Common use of Indemnification of the Distributor Clause in Contracts

Indemnification of the Distributor. The Trust shall prepare and furnish to the Distributor from time to time such number of copies of the most recent form of the Prospectus and reports filed with the Securities and Exchange Commission and other communications to existing shareholders as the Distributor may reasonably request. The Trust authorizes the Distributor to use the Prospectus, in the form furnished to the Distributor from time to time, in connection with the sale of shares. The Trust shall indemnify, defend and hold harmless the Distributor, its officers and trustees and any person who controls the Distributor within the meaning of the 1933 Act, from and against any and all claims, demands, liabilities and expenses (including the cost of investigating or defending such claims, demands or liabilities and any reasonable counsel fees incurred in connection therewith) which the Distributor, its officers and trustees or any such controlling person may incur under the 1933 Act, the 1940 Act, the common law or otherwise, arising out of or based upon: (a) any alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or arising out of or based upon any alleged omission to state a material fact required to be stated in either or necessary to make the statements in either not misleading, and (b) any untrue statement or omission of a material fact in any advertising or promotional material or sales literature regarding one or more Funds furnished to an Authorized Participant by the Trust. This Contract shall not be construed to protect the Distributor against any liability to the Trust or its shareholders to which the Distributor would otherwise be subject by reason of the Distributor’s fraud, bad faith, gross negligence, or reckless or willful misconduct. This indemnity agreement is expressly conditioned upon the Trust being notified of any action brought against the Distributor, its officers or directors or any such controlling person, which notification shall be given by letter or by telegram addressed to the Trust at its principal office in Newport Beach, California, and sent to the Trust by the person against whom such action is brought within 10 days after the summons or other first legal process shall have been served. The failure to notify the Trust of any such action shall not relieve the Trust from any liability which it may have to the person against whom such action is brought by reason of any such alleged untrue statement or omission otherwise than on account of the indemnity agreement contained in this Section 15. The Trust shall be entitled to assume the defense of any suit brought to enforce any such claim, demand or liability, but, in such case, the defense shall be conducted by counsel chosen by the Trust and approved by the Distributor. If the Trust elects to assume the defense of any such suit and retain counsel approved by the Distributor, the defendant or defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them, but in the case the Trust does not elect to assume the defense of any such suit, or in the case the Distributor reasonably does not approve of counsel chosen by the Trust, the Trust will reimburse the Distributor, its officers and directors or the controlling person or persons named as defendant or defendants in such suit, for the reasonable fees and expenses of any counsel retained by the Distributor or them. In addition, the Distributor shall have the right to employ counsel to represent it, its officers and directors and any such controlling person who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Distributor against the Trust hereunder if in the reasonable judgment of the Distributor it is advisable for the Distributor, its officers and directors or such controlling person to be represented by separate counsel, in which event the fees and expenses of such separate counsel shall be borne by the Trust. This indemnity agreement and the Trust’s representations and warranties in this Contract shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Distributor, its officers and directors or any such controlling person. This indemnity agreement shall inure exclusively to the benefit of the Distributor and its successors, the Distributor’s officers and directors and their respective estates and any such controlling persons and their successors and estates. The Trust shall promptly notify the Distributor of the commencement of any litigation or proceedings against it in connection with the issue and sale of any shares. No indemnified party shall settle any claim against it for which it intends to seek indemnification from the indemnifying party, under the terms of this Section 15, without the prior written notice to and consent from the indemnifying party, which consent shall not be unreasonably withheld. No indemnified or indemnifying party shall settle any claim unless the settlement contains a full release of liability with respect to the other party in respect of such action. This Section 15 shall survive the termination of this Contract.

