Item (2)(d) — Paying Agent Agreement PAYING AGENT AGREEMENT BETWEEN U.S. BANK NATIONAL ASSOCIATION, AS PAYING AGENT, AND 2010 SWIFT MANDATORY COMMON EXCHANGE SECURITY TRUST DATED AS OF DECEMBER 21, 2010
EX-99.2.K.D
EXECUTION VERSION
Item (2)(d) — Paying Agent Agreement
BETWEEN
U.S. BANK NATIONAL ASSOCIATION,
AS PAYING AGENT,
AND
DATED AS OF DECEMBER 21, 2010
TABLE OF CONTENTS
| Page | ||||
ARTICLE I DEFINITIONS; INTERPRETATION |
1 | |||
Section 1.1 Defined Terms |
1 | |||
Section 1.2 Interpretation |
2 | |||
ARTICLE II PAYING AGENT |
2 | |||
Section 2.1 Appointment of Paying Agent; Acceptance of Appointment |
2 | |||
Section 2.2 Certificates and Notices |
2 | |||
Section 2.3 Payments and Investments |
3 | |||
Section 2.4 Instructions from Administrator |
3 | |||
Section 2.5 Taxes |
3 | |||
ARTICLE III TRANSFER AGENT AND XXXXXXXXX |
0 | |||
Section 3.1 Original Issue of Certificates |
3 | |||
Section 3.2 Registry of Holders |
3 | |||
Section 3.3 Registration of Transfer of the Securities |
4 | |||
Section 3.4 Lost Certificates |
4 | |||
Section 3.5 Disposition of Canceled Certificates; Records |
4 | |||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE TRUST |
4 | |||
Section 4.1 Representations and Warranties of the Trust |
4 | |||
ARTICLE V DUTIES AND RIGHTS OF PAYING AGENT |
5 | |||
Section 5.1 Duties |
5 | |||
Section 5.2 Conditions to the Duties of the Paying Agent |
5 | |||
Section 5.3 Merger |
5 | |||
Section 5.4 Disclaimer |
6 | |||
Section 5.5 Compensation |
6 | |||
Section 5.6 Indemnification |
6 | |||
ARTICLE VI RESIGNATION AND REMOVAL OF THE PAYING AGENT SECTION |
6 | |||
Section 6.1 Removal |
6 | |||
Section 6.2 Resignation |
7 | |||
Section 6.3 Appointment of Successor |
7 | |||
Section 6.4 Effectiveness of Resignation or Removal |
7 | |||
Section 6.5 Acceptance by Successor |
7 | |||
Section 6.6 Survival |
8 | |||
ARTICLE VII MISCELLANEOUS |
8 | |||
Section 7.1 Term of Agreement |
8 | |||
Section 7.2 No Assumption of Liability |
8 | |||
Section 7.3 Notices |
8 | |||
Section 7.4 Governing Law |
8 | |||
-i-
TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||
Section 7.5 Severability |
9 | |||
Section 7.6 Amendments; Waivers |
9 | |||
Section 7.7 Non-Assignability |
9 | |||
Section 7.8 Provisions of Law to Control |
9 | |||
Section 7.9 No Third Party Rights; Successors and Assigns |
9 | |||
Section 7.10 Counterparts |
9 | |||
-ii-
PAYING AGENT AGREEMENT (this “Agreement”), dated as of December 21, 2010, between U.S.
Bank National Association, a national banking association (the “Paying Agent”), and the
2010 Swift Mandatory 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 December
15, 2010 (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, as defined in the
Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder
(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
(collectively, the “Contracts”) with each of Xxxxx Xxxxx, Xxxxx and Xxxxxx Xxxxx, jointly,
the Xxxxx and Xxxxxx Xxxxx Family Trust Dated 12/11/87 and Xxxxx and Xxxxxx Xxxxx, the Xxxx Xxxxx
Trust Dated 4/27/07 and Xxxx Xxxxx, the Xxxxxx Xxxxx Trust Dated 4/27/07 and Xxxxxx Xxxxx, the
Xxxxx Xxxxx Trust Dated 4/27/07 and Xxxxx Xxxxx, the Xxxxxx Xxxxx Xxxxxx Trust Dated 4/27/07 and
Xxxxxx Xxxxx Xxxxxx, the Xxxxx Xxx Xxxxx Trust Dated 4/27/07 and Xxxxx Xxx Xxxxx and the Xxxxxxx X.
