Item 2(j) – Custodian Agreement
Item
2(j) – Custodian Agreement
Between
U.S.
BANK NATIONAL ASSOCIATION,
As
Custodian,
and
2009
XXXX FOOD AUTOMATIC COMMON EXCHANGE SECURITY TRUST
Dated
as of October 22, 2009
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Article
I
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DEFINITIONS;
INTERPRETATION
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1
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Section
1.1
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Defined
Terms
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1
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Section
1.2
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Interpretation
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2
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Article
II
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APPOINTMENT
OF CUSTODIAN
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2
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Section
2.1
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Appointment
of Custodian; Acceptance of Appointment
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2
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Section
2.2
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Transfer
of Assets
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2
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Section
2.3
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Authorized
Actions
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3
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Section
2.4
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Asset
Disposition; Examinations
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3
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Section
2.5
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Rights
of Set-Off; Banker’s Lien
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3
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Article
III
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THE
CUSTODIAN
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3
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Section
3.1
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Conditions
to Duties of the Custodian
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3
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Section
3.2
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Merger
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3
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Section
3.3
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Compensation
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3
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Section
3.4
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Trust
Agreement Validity
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4
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Section
3.5
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Litigation
Obligations, Costs and Indemnity
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4
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Section
3.6
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Indemnification
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4
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Section
3.7
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Section
17(f) Qualification
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4
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Article
IV
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RESIGNATION
AND REMOVAL OF CUSTODIAN
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4
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Section
4.1
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Removal
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4
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Section
4.2
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Resignation
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5
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Section
4.3
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Appointment
of Successor
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5
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Section
4.4
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Effectiveness
of Resignation or Removal
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5
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Section
4.5
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Acceptance
by Successor
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5
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Article
V
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MISCELLANEOUS
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6
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Section
5.1
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Term
of Agreement
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6
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Section
5.2
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No
Assumption of Liability
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6
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Section
5.3
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Notices
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6
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Section
5.4
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Governing
Law; Severability
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6
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Section
5.5
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Amendments;
Waivers
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6
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Section
5.6
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Non-Assignability
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7
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Section
5.7
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Provisions
of Law to Control
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7
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Section
5.8
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No
Third Party Rights; Successors and Assigns
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7
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Section
5.9
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Counterparts
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7
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CUSTODIAN
AGREEMENT (this “Agreement”), dated as
of October 22, 2009, between U.S. Bank National Association, a national
banking association (the “Custodian”), and the
2009 Xxxx Food Automatic Common Exchange Security 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 October 22, 2009 (the “Trust Agreement”;
such trust and the trustees thereof acting in their capacity as such being
referred to in this Agreement as the “Trust”).
WITNESSETH:
WHEREAS,
the Trust is a non-diversified, closed-end investment company under the
Investment Company Act of 1940 (the “Investment Company
Act”), formed to purchase and hold certain U.S. treasury securities (the
“Treasury
Securities”), to enter into and hold a forward purchase contract (the
“Contract”)
with Xxxxx X. Xxxxxxx, as trustee of the Xxxxx X. Xxxxxxx Living
Trust, an existing shareholder of Xxxx Food Company, Inc. (the “Company”), and to
issue $0.875 Trust Issued Automatic Exchange Securities (the “Securities”) in
accordance with the terms and conditions of the Amended and Restated Trust
Agreement, dated as of October 22, 2009, constituting the Trust (the “Trust Agreement”);
and
WHEREAS,
the Trust desires to engage the services of the Custodian to perform certain
custodial duties and provide certain related services for the Trust under the
Trust Agreement and the Investment Company Act; and
WHEREAS,
the Custodian is qualified and willing to assume such duties and provide such
services, subject to the supervision of the Trustees, on the terms and
conditions set forth in this Agreement;
NOW,
THEREFORE, the parties, intending to be bound, agree as follows:
ARTICLE IX
DEFINITIONS;
INTERPRETATION
Section
9.1 Defined
Terms.
(a)
Capitalized
terms used and not otherwise defined in this Agreement have the respective
meanings specified in the Trust Agreement.
