FUND INDEMNITY AGREEMENT
Agreement dated as of _________________, 1998 between __________ and
Peak TrENDS 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
________________, 1998 and amended and restated as of _____________________,
1998 (the "Trust Agreement"); and
WHEREAS, _______, 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
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herein shall have the meanings ascribed thereto in the Trust Agreement.
2. Agreement to Pay Expenses. ________ agrees to pay to the Trust,
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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 _______ shall be made in New
York Clearing House funds no later than five Business Days after the receipt by
________, 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,
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or cause notice to be given to, _______ 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 ________ may, and ______
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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 _______ shall determine to be
reasonable,
_______________ and such Claimant are unable to resolve amicably any
disagreement regarding such claim for Indemnification Expense, ________ 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 _______ 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). ________ 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, _______ 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
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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. _______ 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
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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
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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
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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
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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 _______ shall be furnished to Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx, Hong Kong Club Building, 13th Floor, 0X Xxxxxx Xxxx, Xxxxxxx, Xxxx
Xxxx, Xxxxxxxxx: Xxxx X. Xxxxx, Esq., provided that
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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
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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
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
12. Counterparts. This Agreement may be signed in counterparts with
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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.
___________________
By:_________________________________
Name:
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
PEAK TrENDS TRUST
By:_________________________________
Xxxxxx X. Xxxxxxx, as Managing Trustee
Address: 000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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