Xxxxx Trust Dated 4/27/07 and Xxxxxxx X. Xxxxx and to issue $0.66 Trust Issued Mandatory 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 Paying Agent to assume certain duties
and responsibilities as the transfer agent, registrar and paying agent with respect to the
Securities upon the terms and conditions of this Agreement; and
WHEREAS, the Paying Agent is qualified and willing to assume such duties and responsibilities,
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” has the meaning specified in the preamble to this Agreement.
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“Contracts” has the meaning specified in the recitals to this Agreement.
“Investment Company Act” has the meaning specified in the recitals to this Agreement.
“Paying Agent” has the meaning specified in the preamble 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” 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, 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”.
(c) 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
PAYING AGENT
Section 2.1 Appointment of Paying Agent; Acceptance of Appointment. The Trust hereby
appoints the Paying Agent, and the Paying Agent hereby accepts such appointment, to provide the
services enumerated in this Agreement. The Paying Agent agrees to act in accordance with its
standard procedures and the written instructions of the Administrator or the Trustees and the
provisions set forth in this Article II as Paying Agent with respect to the Securities. Without
limiting the generality of the foregoing, U.S. Bank National Association, as Paying Agent, agrees
that it shall establish and maintain the Trust Account as provided in the Trust Agreement, subject
to the provisions of Section 2.3.
Section 2.2 Certificates and Notices. The Trustees shall deliver, or cause to be
delivered, to the Paying Agent the certificates and notices required to be delivered to the Paying
Agent pursuant to the Trust Agreement, and the Paying Agent shall mail or publish such certificates
or notices as required by the Trust Agreement, but the Paying Agent shall have no
responsibility to confirm or verify the accuracy of certificates or notices of the Trustees so
delivered.
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Section 2.3 Payments and Investments. The Paying Agent shall make payments out of the
Trust Account as provided for in Article III of the Trust Agreement. The Paying Agent shall effect
the transactions set forth in Sections 2,3, 2.4, 2.5 and 8.3 of the Trust Agreement upon receipt of
written instructions to do so from the Administrator or the Trustees and shall invest monies on
deposit in the Trust Account in accordance with Article III of the Trust Agreement. Except as
otherwise specifically provided in this Agreement or in the Trust Agreement, the Paying Agent shall
not have the power to sell, transfer or otherwise dispose of any Temporary Investment prior to the
maturity thereof, or to acquire additional Temporary Investments. Other than as set forth in
Section 3.2 of the Trust Agreement, the Paying Agent shall hold any Temporary Investment to its
maturity and shall apply the proceeds thereof upon maturity to the payment of the next succeeding
Quarterly Distribution on the Securities. All such Temporary Investments shall be selected from
time to time by the Trustees or by the Administrator pursuant to standing instructions from the
Trustees to the Administrator, and the Paying Agent shall have no liability to the Trust or any
Holder or any other Person with respect to the payment or performance of any such Temporary
Investment.
Section 2.4 Instructions from Administrator. The Paying Agent shall receive and
execute all written instructions from the Administrator or the Trustees.
Section 2.5 Taxes. The Paying Agent shall be responsible for obtaining from the
payees on behalf of itself and the Trust (and retaining to the extent required by law) all tax
certificates (including IRS Forms W-9 and W-8) and shall be responsible for withholding and backup
withholding any tax that the Paying Agent or the Trust is required to withhold from such payments.
The Paying Agent shall prepare for the Trust all tax information returns with respect to the
payments to the payees and shall timely send the payees all necessary forms and notices (including
IRS Forms 1099 and 1042-S).
