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Exhibit 2.j
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CUSTODIAN AGREEMENT
Between
THE CHASE MANHATTAN BANK,
As Custodian,
and
EXPRESS SCRIPTS AUTOMATIC EXCHANGE SECURITY TRUST
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Dated as of November __, 2000
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TABLE OF CONTENTS
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........3
Section 2.2. Transfer of Assets.........................................3
Section 2.3. Authorized Actions.........................................3
Section 2.4. Asset Disposition; Examinations............................3
Section 2.5. Rights of Set-Off; Banker's Lien...........................4
ARTICLE III
THE CUSTODIAN
Section 3.1. Conditions to Duties of the Custodian......................4
Section 3.2. Merger.....................................................4
Section 3.3. Compensation...............................................4
Section 3.4. Trust Agreement Validity...................................4
Section 3.5. Litigation Obligations, Costs and Indemnity................4
Section 3.6. Indemnification............................................5
Section 3.7. Section 17(f) Qualification................................5
ARTICLE IV
RESIGNATION AND REMOVAL OF CUSTODIAN
Section 4.1. Removal....................................................5
Section 4.2. Resignation................................................6
Section 4.3. Appointment of Successor...................................6
Section 4.4. Effectiveness of Resignation or Removal....................6
Section 4.5. Acceptance by Successor....................................7
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ARTICLE V
MISCELLANEOUS
Section 5.1. Term of Agreement..........................................7
Section 5.2. No Assumption of Liability.................................7
Section 5.3. Notices....................................................7
Section 5.4. Governing Law; Severability................................8
Section 5.5. Amendments; Waivers........................................8
Section 5.6. Non-Assignability..........................................8
Section 5.7. Provisions of Law to Control...............................8
Section 5.8. No Third Party Rights; Successors and Assigns..............8
Section 5.9. Counterparts...............................................9
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CUSTODIAN AGREEMENT
CUSTODIAN AGREEMENT, dated as of November ________, 2000, between The
Chase Manhattan Bank, a New York banking corporation (the "Custodian"), and
Express Scripts Automatic 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 November _____, 2000 (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 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 Express
Scripts, Inc. (the "Company"), and to issue $_________ Trust Issued Automatic
Exchange Securities (the "Securities") to the public 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:
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"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.
"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" means the Amended and Restated Trust Agreement,
dated as of November __, 2000, constituting the Trust.
Section 1.2. 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.
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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 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 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 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 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
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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 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 Fund
Expense 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.
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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. 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 performance of its duties, or its reckless disregard of
its duties and obligations hereunder. Neither the Federal Reserve Book Entry
System nor The Deposioary 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 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 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 may be appointed by the Trust by an
instrument or concurrent instruments in writing signed by the Trustees. Every
such successor
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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 The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
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10001, Telecopier No. (000) 000-0000, Attention: Pledged Asset Control
Services; 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: (000) 000-0000.
(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
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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.
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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.
THE CUSTODIAN
THE CHASE MANHATTAN BANK,
as Custodian
By:
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Name:
Title:
THE TRUST:
EXPRESS SCRIPTS AUTOMATIC
EXCHANGE SECURITY TRUST
By:
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Xxxxxx X. Xxxxxxx,
as Trustee
By:
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Xxxxxxx X. Latam, III,
as Trustee
By:
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Xxxxx X. X'Xxxxx,
as Trustee
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