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EXHIBIT 2.k.(vi)
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FUND INDEMNITY AGREEMENT
Among
- [SELLER[S]],
THE CHASE MANHATTAN BANK,
for Itself and Its Affiliate
and
AMERITRADE AUTOMATIC COMMON EXCHANGE SECURITY TRUST
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Dated as of , 1999
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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............................................3
Section 3.2. Amendments to Other Agreements....................................3
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...........................................................4
Section 4.4. Governing Law; Severability.......................................4
Section 4.5. Entire Agreement..................................................5
Section 4.6. Amendments; Waivers...............................................5
Section 4.7. Non-Assignability.................................................5
Section 4.8. No Third Party Rights; Successors and Assigns.....................5
Section 4.9. Counterparts......................................................5
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FUND INDEMNITY AGREEMENT
FUND INDEMNITY AGREEMENT, dated as of , 1999, among
("Seller[S]") [REVISE AS NECESSARY], 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 Ameritrade Automatic Common 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 ,
1999 (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 , 1999 (the "Trust Agreement"); and
WHEREAS, Seller[S] desire[s] 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).
"Indemnification Expenses" has the meaning specified in
Section 2.1(a).
"Seller[S]" has the meaning specified in the preamble to this
Agreement. [REVISE AS NECESSARY]
"Service Provider" has the meaning specified in the preamble
to this Agreement.
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"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[S] agree[s] 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 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 Section 2.1(b),
Seller[S] shall pay any Indemnification Expense in Federal (immediately
available) funds no later than five Business Days after the receipt by
Seller[S], 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[S] 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, ▇▇▇▇,
invoice or other communication received from any third party claimant (a
"Claimant") in respect of such Indemnification Expense.
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(c) The Trust agrees that Seller[S] may, and Seller[S] [is] [are]
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[S]
and such Claimant are unable to resolve amicably any disagreement regarding such
claim for Indemnification Expense, Seller[S] 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[S] 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[S] 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[S] agree[s] 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]'[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.
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[S] 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 or the Collateral Agreement without the prior
written consent of Seller[S].
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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 the 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.
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[S] shall be directed to [it] [them] at [REVISE AS NECESSARY] ,
Telecopier No. ; (ii) notices to the Service Provider (for itself or for the
Paying Agent) shall be directed to it at The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
Pledged Asset Control Services; and (iii) notices to the Trust or the Trustees
shall be directed to the Trustees at [▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 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 or five days after being
deposited in the mail of another country, 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.
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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 ▇▇▇▇▇▇▇ Sachs, Seller[S],
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 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[S], 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 ▇▇▇▇▇▇▇ Sachs, Seller[S], the Service
Provider, 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 have caused this Fund Indemnity
Agreement to be duly executed and delivered as of the first date set forth
above.
AMERITRADE INTERNATIONAL LIMITED
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:
AMERITRADE AUTOMATIC COMMON
EXCHANGE SECURITY TRUST
By:
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[Name],
as Trustee
By:
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[Name],
as Trustee
By:
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[Name],
as Trustee
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