(b)
As used
in this Agreement, the following terms have the following meanings:
“Agreement” has the
meaning specified in the preamble to this Agreement.
“Assets” has the
meaning specified in Section 2.1.
“Company” has the
meaning specified in the recitals to this Agreement.
“Contract” has the
meaning specified in the recitals to this Agreement.
1
“Custodian” has the
meaning specified in the preamble to this Agreement.
“Investment Company
Act” has the meaning specified in the recitals to this
Agreement.
“Securities” has the
meaning specified in the recitals to this Agreement.
“Treasury Securities”
has the meaning specified in the recitals to this Agreement.
“Trust” has the
meaning specified in the preamble to this Agreement.
“Trust Agreement” has
the meaning specified in the recitals to this Agreement.
Section
9.2
Interpretation.
(a) When a
reference is made in this Agreement to Articles, Sections, Exhibits or
Schedules, such reference shall be to Articles or Sections of, or Exhibits or
Schedules to, this Agreement unless otherwise indicated.
(b) The table
of contents and headings contained in this Agreement are for reference purposes
only and are not part of this Agreement and shall not be deemed to limit or
otherwise affect any of the provisions of this Agreement.
(c) Whenever
the words “include”, “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation”.
(d) Any
reference to any statute, regulation or agreement shall be a reference to such
statute, regulation or agreement as supplemented or amended from time to
time.
ARTICLE
X
APPOINTMENT
OF CUSTODIAN
Section
10.1
Appointment of Custodian;
Acceptance of Appointment. The Trust hereby appoints the
Custodian, and the Custodian accepts such appointment, as custodian of all of
the property, including but not limited to, the Contract, the Treasury
Securities, the Temporary Investments, any cash and any other property at any
time owned or held by the Trust (collectively, the “Assets”).
Section
10.2
Transfer of
Assets. The Trust hereby deposits the Assets with the
Custodian and the Custodian hereby accepts such into its custody and the Trust
shall deliver to the Custodian all of the Assets, including all monies,
securities and other property received by the Trust at any time during the
period of this Agreement, all subject to the following terms and
conditions. The Custodian hereby agrees that it shall hold the Assets
in a segregated custody account, separate and distinct from all other accounts,
in accordance with Section 17(f) of, and in such manner as shall constitute
the segregation and holding in trust within the meaning of, the Investment
Company Act and the rules and regulations thereunder. The Trustees
authorize the Custodian, for any Assets held hereunder, to use the services of
any United States securities depository permitted to perfoiin such services for
registered investment companies and their custodians under Rule 17f-4 under the
Investment Company Act and which have been approved by the Trustees, including
but not limited to The Depository Trust Company and the Federal Reserve Book
Entry System. The Custodian shall invest monies on deposit in such
custody account in the Temporary Investments at the instruction of the Paying
Agent in accordance with Section 3.5 of the Trust Agreement.
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Section
10.3
Authorized
Actions. The Custodian shall take such actions with respect to
the Assets as are directed in writing, in accordance with the provisions of
Section 5.3 of this Agreement, by the Trustees or by any officer of the
Administrator or the Paying Agent and received by the Custodian from time to
time.
Section
10.4
Asset Disposition;
Examinations. The Custodian shall have no power or authority
to assign, hypothecate, pledge or otherwise dispose of the Assets, except
pursuant to a written direction in accordance with Section 2.3 of this Agreement
and then only for the account of the Trust. The Assets shall be
subject to no lien or charge of any kind in favor of the Custodian for itself or
for any other Person claiming through the Custodian. The Custodian
shall permit actual examination of the Assets by the Trust’s independent public
accountant at the end of each annual and semi-annual fiscal period of the Trust
and at least one other time during the fiscal year of the Trust chosen by such
independent public accountant and shall permit the inspection of the Assets by
the Commission through its employees or agents during the normal business hours
of the Custodian upon reasonable request.
Section
10.5
Rights of Set-Off; Banker’s
Lien. The Custodian hereby waives all rights of set-off or
banker’s lien it may have with respect to the Assets held by it as Custodian
hereunder.
