Common use of Marketing Agent's Indemnification of the Up Trust, the Depositor and the Trustee Clause in Contracts

Marketing Agent's Indemnification of the Up Trust, the Depositor and the Trustee. The Marketing Agent shall indemnify and hold harmless the Up Trust, the Depositor and the Trustee and their respective officers, members, managers, directors, employees and agents (each, a "Marketing Agent Indemnified Party") from and against any loss, liability, expense, damage or injury suffered or sustained by reason of any acts or omissions of the Marketing Agent under this Trust Agreement, including any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any action, proceeding or claim; provided, however, that the Marketing Agent shall not indemnify the Trustee if such acts or omissions, or alleged acts or omissions, constitute or are caused by fraud, gross negligence, or willful misconduct of the Trustee; provided, further, that the Marketing Agent shall not indemnify the Depositor if such acts or omissions, or alleged acts or omissions, constitute or are caused by fraud, gross negligence, or willful misconduct of the Depositor; provided, further, that the Marketing Agent shall not indemnify the Up Trust or the Holders of the Up MacroShares for any liabilities, costs or expenses of the Up Trust with respect to any action taken by the Trustee at the request of the Holders of the Up MacroShares; provided, further, that the Marketing Agent shall not indemnify the Up Trust or the Holders of the Up MacroShares as to any losses, claims or damages incurred by any of them in their capacities as investors, including, without limitation, losses with respect to market or investment risks associated with ownership of the Up MacroShares or losses incurred as a result of the performance of, or a default on, any Eligible Treasuries; and provided, further, that the Marketing Agent shall not indemnify the Up Trust or the Holders of the Up MacroShares for any liabilities, costs or expenses of the Up Trust or the Holders of the Up MacroShares arising under any tax law, including any federal, state, local or foreign income or franchise taxes or any other tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Up Trust or the Holders of the Up MacroShares in connection herewith to any taxing authority. Indemnification pursuant to this Section 10.10 shall not be payable from the Trust Assets. The provisions of this indemnity shall run directly to and be enforceable by a Marketing Agent Indemnified Party, subject to the limitations hereof. The obligations of the Marketing Agent under this Section 10.10 shall survive the termination of the Up Trust and the resignation or removal of the Marketing Agent or the resignation or removal of any of the entities which constitute Marketing Agent Indemnified Parties at the time of the execution of this Trust Agreement and the appointment of successors thereto.