodian 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 Custodian shall give immediate written notice
thereof to the Trust.
(b) The Custodian 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 Administration
Agreement, or (v) the resignation or removal of the Paying Agent, the Collateral
Agent or the Administrator.
Section 4.2. Resignation. The Custodian may at any time resign by giving
60 days' written notice by registered or certified mail to the Trust in
accordance with
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the provisions of Section 5.3. Such resignation shall take effect upon the
appointment of a successor Custodian by the Trust.
Section 4.3. Appointment of Successor. If the Custodian 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 Custodian appointed pursuant to the provisions of this Agreement shall
satisfy the requirements set forth in Section 2.2(a) of the Trust Agreement.
Section 4.4. Effectiveness of Resignation or Removal. No resignation or
removal of the Custodian shall be effective until a successor Custodian shall
have been appointed and shall have accepted the duties of the Custodian. If,
within 30 days after notice by the Custodian to the Trust or by the Trust to the
Custodian of any such resignation or removal, no successor Custodian shall have
been selected and accepted the duties of the Custodian, the Custodian may apply
to a court of competent jurisdiction for the appointment of a successor
Custodian.
Section 4.5. Acceptance by Successor. Every successor Custodian 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 Custodian shall forthwith deliver
all records or other property of the Trust then in its possession or custody to
its successor.
ARTICLE V
MISCELLANEOUS
Section 5.1. 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 5.2. No Assumption of Liability. By executing this Agreement, none
of the Trustees assumes any personal liability hereunder.
Section 5.3. Notices.
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(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 5.3 to each other party hereto. Until such notice is given,
(i) notices to the Custodian shall be directed to it at The Chase Manhattan
Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier No. (212)
946-3638, Attention: Pledged Asset Control Services; and (ii) notices to the
Trust or the Trustees shall be directed to the Trustees at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇.
(b) Each such notice given pursuant to Section 5.3(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 5.3.
Section 5.4. 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 5.5. 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 Custodian 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 5.6. 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 5.7. 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 5.8. 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 Custodian 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
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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 Custodian 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 5.9. 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 Custodian Agreement
to be duly executed and delivered as of the first date set forth above.
THE CUSTODIAN
THE CHASE MANHATTAN BANK,
as Custodian
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
