Item 2(k)(e) – Fund Indemnity Agreement
Item
2(k)(e) – Fund Indemnity Agreement
Among
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, IN HIS INDIVIDUAL CAPACITY AND AS TRUSTEE
OF
THE ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ LIVING TRUST DATED MAY 28, 1986, AS
AMENDED,
U.S.
BANK NATIONAL ASSOCIATION,
as
Service Provider
and
2009
▇▇▇▇ 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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PAYMENTS BY
SELLER
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Section
2.1
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Agreement to
Pay Indemnification Expenses
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2
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Section
2.2
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Condition to
Payments
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3
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ARTICLE
III
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CERTAIN
AGREEMENTS OF THE SERVICE PROVIDER
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Section
3.1
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Statements and
Reports
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3
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Section
3.2
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Amendments to
Other Agreements
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3
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ARTICLE
IV
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MISCELLANEOUS
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Section
4.1
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Term of
Agreement
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3
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Section
4.2
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No
Assumption of Liability
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3
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Section
4.3
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Notices
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3
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Section
4.4
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Governing Law;
Severability
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4
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Section
4.5
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Entire
Agreement
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4
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Section
4.6
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Amendments;
Waivers
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4
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Section
4.7
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Non-Assignability
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4
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Section
4.8
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No
Third Party Rights; Successors and Assigns
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4
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Section
4.9
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Counterparts
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5
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i
FUND
INDEMNITY AGREEMENT (this “Agreement”), dated as
of October 22, 2009, among ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his individual capacity and
as trustee of the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Living Trust dated May 28, 1986, as
amended (“Seller”), U.S. Bank
National Association, a national banking association (the “Service Provider”),
for itself in its capacities as Administrator, Custodian, Collateral Agent and
Paying Agent for the 2009 ▇▇▇▇ 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”), and the
Trust.
WITNESSETH:
WHEREAS,
the Trust is a trust organized under the laws of the State of New York under and
by virtue of the Trust Agreement; and
WHEREAS,
Seller desires to make provision for the payment of certain indemnification
expenses of the Trust;
NOW,
THEREFORE, the parties to this Agreement, 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” has the
meaning specified in the preamble to this Agreement.
“Claimant” has the
meaning specified in Section 2.1(b).
“Indemnification
Expenses” has the meaning specified in Section 2.1(a).
“Seller” has the
meaning specified in the preamble to this Agreement.
“Service Provider” has
the meaning specified in the preamble 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.
1
Section
1.2
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
II
PAYMENTS
BY SELLER
Section
2.1
Agreement to Pay
Indemnification Expenses.
(a)
Seller
agrees to pay to and indemnify the Trust, and hold the Trust harmless from, any
expenses of the Trust arising under Section 2.2(j) or 3.4 of the
Administration Agreement, Section 8.1(a)(v) and 8.9 of the Collateral
Agreement, Section 3.5 or 3.6 of the Custodian Agreement, Section 5.6
of the Paying Agent Agreement and the last sentence of Section 7.6 of the
Trust Agreement (collectively, “Indemnification
Expenses”). Subject to Sections 2.1(b) and (c), Seller
shall pay any Indemnification Expense in Federal (immediately available) funds
no later than five Business Days after the receipt by Seller, pursuant to
Section 2.1(b), of written notice of any claim for Indemnification
Expenses.
(b) The
Trustees shall give notice to, or cause notice to be given to, Seller in writing
of any claim for Indemnification Expenses or any threatened claim for
Indemnification Expenses immediately upon their acquiring knowledge of such
claim. Such written notice shall be accompanied by any demand, ▇▇▇▇,
invoice or other communication received from any third party claimant (a “Claimant”) in respect
of such Indemnification Expense.
(c) The Trust
agrees that Seller may, and Seller is authorized on behalf of the Trust to,
contest in good faith with any Claimant any amount contained in any claim for
Indemnification Expense, provided that if, within such time period as the Trust
shall determine to be reasonable, Seller and such Claimant are unable to resolve
amicably any disagreement regarding such claim for Indemnification Expense,
Seller shall retain counsel reasonably satisfactory to the Trust to represent
the Trust in any resulting proceeding and shall pay the fees and disbursements
of such counsel related to such proceeding. It is understood that
Seller shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel). Seller shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the Claimant, Seller agrees to
indemnify the Trustees and the Trust from and against any loss or liability by
reason of such settlement or judgment.