ARTICLE
XI
THE
CUSTODIAN
Section
11.1
Conditions to Duties of the
Custodian. The provisions of Section 8.1(a) of the
Collateral Agreement shall apply, mutatis mutandis, to the Custodian in the
performance of its duties hereunder as if it were the Collateral Agent acting
under the Collateral Agreement.
Section
11.2
Merger. Any
corporation, association or limited liability company into which the Custodian
may be converted or merged or with which it may be consolidated, or to which it
may sell or transfer its agency business and assets as a whole or substantially
as a whole, or any corporation or association resulting from any such
conversion, merger, consolidation, sale or transfer to which it is a party,
shall be and become the successor Custodian hereunder without the execution or
filing of any instrument or any further act, deed or conveyance on the part of
any of the parties hereto, provided that such corporation, association or
limited liability company meets the requirements set forth in the Trust
Agreement.
Section
11.3
Compensation. For
services to be rendered by the Custodian pursuant to this Agreement, the
Custodian shall receive only such fees and expenses as shall be paid to it
pursuant to the terms of the Fund Expense Agreement and shall have no recourse
to the assets of the Trust for the payment of any such amounts.
Section
11.4
Trust Agreement
Validity. The Custodian shall not be responsible for the
validity or sufficiency of the Trust Agreement or the due execution thereof, or
for the form, character, genuineness, sufficiency, value or validity of any of
the Assets, and the Custodian shall in no event assume or incur any liability,
duty or obligation to any Holder or to the Trustees, other than as expressly
provided for in this Agreement. The Custodian shall not be
responsible for or in respect of the validity of any signature by or on behalf
of the Trustees.
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Section
11.5
Litigation Obligations,
Costs and Indemnity. The Custodian shall not be under any
obligation to appear in, prosecute or defend any action which in its opinion may
involve it in expense or liability, unless it shall be furnished with such
reasonable security and indemnity against such expense or liability as it may
require.
Section
11.6
Indemnification. The
Trust shall indemnify and hold the Custodian harmless from and against any loss,
damages, cost or expense (including the costs of investigation, preparation for
and defense of legal and/or administrative proceedings related to a claim
against it and reasonable attorneys’ fees and disbursements), liability or claim
incurred by reason of any inaccuracy in information furnished to the Custodian
by the Trust, or any act or omission in the course of, connected with or arising
out of any services to be rendered hereunder, provided that the Custodian shall
not be indemnified and held harmless from and against any such loss, damages,
cost, expense, liability or claim incurred by reason of its willful misfeasance,
bad faith or gross negligence in the perfoimance of its duties, or its reckless
disregard of its duties and obligations hereunder. Neither the
Federal Reserve Book Entry System nor The Depository Trust Company shall be
deemed to be agent of the Custodian. Such indemnity shall survive the
resignation, removal or discharge of the Custodian and the termination of this
Agreement.
Section
11.7
Section
17(f) Qualification. The Custodian hereby represents that
it is qualified to act as a custodian under Section 17(f) of the Investment
Company Act.
ARTICLE
XII
RESIGNATION
AND REMOVAL OF CUSTODIAN
Section
12.1
Removal.
(a) Subject
to Section 4.4, the Trust may remove the Custodian by written notice at any time
if any of the following events shall occur:
(i) If the
Custodian shall violate any provision of this Agreement, the Trust Agreement or
the Investment Company Act and, after notice of such violation, shall not cure
such default within 30 days; or
(ii) If the
Custodian ceases to meet the requirements set forth in Section 2.2(a) of
the Trust Agreement; or
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(iii) If the
Custodian shall be adjudged bankrupt or insolvent by a court of competent
jurisdiction, or a receiver, conservator, liquidator, or trustee shall be
appointed for or with respect to the Custodian, or for all or substantially all
of its property, or a court of competent jurisdiction shall approve any petition
filed against the Custodian for its reorganization, and such adjudication or
order shall remain in force or unstayed for a period of 30 days; or
(iv) If the
Custodian shall institute proceedings for voluntary bankruptcy, or shall file a
petition seeking reorganization under the Federal bankruptcy laws, or for relief
under any law for the relief of debtors, or shall consent to the appointment of
a receiver or conservator for or in respect of the Custodian for all or
substantially all of its property, or shall make a general assignment for the
benefit of its creditors, or shall admit in writing its inability to pay its
debts generally as they become due; or
(v) Upon the
voluntary or involuntary dissolution of the Custodian or, unless the Trust shall
have given its prior written consent thereto, the merger or consolidation of the
Custodian with any other entity; or
(vi) At any
time upon 60 days’ prior written notice.
