EXHIBIT K(2)
PAYING AGENT AGREEMENT
This PAYING AGENT AGREEMENT dated as of this day of September, 1997,
by and between The Bank of New York, a New York banking corporation (the "Paying
Agent"), and Xxxxxx STRYPES Trust (such trust and the trustees thereof acting in
their capacity as such being referred to herein as the "Trust"), a business
trust organized pursuant to the Business Trust Act (the "Delaware Act") of the
State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
(Sections 3801 et seq.)) under and by virtue of an Amended and Restated Trust
Agreement, dated as of September , 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, as amended (the
"Investment Company Act"), formed to purchase and hold certain zero-coupon U.S.
Government securities (the "U.S. Treasury Securities"), to enter into and hold a
forward purchase contract with The Bank of New York, as agent and custodian for
and on behalf of the Trust, and D.M.S. Endowment, LLC, Xxxxxx Partners, LLC,
X.X. Xxxxxxx, LLC and USN College Marketing, L.P., each being a stockholder of
Xxxxxx Communications, Inc., 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 paying
agent, transfer agent and registrar 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:
_____________
/(SM)/ Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
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 II 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 on behalf of the Trust shall take the actions set forth in Sections
2.6, 2.7, 2.8, 3.4 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 written 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, except as permitted by
Section 3.4.
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. If there shall be delivered to the Paying Agent
(i) evidence to its satisfaction of the destruction, loss or theft of any
certificate for a STRYPES and (ii) 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, and 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
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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 STRYPES. 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 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. 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 TRUST
The Trust represents and warrants to the Paying Agent that:
(a) the Trust is a validly existing business trust under the Delaware
Act and has full power under the Trust Agreement to execute and deliver this
Agreement and to authorize, create and issue the STRYPES;
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(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;
(e) the offer and sale of the STRYPES subject to the Purchase
Agreement has been registered under the Securities Act 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 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.
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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 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.
(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 but shall be liable for the acts and omissions of such
persons to the same extent as if the functions had been performed by the Paying
Agent itself.
5.3 DISCLAIMER. The Paying Agent makes no representation as to (a) the
first two recitals of this Agreement or (b) the validity, sufficiency,
marketability 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 reasonable 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
reasonable 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 or claim arising out of or in connection
with the performance of its obligations under this Agreement and any reasonable
cost or expense (including the reasonable 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) incurred in
connection with any such loss, liability or claim, provided such loss,
liability, claim or reasonable cost 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. Notwithstanding the foregoing, it is understood that (i) the Trust
shall not, in respect of the legal expenses of the Paying Agent in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any
local counsel) and (ii) the Trust
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shall not be liable for any settlement of any proceeding effected without the
written consent of the Trust, but if settled with such consent or if there be a
final judgment for the third party claimant, the Trust agrees to indemnify the
Paying Agent from and against any loss or liability by reason of such settlement
or judgment. 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
dissolved, in which case this Agreement shall terminate ten days after the date
of dissolution 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. Notwithstanding the
foregoing, 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.
(b) The respective rights and duties of the Trust and the Paying
Agent under this Agreement shall cease upon termination of this Agreement,
except as otherwise provided in this paragraph (b) and except that Section 5.4
hereof shall survive the termination of this Agreement. 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. All notices, requests and other communications given
by any party under this Agreement shall be directed as follows (or to such other
address for a particular party as shall be specified by such party in a like
notice given pursuant to this Section 6.2):
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The Trust: Xxxxxx STRYPES Trust
c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
The Paying Agent: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
A copy of any notice, request or other communication given by any party
under this Agreement shall be directed 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. Except for communications authorized to be
made by telephone pursuant to this Agreement, each such notice, request or
communication shall be in writing and shall be deemed to have been duly given if
either (i) personally delivered (including delivery by courier service or by
Federal Express or any other nationally recognized overnight delivery service
for next day delivery) to the offices set forth above, in which case they shall
be deemed received on the first Business Day by which delivery shall have been
made to said offices, (ii) transmitted by any standard form of telecommunication
to the offices set forth above, in which case they shall be deemed received on
the first Business Day by which a standard confirmation that such transmission
occurred is received by the transmitting party (unless such confirmation states
that such transmission occurred after 5:00 P.M. on such first Business Day, in
which case delivery shall be deemed to have been received on the immediately
succeeding Business Day), or (iii) sent by certified mail, return receipt
requested to the offices set forth above, in which case they shall be deemed
received when receipted for unless acknowledgment of receipt is refused (in
which case delivery shall be deemed to have been received on the first Business
Day on which such acknowledgment is refused). 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 Relationship Manager.
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.
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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.
XXXXXX STRYPES TRUST
By: __________________________
Xxxxxx X. Xxxxxxx,
as Managing Trustee
THE BANK OF NEW YORK
By: __________________________
Name:
Title:
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