EXHIBIT K(6)
FUND INDEMNITY AGREEMENT
Agreement, dated as of September , 1997, among D.M.S. Endowment, LLC,
Xxxxxx Partners, LLC, X.X. Xxxxxxx, LLC and USN College Marketing, L.P. (each, a
"Contracting Stockholder" and, collectively, the "Contracting Stockholders"),
Xxxxxxx Xxxxx & Co., Inc. ("Xxxxxxx Xxxxx") and Xxxxxx 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 business trust organized pursuant to the Business
Trust Act of the State of Delaware (Chapter 38, Title 12, of the Delaware Code,
12 Del.C. (Sections 3801 et seq.)), under and by virtue of an Amended and
Restated Trust Agreement dated as of September , 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 (as defined herein), 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.
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
dissolution 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 directed as follows
(or to such other address for a particular party as shall be specified by such
party in a like notice given pursuant to this Section 9):
2
The Trust: Xxxxxx STRYPES Trust
c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxx: Xxxxxxx Xxxxx & Co., Inc.
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
The Contracting Stockholders: D.M.S. Endowment, LLC
[address]
Telecopier: ( )
Attention:
Xxxxxx Partners, LLC
[address]
Telecopier: ( )
Attention:
X.X. Xxxxxxx, LLC
[address]
Telecopier: ( )
Attention:
USN College Marketing, L.P.
[address]
Telecopier: ( )
Attention:
A copy of any communication to Xxxxxxx Xxxxx shall be furnished to Xxxxxxx Xxxxx
& Co., Inc., World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
telecopier (000) 000-0000, Attention: Associate General Counsel, provided that
the failure to furnish
3
such copy shall not affect the effectiveness of any such communication. Except
as otherwise specifically provided herein, all notices and other communications
provided for hereunder shall be in writing and shall be deemed to have been duly
given if either (i) personally delivered (including delivery by courier service
or by Federal Express or any other nationally recognized overnight delivery
service for next day delivery) to the offices set forth above, in which case
they shall be deemed received on the first Business Day by which delivery shall
have been made to said offices, (ii) transmitted by any standard form of
telecommunication to the offices set forth above, in which case they shall be
deemed received on the first Business Day by which a standard confirmation that
such transmission occurred is received by the transmitting party (unless such
confirmation states that such transmission occurred after 5:00 P.M. on such
first Business Day, in which case delivery shall be deemed to have been received
on the immediately succeeding Business Day), or (iii) sent by certified mail,
return receipt requested to the offices set forth above, in which case they
shall be deemed received when receipted for unless acknowledgment of receipt is
refused (in which case delivery shall be deemed to have been received on the
first Business Day on which such acknowledgment is refused).
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.
4
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.
By______________________________________
Name:
Title:
XXXXXX STRYPES TRUST
________________________________________
Xxxxxx X. Xxxxxxx, as Managing Trustee
D.M.S. ENDOWMENT, LLC
By______________________________________
Name:
Title:
XXXXXX PARTNERS, LLC
By______________________________________
Name:
Title:
X.X. XXXXXXX, LLC
By______________________________________
Name:
Title:
USN COLLEGE MARKETING, L.P.
By______________________________________
Name:
Title:
5
