9.4.
NOTWITHSTANDING THE FOREGOING, NO ADVANCE SHALL BE MADE BY THE
SPONSOR IF A DETERMINATION IS REASONABLY AND PROMPTLY MADE (I) BY THE
ADMINISTRATORS BY A MAJORITY VOTE OF A QUORUM OF DISINTERESTED ADMINISTRATORS,
(II) IF SUCH A QUORUM IS NOT OBTAINABLE, OR, EVEN IF OBTAINABLE, IF A QUORUM OF
DISINTERESTED ADMINISTRATORS SO DIRECTS, BY INDEPENDENT LEGAL COUNSEL IN A
WRITTEN OPINION OR (III) BY THE COMMON SECURITY HOLDER OF THE TRUST, THAT, BASED
UPON THE FACTS KNOWN TO THE ADMINISTRATORS, COUNSEL OR THE COMMON SECURITY
HOLDER AT THE TIME SUCH DETERMINATION IS MADE, SUCH INDEMNIFIED PERSON ACTED IN
BAD FAITH OR IN A MANNER THAT SUCH INDEMNIFIED PERSON DID NOT BELIEVE TO BE IN
THE BEST INTERESTS OF THE TRUST, OR, WITH RESPECT TO ANY CRIMINAL PROCEEDING,
THAT SUCH INDEMNIFIED PERSON BELIEVED OR HAD REASONABLE CAUSE TO BELIEVE HIS
CONDUCT WAS UNLAWFUL.
IN NO EVENT SHALL ANY ADVANCE BE MADE IN INSTANCES WHERE
THE ADMINISTRATORS, INDEPENDENT LEGAL COUNSEL OR THE COMMON SECURITY HOLDER
REASONABLY DETERMINE THAT SUCH INDEMNIFIED PERSON DELIBERATELY BREACHED HIS DUTY
TO THE TRUST OR ITS COMMON OR CAPITAL SECURITY HOLDERS.
(F)
THE INSTITUTIONAL TRUSTEE, AT THE SOLE COST AND EXPENSE OF THE
SPONSOR, RETAINS THE RIGHT TO REPRESENTATION BY COUNSEL OF ITS OWN CHOOSING IN
ANY ACTION, SUIT OR ANY OTHER PROCEEDING FOR WHICH IT IS INDEMNIFIED UNDER
PARAGRAPHS (A) AND (B) OF THIS SECTION 9.4, WITHOUT AFFECTING ITS RIGHT TO
INDEMNIFICATION HEREUNDER OR WAIVING ANY RIGHTS AFFORDED TO IT UNDER THIS
DECLARATION OR APPLICABLE LAW.
(G)
THE INDEMNIFICATION AND ADVANCEMENT OF EXPENSES PROVIDED BY, OR
GRANTED PURSUANT TO, THE OTHER PARAGRAPHS OF THIS SECTION 9.4 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 HIS OFFICIAL CAPACITY
AND AS TO ACTION IN ANOTHER CAPACITY WHILE HOLDING SUCH OFFICE.
ALL RIGHTS TO
INDEMNIFICATION UNDER THIS SECTION 9.4 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 9.4 IS IN EFFECT.
ANY REPEAL OR
MODIFICATION OF THIS SECTION 9.4 SHALL NOT AFFECT ANY RIGHTS OR OBLIGATIONS THEN
EXISTING.
(H)
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 HIM AND INCURRED BY HIM IN ANY SUCH CAPACITY, OR ARISING OUT OF
HIS STATUS AS SUCH, WHETHER OR NOT THE SPONSOR WOULD HAVE THE POWER TO INDEMNIFY
HIM AGAINST SUCH LIABILITY UNDER THE PROVISIONS OF THIS SECTION 9.4.
(I)
FOR PURPOSES OF THIS SECTION 9.4, 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,