ARTICLE III
TRANSFER AGENT AND REGISTRAR
Section 3.1 Original Issue of Certificates. On the date the Securities are originally
issued and sold pursuant to the Purchase Agreement, certificates for the Securities shall be issued
by the Trust, and, at the request of the Trustees, registered in such names and such denominations
as the Purchasers shall have previously requested of the Trustees, executed manually or in
facsimile by the Managing Trustee and countersigned manually by the Paying Agent. At no time shall
the aggregate number of Securities represented by such countersigned certificates exceed the number
of then outstanding Securities.
Section 3.2 Registry of Holders. The Paying Agent shall maintain a registry of the
Holders of the Securities. In case of any written request or demand for the inspection of the
registry of the Trust or any other books in the possession of the Paying Agent, the Paying Agent
will notify the Trustees and secure instructions as to whether to permit or refuse such inspection;
provided, however, that the Paying Agent reserves the right to exhibit the
transfer books or other books to any Person if it is advised by its counsel that its failure to do
so would be unlawful.
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Section 3.3 Registration of Transfer of the Securities. The Paying Agent shall
register Securities for transfer or exchange, and shall countersign and deliver new certificates in
the name of the designated transferee or transferees, upon surrender of the old certificates in
form deemed by the Paying Agents properly endorsed for transfer with (a) all necessary endorsers’
signatures medallion guaranteed, (b) such assurance as the Paying Agent shall deem necessary or
appropriate to evidence the genuineness and effectiveness of each necessary endorsement and (c)
satisfactory evidence of compliance with all applicable laws relating to the payment of taxes or
funds necessary for the payment of such taxes.
Section 3.4 Lost Certificates. The Paying Agent shall issue and register replacement
certificates for certificates represented to have been destroyed, stolen or lost or for mutilated
certificates, upon the receipt of:
(a) evidence acceptable to it of the destruction, theft, loss or mutilation and
(b) a surety bond acceptable to the Paying Agent sufficient to indemnify it and the Trustee
hereunder. The Paying Agent may issue new certificates in exchange for and upon the cancellation
of mutilated certificates. Any request by the Trustees to the Paying Agent to issue a replacement
or new certificate pursuant to this Section 3.4 shall be deemed to be a representation and warranty
by the Trust to the Paying Agent that such issuance will comply with any applicable provisions of
the law and the Trust Agreement and resolutions of the Trustees.
Section 3.5 Disposition of Canceled Certificates; Records. The Paying Agent shall
retain certificates that have been canceled in transfer or in exchange and accompanying
documentation in accordance with applicable rules and regulations of the Commission for six
calendar years from the date of such cancellation, and shall make such records available during
this period at any time, or from time to time, for reasonable periodic, special, or other
examinations by representatives of the Commission and the Board of Governors of the Federal Reserve
System. Thereafter such records shall not be destroyed by the Paying Agent but will be safely
stored for possible future reference. In case of any request or demand for the inspection of the
register of the Trust or any other books in the possession of the Paying Agent, the Paying Agent
will notify the Trustees and seek to secure instructions as to permitting or refusing such
inspection; provided, however, that the Paying Agent reserves the right to exhibit
the register or other records to any person in ease it is advised by its counsel that its failure
to do so would (i) be unlawful, or (ii) expose it to liability, unless the Trustees shall have
offered indemnification satisfactory to the Paying Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE TRUST
Section 4.1 Representations and Warranties of the Trust. The Trust represents and
warrants to the Paying Agent that:
4
(a) the Trust is a validly existing trust under the laws of the State of New York and the
Trustees have full power under the Trust Agreement to execute and deliver this Agreement on behalf
of the Trust and to authorize, create and issue the Securities;
(b) this Agreement has been duly and validly authorized, executed and delivered by the Trust
and constitutes the valid and binding agreement of the Trust enforceable against the Trust in
accordance with its terms, subject as to such enforceability to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting creditors’ rights
and to general equitable principles;
(c) the form of the certificate evidencing the Securities complies with all applicable laws of
the State of New York;
(d) the Securities have been duly and validly authorized, executed and delivered by the Trust
and are validly issued;
(e) the execution and delivery of this Agreement and the issuance and delivery of the
Securities do not and will not conflict with, violate or result in a breach of, the terms,
conditions or provisions of, or constitute a default under, the Trust Agreement, any law or
regulation, any order or decree of any court or public authority having jurisdiction over the
Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party
or by which it is bound; and
(f) no taxes are payable upon or in respect of the execution of this Agreement or the issuance
of the Securities.
