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Exhibit 99.2.K(ii)
PAYING AGENT AGREEMENT
This PAYING AGENT AGREEMENT dated as of this day of November 1997, by
and between The Bank of New York, a New York banking corporation (the "Paying
Agent"), and DECS Trust II (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 September 2, 1997, as amended and
restated as of October 22, 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 Royal Group Technologies Limited
(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
Trustees, 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
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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 execute all
instructions received from an officer of the Administrator, except to the
extent that 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 hereof.
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 in lieu of which such new certificate was
issued presents for payment such 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
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the register 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 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
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, 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 Trust or 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 representations as to (a) the
first two recitals of this Agreement or (b) the validity or adequacy of the
DECS.
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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 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(b) 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
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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 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 II
addressed c/o Puglisi and 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 Agent, The Bank of New York
addressed 000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx
Telephone: 000-000-0000
addressed: 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.
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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 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 II
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Xxxxxx X. Xxxxxxx, as Trustee
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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Xxxxxxx X. Xxxxxx III, as Trustee
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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Xxxxx X. X'Xxxxx, as Trustee
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
THE BANK OF NEW YORK
By:
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Name: Xxxx X. Xxxxx