Indemnification of the Distributor. The Trust shall prepare Fund agrees to ---------------------------------- indemnify and furnish hold harmless the Distributor and each of its present or former directors, officers, employees, representatives and each person, if any, who controls or previously controlled the Distributor within the meaning of Section 15 of the 1933 Act against any and all losses, liabilities, damages, claims or expenses (including the reasonable costs of investigating or defending any alleged loss, liability, damage, claim or expense and reasonable legal counsel fees incurred in connection therewith) to which the Distributor or any such person may become subject under the 1933 Act, under any other statute, at common law, or otherwise, arising out of the acquisition of any Shares by any person which (i) may be based upon any wrongful act by the Fund or any of the Fund's Directors, officers, employees or representatives (including, without limiting the foregoing, any wrongful or unauthorized sales activities of the Fund, as defined under the By-Laws of the NASD, including any failure to conform with any requirement of any state or federal law relating to the Distributor from time to time such number sale of copies Shares), or (ii) may be based upon any untrue statement or alleged untrue statement of the most recent form of the Prospectus and reports filed with the Securities and Exchange Commission and other communications to existing shareholders as the Distributor may reasonably request. The Trust authorizes the Distributor to use the a material fact contained in a Registration Statement, Prospectus, shareholder report or other information covering Shares filed or made public by the Fund or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading unless such statement or omission was made in the form reliance upon and in conformity with information furnished to the Distributor from time to time, in connection with Fund by the sale of sharesDistributor. The Trust Fund shall indemnify, defend also indemnify and hold harmless the Distributor, its officers and trustees directors and control persons from any person who controls liability to the Distributor within Fund or to the meaning holders of Shares by reason of the 1933 ActFund's willful misfeasance, from bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and against any and all claims, demands, liabilities and expenses duties under this Agreement. In no case (including i) is the cost Fund's indemnity in favor of investigating or defending such claims, demands or liabilities and any reasonable counsel fees incurred in connection therewith) which the Distributor, its officers and trustees or any such controlling person may incur under the 1933 Act, the 1940 Act, the common law or otherwise, arising out of or based upon: (a) any alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or arising out of or based upon any alleged omission to state a material fact required indemnified to be stated in either or necessary to make the statements in either not misleading, and (b) any untrue statement or omission of a material fact in any advertising or promotional material or sales literature regarding one or more Funds furnished to an Authorized Participant by the Trust. This Contract shall not be construed deemed to protect the Distributor or such indemnified person against any liability to the Trust or its shareholders to which the Distributor or such person would otherwise be subject by reason of the Distributor’s fraudwillful misfeasance, bad faith, or gross negligencenegligence in the performance of such person's duties or by reason of reckless disregard of such person's obligations and duties under this Agreement or (ii) is the Fund to be liable under their indemnity agreement contained in this Paragraph with respect to any claim made against Distributor, or reckless or willful misconduct. This indemnity agreement is expressly conditioned upon the Trust being notified of any action brought against person indemnified unless the Distributor, its officers or directors such person, as the case may be, shall have notified the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Distributor or upon such person (or after the Distributor or such person shall have received notice of such service on any designated agent). However, failure to notify the Fund of any such claim shall not relieve the Fund from any liability which the Fund may have to the Distributor or any such controlling person, which notification shall be given by letter or by telegram addressed to the Trust at its principal office in Newport Beach, California, and sent to the Trust by the person against whom such action is brought within 10 days after the summons or other first legal process shall have been served. The failure to notify the Trust of any such action shall not relieve the Trust from any liability which it may have to the person against whom such action is brought by reason of any such alleged untrue statement or omission otherwise than on account of the Fund's indemnity agreement contained in this Section 15Paragraph. The Trust Fund shall be entitled to participate, at its own expense, in the defense, or, if the Fund so elects, to assume the defense of any suit brought to enforce any such claim, demand or liabilitybut if the Fund elects to assume the defense, but, in such case, the defense shall be conducted by legal counsel chosen by the Trust Fund and approved by satisfactory to the DistributorDistributor and to the