EX-4.2 DECLARATION OF TRUST AGREEMENT OF THE MASTE



 






Exhibit 4.2




GREENHAVEN CONTINUOUS COMMODITY INDEX FUND




DECLARATION OF TRUST

AND TRUST AGREEMENT




     THIS DECLARATION OF TRUST AND TRUST AGREEMENT (the “Trust Agreement”) of GreenHaven
Continuous Commodity Index Fund (the “Trust”) is
made and entered into as of the 27th day of October, 2006
and as amended on July 29, 2007, by and among GreenHaven Commodity Services, LLC, a Delaware limited
liability company (the “Managing Owner”), CSC Trust Company of Delaware, a Delaware
corporation (the “Trustee”), and the unitholders from time to time hereunder (the
“Unitholders”).



RECITALS




     WHEREAS,
the Trust was formed on October 27th, 2006, pursuant to the execution and filing by the
Trustee of the Certificate of Trust; and



     WHEREAS, the Trustee and the Managing Owner desire to set forth guidelines regarding the
operations of the Trust and certain other matters.



     NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Trustee and the Managing Owner hereby agree as follows:



ARTICLE I




DEFINITIONS; THE TRUST




     1.1. Definitions. As used in this Trust Agreement, the following terms shall have the
following meanings unless the context otherwise requires:



     “Administrator” means any Person from time to time engaged to provide administrative services
to the Trust pursuant to authority delegated by the Managing Owner.



     “Affiliate” – An “Affiliate” of a “Person” means (i) any Person directly or indirectly owning,
controlling or holding with power to vote 10% or more of the outstanding voting securities of such
Person, (ii) any Person 10% or more of whose outstanding voting securities are directly or
indirectly owned, controlled or held with power to vote by such Person, (iii) any Person, directly
or indirectly, controlling, controlled by or under common control of such Person, (iv) any
employee, officer, director, member, manager or partner of such Person, or (v) if such Person is an
employee, officer, director, member, manager or partner, any Person for which such Person acts in
any such capacity.



     “Basket” means a Creation Basket or a Redemption Basket, as the context may require.



 









 





     “Beneficial Owners” shall have the meaning assigned to such term in Section 3.4(d).



     “Business Day” means a day other than Saturday, Sunday or other day when banks and/or
securities exchanges in the City of New York or the City of Wilmington are authorized or obligated
by law or executive order to close.



     “Capital Contributions” means the amounts of cash contributed and agreed to be contributed to
the Trust by any Participant or by the Managing Owner, as applicable, in accordance with Article
III hereof.



     “CE Act” means the Commodity Exchange Act, as amended.



     “Certificate of Trust” means the Certificate of Trust of the Trust in the form attached hereto
as Exhibit A, filed with the Secretary of State of the State of Delaware pursuant to Section 3810
of the Delaware Trust Statute.



     “CFTC” means the Commodity Futures Trading Commission.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Commodities” means positions in Commodity Contracts, forward contracts, foreign exchange
positions and traded physical commodities, as well as cash commodities resulting from any of the
foregoing positions.



     “Commodity Contract” means any futures contract or option thereon providing for the delivery
or receipt at a future date of a specified amount and grade of a traded commodity at a specified
price and delivery point, or any other futures contract or option thereon approved for trading for
U.S. persons.



     “Conflicting Provisions” shall have the meaning assigned to such term in Section 15.2(a).



     “Continuous Offering Period” means the period following the conclusion of the Initial Offering
Period, during which additional Limited Units may be sold in Baskets pursuant to this Trust
Agreement.



     “Corporate Trust Office” means the principal office at which at any particular time the
corporate trust business of the Trustee is administered, which office at the date hereof is located
at, 2711 Centerville Road, Wilmington, Delaware 19808, Attention: Corporate Trust.



     “Covered Person” means the Trustee, the Managing Owner and their respective Affiliates.



     “Creation Basket” means the minimum number of Limited Units that may be created at any one
time, which shall be 50,000 or such greater or lesser number as the Managing Owner may determine
from time to time.



     “Creation Basket Capital Contribution” means a Capital Contribution made by a Participant in
connection with a Purchase Order Subscription Agreement and the creation of a Creation Basket in an
amount equal to the product obtained by multiplying (i) the number of Creation



 









 







Baskets set forth in the relevant Purchase Order Subscription Agreement by (ii) the Net Asset
Value per Basket as of closing time of the Exchange or the last to close of the exchanges on which
any one of the Index Commodities is traded, whichever is later, on the Purchase Order Subscription
Date.



     “Delaware Trust Statute” means the Delaware Statutory Trust Act, Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. § 3801 et seq., as the same may be amended from time to time.



     “Depository” means The Depository Trust Company, New York, New York, or such other depository
of Limited Units as may be selected by the Managing Owner as specified herein.



     “Depository Agreement” means the Letter of Representations from the Managing Owner to the
Depository, dated as of ___, as the same may be amended or supplemented
from time to time.



