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Exhibit 2.j
CUSTODIAN AGREEMENT
This CUSTODIAN AGREEMENT dated as of this _th day of May, 1998 by
and between _____________, a _____________ banking corporation (the
"Custodian"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III, ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(collectively, the "Trustees"), not in their individual capacities but solely as
Trustees of CVS Automatic Common Exchange Security Trust (the "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 May __, 1998 (the "Trust
Agreement").
W I T N E S S E T H
WHEREAS, the Trust is a non-diversified, closed-end management
investment company, as defined in the Investment Company Act of 1940 (the
"Investment Company Act"), formed to purchase and hold certain U.S. treasury
securities (the "Treasury Securities"), to enter into and hold forward purchase
contracts (the "Contracts") with one or more existing shareholders of CVS
Corporation (the "Company"), and to issue Trust Automatic Common Exchange
Securities (the "Securities") in accordance with the terms and conditions of the
Trust Agreement;
WHEREAS, the Trustees desire to engage the services of the Custodian
to perform certain custodial duties for the Trust; and
WHEREAS, the Custodian is qualified and willing to assume such
duties, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall
have the respective meanings specified in the Trust Agreement.
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2. Appointment of Custodian; Transfer of Assets. The Trustees hereby
constitute and appoint the Custodian, and the Custodian accepts such
appointment, as custodian of all of the property, including but not limited to,
the Contracts, the Treasury Securities, U.S. Treasury 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"). The Trustees hereby deposit the Assets with
the Custodian and the Custodian hereby accepts such into its custody and the
Trustees 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, 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 in
accordance with Section 3.5 of the Trust Agreement. Except as otherwise
specifically provided in the Trust Agreement, the Custodian shall not have the
power to sell, transfer or otherwise dispose of any Temporary Investments prior
to the maturity thereof, or to acquire additional Temporary Investments. The
Custodian shall hold any Temporary Investments to maturity and shall apply (or
cause to be applied) the proceeds thereof paid upon maturity to the payment of
the next succeeding Quarterly Distribution. All such Temporary Investments shall
be selected by the Trustees from time to time or pursuant to standing
instructions from the Trustees,
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and the Custodian shall have no liability to the Trust or any Holder or any
other Person with respect to any such Temporary Investments.
3. 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 paragraph 4
below 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.
4. Authorized Actions. The Custodian shall take such actions with
respect to the Assets as directed in writing by the Trustees or by any officer
of the Administrator as may be received by the Custodian from time to time.
5. Custodian's Actions Taken In Good Faith. In connection with the
performance of its duties under this Agreement, the Custodian shall be under no
liability to the Trust or any Holder for any action taken in good faith in
reliance on any paper, order, certification, list, demand, request, consent,
affidavit, notice, opinion, direction, endorsement, assignment, resolution,
draft or other document, prima facie properly executed, or for the disposition
of the Assets pursuant to the Trust Agreement or in respect of any action taken
or suffered under the Trust Agreement in good faith, in accordance with an
opinion of counsel or at the direction of the Trustees pursuant hereto; provided
that this provision shall not protect the Custodian against any liability to
which it would otherwise be subject by reason of its reckless disregard of its
obligations and
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duties hereunder. Notwithstanding any other provision of this Agreement, the
Custodian shall under no circumstances be liable for any indirect or
consequential damages.
6. 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 herein. The Custodian shall not be responsible for or in
respect of the validity of any signature by or on behalf of the Trustees.
7. 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, and any pecuniary costs of the Custodian from such
actions shall be expenses which are reimbursable pursuant to paragraph 13
hereof.
8. Taxes; Trust Expenses. In no event shall the Custodian be
personally liable for any taxes or other governmental charges imposed upon or in
respect of the Assets or upon the monies, securities or other properties
included therein. The Custodian shall be reimbursed and indemnified by the
Trustees for all such taxes and charges, for any tax or charge imposed against
the Trust and for any expenses, including counsel fees, interest, penalties and
additions to tax which the Custodian may sustain or incur with respect to such
taxes or charges.
9. Custodian Resignation, Succession. (a) The Custodian may resign
by executing an instrument in writing resigning as Custodian and delivering the
same to the Trustees, not less than 60 days before the date specified in such
instrument when, subject to clause (b) of this paragraph 9, such resignation is
to take effect. Upon
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receiving such notice of resignation, the Trustees shall use their reasonable
efforts promptly to appoint a successor Custodian in the manner and meeting the
qualifications provided in the Trust Agreement, by written instrument or
instruments delivered to the resigning Custodian and the successor Custodian.
