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EXHIBIT 2(k)(6)
FUND INDEMNITY AGREEMENT
Agreement dated as of March [ ], 1998 between Xxxxx Xxxxxx
Inc. ("Xxxxx Xxxxxx") and DECS Trust III (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 January 23, 1998, as amended and restated as of March [
], 1998 (the "Trust Agreement"); and
WHEREAS, 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. Xxxxx Xxxxxx 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 Xxxxx Xxxxxx shall be made
in New York Clearing House funds no later than five Business Days after the
receipt by Xxxxx Xxxxxx, 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, 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 Xxxxx Xxxxxx
may, and Xxxxx Xxxxxx 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 Xxxxx Xxxxxx shall
determine to be reasonable, Xxxxx Xxxxxx and such Claimant are unable to
resolve amicably any disagreement regarding such claim for Indemnification
Expense, 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) Xxxxx
Xxxxxx shall not, in respect of the legal expenses of any indemnified party in
connection with any
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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) 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, Xxxxx Xxxxxx 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. 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 Xxxxx Xxxxxx 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.
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12. Counterparts. This Agreement may be signed in counterpart
with all of such counterparts constituting one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their authorized representatives the date first above written.
XXXXX XXXXXX INC.
By:__________________________________
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
DECS TRUST III
By:__________________________________
Xxxxxx X. Xxxxxxx,
as Managing Trustee
Address: c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx,
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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