     “Distributor” means any Person from time to time engaged to provide distribution services or
related services to the Trust pursuant to authority delegated by the Managing Owner.



     “DTC” shall have the meaning assigned to such term in Section 3.4(b).



     “DTC Participants” shall have the meaning assigned to such term in Section 3.4(c).



     “Exchange” means the American Stock Exchange or, if the Limited Units shall cease to be listed
on the American Stock Exchange and are listed on one or more other exchanges, the exchange on which
the Units are principally traded, as determined by the Managing Owner.



     “Expenses” shall have the meaning assigned to such term in Section 2.4.



     “Fiscal Quarter” shall mean each period ending on the last day of each March, June, September
and December of each Fiscal Year.



     “Fiscal Year” shall have the meaning set forth in Article X hereof.



     “Global Security” means the global certificate or certificates issued to the Depository as
provided in the Depository Agreement, each of which shall be in substantially the form attached
hereto as Exhibit B.



     “Indemnified Parties” shall have the meaning assigned to such term in Section 2.4.



     “Index Commodities” means the underlying Commodities which comprise the Continuous Commodity
Total Return Index (CCI-TR), as described in the Prospectus.



     “Indirect Participants” shall have the meaning assigned to such term in Section 3.4(c).



     “Initial Offering Period” means the period commencing with the initial effective date of the
Prospectus and terminating no later than the ninetieth (90) day following such date unless extended
for up to an additional ninety (90) days at the sole discretion of the Managing Owner.



 









 





     “Internal Revenue Service” or “IRS” means the U.S. Internal Revenue Service or any successor
thereto.



     “Limited Owner” means any person or entity that is or becomes a Beneficial Owner of Limited
Units.



     “Liquidating Trustee” shall have the meaning assigned to such term in Section 13.2.



     “Managing Owner” means GreenHaven Commodity Services, LLC, or any substitute therefore as
provided herein, or any successor thereto by merger or operation of law.



     “Master Fund Shares” means the common units of fractional undivided beneficial interest with
limited liability in the profits, losses, distributions, capital and assets of, and ownership of,
GreenHaven Continuous Commodity Index Master Fund, a Delaware statutory trust.



     “Net Asset Value” at any time means the total assets in the Trust Estate, determined on the
basis of generally accepted accounting principles in the United States (“GAAP”), consistently
applied under the accrual method of accounting. The amount of any distribution made pursuant to
Article VI hereof shall be a liability of the Trust from the day when the distribution is declared
until it is paid.



     “Net Asset Value Per Basket” means the product obtained by multiplying the Net Asset Value Per
Unit by the number of Limited Units comprising a Basket at such time.



     “Net Asset Value Per Unit” means the Net Asset Value divided by the number of Units
outstanding on the date of calculation.



     “NFA” means the National Futures Association.



     “Order Cut-Off Time” means 10:00 am, New York time, on a Business Day.



     “Organization and Offering Expenses” shall have the meaning assigned thereto in Section
4.8(a)(ii).



     “Participant” means a Person that is a DTC Participant and has entered into a Participant
Agreement which, at the relevant time, is in full force and effect.



     “Participant Agreement” means an agreement among the Trust, the Managing Owner and a
Participant, substantially in the form of Exhibit C hereto, as it may be amended or supplemented
from time to time in accordance with its terms.



     “Person” means any natural person, partnership, limited liability company, statutory trust,
corporation, association, or other legal entity.



     “Profits and Losses” means the profits and losses of the Trust, each as determined in
accordance with U.S. generally accepted accounting principles, consistently applied.



 









 





     “Prospectus” means the final prospectus and disclosure document of the Trust, constituting a
part of a Registration Statement, as filed with the SEC and declared effective thereby, as the same
may at any time and from time to time be amended or supplemented.



     “Purchase Order Subscription Agreement” shall have the meaning assigned thereto in Section
3.3(a)(i).



     “Purchase Order Subscription Date” shall have the meaning assigned thereto in Section
3.3(a)(i).



     “Reconstituted Trust” shall have the meaning assigned to such term in Section 13.1(a).



     “Redemption Basket” means the minimum number of Limited Units that may be redeemed pursuant to
Section 7.1, which shall be the number of Limited Units constituting a Creation Basket on the
relevant Redemption Order Date.



     “Redemption Distribution” means the cash delivered in satisfaction of redemption of a
Redemption Basket as specified in Section 7.1(c).



     “Redemption Order” shall have the meaning assigned thereto in Section 7.1(a).



     “Redemption Order Date” shall have the meaning assigned thereto in Section 7.1(b).



     “Redemption Settlement Time” shall have the meaning assigned thereto in Section 7.1(d).



     “Registration Statement” means a registration statement on Form S-1, as it may be amended from
time to time, filed with the SEC pursuant to which the Trust registered the Limited Units, as the
same may at any time and from time to time be further amended or supplemented.



     “SEC” means the Securities and Exchange Commission.



