SUCH
INDEMNIFIED PERSON BY REASON OF NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH WITH
RESPECT TO SUCH ACTS OR OMISSIONS.
(C)
THE INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES PROVIDED BY, OR GRANTED PURSUANT TO, THE OTHER PARAGRAPHS OF THIS
SECTION SHALL NOT BE DEEMED EXCLUSIVE OF ANY OTHER RIGHTS TO WHICH THOSE SEEKING
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES MAY BE ENTITLED UNDER ANY AGREEMENT,
VOTE OF STOCKHOLDERS OR DISINTERESTED DIRECTORS OF THE SPONSOR OR CAPITAL
SECURITY HOLDERS OF THE TRUST OR OTHERWISE, BOTH AS TO ACTION IN SUCH PERSON'S
OFFICIAL CAPACITY AND AS TO ACTION IN ANOTHER CAPACITY WHILE HOLDING SUCH
OFFICE.
ALL RIGHTS TO INDEMNIFICATION UNDER THIS SECTION SHALL BE DEEMED TO BE
PROVIDED BY A CONTRACT BETWEEN THE SPONSOR AND EACH INDEMNIFIED PERSON WHO
SERVES IN SUCH CAPACITY AT ANY TIME WHILE THIS SECTION IS IN EFFECT.
ANY REPEAL
OR MODIFICATION OF THIS SECTION SHALL NOT AFFECT ANY RIGHTS OR OBLIGATIONS THEN
EXISTING.
(D)
THE SPONSOR OR THE TRUST MAY PURCHASE AND
MAINTAIN INSURANCE ON BEHALF OF ANY PERSON WHO IS OR WAS AN INDEMNIFIED PERSON
AGAINST ANY LIABILITY ASSERTED AGAINST SUCH PERSON AND INCURRED BY SUCH PERSON
IN ANY SUCH CAPACITY, OR ARISING OUT OF SUCH PERSON'S STATUS AS SUCH, WHETHER OR
NOT THE SPONSOR WOULD HAVE THE POWER TO INDEMNIFY SUCH PERSON AGAINST SUCH
LIABILITY UNDER THE PROVISIONS OF THIS SECTION.
(E)
FOR PURPOSES OF THIS SECTION, REFERENCES TO
"THE TRUST" SHALL INCLUDE, IN ADDITION TO THE RESULTING OR SURVIVING ENTITY, ANY
CONSTITUENT ENTITY (INCLUDING ANY CONSTITUENT OF A CONSTITUENT) ABSORBED IN A
CONSOLIDATION OR MERGER, SO THAT ANY PERSON WHO IS OR WAS A DIRECTOR, TRUSTEE,
OFFICER OR EMPLOYEE OF SUCH CONSTITUENT ENTITY, OR IS OR WAS SERVING AT THE
REQUEST OF SUCH CONSTITUENT ENTITY AS A DIRECTOR, TRUSTEE, OFFICER, EMPLOYEE OR
AGENT OF ANOTHER ENTITY, SHALL STAND IN THE SAME POSITION UNDER THE PROVISIONS
OF THIS SECTION WITH RESPECT TO THE RESULTING OR SURVIVING ENTITY AS SUCH PERSON
WOULD HAVE WITH RESPECT TO SUCH CONSTITUENT ENTITY IF ITS SEPARATE EXISTENCE HAD
CONTINUED.
(F)
THE INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES PROVIDED BY, OR GRANTED PURSUANT TO, THIS SECTION SHALL, UNLESS
OTHERWISE PROVIDED WHEN AUTHORIZED OR RATIFIED, CONTINUE AS TO A PERSON WHO HAS
CEASED TO BE AN INDEMNIFIED PERSON AND SHALL INURE TO THE BENEFIT OF THE HEIRS,
EXECUTORS AND ADMINISTRATORS OF SUCH A PERSON.
(G)
THE PROVISIONS OF THIS SECTION SHALL SURVIVE
THE TERMINATION OF THIS DECLARATION OR THE EARLIER RESIGNATION OR REMOVAL OF THE
INSTITUTIONAL TRUSTEE.
THE OBLIGATIONS OF THE SPONSOR UNDER THIS SECTION TO
COMPENSATE AND INDEMNIFY THE TRUSTEES AND TO PAY OR REIMBURSE THE TRUSTEES FOR
EXPENSES, DISBURSEMENTS AND ADVANCES SHALL CONSTITUTE ADDITIONAL INDEBTEDNESS
HEREUNDER.
SUCH ADDITIONAL INDEBTEDNESS SHALL BE SECURED BY A LIEN PRIOR TO
THAT OF
44
THE SECURITIES UPON ALL PROPERTY AND FUNDS HELD OR COLLECTED BY THE TRUSTEES AS
SUCH, EXCEPT FUNDS HELD IN TRUST FOR THE BENEFIT OF THE HOLDERS OF PARTICULAR
CAPITAL SECURITIES, PROVIDED, THAT THE SPONSOR IS THE HOLDER OF THE COMMON
SECURITIES.
SECTION 9.5.