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EXHIBIT (k)(2)
Form of Paying
Agent Agreement
PAYING AGENT AGREEMENT
This PAYING AGENT AGREEMENT dated as of this ___ day of March, 1997, by
and between The Bank of New York, a New York banking corporation (the "Paying
Agent"), and Nextel STRYPES Trust (such trust and the trustees thereof acting in
their capacity as such being referred to herein as the "Trust"), a trust
organized under the laws of the State of Delaware under and by virtue of an
Amended and Restated Trust Agreement, dated as of February 27, 1997 (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 certain zero-coupon U.S.
Government securities (the "U.S. Treasury Securities"), to enter into and hold a
forward purchase contract with certain existing stockholders (the "Contracting
Stockholders") of Nextel Communications, Inc. (the "Contract") and to issue
Structured Yield Product Exchangeable for Stock(sm) (the "STRYPES") to the
public in accordance with the terms and conditions of the Trust Agreement;
WHEREAS, the Trust desires 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 STRYPES 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
Trust, 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:
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(sm)Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
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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 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 STRYPES. 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 Trust 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 Trust 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 2.6, 2.7, 2.8
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
Temporary Investments in accordance with Section 3.4 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 thereof paid upon maturity to the
payment of the next succeeding Quarterly Distribution. All such Temporary
Investments shall be selected by the Trust from time to time or pursuant to
standing instructions from the Trust, 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.
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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 the STRYPES sold pursuant
to the Purchase Agreement are originally issued, certificates for the STRYPES
shall be issued by the Trust, and, at the request of the Trust, registered in
such names and such denominations as the Underwriters shall have previously
requested of the Trust, executed manually or in facsimile by the Managing
Trustee and countersigned by the Paying Agent. At no time shall the aggregate
number of STRYPES represented by such countersigned certificates exceed the
number of then outstanding STRYPES.
3.2 REGISTRY OF HOLDERS. The Paying Agent shall maintain a registry of the
Holders of the STRYPES.
3.3 REGISTRATION OF TRANSFER OF THE STRYPES. The STRYPES 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.
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 Trust 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 Trust 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 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 STRYPES. In case of any written request or demand for
the
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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 Trust 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 Securities and Exchange Commission (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 Trust 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 Trust shall have offered indemnification
satisfactory to the Paying Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE TRUSTEES
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 has full power under the Trust Agreement to execute and
deliver this Agreement and to authorize, create and issue the STRYPES;
(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 STRYPES complies with
all applicable laws of the State of Delaware and the State of New York;
(d) the STRYPES have been duly and validly authorized, executed and
delivered by the Trust and are validly issued;
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(e) the offer and sale of the STRYPES 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
STRYPES;
(f) the execution and delivery of this Agreement and the issuance
and delivery of the STRYPES 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 STRYPES.
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. 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 Managing Trustee.
(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.
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(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 representation as to (a) the
first two recitals of this Agreement or (b) the validity or adequacy of the
STRYPES.
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 Trust, 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 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 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.
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(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
Article IV and Section 5.4 hereof shall survive the termination hereof. Upon
termination of this 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,
addressed: Nextel STRYPES Trust
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,
addressed: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or such other address or telecopy number as such party may hereafter specify for
such purpose 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 by the Trust (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.
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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 Trust, 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, cancelled 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 hereunder and
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,
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 and
interpreted in accordance with the laws of the State of New York applicable to
agreements made and to be performed wholly within such State.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
NEXTEL STRYPES TRUST
By:
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Xxxxxx X. Xxxxxxx,
as Managing Trustee
THE BANK OF NEW YORK
By:
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Name:
Title:
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