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Exhibit 2.k.(vi)
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FUND INDEMNITY AGREEMENT
Among
NYLIFE LLC,
THE CHASE MANHATTAN BANK,
for Itself and Its Affiliate
and
EXPRESS SCRIPTS AUTOMATIC EXCHANGE SECURITY TRUST
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Dated as of November ___, 2000
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms..............................................1
Section 1.2. Interpretation.............................................2
ARTICLE II
PAYMENTS BY SELLER
Section 2.1. Agreement to Pay Indemnification Expenses..................2
Section 2.2. Condition to Payments......................................3
ARTICLE III
CERTAIN AGREEMENTS OF THE SERVICE PROVIDER
Section 3.1. Statements and Reports.....................................4
Section 3.2. Amendments to Other Agreements.............................4
Section 3.3. Payment to ChaseMellon Shareholder Services, L.L.C.........4
ARTICLE IV
MISCELLANEOUS
Section 4.1. Term of Agreement..........................................4
Section 4.2. No Assumption of Liability.................................4
Section 4.3. Notices....................................................5
Section 4.4. Governing Law; Severability................................5
Section 4.5. Entire Agreement...........................................5
Section 4.6. Amendments; Waivers........................................5
Section 4.7. Non-Assignability..........................................6
Section 4.8. No Third Party Rights; Successors and Assigns..............6
Section 4.9. Counterparts...............................................6
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FUND INDEMNITY AGREEMENT
FUND INDEMNITY AGREEMENT, dated as of November ____, 2000, among
NYLIFE LLC ("Seller"), The Chase Manhattan Bank (the "Service Provider"), for
itself in its capacities as Administrator, Custodian and Collateral Agent and
for its affiliate, ChaseMellon Shareholder Services, L.L.C., in its capacity as
Paying Agent for Express Scripts Automatic Exchange Security Trust, a trust
organized under the laws of the State of New York under and by virtue of an
Amended and Restated Trust Agreement, dated as of November _____, 2000 (such
trust and the trustees thereof acting in their capacity as such being referred
to in this Agreement as the "Trust"), and the Trust.
WITNESSETH:
WHEREAS, the Trust is a trust organized under the laws of the State of
New York under and by virtue of the Amended and Restated Trust Agreement, dated
as of November ___, 2000 (the "Trust Agreement"); and
WHEREAS, Seller desires to make provision for the payment of certain
indemnification expenses of the Trust;
NOW, THEREFORE, the parties to this Agreement, intending to be bound,
agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms.
(a) Capitalized terms used and not otherwise defined in this
Agreement have the respective meanings specified in the Trust Agreement.
(b) As used in this Agreement, the following terms have the
following meanings:
"Agreement" means this Fund Indemnity Agreement.
"Claimant" has the meaning specified in Section 2.1(b).
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"Indemnification Expenses" has the meaning specified in Section
2.1(a).
"Seller" has the meaning specified in the preamble to this Agreement.
"Service Provider" has the meaning specified in the preamble to this
Agreement.
"Trust" has the meaning specified in the preamble to this Agreement.
"Trust Agreement" has the meaning specified in the recitals to this
Agreement.
Section 1.2. Interpretation.
(a) When a reference is made in this Agreement to Articles,
Sections, Exhibits or Schedules, such reference is to Articles or Sections of,
or Exhibits or Schedules to, this Agreement unless otherwise indicated.
(b) The table of contents and headings contained in this
Agreement are for reference purposes only and are not part of this Agreement,
and shall not be deemed to limit or otherwise affect any of the provisions of
this Agreement.
(c) Whenever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation".
(d) Any reference to any statute, regulation or agreement is a
reference to such statute, regulation or agreement as supplemented or amended
from time to time.
ARTICLE II
PAYMENTS BY SELLER
Section 2.1. Agreement to Pay Indemnification Expenses.
(a) Seller agrees to pay to and indemnify the Trust, and hold the
Trust harmless from, any expenses of the Trust arising under Section 2.2(g) or
3.4 of the Administration Agreement, Section 8.1(a)(v) of the Collateral
Agreement, Section 3.5 or
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3.6 of the Custodian Agreement, Section 5.6 of the Paying Agent Agreement and
the last sentence of Section 7.6 of the Trust Agreement (collectively,
"Indemnification Expenses"). Subject to Sections 2.1(b) and (c), Seller shall
pay any Indemnification Expense in Federal (immediately available) funds no
later than five Business Days after the receipt by Seller, pursuant to Section
2.1(b), of written notice of any claim for Indemnification Expenses.
(b) The Trustees shall give notice to, or cause notice to be
given to, Seller in writing of any claim for Indemnification Expenses or any
threatened claim for Indemnification Expenses immediately upon their acquiring
knowledge of such claim. 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.
(c) The Trust agrees that Seller may, and Seller 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 the Trust shall determine to be reasonable, Seller and such
Claimant are unable to resolve amicably any disagreement regarding such claim
for Indemnification Expense, Seller shall retain counsel reasonably
satisfactory to the Trust to represent the Trust in any resulting proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. It is understood that Seller 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). Seller 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, Seller agrees to indemnify the Trustees and the Trust from and
against any loss or liability by reason of such settlement or judgment.
Section 2.2. Condition to Payments. Seller's obligations under
Section 2.1 shall be subject to the condition that the Securities that are
deliverable under the Underwriting Agreement at the First Time of Delivery
shall have been issued and paid for at the First Time of Delivery.