persons indemnified as defendant or defendants, in the suit. If In the Trust event that the Fund elects to assume the defense of any such suit and retain counsel approved by such legal counsel, the Distributor, the persons indemnified as defendant or defendants in such suit the suit, shall bear the fees and expenses of any additional legal counsel retained by any of them, but in . If the case the Trust Fund does not elect to assume the defense of any such suit, or in the case the Distributor reasonably does not approve of counsel chosen by the Trust, the Trust Fund will reimburse the Distributor, its officers Distributor and directors or the controlling person or persons named indemnified as defendant or defendants in such suit, suit for the reasonable fees and expenses of any legal counsel retained by them and will provide advances for payment of the Distributor reasonable expenses incurred by them in connection with the matters as to which it or them. In addition, the Distributor shall have the right to employ counsel to represent it, its officers and directors and any such controlling person who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Distributor against the Trust hereunder if they are seeking indemnification in the reasonable judgment of the Distributor it is advisable for the Distributor, its officers matter and directors or such controlling person to be represented by separate counsel, in which event the fees and expenses of such separate counsel shall be borne by the Trust. This indemnity agreement and the Trust’s representations and warranties in this Contract shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Distributor, its officers and directors or any such controlling person. This indemnity agreement shall inure exclusively to the benefit of the Distributor and its successors, the Distributor’s officers and directors and their respective estates and any such controlling persons and their successors and estatesfullest extent permissible by law. The Trust shall Fund agrees to promptly notify the Distributor of the commencement of any litigation or proceedings against it or any of its Directors, officers, employees or representatives in connection with the issue and or sale of any shares. No indemnified party shall settle any claim against it for which it intends to seek indemnification from the indemnifying party, under the terms of this Section 15, without the prior written notice to and consent from the indemnifying party, which consent shall not be unreasonably withheld. No indemnified or indemnifying party shall settle any claim unless the settlement contains a full release of liability with respect to the other party in respect of such action. This Section 15 shall survive the termination of this ContractShares.

Indemnification of the Distributor. The Trust shall prepare Fund agrees to indemnify and furnish hold harmless the Distributor and each of its present or former directors, officers, employees, representatives and each person, if any, who controls or previously controlled the Distributor within the meaning of Section 15 of the 1933 Act against any and all losses, liabilities, damages, claims or expenses (including the reasonable costs of investigating or defending any alleged loss, liability, damage, claim or expense and reasonable legal counsel fees incurred in connection therewith) to which the Distributor or any such person may become subject under the 1933 Act, under any other statute, at common law, or otherwise, arising out of the acquisition of any Shares by any person which (i) may be based upon any wrongful act by the Fund or any of the Fund's Directors, officers, employees or representatives (including, without limiting the foregoing, any wrongful or unauthorized sales activities of the Fund, as defined under the By-Laws of the NASD, including any failure to conform with any requirement of any state or federal law relating to the Distributor from time to time such number sale of copies Shares), or (ii) may be based upon any untrue statement or alleged untrue statement of the most recent form of the Prospectus and reports filed with the Securities and Exchange Commission and other communications to existing shareholders as the Distributor may reasonably request. The Trust authorizes the Distributor to use the a material fact contained in a Registration Statement, Prospectus, shareholder report or other information covering Shares filed or made public by the Fund or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading unless such statement or omission was made in the form reliance upon and in conformity with information furnished to the Distributor from time to time, in connection with Fund by the sale of sharesDistributor. The Trust Fund shall indemnify, defend also indemnify and hold harmless the Distributor, its officers and trustees directors and control persons from any person who controls liability to the Distributor within Fund or to the meaning holders of Shares by reason of the 1933 ActFund's willful misfeasance, from bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and against any and all claims, demands, liabilities and expenses duties under this Agreement. In no case (including i) is the cost Fund's indemnity in favor of investigating or defending such claims, demands or liabilities and any reasonable counsel fees incurred in connection therewith) which the Distributor, its officers and trustees or any such controlling person may incur under the 1933 Act, the 1940 Act, the common law or