(b) In case no successor Custodian shall have been appointed within
30 days after notice of resignation has been received by the Trustees, the
resigning Custodian may forthwith apply to a court of competent jurisdiction for
the appointment of a successor Custodian. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribed, appoint a successor
Custodian.
10. Custodian Removal. The Trustees may remove the Custodian upon 60
days' prior written notice to the Custodian and appoint a successor Custodian.
In case at any time the Custodian shall not meet the requirements set forth in
the Trust Agreement or shall become incapable of acting or if a court having
jurisdiction shall enter a decree or order for relief in respect of the
Custodian in an involuntary case, or the Custodian shall commence a voluntary
case, under any applicable bankruptcy, insolvency, or other similar law now or
hereafter in effect, or any receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) for the Custodian or for any substantial part
of its property shall be appointed, or the Custodian shall make any general
assignment for the benefit of creditors, or shall generally fail to pay its
debts as they become due, the Trustees may remove the Custodian immediately and
appoint a successor Custodian. The termination of the Administration Agreement
or the Paying Agent Agreement shall cause the removal of the Custodian
simultaneously therewith.
11. Transfers to Successor Custodian. Upon the request of any
successor Custodian, the Custodian hereunder shall, upon payment of all amounts
due it, execute and deliver an instrument acknowledged by it transferring to
such successor Custodian all the rights and powers of the resigning Custodian;
and the resigning Custodian shall
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transfer, deliver and pay over to the successor Custodian the Assets at the time
held by it hereunder, if any, together with all necessary instruments of
transfer and assignment or other documents properly executed necessary to effect
such transfer and such of the records or copies thereof maintained by the
resigning Custodian in the administration hereof as may be requested by the
successor Custodian, and shall thereupon be discharged from all duties and
responsibilities hereunder. Any resignation or removal of the Custodian shall
become effective upon such acceptance of appointment by the successor Custodian.
The indemnification of the resigning Custodian provided for hereunder shall
survive any resignation, discharge or removal of the Custodian hereunder.
12. Custodian Merger, Consolidation. Any corporation into which the
Custodian may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Custodian shall be a party, shall be the successor Custodian hereunder and
under the Trust Agreement without the execution or filing of any paper,
instrument or further act to be done on the part of the parties hereto, provided
that such corporation meets the requirements set forth in the Trust Agreement
and provided further that the Trust has given its prior written consent to the
Custodian with respect to any such merger, conversion or consolidation.
13. Compensation; Expenses. The Custodian shall receive compensation
for performing the usual, ordinary, normal and recurring services under this
Custodian Agreement and, with the prior written approval of the Trustees,
reimbursement for any and all expenses and disbursements incurred hereunder, as
provided in Section 3.1 of the Administration Agreement.
14. 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.
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15. Custodian's Limited Liability. The Trustees 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 Trustees, 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 arising from 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 agents of the Custodian.
16. 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.
17. Termination. This Agreement shall terminate upon the earlier of
the termination of the Trust or the appointment of a successor Custodian.
18. Choice of Law. This Agreement is executed and delivered in the
State of New York, and all laws or rules of construction of the State of New
York shall govern the right of the parties hereto and the interpretation of the
provisions hereof.
19. Notices. Any notice to be given to the Trust hereunder shall be
in writing and shall be duly given if mailed or delivered to CVS Automatic
Common Exchange Security Trust, c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Trustee, ▇▇▇▇▇▇▇
& Associates, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and to the
Custodian if mailed or delivered to _____________, ______________________,
Attention:
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__________ or at such other address as shall be specified by the addressee to
the other party hereto in writing.
20. No Third Party Beneficiaries. Nothing herein, express or
implied, shall give to any Person, other than the Trustees, the Custodian and
their respective successors and assigns, any benefit of any legal or equitable
right, remedy or claim hereunder.
21. Amendments; Trust Agreement Changes; Waiver. This Agreement
shall not be deemed or construed to be modified, amended, rescinded, cancelled
or waived, in whole or in part, except by a written instrument signed by a duly
authorized representative of the party to be charged. The Trustees shall notify
the Custodian of any change in the Trust Agreement prior to the effective date
of any such change. Failure of either party hereto to exercise any right or
remedy hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
22. Counterparts. This Agreement may be signed in counterparts with
all counterparts constituting one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Custodian
Agreement to be duly executed as of the day and year first above written.
TRUSTEES
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III,
as Trustee
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▇▇▇▇▇ ▇. ▇'▇▇▇▇▇,
as Trustee
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Trustee
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By
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Name:
Title:
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