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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
AMERITRADE AUTOMATIC COMMON EXCHANGE SECURITY TRUST
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Dated as of , 1999
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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
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.........................................................................4
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......................................................................................6
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.....................................................................................7
Section 6.2. Resignation.................................................................................8
Section 6.3. Appointment of Successor....................................................................8
Section 6.4. Effectiveness of Resignation or Removal.....................................................8
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..................................................................9
Section 7.3. Notices.....................................................................................9
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...............................................................10
Section 7.8. No Third Party Rights; Successors and Assigns..............................................10
Section 7.9. Counterparts...............................................................................10
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PAYING AGENT AGREEMENT
PAYING AGENT AGREEMENT, dated as of , 1999, between ChaseMellon
Shareholder Services, L.L.C., a New Jersey limited liability company (the
"Paying Agent"), and Ameritrade 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 , 1999 (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[S] (the "Contract[S]") with an existing shareholder [REVISE AS
NECESSARY] of Ameritrade Holding Corporation (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.
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"Company" has the meaning specified in the recitals to this
Agreement.
"Contract[S]" 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 , 1999, 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
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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.
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.
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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.
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:
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(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;
(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[S], 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
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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.
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.
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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
(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.
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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 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.
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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., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Telecopier No. (000) 000-0000, Attention [Xxxxxx Xxxxxxxx]; and (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]
with a copy to the Administrator at The Chase Manhattan Bank, 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopier No. (000) 000-0000, 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 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.
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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:
--------------------------------
Name:
Title:
THE TRUST:
AMERITRADE AUTOMATIC COMMON
EXCHANGE SECURITY TRUST
By:
--------------------------------
[Name]
as Trustee
By:
--------------------------------
[Name]
as Trustee
By:
--------------------------------
[Name]
as Trustee
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