otherwise, arising out of or based upon: (a) any alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or arising out of or based upon any alleged omission to state a material fact required indemnified to be stated in either or necessary to make the statements in either not misleading, and (b) any untrue statement or omission of a material fact in any advertising or promotional material or sales literature regarding one or more Funds furnished to an Authorized Participant by the Trust. This Contract shall not be construed deemed to protect the Distributor or such indemnified person against any liability to the Trust or its shareholders to which the Distributor or such person would otherwise be subject by reason of the Distributor’s fraudwillful misfeasance, bad faith, or gross negligencenegligence in the performance of such person's duties or by reason of reckless disregard of such person's obligations and duties under this Agreement or (ii) is the Fund to be liable under their indemnity agreement contained in this Paragraph with respect to any claim made against Distributor, or reckless or willful misconduct. This indemnity agreement is expressly conditioned upon the Trust being notified of any action brought against person indemnified unless the Distributor, its officers or directors such person, as the case may be, shall have notified the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Distributor or upon such person (or after the Distributor or such person shall have received notice of such service on any designated agent). However, failure to notify the Fund of any such claim shall not relieve the Fund from any liability which the Fund may have to the Distributor or any such controlling person, which notification shall be given by letter or by telegram addressed to the Trust at its principal office in Newport Beach, California, and sent to the Trust by the person against whom such action is brought within 10 days after the summons or other first legal process shall have been served. The failure to notify the Trust of any such action shall not relieve the Trust from any liability which it may have to the person against whom such action is brought by reason of any such alleged untrue statement or omission otherwise than on account of the Fund's indemnity agreement contained in this Section 15Paragraph. The Trust Fund shall be entitled to participate, at its own expense, in the defense, or, if the Fund so elects, to assume the defense of any suit brought to enforce any such claim, demand or liabilitybut if the Fund elects to assume the defense, but, in such case, the defense shall be conducted by legal counsel chosen by the Trust Fund and approved by satisfactory to the DistributorDistributor and to the persons indemnified as defendant or defendants, in the suit. If In the Trust event that the Fund elects to assume the defense of any such suit and retain counsel approved by such legal counsel, the Distributor, the persons indemnified as defendant or defendants in such suit the suit, shall bear the fees and expenses of any additional legal counsel retained by any of them, but in . If the case the Trust Fund does not elect to assume the defense of any such suit, or in the case the Distributor reasonably does not approve of counsel chosen by the Trustsuit , the Trust Fund will reimburse the Distributor, its officers Distributor and directors or the controlling person or persons named indemnified as defendant or defendants in such suit, suit for the reasonable fees and expenses of any legal counsel retained by them and will provide advances for payment of the Distributor reasonable expenses incurred by them in connection with the matters as to which it or them. In addition, the Distributor shall have the right to employ counsel to represent it, its officers and directors and any such controlling person who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Distributor against the Trust hereunder if they are seeking indemnification in the reasonable judgment of the Distributor it is advisable for the Distributor, its officers matter and directors or such controlling person to be represented by separate counsel, in which event the fees and expenses of such separate counsel shall be borne by the Trust. This indemnity agreement and the Trust’s representations and warranties in this Contract shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Distributor, its officers and directors or any such controlling person. This indemnity agreement shall inure exclusively to the benefit of the Distributor and its successors, the Distributor’s officers and directors and their respective estates and any such controlling persons and their successors and estatesfullest extent permissible by law. The Trust shall Fund agrees to promptly notify the Distributor of the commencement of any litigation or proceedings against it or any of its Directors, officers, employees or representatives in connection with the issue and or sale of any shares. No indemnified party shall settle any claim against it for which it intends to seek indemnification from the indemnifying party, under the terms of this Section 15, without the prior written notice to and consent from the indemnifying party, which consent shall not be unreasonably withheld. No indemnified or indemnifying party shall settle any claim unless the settlement contains a full release of liability with respect to the other party in respect of such action. This Section 15 shall survive the termination of this ContractShares.

