Exhibit 2.k.(vi)
S&C Draft of February 16, 1999
FUND INDEMNITY AGREEMENT
FUND INDEMNITY AGREEMENT, dated as of February 17, 1999,
between The ▇▇▇▇▇ ▇▇▇▇▇▇ 1994 Trust, a trust organized under the laws of the
State of New York (the "Selling Stockholder"), and ▇▇▇▇▇ ▇▇▇▇▇▇ Automatic Common
Exchange Security Trust II, 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
February 17, 1999 (the "Trust Agreement") (such trust and the trustees thereof
acting in their capacity as such being referred to herein as the "Trust").
WHEREAS, the Selling Stockholder 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. The Selling Stockholder 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, "Indemnification Expenses").
Subject to paragraph 4 hereof, payment hereunder by the Selling Stockholder
shall be made in New York Clearing House funds no later than five Business Days
after the receipt by the Selling Stockholder, 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, or cause notice to be given to, the Selling Stockholder 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, ▇▇▇▇, 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 the Selling
Stockholder may, and the Selling Stockholder 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 the Selling Stockholder shall determine to be reasonable,
the Selling Stockholder and such Claimant are unable to resolve amicably any
disagreement regarding such claim for Indemnification Expense, the Selling
Stockholder 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
the Selling Stockholder 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). The Selling Stockholder 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, the Selling Stockholder 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 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. The Selling 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 termination of the Trust in accordance with Section 8.3 of the Trust
Agreement.
-2-
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. 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.
11. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
12. Governing Law. This Agreement shall be governed by and be
construed in accordance with the laws of the State of New York.
13. Counterparts. This Agreement may be signed in counterparts
with all of such counterparts constituting one and the same instrument.
-3-
IN WITNESS WHEREOF, the parties have caused this Fund
Indemnity Agreement to be executed by their authorized representatives the date
first above written.
THE ▇▇▇▇▇ ▇▇▇▇▇▇ 1994 TRUST
By _________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
as Attorney-in-Fact
▇▇▇▇▇ ▇▇▇▇▇▇ AUTOMATIC COMMON
EXCHANGE SECURITY TRUST II
____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III,
as Trustee
Address: Department of Economics
University of Delaware
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇,
as Trustee
Address: Center for Economic
Education and
Entrepreneurship
University of Delaware
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Trustee
Address: Department of Finance
University of Delaware
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-4-