ARTICLE V
DUTIES AND RIGHTS OF PAYING AGENT
Section 5.1 Duties. The Paying Agent is acting solely as agent for the Trust
hereunder and owes no fiduciary duties to any other Person by reason of this Agreement.
Section 5.2 Conditions to the Duties of the Paying Agent. The provisions of Section
8.1(a) of each of the Collateral Agreements shall apply, mutatis mutandis, to the Paying Agent in
the performance of its duties hereunder as if it were the Collateral Agent acting under the
Collateral Agreements.
Section 5.3 Merger. Any corporation, association or limited liability company into
which the Paying Agent 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, association or limited liability company resulting from any such conversion,
merger, consolidation, sale or transfer to which it is a party, shall be and become the successor
Paying Agent hereunder without the execution or filing of any instrument or 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, and provided
further that the Trustees have given their prior written consent to the Administrator with respect
to any such merger, conversion, consolidation, sale or transfer.
5
Section 5.4 Disclaimer. The Paying Agent makes no representation as to (a) the first
two recitals of this Agreement or (b) the validity or adequacy of the Securities.
Section 5.5 Compensation. For all services to be rendered by the Paying Agent
pursuant to this Agreement, the Paying Agent shall receive only such fees and expenses as shall be
paid to it pursuant to the terms of the Expense Agreement and the Indemnity Agreement and shall
have no recourse to the assets of the Trust for the payment of any such amounts.
Section 5.6 Indemnification. The Trust shall indemnify and hold the Paying Agent
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 Paying Agent 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 Paying Agent shall not be indemnified and held harmless from and against any such loss,
damages, cost, expense, liability or claim incurred by reason of its breach of its obligations
under this Agreement, willful misfeasance, bad faith or gross negligence in the performance of its
duties, or its reckless disregard of its duties and obligations hereunder. In no case will the
Paying Agent be liable for special, indirect, incidental or consequential loss or damages of any
kind whatsoever (including but not limited to lost profits), even if the Paying Agent has been
advised of the possibility of such damages.
ARTICLE VI
RESIGNATION AND REMOVAL OF THE PAYING AGENT SECTION
Section 6.1 Removal.
(a) Subject to Section 6.4, the Trust may remove the Paying Agent by written notice at any
time if any of the following events shall occur:
(i) if the Paying Agent 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 Paying Agent ceases to meet the requirements set forth in Section 2.2(a) of
the Trust Agreement; or
(iii) if the Paying Agent 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 Paying Agent, or for all or substantially all of its
property, or a court of competent jurisdiction shall approve any petition filed against the
Paying Agent for its reorganization, and such adjudication or order shall remain in force or
unstayed for a period of 30 days; or
(iv) if the Paying Agent 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 Paying Agent 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
6
(v) upon the voluntary or involuntary dissolution of the Paying Agent or, unless the
Trust shall have given its prior written consent thereto, the merger or consolidation of the
Paying Agent 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 6.1(a)
shall occur, the Paying Agent shall give immediate written notice thereof to the Trust.
(b) Subject to Section 6.4, the Paying Agent shall be removed immediately upon (i) termination
of the Trust Agreement, (ii) termination of the Administration Agreement, (iii) termination of all
of the Collateral Agreements, termination of the Custodian Agreement, or (v) the resignation or
removal of the Administrator, the Collateral Agent or the Custodian.
Section 6.2 Resignation. Subject to Section 6.4, the Paying Agent 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 Paying Agent by the Trust.