Indemnification of the Distributor. The Trust shall prepare Fund agrees to indemnify and furnish hold harmless the Distributor and each of its present or former directors, officers, employees, representatives and each person, if any, who controls or previously controlled the Distributor within the meaning of Section 15 of the 1933 Act against any and all losses, liabilities, damages, claims or expenses (including the reasonable costs of investigating or defending any alleged loss, liability, damage, claim or expense and reasonable legal counsel fees incurred in connection therewith) to which the Distributor or any such person may become subject under the 1933 Act, under any other statute, at common law, or otherwise, arising out of the acquisition of any Shares by any person which (i) may be based upon any wrongful act by the Fund or any of the Fund's Directors, officers, employees or representatives (including, without limiting the foregoing, any wrongful or unauthorized sales activities of the Fund, as defined under the By-Laws of the NASD, including any failure to conform with any requirement of any state or federal law relating to the Distributor from time to time such number sale of copies Shares), or (ii) may be based upon any untrue statement or alleged untrue statement of the most recent form of the Prospectus and reports filed with the Securities and Exchange Commission and other communications to existing shareholders as the Distributor may reasonably request. The Trust authorizes the Distributor to use the a material fact contained in a Registration Statement, Prospectus, shareholder report or other information covering Shares filed or made public by the Fund or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading unless such statement or omission was made in the form reliance upon and in conformity with information furnished to the Distributor from time to time, in connection with Fund by the sale of sharesDistributor. The Trust Fund shall indemnify, defend also indemnify and hold harmless the Distributor, its officers and trustees directors and control persons from any person who controls liability to the Distributor within Fund or to the meaning holders of Shares by reason of the 1933 ActFund's willful misfeasance, from bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and against any and all claims, demands, liabilities and expenses duties under this Agreement. In no case (including i) is the cost Fund's indemnity in favor of investigating or defending such claims, demands or liabilities and any reasonable counsel fees incurred in connection therewith) which the Distributor, its officers and trustees or any such controlling person may incur under the 1933 Act, the 1940 Act, the common law or otherwise, arising out of or based upon: (a) any alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or arising out of or based upon any alleged omission to state a material fact required indemnified to be stated in either or necessary to make the statements in either not misleading, and (b) any untrue statement or omission of a material fact in any advertising or promotional material or sales literature regarding one or more Funds furnished to an Authorized Participant by the Trust. This Contract shall not be construed deemed to protect the Distributor or such indemnified person against any liability to the Trust or its shareholders to which the Distributor or such person would otherwise be subject by reason of the Distributor’s fraudwillful misfeasance, bad faith, or gross negligencenegligence in the performance of such person's duties or by reason of reckless disregard of such person's obligations and duties under this Agreement or (ii) is the Fund to be liable under their indemnity agreement contained in this Paragraph with respect to any claim made against Distributor, or reckless or willful misconduct. This indemnity agreement is expressly conditioned upon the Trust being notified of any action brought against person indemnified unless the Distributor, its officers or directors such person, as the case may be, shall have notified the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Distributor or upon such person (or after the Distributor or such person shall have received notice of such service on any designated agent). However, failure to notify the Fund of any such claim shall not relieve the Fund from any liability which the Fund may have to the Distributor or any such controlling person, which notification shall be given by letter or by telegram addressed to the Trust at its principal office in Newport Beach, California, and sent to the Trust by the person against whom such action is brought within 10 days after the summons or other first legal process shall have been served. The failure to notify the Trust of any such action shall not relieve the Trust from any liability which it may have to the person against whom such action is brought by reason of any such alleged untrue statement or omission otherwise than on account of o f the Fund's indemnity agreement contained in this Section 15Paragraph. The Trust Fund shall be entitled to participate, at its own expense, in the defense, or, if the Fund so elects, to assume the defense of any suit brought to enforce any such claim, demand or liabilitybut if the Fund elects to assume the defense, but, in such case, the defense shall be conducted by legal counsel chosen by the Trust Fund and approved by satisfactory to the DistributorDistributor and to the persons indemnified as defendant or defendants, in the suit. If In the Trust event that the Fund elects to assume the defense of any such suit and retain counsel approved by such legal counsel, the Distributor, the persons indemnified as defendant or defendants in such suit the suit, shall bear the fees and expenses of any additional legal counsel retained by any of them, but in . If the case the Trust Fund does not elect to assume the defense of any such suit, or in the case the Distributor reasonably does not approve of counsel chosen by the Trustsuit , the Trust Fund will reimburse the Distributor, its officers Distributor and directors or the controlling person or persons named indemnified as defendant or defendants in such suit, suit for the reasonable fees and expenses of any legal counsel retained by them and will provide advances for payment of the Distributor reasonable expenses incurred by them in connection with the matters as to which it or them. In addition, the Distributor shall have the right to employ counsel to represent it, its officers and directors and any such controlling person who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Distributor against the Trust hereunder if they are seeking indemnification in the reasonable judgment of the Distributor it is advisable for the Distributor, its officers matter and directors or such controlling person to be represented by separate counsel, in which event the fees and expenses of such separate counsel shall be borne by the Trust. This indemnity agreement and the Trust’s representations and warranties in this Contract shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Distributor, its officers and directors or any such controlling person. This indemnity agreement shall inure exclusively to the benefit of the Distributor and its successors, the Distributor’s officers and directors and their respective estates and any such controlling persons and their successors and estatesfullest extent permissible by law. The Trust shall Fund agrees to promptly notify the Distributor of the commencement of any litigation or proceedings against it or any of its Directors, officers, employees or representatives in connection with the issue and or sale of any shares. No indemnified party shall settle any claim against it for which it intends to seek indemnification from the indemnifying party, under the terms of this Section 15, without the prior written notice to and consent from the indemnifying party, which consent shall not be unreasonably withheld. No indemnified or indemnifying party shall settle any claim unless the settlement contains a full release of liability with respect to the other party in respect of such action. This Section 15 shall survive the termination of this ContractShares.

