PAYING AGENT AGREEMENT
This PAYING AGENT AGREEMENT dated as of this _______ day of
______ 1997, by and between The Bank of New York, a New York banking
corporation (the "Paying Agent"), and DECS Trust (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 November 21, 1995,
as amended and restated as of _____, 1997 (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 purchase contracts
with one or more existing shareholders of DIMON Incorporated
(individually, a "Contract" and collectively, the "Contracts")
and to issue DECS 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 DECS 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 Trustee, 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 DECS. 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 Investments 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
Investments 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 receive and execute all instructions from the
Administrator, except to the extent 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 DECS
sold pursuant to the Underwriting Agreement are originally
issued, certificates for such DECS 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 DECS represented by such
countersigned certificates exceed the number of then outstanding
DECS except as permitted by Section 3.4.
3.2 Registry of Holders. The Paying Agent shall maintain
a registry of the Holders of the DECS.
3.3 Registration of Transfer of DECS. DECS shall be
registered for transfer or exchange, and new certificates shall
be issued, in the name of the designated transferee or
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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 DECS 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, 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 DECS. 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
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Agent will notify the Trustees and to 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 TRUSTEES
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 DECS;
(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 DECS
complies with all applicable laws of the State of
Delaware and the State of New York;
(d) the DECS have been duly and validly authorized,
executed and delivered by the Trust and are validly
issued;
(e) the DECS have been registered under the Securities
Act of 1933 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 DECS;
(f) the execution and delivery of this Agreement and the
issuance and delivery of the DECS 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 Trustees are a
party or by which any of them are bound; and
(g) no taxes are payable upon or in respect of the
execution of this Agreement or the issuance of the
DECS.
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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.
5.2. Rights.
(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 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.
(c) The Paying Agent shall not be required to advance,
expend or risk its own funds or otherwise incur or
become exposed to financial liability in the
performance of its duties hereunder.
(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 represen-
tations as to (a) the first two recitals of this Agreement or (b) the
validity or adequacy of the DECS.
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
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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, 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(c)
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
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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, DECS Trust
addressed: c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
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 The Bank of New York
Agent, addressed: 000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
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
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the date first above written.
DECS TRUST
____________________________
Xxxxxx X. Xxxxxxx
as Managing Trustee
THE BANK OF NEW YORK
By:_________________________
Name:
Title:
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