If any of
the events specified in clauses (ii), (iii), (iv) or (v) of this
Section 4.1(a) shall occur, the Custodian shall give immediate written
notice thereof to the Trust.
(b) The
Custodian shall be removed immediately upon (i) termination of the Trust
Agreement, (ii) termination of the Paying Agent Agreement,
(iii) termination of the Collateral Agreement, (iv) termination of the
Administration Agreement, or (v) the resignation or removal of the Paying
Agent, the Collateral Agent or the Administrator.
Section
12.2
Resignation. The
Custodian may at any time resign by giving 60 days’ written notice by registered
or certified mail to the Trust in accordance with the provisions of Section 5.3,
provided that no such resignation shall be effective unless a successor
Custodian shall have been appointed and accepted the duties of Custodian
hereunder.
Section
12.3
Appointment of
Successor. If the Custodian hereunder shall resign or be
removed, a successor may be appointed by the Trust by an instrument or
concurrent instruments in writing signed by the Trustees. Every such
successor Custodian appointed pursuant to the provisions of this Agreement shall
satisfy the requirements set forth in Section 2.2(a) of the Trust
Agreement.
Section
12.4
Effectiveness of Resignation
or Removal. No resignation or removal of the Custodian shall
be effective until a successor Custodian shall have been appointed and shall
have accepted the duties of the Custodian. If, within 30 days after
notice by the Custodian to the Trust or by the Trust to the Custodian of any
such resignation or removal, no successor Custodian shall have been selected and
accepted the duties of the Custodian, the Custodian may apply to a court of
competent jurisdiction for the appointment of a successor
Custodian.
Section
12.5
Acceptance by
Successor. Every successor Custodian appointed hereunder shall
execute, acknowledge and deliver to its predecessor and also to the Trust an
instrument in writing accepting such appointment hereunder, whereupon such
successor, without any further act, deed or conveyance, shall become fully
vested with all the estates, properties, rights, powers, duties and obligations
of its predecessors. Such predecessor shall, nevertheless, on the
written request of its successor or the Trust, execute and deliver an instrument
transferring to such successor all the estates, properties, rights and powers of
such predecessor hereunder. Every predecessor Custodian shall
forthwith deliver all records or other property of the Trust then in its
possession or custody to its successor.
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ARTICLE
XIII
MISCELLANEOUS
Section
13.1
Term of
Agreement. This Agreement shall continue in effect until the
completion of liquidation of the Trust in accordance with Section 8.3(c) of
the Trust Agreement.
Section
13.2
No Assumption of
Liability. By executing this Agreement, none of the Trustees
assumes any personal liability hereunder.
Section
13.3
Notices.
(a) All
notices and other communications provided for in this Agreement, unless
otherwise specified, shall be in writing (including transmittals by telex or
telecopier) given at the addresses set forth in the following sentences or at
such other addresses as may be designated by notice duly given in accordance
with this Section 5.3 to each other party hereto. Until such notice
is given, (i) notices to the Custodian shall be directed to it at U.S. Bank
National Association, Corporate Trust Services, 000 Xxxx 0xx Xxxxxx, 24th Floor,
LM-CA T24T, Xxx Xxxxxxx, XX 00000, Telecopier No. (000) 000-0000,
Attention: 2009 Xxxx Food Automatic Common Exchange Security Trust; and
(ii) notices to the Trust or the Trustees shall be directed to the Trustees
at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Telecopier
No. (000) 000-0000, Attention: X. Xxxxxxx, with a copy to the
Administrator at U.S. Bank National Association, Corporate Trust Services, 000
Xxxx 0xx Xxxxxx, 24th Floor, LM-CA T24T, Xxx Xxxxxxx, XX 00000, Telecopier
No. (000) 000-0000, Attention: 2009 Xxxx Food Automatic Common Exchange
Security Trust.
