EXHIBIT (k)(2)
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 V (such trust and the trustees thereof acting in
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their capacity as such being referred to herein as the "Trust"), a statutory
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business trust organized under the Business Trust Act of the State of Delaware
pursuant to a Declaration of Trust dated as of April 22, 1999, as amended and
restated as of July 14, 1999 and as further amended and restated as of
August 4, 1999 (the "Trust Agreement").
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WITNESSETH
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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
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securities (the "Treasury Securities"), to enter into and hold forward purchase
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contracts with one or more existing shareholders of Crown Castle International
Corp. (individually, a "Contract" and collectively, the "Contracts") and to
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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
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DEFINITIONS
1.1 Definitions. Capitalized terms not otherwise defined herein
shall have the respective meanings specified in the Trust Agreement.
ARTICLE II
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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 Investment 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 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
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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 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.
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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.
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.
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(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 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
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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.
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 V
addressed: c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
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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: 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 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,
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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 V
By:
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Xxxxxx X. Xxxxxxx, as Managing Trustee
THE BANK OF NEW YORK
By:
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Name:
Title:
