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EXHIBIT(k)(6)
FORM OF FUND INDEMNITY
AGREEMENT
FUND INDEMNITY AGREEMENT
Agreement dated as of March __, 1997 among Cherrywood Holdings, Inc.
and Xxxxxx Investors, L.L.C. (each a "Contracting Stockholder" and,
collectively, the "Contracting Stockholders"), Xxxxxxx Xxxxx & Co., Inc.
("Xxxxxxx Xxxxx") and Nextel STRYPES Trust (such trust and the trustees thereof
acting in their capacity as such being referred to herein as the "Trust").
WHEREAS, the Trust is a trust formed under the laws of the State of
Delaware pursuant to a Trust Agreement dated as of October 25, 1995, as amended
and restated as of February 27, 1997 (the "Trust Agreement"); and
WHEREAS, the Contracting Stockholders and Xxxxxxx Xxxxx desire 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 agrees to pay to the Trust,
and hold the Trust harmless from, any expenses of the Trust arising under
Sections 2.2(g) 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, "Indemnification Expenses").
Notwithstanding the foregoing, it is understood that (i) Xxxxxxx Xxxxx 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 (ii) Xxxxxxx Xxxxx shall not be liable for any settlement of
any proceeding effected without the written consent of Xxxxxxx Xxxxx and each
Contracting Stockholder, but if settled with such consent or if there be a final
judgment for the Claimant, Xxxxxxx Xxxxx agrees to indemnify the Trustees and
the Trust from and against any loss or liability by reason of such settlement or
judgment. Payment hereunder by Xxxxxxx Xxxxx shall be made in New York Clearing
House (next-day) funds no later than five Business Days after the receipt by
Xxxxxxx Xxxxx, pursuant to paragraph 4 hereof, of written notice of any claim
for Indemnification Expenses.
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3. AGREEMENT TO REIMBURSE FOR PAYMENTS MADE. The Contracting
Stockholders jointly and severally agree to reimburse Xxxxxxx Xxxxx from time to
time for the amount of any Indemnification Expenses paid by Xxxxxxx Xxxxx
pursuant to paragraph 2 hereof. Xxxxxxx Xxxxx shall be reimbursed for any such
Indemnification Expenses in New York Clearing House (next-day) funds no later
than five Business Days after the receipt by the Contracting Stockholders,
pursuant to paragraph 4 hereof, of written notice of any claim for
Indemnification Expenses.
4. NOTICE OF RECEIPT OF CLAIM. The Trust shall give notice to, or cause
notice to be given to, Xxxxxxx Xxxxx and each Contracting Stockholder 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 to Xxxxxxx Xxxxx 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.
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 and each
Contracting Stockholder 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 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 shall be furnished to Xxxxx & Wood LLP, Xxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Esq.,
provided
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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 construed
and interpreted in accordance with the laws of the State of New York applicable
to agreements made and to be performed wholly within such State.
12. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their authorized representatives the date first above written.
XXXXXXX XXXXX & CO., INC.
World Financial Center
North Tower
By____________________________________ Xxx Xxxx, Xxx Xxxx 00000
Name: Telecopier: (212)__________
Title:
NEXTEL STRYPES TRUST
c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx
______________________________________ Suite 204
Xxxxxx X. Xxxxxxx, as Managing Trustee Xxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
CHERRYWOOD HOLDINGS, INC.
x/x Xxxxxx Xxxxxxxx, X.X.X.
0000 Xxxxxxxxx Xxxxxxxxx
By____________________________________ Suite 800
Name: Xxxxxxxxx, Xxxxxxxx 00000
Title: Telecopier:
XXXXXX INVESTORS, L.L.C.
c/o Telcom Ventures, L.L.C.
0000 Xxxxxxxxx Xxxxxxxxx
By____________________________________ Suite 800
Name: Xxxxxxxxx, Xxxxxxxx 00000
Title: Telecopier:
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