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Exhibit (k)(2)
CGSH DRAFT of 1/6/99
PAYING AGENT AGREEMENT
This PAYING AGENT AGREEMENT dated as of this ____ day of __________,
1999 by and between The Bank of New York, a New York banking corporation (the
"Paying Agent"), and DECS Trust IV (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 December 17, 1998, as amended and
restated as of ________, 1999 (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 certain U.S. Treasury securities, to
enter into and hold a forward purchase contract with Hyundai Electronics America
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 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.
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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 their 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 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
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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 protected 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 protected 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 protected 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 shall 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 Agent shall
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
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(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 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 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 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.
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
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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 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.
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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 IV
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 Agent, The Bank of New York
addressed: 000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx
Telephone: 000-000-0000
Telecopier: 212-815-
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 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.
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(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 law 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 IV
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Xxxxxx X. Xxxxxxx
as Managing Trustee
THE BANK OF NEW YORK
By:
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Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
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