Section 6.3 Appointment of Successor. If the Paying Agent 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 Paying Agent appointed pursuant to the
provisions of this Agreement shall satisfy the requirements set forth in Section 22(a) of the Trust
Agreement.
Section 6.4 Effectiveness of Resignation or Removal. No resignation or removal of the
Paying Agent shall be effective until a successor Paying Agent shall have been appointed and shall
have accepted the duties of the Paying Agent. If, within 30 days after notice by the Paying Agent
to the Trust or by the Trust to the Paying Agent of any such resignation or removal, no successor
Paying Agent shall have been selected and accepted the duties of the Paying Agent, the Paying Agent
may apply to a court of competent jurisdiction for the appointment of a successor Paying Agent, and
the Trust shall pay all fees and expenses, including but not limited to the cost of legal counsel,
reasonably incurred by the Paying Agent in applying to such court for the appointment of a
successor Paying Agent.
Section 6.5 Acceptance by Successor. Every successor Paying Agent 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 Paying Agent shall forthwith deliver to the Trust or to any successor Paying
Agent as requested by the Trust (i) copies of all books and records maintained by it and (ii)
any funds deposited with the Paying Agent by the Trust.
7
Section 6.6 Survival. The Trust’s representations, warranties, covenants and
obligations to the Paying Agent under Article IV and Sections 5.5 and 5.6 shall survive the
termination of this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Term of Agreement. This Agreement shall continue in effect until the
completion of the liquidation of the Trust in accordance with Section 8.3(c) of the Trust
Agreement.
Section 7.2 No Assumption of Liability. By executing this Agreement, none of the
Trustees assumes any personal liability hereunder. The Trust Agreement was executed or made by or
on behalf of the Trust by the Trustees as trustees and not individually and the obligations of this
Agreement are not binding upon any of them or the holders of the Securities individually but are
binding only upon the assets and property of the Trust.
Section 7.3 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 7.3 to each other party hereto. Until such notice
is given, (i) notices to the Paying Agent shall be directed to it at U.S. Bank National
Association, Corporate Trust Services, Attention: 2010 Swift Mandatory Common Exchange Security
Trust, 000 X. 0xx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Telephone No.: (000) 000-0000,
Facsimile No.: (000) 000-0000; and (ii) notices to the Trust or the Trustees shall be directed to
the Trustees at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Facsimile No.: (000)
000-0000, Attention: X. Xxxxxxx, with a copy to Xxxxx X. Xxxx, Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile No.: (000) 000-0000, with a copy to
the Administrator at U.S. Bank National Association, Corporate Trust Services, Attention: 2010
Swift Mandatory Common Exchange Security Trust, 000 X. 0xx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx
00000, Telephone No.: (000) 000-0000, Facsimile No.: (000) 000-0000.
(b) Each such notice given pursuant to Section 7.3(a) shall be effective 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 7.3.
Section 7.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
8
Section 7.5 Severability. 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 7.6 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 Paying Agent 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. The Trustees shall notify the Paying Agent of
any change in the Trust Agreement prior to the effective date of any such change.
Section 7.7 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 7.8 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 7.9 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 Paying Agent
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 Paying Agent 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 7.10 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.
[Signature Page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Paying Agent Agreement to be duly
executed and delivered as of the first date set forth above.
| THE PAYING AGENT: U.S. BANK NATIONAL ASSOCIATION, as Paying Agent |
||||
| By: | /s/ Xxxx X. Xxxxxx-Xxxxx | |||
| Name: Xxxx X. Xxxxxx-Xxxxx | ||||
| Title: Vice President | ||||
| THE TRUST: 2010 SWIFT MANDATORY COMMON EXCHANGE SECURITY TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Xxxxxx X. Xxxxxxx, as Trustee | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx, as Trustee | ||||
| By: | /s/ Xxxxx X. X’Xxxxx | |||
| Xxxxx X. X’Xxxxx, as Trustee | ||||
[Signature Page to the Paying Agent Agreement]