Indemnification of the Distributor. The Trust shall prepare and furnish to the Distributor from time to time such number of copies of the most recent form of the Prospectus and reports filed with the Securities and Exchange Commission and Product Descriptions (if required or permitted by applicable law) and other communications to existing shareholders as the Distributor may reasonably request. The Trust authorizes the Distributor to use the Prospectus, in the form furnished to the Distributor from time to time, in connection with the sale of shares. The Trust shall indemnify, defend and hold harmless the Distributor, its officers and trustees and any person who controls the Distributor within the meaning of the 1933 Act, from and against any and all claims, demands, liabilities and expenses (including the cost of investigating or defending such claims, demands or liabilities and any reasonable counsel fees incurred in connection therewith) which the Distributor, its officers and trustees or any such controlling person may incur under the 1933 Act, the 1940 Act, the common law or otherwise, arising out of or based upon: (a) upon any alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or arising out of or based upon any alleged omission to state a material fact required to be stated in either or necessary to make the statements in either not misleading, and (b) any untrue statement or omission of a material fact in any advertising or promotional material or sales literature regarding one or more Funds furnished to an Authorized Participant by the Trust. This Contract shall not be construed to protect the Distributor against any liability to the Trust or its shareholders to which the Distributor would otherwise be subject by reason of the Distributor’s fraudwillful misfeasance, bad faith, faith or gross negligence, negligence in the performance of its duties or by reason of its reckless or willful misconductdisregard of its obligations and duties under this Contract. This indemnity agreement is expressly conditioned upon the Trust being notified of any action brought against the Distributor, its officers or directors or any such controlling person, which notification shall be given by letter or by telegram addressed to the Trust at its principal office in Newport Beach, California, and sent to the Trust by the person against whom such action is brought within 10 days after the summons or other first legal process shall have been served. The failure to notify the Trust of any such action shall not relieve the Trust from any liability which it may have to the person against whom such action is brought by reason of any such alleged untrue statement or omission otherwise than on account of the indemnity agreement contained in this Section 1516. The Trust shall be entitled to assume the defense of any suit brought to enforce any such claim, demand or liability, but, in such case, the defense shall be conducted by counsel chosen by the Trust and approved by the Distributor. If the Trust elects to assume the defense of any such suit and retain counsel approved by the Distributor, the defendant or defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them, but in the case the Trust does not elect to assume the defense of any such suit, or in the case the Distributor reasonably does not approve of counsel chosen by the Trust, the Trust will reimburse the Distributor, its officers and directors or the controlling person or persons named as defendant or defendants in such suit, for the reasonable fees and expenses of any counsel retained by the Distributor or them. In addition, the Distributor shall have the right to employ counsel to represent it, its officers and directors and any such controlling person who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Distributor against the Trust hereunder if in the reasonable judgment of the Distributor it is advisable for the Distributor, its officers and directors or such controlling person to be represented by separate counsel, in which event the fees and expenses of such separate counsel shall be borne by the Trust. This indemnity agreement and the Trust’s representations and warranties in this Contract shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Distributor, its officers and directors or any such controlling person. This indemnity agreement shall inure exclusively to the benefit of the Distributor and its successors, the Distributor’s officers and directors and their respective estates and any such controlling persons and their successors and estates. The Trust shall promptly notify the Distributor of the commencement of any litigation or proceedings against it in connection with the issue and sale of any shares. No indemnified party shall settle any claim against it for which it intends to seek indemnification from the indemnifying party, under the terms of this Section 1516, without the prior written notice to and consent from the indemnifying party, which consent shall not be unreasonably withheld. No indemnified or indemnifying party shall settle any claim unless the settlement contains a full release of liability with respect to the other party in respect of such action. This Section 15 16 shall survive the termination of this Contract.

