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FORM OF CUSTODIAN AGREEMENT
Between
WILMINGTON TRUST COMPANY,
as Custodian,
and
MANDATORILY EXCHANGEABLE SECURITES TRUST
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Dated as of [ ], 2005
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Table of Contents
Page
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1 Defined Terms...............................................1
Section 1.2 Interpretation..............................................2
ARTICLE II
APPOINTMENT OF CUSTODIAN
Section 2.1 Appointment of Custodian; Acceptance of Appointment.........2
Section 2.2 Transfer of Assets..........................................2
Section 2.3 Authorized Actions..........................................3
Section 2.4 Asset Disposition; Examinations.............................3
Section 2.5 Rights of Set-Off; Banker's Lien............................3
ARTICLE III
THE CUSTODIAN
Section 3.1 Conditions to Duties of the Custodian.......................3
Section 3.2 Merger......................................................3
Section 3.3 Compensation................................................3
Section 3.4 Trust Agreement Validity....................................4
Section 3.5 Litigation Obligations, Costs and Indemnity.................4
Section 3.6 Indemnification.............................................4
Section 3.7 Section 17(f) Qualification.................................4
ARTICLE IV
RESIGNATION AND REMOVAL OF CUSTODIAN
Section 4.1 Removal.....................................................4
Section 4.2 Resignation.................................................5
Section 4.3 Appointment of Successor....................................5
Section 4.4 Effectiveness of Resignation or Removal.....................5
Section 4.5 Acceptance by Successor.....................................6
ARTICLE V
MISCELLANEOUS
Section 5.1 Term of Agreement...........................................6
Section 5.2 No Assumption of Liability..................................6
Section 5.3 Notices.....................................................6
Section 5.4 Governing Law; Severability.................................6
Section 5.5 Amendments; Waivers.........................................6
Section 5.6 Non-Assignability...........................................7
Section 5.7 Provisions of Law to Control................................7
Section 5.8 No Third Party Rights; Successors and Assigns...............7
Section 5.9 Counterparts................................................7
CUSTODIAN AGREEMENT
CUSTODIAN AGREEMENT, dated as of ______ , 2005, between Wilmington
Trust Company, a Delaware banking corporation (the "Custodian"), and _________
Mandatorily Exchangeable Securities 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 [ _____ ], 2005 among Xxxxxxx, Xxxxx & Co., as sponsor
(the "Sponsor"), Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx, III, Xxxxx X. X'Xxxxx
(collectively, the "Trustees"), and Wilmington Trust Company, a Delaware banking
corporation, as institutional trustee (the "Institutional Trustee") (the "Trust
Agreement") (such trust and the trustees thereof acting in their capacity as
such being referred to in this Agreement as the "Trust").
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 certain U.S. treasury
securities (the "Treasury Securities"), to enter into and hold a forward
purchase contract (the "Contract") with an existing shareholder of _________
(the "Company"), and to issue $[ _____ ] Trust Issued Mandatorily Exchangeable
Securities (the "Trust Securities") to the Underwriters in accordance with the
terms and conditions of the Trust Agreement referred to below; 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 I
DEFINITIONS; INTERPRETATION
Section 1.1 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" means this Custodian 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.
"Custodian" has the meaning specified in the preamble to this
Agreement.
"Investment Company Act" has the meaning specified in the recitals to
this Agreement.
"Trust 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 preamble to this
Agreement.
Section 1.2 Interpretation.
(a) When a reference is made in this Agreement to Articles or Sections,
such reference shall be to Articles or Sections of 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 II
APPOINTMENT OF CUSTODIAN
Section 2.1 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, any U.S. Government Securities and/or other Reference
Property delivered to the Trust in connection with an extension of the Exchange
Date, the Temporary Investments, any cash and any other property at any time
owned or held by the Trust (collectively, the "Assets").
Section 2.2 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/or other Reference 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 perform 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.
Section 2.3 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 2.4 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
examination of the Assets by way of a bank statement prepared by the Custodian
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 by way of a bank statement prepared by the Custodian of
the Assets by the Commission through its employees or agents during the normal
business hours of the Custodian upon reasonable request.
Section 2.5 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 III
THE CUSTODIAN
Section 3.1 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 3.2 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 3.3 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 Expense Agreement
and Indemnity Agreement and shall have no recourse to the assets of the Trust
for the payment of any such amounts.
Section 3.4 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.
Section 3.5 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 3.6 Indemnification. To the fullest extent permitted by
applicable law, the Trust shall indemnify and hold the Custodian harmless from
and against any actions or suits, 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 actions or suits, loss, damages, cost,
expense, liability or claim incurred by reason of its willful misfeasance, bad
faith or gross negligence in the performance 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 3.7 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 IV
RESIGNATION AND REMOVAL OF CUSTODIAN
Section 4.1 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 violates 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
(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, or (v) the resignation or removal of
the Paying Agent or the Collateral Agent.
Section 4.2 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 4.3 Appointment of Successor. If the Custodian hereunder shall
resign or be removed, a successor shall 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 4.4 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 4.5 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.
ARTICLE V
MISCELLANEOUS
Section 5.1 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 5.2 No Assumption of Liability. By executing this Agreement,
none of the Trustees assumes any personal liability hereunder.
Section 5.3 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
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, Telecopier No. (000) 000-0000, Attention:
Corporate Trust Administration; and (ii) notices to the Trust or the Trustees
shall be directed to the Trustees at [ _____ ], Telecopier: [ _____ ].
(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 5.4 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 5.5 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.
Section 5.6 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 5.7 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 5.8 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 5.9 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.
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.
WILMINGTON TRUST COMPANY,
as Custodian
By: __________________________________
Name:
Title:
MANDATORILY EXCHANGEABLE
SECURITES TRUST
By: __________________________________
Xxxxxx X. Xxxxxxx,
as Trustee
By: __________________________________
Xxxxxxx X. Xxxxxx III,
as Trustee
By:___________________________________
Xxxxx X. X'Xxxxx,
as Trustee
