Exhibit (K)(6)
FORM OF
FUND INDEMNITY AGREEMENT
Agreement dated as of December [ ], 2001 between Xxxxxxx Xxxxx
Xxxxxx Inc. ("Xxxxxxx Xxxxx Barney") and Equity Securities Trust II (such trust
and the trustees thereof acting in their capacity as such being referred to
herein as the "Trust").
WHEREAS the Trust is a statutory business trust organized under the
Business Trust Act of the State of Delaware pursuant to a Declaration of Trust
dated as of October 30, 2001, as amended and restated as of December [ ], 2001
(the "Trust Agreement"); and
WHEREAS, Xxxxxxx Xxxxx Xxxxxx, as sponsor under the Trust Agreement,
desires to make provision for the payment of certain indemnification expenses of
the Trust.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, the parties agree as follows:
1. Definitions. Capitalized terms used herein and not defined
herein shall have the meanings ascribed thereto in the Trust Agreement.
2. Agreement to Pay Expenses. Xxxxxxx Xxxxx Barney agrees to pay
to the Trust, and hold the Trust harmless from, any expenses of the Trust
arising under Sections 2.2(e) and 6.6 of the Administration Agreement, Section
15 of the Custodian Agreement, Section 5.4(b) of the Paying Agent Agreement and
Section 7.6 of the Trust Agreement (collectively, together with any amounts paid
pursuant to paragraph 4 of this Agreement, "Indemnification Expenses"). Subject
to paragraph 4 hereof, payment hereunder by Xxxxxxx Xxxxx Xxxxxx shall be made
in New York Clearing House funds no later than five Business Days after the
receipt by Xxxxxxx Xxxxx Barney, pursuant to paragraph 3 hereof, of written
notice of any claim for Indemnification Expenses.
3. Notice of Receipt of Claim. The Trust shall give notice to, or
cause notice to be given to, Xxxxxxx Xxxxx Xxxxxx in writing of any claim for
Indemnification Expenses or any threatened claim for Indemnification Expenses
immediately upon the Trust acquiring knowledge thereof. Such written notice
shall be accompanied by any demand, xxxx, invoice or other communication
received from any third party claimant (a "Claimant") in respect of such
Indemnification Expense.
4. Right to Contest. The Trust agrees that Xxxxxxx Xxxxx Xxxxxx
may, and Xxxxxxx Xxxxx Barney 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 Xxxxxxx
Xxxxx Xxxxxx shall determine to be reasonable, Xxxxxxx Xxxxx Barney and such
Claimant are unable to resolve amicably any disagreement regarding such claim
for Indemnification Expense, Xxxxxxx Xxxxx Xxxxxx shall retain counsel
reasonably satisfactory to the Trustees to represent the Trustees in any
resulting proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. Notwithstanding any other provision herein, it is
understood that (a) Xxxxxxx Xxxxx Barney 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), and (b) Xxxxxxx Xxxxx Xxxxxx
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, Xxxxxxx Xxxxx Barney agrees to indemnify the Trust
from and against any loss or liability by reason of such settlement or judgment.
5. Statements and Reports. The Trust shall collect and safekeep
all demands, bills, invoices or other written communications received from third
parties in connection with any claim for Indemnification Expenses and shall
prepare and maintain adequate books and records showing all receipts and
disbursements of funds in connection therewith. Xxxxxxx Xxxxx Xxxxxx 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.
6. Term of Contract. This Agreement shall continue in effect
until the termination of the Trust in accordance with Section 8.3 of the Trust
Agreement.
7. No Assignment. No party to this Agreement may assign its
rights or delegate its duties hereunder without the prior written consent of the
other parties, except that the Trust may delegate any and all duties hereunder
to the Administrator to the extent permitted by law.
8. Entire Agreement. This Agreement contains the entire agreement
among the parties with respect to the matters contained herein and supersedes
all prior agreements or understandings. No amendment or modification of this
Agreement shall be valid unless the amendment or modification is in writing and
is signed by all the parties to this Agreement.
9. Notices. All notices, demands, reports, statements, approvals
or consents given by any party under this Agreement shall be in writing and
shall be delivered in person or by telecopy or other facsimile communication or
sent by first-class U.S. mail, registered or certified, postage prepaid, to the
appropriate party at its address on the signature pages hereof or at such other
address subsequently notified to the other parties hereto. A copy of any
communication to Xxxxxxx Xxxxx Barney shall be furnished to Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx X. Check, provided that the failure to furnish such copy shall not
affect the effectiveness of any such communication. Any party may change its
address for purposes hereof by delivering a written notice of the change to the
other parties. All notices given under this Agreement shall be deemed received
(a) in the case of hand delivery, on the day of delivery, (b) in the case of
telecopy or other facsimile communication, on the day of transmission, and (c)
in the case of mailing, on the third day after such notice was deposited in the
mail.
10. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
11. Governing Law. This Agreement shall be governed by and be
construed in accordance with the laws of the State of New York.
12. Counterparts. This Agreement may be signed in counterpart with
all of such counterparts constituting one and the same instrument.