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ARTICLE III
CERTAIN AGREEMENTS OF THE SERVICE PROVIDER
Section 3.1. Statements and Reports.
(a) The Service Provider shall
(i) collect and safekeep all demands, bills, invoices or
other written communications received from third parties in connection
with any claim for Indemnification Expenses; and
(ii) prepare and maintain adequate books and records
showing all receipts and disbursements of funds in connection
therewith.
(b) Seller 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.
Section 3.2. Amendments to Other Agreements. The Service Provider
agrees that it will not consent to any amendment of the Administration
Agreement, the Custodian Agreement, the Paying Agent Agreement or the
Collateral Agreement without the prior written consent of Seller.
Section 3.3. Payment to ChaseMellon Shareholder Services, L.L.C.
The Service Provider agrees that it shall pay over to ChaseMellon Shareholder
Services, L.L.C. that portion of the payments made to the Service Provider
under this Agreement that is due and payable to ChaseMellon Shareholder
Services, L.L.C. in connection with its role as Paying Agent for the Trust.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Term of Agreement. This Agreement shall continue in
effect until the completion of liquidation of the Trust in accordance with
Section 8.3(c) of the Trust Agreement.
Section 4.2. No Assumption of Liability. By executing this
Agreement, none of the Trustees assumes any personal liability under this
Agreement.
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Section 4.3. Notices.
(a) All notices and other communications provided for in this
Agreement, unless otherwise specified, shall be in writing and shall be given
at the addresses set forth in the following sentence or at such other addresses
as may be designated by notice duly given in accordance with this Section 4.3
to each other party to this Agreement. Until such notice is given, (i) notices
to Seller shall be directed to it at NYLIFE LLC, 00 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Telecopier No.________, Attention: _______; (ii) notices to the
Service Provider (for itself or for the Paying Agent) shall be directed to it
at The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Telecopier No. (000) 000-0000, Attention: Pledged Asset Control Services; and
(iii) notices to the Trust or the Trustees shall be directed to the Trustees at
000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Telecopier No. (302)
738-6680, Attention: Xxxxxx X. Xxxxxxx or the applicable Trustee.
(b) Each notice given pursuant to Section 4.3(a) shall be
effective (i) if sent by certified mail (return receipt requested), 72 hours
after being deposited in the United States mail, postage prepaid; (ii) if given
by telex or telecopier, when such telex or telecopied notice is transmitted
(with electronic confirmation of transmission or verbal confirmation of
receipt); or (iii) if given by any other means, when delivered at the address
specified in this Section 4.3.
Section 4.4. Governing Law; Severability. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
To the extent permitted by law, the unenforceability or invalidity of any
provision or provisions of this Agreement shall not render any other provision
or provisions contained in this Agreement unenforceable or invalid.
Section 4.5. Entire Agreement. Except as expressly set forth in
this Agreement, this Agreement constitutes the entire agreement among the
parties with respect to the subject matter of this Agreement and supersedes all
prior agreements, understandings and negotiations, both written and oral, among
the parties with respect to the subject matter of this Agreement.
Section 4.6. Amendments; Waivers. Any provision of this Agreement
may be amended or waived (either generally or in a particular instance and
either retrospectively or prospectively) if, and only if, such amendment or
waiver is in writing and signed, in the case of an amendment, by Seller, the
Service Provider and the Trust or, in the case of a waiver, by the party
against whom the waiver is to be effective. No failure or delay by either party
in exercising any right, power or privilege under this Agreement
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shall operate as a waiver of such right, power or privilege nor shall any
single or partial exercise of any such right, power or privilege preclude any
other or further exercise of such right, power or privilege or the exercise of
any other right, power or privilege. The rights and remedies in this Agreement
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 4.7. Non-Assignability. This Agreement and the rights and
obligations of the parties under this Agreement may not be assigned or
delegated by either party without the prior written consent of the other party,
and any purported assignment without such consent shall be void.
Section 4.8. No Third Party Rights; Successors and Assigns. This
Agreement is not intended and shall not be construed to create any rights in
any person other than Seller, the Service Provider, the Trust and their
respective successors and assigns and no person shall assert any rights as
third party beneficiary under this Agreement. Whenever any of the parties to
this Agreement is referred to, such reference shall be deemed to include the
successors and assigns of such party. All the covenants and agreements in this
Agreement contained by or on behalf of Seller, the Service Provider and the
Trust shall bind, and inure to the benefit of, their respective successors and
assigns whether so expressed or not, and shall be enforceable by and inure to
the benefit of the Service Provider and its successors and assigns.
Section 4.9. Counterparts. This Agreement may be executed,
acknowledged and delivered in any number of counterparts, each of which shall
be an original, but all of which shall constitute a single agreement, with the
same effect as if the signatures on each such counterpart were upon the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Fund Indemnity
Agreement to be duly executed and delivered as of the first date set forth
above.
NYLIFE LLC
By:
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Name:
Title:
THE SERVICE PROVIDER:
THE CHASE MANHATTAN BANK,
as Service Provider
By:
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Name:
Title:
THE TRUST:
EXPRESS SCRIPTS AUTOMATIC
EXCHANGE SECURITY TRUST
By:
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Xxxxxx X. Xxxxxxx,
as Trustee
By:
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Xxxxxxx X. Latam, III,
as Trustee
By:
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Xxxxx X. X'Xxxxx,
as Trustee
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