(b) Each such
notice given pursuant to Section 5.3(a) shall be effective (i) if sent
by certified mail (return receipt requested), 72 hours after being deposited in
the United States mail, postage prepaid; (ii) if given by telex or
telecopier, when such telex or telecopied notice is transmitted (with electronic
confirmation of transmission or verbal confirmation of receipt); or
(iii) if given by any other means, when delivered at the address specified
in this Section 5.3.
Section
13.4
Governing Law;
Severability. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York. To
the extent permitted by law, the unenforceability or invalidity of any provision
or provisions of this Agreement shall not render any other provision or
provisions contained in this Agreement unenforceable or invalid.
Section
13.5
Amendments;
Waivers. Any provision of this Agreement may be amended or
waived if, and only if, such amendment or waiver is in writing and signed, in
the case of an amendment, by the Custodian and the Trust or, in the case of a
waiver, by the party against whom the waiver is to be effective. No
failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
provided in this Agreement shall be cumulative and not exclusive of any rights
or remedies provided by law.
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Section
13.6
Non-Assignability. This
Agreement and the rights and obligations of the parties hereunder may not be
assigned or delegated by either party without the prior written consent of the
other party, and any purported assignment without such consent shall be
void.
Section
13.7
Provisions of Law to
Control. This Agreement shall be subject to the applicable
provisions of the Investment Company Act and the rules and regulations of the
Commission thereunder. To the extent that any provisions contained in
this Agreement conflict with any applicable provisions of the Investment Company
Act or such rules and regulations, the latter shall control.
Section
13.8
No Third Party Rights;
Successors and Assigns. This Agreement is not intended and
shall not be construed to create any rights in any person other than the
Custodian and the Trust and their respective successors and assigns and no
person shall assert any rights as third party beneficiary
hereunder. Whenever any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such
party. All the covenants and agreements contained in this Agreement
by or on behalf of the Custodian and the Trust shall bind, and inure to the
benefit of, their respective successors and assigns whether so expressed or not,
and shall be enforceable by and inure to the benefit of the Trust and its
successors and assigns.
Section
13.9
Counterparts. This
Agreement may be executed, acknowledged and delivered in any number of
counterparts, each of which shall be an original, but all of which shall
constitute a single agreement, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7
IN
WITNESS WHEREOF, the parties hereto have caused this Custodian Agreement to be
duly executed and delivered as of the first date set forth above.
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THE
CUSTODIAN:
U.S. BANK
NATIONAL ASSOCIATION,
as
Custodian
By:___________________________________
Name:
Title:
THE
TRUST:
2009 XXXX FOOD
AUTOMATIC COMMON
EXCHANGE
SECURITY TRUST
By:
___________________________________
Xxxxxx X. Xxxxxxx, as
Trustee
By:
____________________________________
Xxxxxxx X. Xxxxxx, III, as
Trustee
By:
____________________________________
Xxxxx X. X’Xxxxx, as
Trustee
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8
IN WITNESS
WHEREOF, the parties hereto have caused this Custodian Agreement to be duly
executed and delivered as of the first date set forth above.
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THE
CUSTODIAN:
U.S. BANK
NATIONAL ASSOCIATION,
as
Custodian
By:_____________________________________
Name:
Title:
THE TRUST:
2009 XXXX FOOD AUTOMATIC
COMMON
EXCHANGE
SECURITY TRUST
By:
____________________________________
Xxxxxx X. Xxxxxxx, as
Trustee
By:
____________________________________
Xxxxxxx X. Xxxxxx,
III, as Trustee
By:
____________________________________
Xxxxx X. X’Xxxxx, as
Trustee
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9
