Item 2(k)(a) – Administration Agreement
Item
2(k)(a) – Administration Agreement
Between
U.S.
BANK NATIONAL ASSOCIATION,
As
Administrator,
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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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 ADMINISTRATOR
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Section
2.1.
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Appointment
of Administrator; Acceptance of Appointment
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2
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Section
2.2.
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Services
of Administrator
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2
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Section
2.3.
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Power
of Attorney
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4
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Article
III
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THE
ADMINISTRATOR
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Section
3.1.
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Conditions
to Duties of the Administrator
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4
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Section
3.2.
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Merger
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5
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Section
3.3.
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Compensation
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5
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Section
3.4.
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Indemnification
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5
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Article
IV
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RESIGNATION
AND REMOVAL OF ADMINISTRATOR
Section
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Section
4.1.
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Removal
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5
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Section
4.2.
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Resignation
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6
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Section
4.3.
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Appointment
of Successor
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6
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Section
4.4.
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Effectiveness
of Resignation or Removal
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6
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Section
4.5.
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Acceptance
by Successor
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7
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Article
V
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RECORDS
AND REPORTS
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Section
5.1.
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Books
and Records; Inspection and Copying
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7
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Section
5.2.
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Access
to Information
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7
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Article
VI
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MISCELLANEOUS
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Section
6.1.
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Term
of Agreement
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7
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Section
6.2.
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No
Assumption of Liability
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7
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Section
6.3.
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Notices
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7
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Section
6.4.
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Governing
Law; Severability
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8
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Section
6.5.
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Amendments;
Waivers
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8
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Section
6.6.
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Non-Assignability
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8
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Section
6.7.
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Provisions
of Law to Control
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8
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Section
6.8.
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No
Third Party Rights; Successors and Assigns
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8
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Section
6.9.
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Counterparts
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9
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ADMINISTRATION
AGREEMENT (this “Agreement”), dated as
of October 22, 2009, between U.S. Bank National Association, a national
banking association (the “Administrator”), 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 (the
“Seller”), an
existing stockholder of Xxxx Food Company, Inc. (the “Company”), and to
issue $0.875 Trust Issued Automatic Common Exchange Securities (the “Securities”) in
accordance with the terms and conditions of the Trust Agreement;
and
WHEREAS,
the Trust desires to engage the services of the Administrator to assume certain
duties and responsibilities of the Trustees of the Trust under the Trust
Agreement and the Investment Company Act and to undertake certain services on
behalf of and subject to the supervision of the Trustees as provided in this
Agreement; and
WHEREAS,
the Administrator is qualified and willing to assume such duties and
responsibilities and to undertake to render 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
XIV
DEFINITIONS;
INTERPRETATION
Section
14.1 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:
“Administrator”
has the meaning specified in the preamble to this Agreement.
“Agreement” has
the meaning specified in the preamble to this Agreement.
“Company” has
the meaning specified in the recitals to this Agreement.
“Contract” has
the meaning specified in the recitals to this Agreement.
“Indemnification
Expenses” has the meaning specified in the Indemnity
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.
“Seller” 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
14.2 Interpretation.
(a) When a
reference is made in this Agreement to Articles, Sections, Exhibits or
Schedules, such reference is 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 is a reference to such
statute, regulation or agreement as supplemented or amended from time to
time.
ARTICLE
XVI
APPOINTMENT
OF ADMINISTRATOR
Section
15.1
Appointment of
Administrator; Acceptance of Appointment. The Trust hereby
appoints the Administrator, and the Administrator hereby accepts such
appointment, to provide the services enumerated in this Agreement.
