Common use of Sponsor’s Duties Clause in Contracts

Sponsor’s Duties. a. The Sponsor agrees to perform its duties under this Amended and Restated Declaration of Trust in its subjective good faith belief as to what is in or not opposed to the best interests of the Trust, but only upon the express terms of this Amended and Restated Declaration of Trust. To the fullest extent permitted by law, the Sponsor shall not have any implied duties (including fiduciary duties) or liabilities otherwise existing at law or in equity with respect to the Trust, the Shareholders or any other Person, all of which duties are hereby eliminated. To the fullest extent permitted by law, the provisions of this Amended and Restated Declaration of Trust, to the extent that they restrict or eliminate the duties (including fiduciary duties) and liabilities of the Sponsor otherwise existing at law or in equity are agreed by the parties hereto to replace such other duties and liabilities of the Sponsor. Unless otherwise determined by the Sponsor, each officer of the Trust shall owe to the Trust and the Shareholders the same fiduciary duties (and only such fiduciary duties) as owed by officers of private corporations for profit to such corporations and their stockholders under the Delaware General Corporation Law. b. Unless otherwise expressly provided herein: i. whenever a conflict of interest exists or arises between the Sponsor or any of its affiliates, on the one hand, and the Trust or any Shareholder or any other Person, on the other hand; or ii. whenever this Amended and Restated Declaration of Trust or any other agreement contemplated herein provides that the Sponsor 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 Sponsor shall use its good faith efforts to resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its 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 Sponsor, the resolution, action or terms so made, taken or provided by the Sponsor shall not constitute a breach of this Amended and Restated Declaration of Trust or any other agreement contemplated herein or of any duty or obligation of the Sponsor at law or in equity or otherwise. c. The Sponsor and any affiliate of the Sponsor 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 the Sponsor. If the Sponsor acquires knowledge of a potential transaction, agreement, arrangement or other matter that may be an opportunity for the Trust, it shall have no duty to communicate or offer such opportunity to the Trust, and the Sponsor shall not be liable to the Trust or to the Shareholders for breach of any fiduciary or other duty by reason of the fact that the Sponsor 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 Shareholders shall have any rights or obligations by virtue of this Amended and Restated Declaration of Trust 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 activities of the Trust, shall not be deemed wrongful or improper. Except to the extent expressly provided herein, the Sponsor 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. d. To the fullest extent permitted by law and notwithstanding any other provision of this Amended and Restated Declaration of Trust or in any agreement contemplated herein or applicable provisions of law or equity or otherwise, whenever in this Amended and Restated Declaration of Trust a Person is permitted or required to make a decision (a) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Person shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Trust, the Shareholders or any other Person, or (b) in its “good faith” or under another express standard, the Person shall act under such express standard and shall not be subject to any other or different standard. The term “good faith” as used in this Amended and Restated Declaration of Trust shall mean subjective good faith as such term is understood and interpreted under Delaware law.

Sponsor’s Duties. a. The Sponsor agrees to perform its duties under this Second Amended and Restated Declaration of Trust in its subjective good faith belief as to what is in or not opposed to the best interests of the Trust, but only upon the express terms of this Second Amended and Restated Declaration of Trust. To the fullest extent permitted by law, the Sponsor shall not have any implied duties (including fiduciary duties) or liabilities otherwise existing at law or in equity with respect to the Trust, the Shareholders or any other Person, all of which duties are hereby eliminated. To the fullest extent permitted by law, the provisions of this Second Amended and Restated Declaration of Trust, to the extent that they restrict or eliminate the duties (including fiduciary duties) and liabilities of the Sponsor otherwise existing at law or in equity are agreed by the parties hereto to replace such other duties and liabilities of the Sponsor. Unless otherwise determined by the Sponsor, each officer of the Trust shall owe to the Trust and the Shareholders the same fiduciary duties (and only such fiduciary duties) as owed by officers of private corporations for profit to such corporations and their stockholders under the Delaware General Corporation Law. b. Unless otherwise expressly provided herein: i. whenever a conflict of interest exists or arises between the Sponsor or any of its affiliates, on the one hand, and the Trust or any Shareholder or any other Person, on the other hand; or ii. whenever this Second Amended and Restated Declaration of Trust or any other agreement contemplated herein provides that the Sponsor 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 Sponsor shall use its good faith efforts to resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its 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 Sponsor, the resolution, action or terms so made, taken or provided by the Sponsor shall not constitute a breach of this Second Amended and Restated Declaration of Trust or any other agreement contemplated herein or of any duty or obligation of the Sponsor at law or in equity or otherwise. c. The Sponsor and any affiliate of the Sponsor 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 the Sponsor. If the Sponsor acquires knowledge of a potential transaction, agreement, arrangement or other matter that may be an opportunity for the Trust, it shall have no duty to communicate or offer such opportunity to the Trust, and the Sponsor shall not be liable to the Trust or to the Shareholders for breach of any fiduciary or other duty by reason of the fact that the Sponsor 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 Shareholders shall have any rights or obligations by virtue of this Second Amended and Restated Declaration of Trust 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 activities of the Trust, shall not be deemed wrongful or improper. Except to the extent expressly provided herein, the Sponsor 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. d. To the fullest extent permitted by law and notwithstanding any other provision of this Second Amended and Restated Declaration of Trust or in any agreement contemplated herein or applicable provisions of law or equity or otherwise, whenever in this Second Amended and Restated Declaration of Trust a Person is permitted or required to make a decision (a) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Person shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Trust, the Shareholders or any other Person, or (b) in its “good faith” or under another express standard, the Person shall act under such express standard and shall not be subject to any other or different standard. The term “good faith” as used in this Second Amended and Restated Declaration of Trust shall mean subjective good faith as such term is understood and interpreted under Delaware law.