S&C Draft of May 8, 1998
EXHIBIT 2.K(ii)
PAYING AGENT AGREEMENT
This PAYING AGENT AGREEMENT, dated as of this __th day of
May, 1998, by and between _____________, a _____________ banking corporation
(the "Paying Agent"), and Xxxxxxx X. Xxxxxx III, Xxxxx X. X'Xxxxx and Xxxxxx
X. Xxxxxxx (collectively, the "Trustees"), not in their individual capacities
but solely as Trustees of Xxxxx Xxxxxx Automatic Common Exchange Security
Trust (the "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
May __, 1998 (the "Trust Agreement").
W I T N E S S E T H
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 (the "Contracts") with one or more existing
shareholders of The Xxxxx Xxxxxx Companies 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;
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
Securities 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 _____________ shall act as the initial Paying Agent.
_____________ 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 2 as Paying Agent with respect to the
Securities. Without limiting the generality of the foregoing, _____________,
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 for in Section 3.2 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 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 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 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 Investment to its maturity and shall apply the
proceeds
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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 Securities
sold pursuant to the Underwriting Agreement are originally issued,
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 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.
3.2 Registry of Holders. The Paying Agent shall maintain a
registry of the Holders of the Securities.
3.3 Registration of Transfer of the Securities. The
Securities shall be registered for transfer or exchange, and new certificates
shall be issued, in the name of the designated transferee or 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.
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3.4 Lost Certificates. The Paying Agent shall issue and
register replacement certificates for certificates represented to have been
lost, stolen or destroyed, upon the fulfillment of such requirements as shall
be deemed appropriate by the Trustees and the Paying Agent, subject at all
times to provisions of law, the Trust Agreement and resolutions adopted by the
Trustees with respect to lost securities. The Paying Agent may issue new
certificates in exchange for and upon the cancellation of mutilated
certificates. 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 Trustees to the Paying Agent that such
issuance will comply with such provisions of law and the Trust Agreement and
resolutions of the Trustees.
3.5 Transfer Books. The Paying Agent shall maintain the
transfer books listing the Holders of the Securities. 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 Cancelled Certificates; Records. The
Paying Agent shall retain certificates which have been cancelled 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. 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.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE TRUSTEES
The Trustees represent and warrant to the Paying Agent that:
(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 and to
authorize, create and issue the Securities;
(b) this Agreement has been duly and validly authorized,
executed and delivered by the Trustees and constitutes the valid and
binding agreement of the Trustees, enforceable against the Trustees
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 Trustees and are validly issued;
(e) the offer and sale of the Securities has 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 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, agreement or undertaking to which the Trustees
are a party or by which any of them are bound; and
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(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
5.1 Duties. (a) The Paying Agent is acting solely as agent
for the Trustees 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. The Paying Agent shall under
no circumstances be liable for any 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.
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5.3 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.
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 Trustees 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 Trust Agreement, the Collateral Agreement, the
Administration Agreement or the Custodian Agreement or the resignation or
removal of the Custodian shall cause the termination of this Agreement
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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 Trustees and the Paying Agent under this
Agreement shall cease upon termination of this Agreement. The Trustees'
representations, warranties, covenants and obligations to the Paying Agent
under Article IV and Section 5.4 hereof shall survive the termination hereof.
Upon termination of this Agreement, the Paying Agent shall, at the Trustees'
request, promptly deliver to the Trustees or to any successor Paying Agent as
requested by the Trustees (i) copies of all books and records maintained by it
and (ii) any funds deposited with the Paying Agent by the Trustees.
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,
addressed: Xxxxx Xxxxxx Automatic Common
Exchange Security Trust
c/o Xxxxxx X. Xxxxxxx, Managing
Trustee
Xxxxxxx & 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,
addressed: ----------------------------
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Attn:
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Telephone:
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Telecopier:
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