Section
15.2 Services of
Administrator. Subject to the supervision of the Trustees, the
Administrator shall effect the matters set forth further in Sections 2.2, 2.3
and 2.4 of the Trust Agreement, to the extent such responsibilities can lawfully
be delegated to the Administrator; provided, however, that the
Administrator shall not (i) render investment advisory services to the
Trust as defined in the Investment Company Act or the Investment Advisers Act of
1940; (ii) have the power to sell the Contract or the Treasury Securities
except as provided in Sections 2.5 of the Trust Agreement; or (iii) have
the power to select the independent public accountants for the
Trust. Additionally, the Administrator shall be responsible for
rendering the following services:
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(a) if so
directed by the Seller, instruct the Paying Agent to pay, from the amounts
payable to the Seller pursuant to the Contract, the fees and expenses of the
Trust incurred in connection with the offering of the Securities and the costs
and expenses incurred in connection with the organization of the
Trust;
(b) receive
and pay invoices of the Trust;
(c) instruct
the Paying Agent to effect the transactions set forth in Sections 2.2, 2.3
and 2.4 and Article III of the Trust Agreement;
(d) with the
approval of the Trustees, engage on behalf of the Trust legal and other
professional advisors, subject to clause (iii) of this Section
2.2;
(e) when the
Trust is required to select and engage an independent investment banking firm
under the Contract, to select and engage such a firm on behalf of the Trust,
subject to the requirements of the Contract (including Section 8.1 thereof) and
inform the Trustees promptly after making such selection and
engagement;
(f) receive
all demands, bills and invoices for expenses incurred by or on behalf of the
Trust, and pay the same, or cause the Paying Agent to pay the same, out of
moneys paid to the Administrator pursuant to the Expense Agreement but in no
event out of any assets of the Trust, except as provided in Section 2.2(a), and
give notice to the Seller (as defined in the Expense Agreement) of any claim for
Indemnification Expenses (as defined in the Indemnity Agreement) or any
threatened claim for Indemnification Expenses as provided in Section
2.4(b) of the Indemnity Agreement;
(g)
instruct
the Paying Agent to pay distributions on the Securities;
(h) (i) prepare
and mail, file or publish, or, as appropriate, direct the Paying Agent to
prepare and mail, file or publish, any notices, proxies, reports and other
communications required to be mailed or published pursuant to the Trust
Agreement or the Investment Company Act (which are expected to consist of
Schedules 14A in connection with any annual meeting of holders of Securities),
(ii) keep (or cause to be kept) all the books and records of the Trust
(other than those to be kept by the Paying Agent), and (iii) prepare (or
cause to be prepared) and, as necessary, file (or cause to be filed) any and all
reports, returns and other documents as required under the Investment Company
Act or the Securities Exchange Act of 1934 (the “Securities Exchange
Act”) (which are expected to include a registration statement on Form
N-2, annual shareholder reports on Form N-CSR, quarterly schedules of portfolio
holding on From N-Q and semi-annual and annual reports on Forms NSAR-B and
NSAR-A, respectively), or the Internal Revenue Code of 1986, or, as reasonably
requested by the Trustees, under any other applicable laws, rules or regulations
or otherwise; provided, however, that
responsibility for the adequacy and accuracy of any such notices, proxies,
reports, communications, books, records, returns and other documents shall be
that of the Trustees; and provided further, however, that the
Administrator shall have no liability for the adequacy or accuracy of such
notices, proxies, reports, communications, books, records, returns and other
documents;
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(i) select
and engage an independent investment banking firm (after consultation with the
Seller) when the Trust is required to do so under the Contract;
(j) at the
request of the Trustees and upon being furnished with such reasonable security
and indemnity against any related expense or liability as the Administrator may
require, institute and prosecute, in accordance with the instructions of the
Trustees, legal or other appropriate proceedings to enforce any and all rights
and remedies of the Trust;
(k) receive
and review on behalf of the Trust all notices, reports, certificates and other
documents regarding the Contract and the Treasury Securities;
(l) make all
necessary arrangements with respect to meetings of Trustees and meetings of
Holders, including, without limitation, the preparation of notices, proxies and
minutes, subject to the approval of Trustees;
(m) in
conjunction with the Trustees, determine and publish, in such manner as the
Trustees shall direct in writing, the Trust’s net asset value in accordance with
the Trust’s policy as set forth in the Offering Circular;
(n) provide
sub-certifications to the Trustees as reasonably requested by the Trustees to
meet their certification requirements to the Securities and Exchange Commission
pursuant (the “Commission”) to
Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 or the rules and
regulations of the Commission hereunder; and
(o) timely
prepare and file on behalf of the Trust all tax returns and other tax forms
required to be filed by the Trust with any tax authority.
Section
15.3 Power of
Attorney. The Trust hereby appoints the Administrator, acting
through any duly appointed officer, as its attorney-in-fact and agent for the
purpose of performing the duties prescribed in Section 2.2(f)(iii) and
2.2(i).
ARTICLE
XVI
THE
ADMINISTRATOR
Section
16.1 Conditions to Duties of the
Administrator. The provisions of Section 8.1(a) of
the Collateral Agreement shall apply, mutatis mutandis, to the Administrator in
the performance of its duties hereunder as if it were the Collateral Agent
acting under the Collateral Agreement. Without limiting the
generality of such provisions, the Administrator (i) at its own cost, may
select and employ independent accountants acceptable to the Trustees (other than
the independent public accountants referred to in clause 2.2(iii) of this
Agreement and Section 2.2(d) of the Trust Agreement) to keep the financial
books and records of the Trust, to prepare the financial statements of the Trust
and to prepare Trust tax returns, and (ii) should the Trustees fail to do
so, may select and engage attorneys acceptable to the Trustees to prepare
annual, semiannual and periodical reports, notices of meetings and proxy
statements, annual reports to Holders of the Securities and other documents
required under the Investment Company Act or the Securities Exchange
Act.
