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Draft of November 7, 1995
PAYING AGENT AGREEMENT
This PAYING AGENT AGREEMENT dated as of this ___ day of
November 1995, by and between The Bank of New York, a New York 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 AJL PEPS 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 November __, 1995 (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 a forward
contract with each of two existing shareholders of Amway Japan Limited
(individually, a "Contract," collectively, the "Contracts") and to issue Premium
Exchangeable Participating Shares ("PEPS") 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 PEPS 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:
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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 PEPS. 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 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, 2.6 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
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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 PEPS
sold pursuant to the Underwriting Agreement are originally issued, certificates
for such PEPS 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 PEPS represented by such countersigned certificates exceed
the number of then outstanding PEPS.
3.2 Registry of Holders. The Paying Agent shall maintain a
registry of the Holders of the PEPS.
3.3 Registration of Transfer of PEPS. PEPS 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 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
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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 PEPS. 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 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.
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 PEPS;
(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,
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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 PEPS complies
with all applicable laws of the State of New York;
(d) the PEPS have been duly and validly authorized, executed
and delivered by the Trustees and are validly issued;
(e) the PEPS have 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 PEPS;
(f) the execution and delivery of this Agreement and the
issuance and delivery of the PEPS 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
(g) no taxes are payable upon or in respect of the execution of
this Agreement or the issuance of the PEPS.
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.
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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
representation as to (a) the first two recitals of this Agreement or (b) the
validity or adequacy of the PEPS.
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
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provided by this Section 5.4(c) 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 Agreement 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:
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If to the Trust,
addressed: AJL PEPS Trust
c/o Xxxxxx X. Xxxxxxx
Managing Trustee
Xxxxxxx & Associates
0000 Xxxxx Xxxx Xxxx, Xxxxx 0
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: Xxxxxxxx X. Xxxxxxx
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 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, cancelled or waived, in whole
or in part, except by a written instrument signed by a duly authorized
representative of the
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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. 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, provided further that the Trust has given its
prior written consent to the Paying Agent with respect to any such merger,
conversion or consolidation.
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.
TRUSTEES
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Xxxxxxx X. Xxxxxx, III,
as Trustee
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Xxxxx X. X'Xxxxx,
as Trustee
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Xxxxxx X. Xxxxxxx,
as Trustee
THE BANK OF NEW YORK
By:
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Name:
Title:
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