Common use of Duty of Independent Committee Members and Non-Manager Covered Persons Clause in Contracts

Duty of Independent Committee Members and Non-Manager Covered Persons. (a) To the extent that, at law or in equity, an Independent Committee Member has duties and liabilities relating thereto to the Trust, the Manager, the Shareholders, the Beneficial Owners or any other Person, the Independent Committee Member acting under this Trust Agreement shall not be liable to the Trust, the Manager, the Shareholders, the Beneficial Owners or any other Person for its good faith reliance on the provisions of this Trust Agreement and upon information, opinions, reports or statements presented by another Independent Committee Member, Beneficial Owner or officer, employee, Manager or other Person who may manage the business and affairs of the Trust pursuant to the terms hereof, or by any other Person as to matters the Independent Committee Member reasonably believes are within such other Person’s professional or expert competence, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits or losses of the Trust, or the value and amount of assets or reserves or contracts, agreements or other undertakings that would be sufficient to pay claims and obligations of the Trust or to make reasonable provision to pay such claims and obligations, or any other facts pertinent to the existence and amount of assets from which distributions to beneficial owners or creditors might properly be paid. The provisions of this Trust Agreement, to the extent that they limit, restrict or eliminate an Independent Committee Member’s duties and liabilities otherwise existing at law or in equity, are agreed by the parties hereto, the Trust, the Manager, the Shareholders and the Beneficial Owners to replace such other duties and liabilities of the Independent Committee Member. (b) Unless otherwise expressly provided herein: (i) whenever a conflict of interest exists or arises between an Independent Committee Member or any of his or her Affiliates, on the one hand, and the Trust or any Shareholder or any other Person, on the other hand; or (ii) whenever this Trust Agreement or any other agreement contemplated herein or therein provides that an Independent Committee Member shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust, any Shareholder or any other Person, the Independent Committee Member shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including his or her own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Independent Committee Member, the resolution, action or terms so made, taken or provided by the Independent Committee Member shall not constitute a breach of this Trust Agreement or any other agreement contemplated herein or of any duty or obligation of the Independent Committee Member at law or in equity or otherwise. (c) A Non-Manager Covered Person may engage in or possess an interest in other profit-seeking or business ventures of any nature or description, independently or with others, whether or not such ventures are competitive with the Trust, and the doctrine of corporate opportunity, or any analogous doctrine, shall not apply to a Non-Manager Covered Person. If a Non-Manager Covered Person acquires knowledge of a potential transaction, agreement, arrangement or other matter that may be an opportunity for the Trust, he or she shall have no duty to communicate or offer such opportunity to the Trust, and the Non-Manager Covered Person shall not be liable to the Trust or to the Shareholders or Beneficial Owners by reason of the fact that the Non-Manager Covered Person pursues or acquires for, or directs such opportunity to, another Person or does not communicate such opportunity or information to the Trust. Neither the Trust nor any Shareholder or Beneficial Owner shall have any rights or obligations by virtue of this Trust Agreement or the trust relationship created hereby in or to such independent ventures or the income or profits or losses derived therefrom, and the pursuit of such ventures, even if competitive with the Trust’s activities, shall not be deemed wrongful or improper. Except to the extent expressly provided herein, a Non-Manager Covered Person may engage or be interested in any financial or other transaction with the Trust, the Shareholders or any Affiliate of the Trust or the Shareholders.