Indemnification of the Distributor. The Trust shall prepare and furnish to the Distributor from time to time such number of copies of the most recent form of the Prospectus and reports filed with the Securities and Exchange Commission and other communications to existing shareholders as the Distributor may reasonably request. The Trust authorizes the Distributor to use the Prospectus, in the form furnished to the Distributor from time to time, in connection with the sale of shares. The Trust shall indemnify, defend and hold harmless the Distributor, its officers and trustees and any person who controls the Distributor within the meaning of the 1933 Act, from and against any and all claims, demands, liabilities and expenses (including the cost of investigating or defending such claims, demands or liabilities and any reasonable counsel fees incurred in connection therewith) which the Distributor, its officers and trustees or any such controlling person may incur under the 1933 Act, the 1940 Act, the common law or otherwise, arising out of or based upon: (a) any alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or arising out of or based upon any alleged omission to state a material fact required to be stated in either or necessary to make the statements in either not misleading, and (b) any untrue statement or omission of a material fact in any advertising or promotional material or sales literature regarding one or more Funds furnished to an Authorized Participant by the Trust. This Contract shall not be construed to protect the Distributor against any liability to the Trust or its shareholders to which the Distributor would otherwise be subject by reason of the Distributor’s fraud, bad faith, gross negligence, or reckless or willful misconduct. This indemnity agreement is expressly conditioned upon the Trust being notified of any action brought against the Distributor, its officers or directors or any such controlling person, which notification shall be given by letter or by telegram addressed to the Trust at its principal office in Newport Beach, California, and sent to the Trust by the person against whom such action is brought within 10 days after the summons or other first legal process shall have been served. The failure to notify the Trust of any such action shall not relieve the Trust from any liability which it may have to the person against whom such action is brought by reason of any such alleged untrue statement or omission otherwise than on account of the indemnity agreement contained in this Section 1516. The Trust shall be entitled to assume the defense of any suit brought to enforce any such claim, demand or liability, but, in such case, the defense shall be conducted by counsel chosen by the Trust and approved by the Distributor. If the Trust elects to assume the defense of any such suit and retain counsel approved by the Distributor, the defendant or defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them, but in the case the Trust does not elect to assume the defense of any such suit, or in the case the Distributor reasonably does not approve of counsel chosen by the Trust, the Trust will reimburse the Distributor, its officers and directors or the controlling person or persons named as defendant or defendants in such suit, for the reasonable fees and expenses of any counsel retained by the Distributor or them. In addition, the Distributor shall have the right to employ counsel to represent it, its officers and directors and any such controlling person who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Distributor against the Trust hereunder if in the reasonable judgment of the Distributor it is advisable for the Distributor, its officers and directors or such controlling person to be represented by separate counsel, in which event the fees and expenses of such separate counsel shall be borne by the Trust. This indemnity agreement and the Trust’s representations and warranties in this Contract shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Distributor, its officers and directors or any such controlling person. This indemnity agreement shall inure exclusively to the benefit of the Distributor and its successors, the Distributor’s officers and directors and their respective estates and any such controlling persons and their successors and estates. The Trust shall promptly notify the Distributor of the commencement of any litigation or proceedings against it in connection with the issue and sale of any shares. No indemnified party shall settle any claim against it for which it intends to seek indemnification from the indemnifying party, under the terms of this Section 1516, without the prior written notice to and consent from the indemnifying party, which consent shall not be unreasonably withheld. No indemnified or indemnifying party shall settle any claim unless the settlement contains a full release of liability with respect to the other party in respect of such action. This Section 15 16 shall survive the termination of this Contract.