Exhibit 2.k.(vi)
FUND INDEMNITY AGREEMENT
Agreement dated as of September ___, 1997 between Bear,
Xxxxxxx & Co. Inc. ("Bear, Xxxxxxx") and Mandatory Common Exchange Trust (the
"Trust").
WHEREAS the Trust is a business trust formed under the laws of
the State of Delaware and pursuant to a Trust Agreement dated as of September
___, 1997 (the "Trust Agreement"); and
WHEREAS, Bear Xxxxxxx, 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. Bear, Xxxxxxx agrees to pay to
the Trust, and hold the Trust harmless from, any expenses of the Trust arising
under Sections 2.2(f) 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"). Subject
to paragraph 4 hereof, payment hereunder by Bear, Xxxxxxx shall be made in New
York Clearing House funds no later than five Business Days after the receipt by
Bear, Xxxxxxx, pursuant to paragraph 3 hereof, of written notice of any claim
for Indemnification Expenses.
3. NOTICE OF RECEIPT OF CLAIM. The Trustees shall give notice
to, or cause notice to be given to, Bear, Xxxxxxx in writing of any claim for
Indemnification Expenses or any threatened claim for Indemnification Expenses
immediately upon their 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 Bear, Xxxxxxx may,
and Bear, Xxxxxxx is authorized on behalf of the Trustees and 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 Bear,
Xxxxxxx shall determine to be reasonable, Bear, Xxxxxxx and such Claimant are
unable to resolve amicably any disagreement regarding such claim for
Indemnification Expense, Bear, Xxxxxxx 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. It is understood that Bear, Xxxxxxx 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).
Bear, Xxxxxxx 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, Bear, Xxxxxxx agrees to indemnify the Trustees
and the Trust from and against any loss or liability by reason of such
settlement or judgment.
5. STATEMENTS AND REPORTS. The Trustees 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. Bear, Xxxxxxx 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
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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 Bear, Xxxxxxx shall be furnished to Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx X. Xxxxx, Esq.,) 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 counterparts
with all of such counterparts constituting 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.
BEAR, XXXXXXX & CO. INC.
By_____________________________
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
MANDATORY COMMON EXCHANGE
TRUST
_______________________________
By: Xxxxxx X. Xxxxxxx
as Managing Trustee
Address: 000 Xxxxxxx Xxxxxx
Xxxxx 000