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Section
16.2 Merger. Any
corporation or association into which the Administrator 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 Administrator 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 or association meets the
requirements set forth in the Trust Agreement.
Section
16.3 Compensation.
(a)
For
services to be rendered by the Administrator pursuant to this Agreement, and for
the payment of Trust expenses pursuant to Section 2.2(e) of this Agreement,
the Administrator shall receive only such fees and expenses as shall be paid to
it pursuant to the terms of the Expense Agreement and shall have no recourse to
the assets of the Trust for the payment of any such amounts.
(b)
If and to
the extent that the Trust shall request the Administrator to render services for
the Trust, other than those to be rendered by the Administrator hereunder, and
if the Administrator agrees to render such services, such additional services
shall be compensated separately on terms to be agreed upon between the
Administrator and the Trust from time to time.
Section
16.4 Indemnification. The
Trust shall indemnify and hold the Administrator 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 Administrator 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
Administrator 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. Such indemnity shall survive the resignation, removal or
discharge of the Administrator and the termination of this
Agreement.
ARTICLE
XVII
RESIGNATION
AND REMOVAL OF ADMINISTRATOR SECTION
Section
17.1
Removal.
(a) Subject
to Section 4.4, the Trust may remove the Administrator by written notice at any
time if any of the following events shall occur:
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(i)
if the
Administrator 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
Administrator ceases to meet the requirements set forth in Section
2.2(a) of the Trust Agreement; or
(iii) if the
Administrator 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 Administrator, or for all or substantially
all of its property, or a court of competent jurisdiction shall approve any
petition filed against the Administrator for its reorganization, and such
adjudication or order shall remain in force or unstayed for a period of 30 days;
or
(iv) if the
Administrator 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 Administrator
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 Administrator or, unless the Trust
shall have given its prior written consent thereto, the merger or consolidation
of the Administrator 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 Administrator shall give immediate written
notice thereof to the Trust.
(b) Subject
to Section 4.4, the Administrator 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 Custodian Agreement, or (v) the resignation or
removal of the Paying Agent, the Collateral Agent or the Custodian.
Section
17.2 Resignation. Subject
to Section 4.4, the Administrator 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 6.3. Such resignation shall take effect
upon the appointment of a successor Administrator by the Trust.
Section
17.3 Appointment of
Successor. If the Administrator 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 Administrator appointed pursuant to the provisions of this Agreement
shall satisfy the requirements set forth in Section 2.2(a) of the Trust
Agreement.
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Section
17.4 Effectiveness of Resignation
or Removal. No resignation or removal of the Administrator
shall be effective until a successor Administrator shall have been appointed and
shall have accepted the duties of the Administrator. If, within 30
days after notice by the Administrator to the Trust or by the Trust to the
Administrator of any such resignation or removal, no successor Administrator
shall have been selected and accepted the duties of the Administrator, the
Administrator may apply to a court of competent jurisdiction for the appointment
of a successor Administrator.
Section
17.5 Acceptance by
Successor. Every successor Administrator 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 Administrator shall
forthwith deliver all records or other property of the Trust then in its
possession or custody to its successor.
ARTICLE
XVIII
RECORDS
AND REPORTS
Section
18.1 Books and Records;
Inspection and Copying. The Administrator shall keep (or cause
to be kept) appropriate, and reasonably detailed and accurate, books and records
of all its activities pursuant to this Agreement. The Trustees shall
have the right to inspect such books and records during the Administrator’s
normal business hours upon reasonable request, and to make copies of the same at
the expense of the Trust.
Section
18.2 Access to
Information. The Administrator shall make available to each of
the Trustees all information it receives and compiles with respect to the
Contract and the Treasury Securities, the monies available to the Trust, the
financial condition of the Trust and all other relevant matters concerning the
Trust.
ARTICLE
VI
MISCELLANEOUS
Section
19.1 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
19.2 No Assumption of
Liability. By executing this Agreement, none of the Trustees
assumes any personal liability hereunder.
Section
19.3 Notices.
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(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 9.3 to each other party hereto. Until such notice
is given, (i) notices to the Administrator 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;
(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; and
(iii) notices to Seller shall be directed to it at 00000 Xxxxxxxx Xxxx.,
0000, Xxx Xxxxxxx, XX 00000, Telecopier No. (000) 000-0000,
Attention: Xxxxx X. Xxxxxxx.
(b) Each such
notice given pursuant to Section 6.3(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 6.3.
Section
19.4 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
19.5 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 Administrator 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
19.6 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
19.7 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
19.8 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
Administrator 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 Administrator 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.
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Section
19.9 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 Administration Agreement to
be duly executed and delivered as of the first date set forth
above.
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U.S. BANK NATIONAL
ASSOCIATION
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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10
