Common use of Notwithstanding Sections 2 Clause in Contracts

Notwithstanding Sections 2. 1 and 2.2, the Fund may, and the Manager shall have the power to cause the Fund to, create and issue Baskets in exchange for the receipt of cash from an Authorized Participant, but only if such creation and issuance is made in compliance with all of the following requirements: (i) On the date and by no later than the specified time established for the settlement of such creation and issuance, which date and time shall be fixed, under procedures to be adopted by the Manager, on the date a Cash Order for creation is placed and accepted, the Fund shall have received and be simultaneously in possession of (A) from the applicable Liquidity Provider, Fund Components in an amount equal to the Fund Components included in the Total Basket Amount in respect of such Cash Order (the “Required Creation Fund Components”) and (B) from such Authorized Participant, cash in an amount at least equal to the full purchase price to be paid by the Fund to such Liquidity Provider in exchange for the Required Creation Fund Components (such purchase price, the “Required Creation Cash,” and such receipt and simultaneous possession of the Required Creation Fund Components and the Required Creation Cash at or prior to such specified time, the “Creation Settlement Condition”); provided, that such cash shall be held by the Fund in a non-interest bearing account established solely for the purpose of creating, issuing and redeeming Shares in accordance with the terms of this SECTION 11.15; (ii) If the Creation Settlement Condition is met with respect to such Cash Order, the Manager shall cause the Fund to deliver, promptly and in full satisfaction of the Fund’s obligations to the applicable Liquidity Provider and such Authorized Participant in respect of such Cash Order, (A) to the applicable Liquidity Provider, the Required Creation Cash, and (B) to such Authorized Participant, (x) the Shares comprising the Creation Baskets to be issued pursuant to such Cash Order and (y) to the extent that the amount of cash previously received by the Fund from such Authorized Participant in connection with such Cash Order exceeded the Required Creation Cash, the amount of such excess cash; (iii) If, for any or no reason, the Creation Settlement Condition is not met with respect to such Cash Order, the Manager shall cause the Fund to return, promptly and in full satisfaction of the Fund’s obligations to the applicable Liquidity Provider and Authorized Participant in respect of such Cash Order, any and all cash and Fund Components previously received by the Fund in connection with such Cash Order to such Authorized Participant (in the case of cash) or Liquidity Provider (in the case of Fund Components); and (iv) The Manager, such Authorized Participant and the applicable Liquidity Provider shall have agreed, as a condition to the participation in the consummation of such Cash Order, (A) to fully (and without exception) exculpate the Fund with respect to, and to irrevocably waive any and all claims against the Fund or the Fund Estate arising from or in connection with, such Cash Order and (B) to fully indemnify and hold the Fund harmless against any failure by such person to perform its obligations in respect of such Cash Order.