Exhibit (K)(6)
FORM OF
FUND INDEMNITY AGREEMENT
Agreement dated as of October [-], 2001 between Xxxxxxx Xxxxx
Xxxxxx Inc. ("Xxxxxxx Xxxxx Barney") and Equity Securities Trust I (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 April 11, 2000, as amended and restated as of October [ ],
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
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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, Citigroup Center (38th floor), 000 Xxxx 00xx Xxxxxx,
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.
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12. Counterparts. This Agreement may be signed in counterpart
with all of such counterparts constituting one and the same instrument.
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