Exhibit (K)(6)
[FORM OF FUND INDEMNITY AGREEMENT]
Agreement dated as of November [ ], 1999 between Xxxxxxx Xxxxx
Xxxxxx Inc. ("XXXXXXX XXXXX BARNEY") and DECS Trust VI (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 October 22, 1999, as amended and restated as of November 9,
1999 (the "TRUST AGREEMENT"); and
WHEREAS, Xxxxxxx 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. Xxxxxxx Xxxxx Barney 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 Xxxxxxx Xxxxx Xxxxxx shall
be made in New York Clearing House funds no later than five Business Days after
the receipt by Xxxxxxx Xxxxx Barney, 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, Xxxxxxx 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 Xxxxxxx Xxxxx
Xxxxxx may, and Xxxxxxx Xxxxx Barney 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 Xxxxxxx
Xxxxx Xxxxxx shall determine to be reasonable, Xxxxxxx Xxxxx Barney and such
Claimant are unable to resolve amicably any disagreement regarding such claim
for Indemnification Expense, Xxxxxxx 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) Xxxxxxx Xxxxx Barney 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 (b) Xxxxxxx 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, Xxxxxxx Xxxxx Barney
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. Xxxxxxx 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 Xxxxxxx Xxxxx Barney 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.
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.
XXXXXXX XXXXX XXXXXX INC.
By:
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
DECS TRUST VI
By:
Xxxxxx X. Xxxxxxx,
as Managing Trustee
Address: c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx,
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