2
Section
2.2
Condition to
Payments. Seller’s obligations under Section 2.1 shall be
subject to the condition that the Securities that are deliverable under the
Securities Purchase Agreement at the First Time of Delivery shall have been
issued and paid for at the First Time of Delivery.
ARTICLE
III
CERTAIN
AGREEMENTS OF THE SERVICE PROVIDER
Section
3.1
Statements and
Reports.
(a) The
Service Provider shall:
(i) collect
and safekeep all demands, bills, invoices or other written communications
received from third parties in connection with any claim for Indemnification
Expenses; and
(ii) prepare
and maintain adequate books and records showing all receipts and disbursements
of funds in connection therewith.
(b) Seller
shall have the right to inspect and to copy, at its expense, all such documents,
books and records at all reasonable times and from time to time during the term
of this Agreement.
Section
3.2
Amendments to Other
Agreements. The Service Provider agrees that it will not
consent to any amendment of the Administration Agreement, the Custodian
Agreement, the Paying Agent Agreement or the Collateral Agreement without the
prior written consent of Seller.
ARTICLE
IV
MISCELLANEOUS
Section
4.1 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
4.2 No Assumption of
Liability. By executing this Agreement, none of the Trustees
assumes any personal liability under this Agreement.
Section
4.3
Notices.
(a) All
notices and other communications provided for in this Agreement, unless
otherwise specified, shall be in writing and shall be given at the addresses set
forth in the following sentence or at such other addresses as may be designated
by notice duly given in accordance with this Section 4.3 to each other
party to this Agreement. Until such notice is given, (i) notices
to Seller shall be directed to it at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇;
(ii) notices to the Service Provider shall be directed to it at U.S. Bank
National Association, Corporate Trust Services, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, 24th Floor,
LM-CA T24T, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: 2009 ▇▇▇▇ Food Automatic Common Exchange Security Trust;
and (iii) notices to the Trust or the Trustees shall be directed to the
Trustees at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier
No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇. ▇▇▇▇▇▇▇, with a copy to the
Administrator at U.S. Bank National Association, Corporate Trust Services, ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, 24th Floor, LM-CA T24T, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Telecopier No.
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: 2009 ▇▇▇▇ Food Automatic Common Exchange
Security Trust.
3
(b) Each
notice given pursuant to Section 4.3(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 4.3.
Section
4.4
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
4.5
Entire
Agreement. Except as expressly set forth in this Agreement,
this Agreement, the Trust Agreement, the Administration Agreement, the
Collateral Agreement, the Custodian Agreement, the Paying Agent Agreement and
the Expense Agreement constitute the entire agreement among the parties with
respect to the subject matter of this Agreement and supersede all prior
agreements, understandings and negotiations, both written and oral, among the
parties with respect to the subject matter of this Agreement.
Section
4.6
Amendments;
Waivers. Any provision of this Agreement may be amended or
waived (either generally or in a particular instance and either retrospectively
or prospectively) if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by Seller, the Service Provider 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 under this Agreement shall operate as a waiver of such
right, power or privilege nor shall any single or partial exercise of any such
right, power or privilege preclude any other or further exercise of such right,
power or privilege 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
4.7
Non-Assignability. This
Agreement and the rights and obligations of the parties under this Agreement 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
4.8
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 Seller, the
Service Provider, the Trust and their respective successors and assigns and no
person shall assert any rights as third party beneficiary under this
Agreement. Whenever any of the parties to this Agreement is referred
to, such reference shall be deemed to include the successors and assigns of such
party. All the covenants and agreements in this Agreement contained
by or on behalf of Seller, the Service Provider 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
Service Provider and its successors and assigns.
4
Section
4.9
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 on each
such counterpart were upon the same instrument.
5
IN
WITNESS WHEREOF, the parties hereto have caused this Fund Indemnity Agreement to
be duly executed and delivered as of the first date set forth
above.
THE SERVICE
PROVIDER:
U.S. BANK NATIONAL
ASSOCIATION
By: __________________________________
Name:
Title:
THE
TRUST:
2009 ▇▇▇▇ FOOD
AUTOMATIC COMMON
EXCHANGE SECURITY
TRUST
By:__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as
Trustee
By:__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, as
Trustee
By:__________________________________
▇▇▇▇▇ ▇. ▇’▇▇▇▇▇, as
Trustee
6
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his individual
capacity
and as trustee of
the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
LIVING TRUST dated
May 28, 1986, as amended
By:__________________________________
Name: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