     “Sponsor” means any person directly or indirectly instrumental in organizing the Trust or any
person who will manage or participate in the management of the Trust, including the Managing Owner
or an Affiliate of the Managing Owner, who pays any portion of the Organizational and Offering
Expenses of the Trust and any other person who regularly performs or selects the persons who
perform services for the Trust. Sponsor does not include wholly independent third parties such as
attorneys, accountants and underwriters whose only compensation is for professional services
rendered in connection with the offering of the Units. The term “Sponsor” shall be deemed to
include its Affiliates.



     “Subscribing Participant” means a Participant who has submitted a Purchase Order Subscription
Agreement to create one or more Units that has not yet been filled or accepted by the Trust.



     “Suspended Redemption Order” shall have the meaning assigned thereto in Section 7.1(d).



     “Transaction Fee” shall have the meaning assigned thereto in Section 3.3(d).



 









 





     “Treasury Regulations” means regulations, including proposed or temporary regulations,
promulgated under the Code. References herein to specific provisions of proposed or temporary
regulations shall include analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.



     “Trust” means GreenHaven Continuous Commodity Index Fund, the Delaware statutory trust formed
pursuant to the Certificate of Trust, the business and affairs of which are governed by this Trust
Agreement.



     “Trust Agreement” means this Declaration of Trust and Trust Agreement as the same may at any
time or from time to time be amended.



     “Trustee” means CSC Trust Company of Delaware or any substitute therefore as provided herein,
acting not in its individual capacity but solely as trustee of the Trust.



     “Trust Estate” means all property and cash held by the Trust, and all proceeds therefrom.



     “Unitholders” means the Managing Owner and all Limited Owners, as holders of Units, where no
distinction is required by the context in which the term is used.



     “Units” means the common units of fractional undivided beneficial interest in the profits,
losses, distributions, capital and assets of, and ownership of, the Trust. The Managing Owner’s
Capital Contributions shall be represented by “General” Units and a Limited Owner’s Capital
Contributions shall be represented by “Limited” Units.



     1.2. Name. The name of the Trust is “GreenHaven Continuous Commodity Index Fund,” in
which name the Trustee and the Managing Owner may engage in the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust and sue and be sued on behalf of the
Trust.



     1.3. Delaware Trustee; Business Offices.




     (a) The sole Trustee of the Trust is CSC Trust Company of Delaware, which is located at
the Corporate Trust Office or at such other address in the State of Delaware as the Trustee may
designate in writing to the Unitholders. The Trustee shall receive service of process on the
Trust in the State of Delaware at the foregoing address. In the event CSC Trust Company of
Delaware resigns or is removed as the Trustee, the Trustee of the Trust in the State of
Delaware shall be the successor Trustee.




     (b) The principal office of the Trust, and such additional offices as the Managing Owner
may establish, shall be located at such place or places inside or outside the State of Delaware
as the Managing Owner may designate from time to time in writing to the Trustee and the
Unitholders. Initially, the principal office of the Trust shall be at 3340 Peachtree Road,
Suite 1910, Atlanta, Georgia 30326.



     1.4. Declaration of Trust. The Trustee hereby acknowledges that the Trust has received
the sum of $1,000 in bank accounts in the name of the Trust controlled by the Managing Owner from
the Managing Owner as grantor of the Trust, and hereby declares that it shall hold such sum in
trust, upon and subject to the conditions set forth herein for the use and benefit of the



 









 







Unitholders. It is the intention of the parties hereto that the Trust shall be a statutory
trust under the Delaware Trust Statute and that this Trust Agreement shall constitute the governing
instrument of the Trust. It is not the intention of the parties hereto to create a general
partnership, limited partnership, limited liability company, joint stock association, corporation,
bailment or any form of legal relationship other than a Delaware statutory trust except to the
extent that the Trust is deemed to constitute a partnership under the Code and applicable state and
local tax laws. Nothing in this Trust Agreement shall be construed to make the Unitholders partners
or members of a joint stock association. The Managing Owner shall not be liable to any person for
the failure of the Trust to qualify as a partnership under the Code or any comparable provision of
the laws of any State or other jurisdiction where such treatment is sought. Effective as of the
date hereof, the Trustee and the Managing Owner shall have all of the rights, powers and duties set
forth herein and in the Delaware Trust Statute with respect to accomplishing the purposes of the
Trust. The Trustee has filed the certificate of trust required by Section 3810 of the Delaware
Trust Statute in connection with the formation of the Trust under the Delaware Trust Statute.



     1.5. Purposes and Powers. The purposes of the Trust shall be to acquire, hold and
redeem Master Fund Shares and to enter into any lawful transaction and engage in any lawful
activities in furtherance of or incidental to the foregoing purposes. The Trust shall not engage in
any other business or activity and shall not acquire or own any other assets or take any of the
actions set forth in Section 4.4. The Trust shall have all of the powers specified in Section 15.1
hereof, including, without limitation, all of the powers which may be exercised by a Managing Owner
on behalf of the Trust under this Trust Agreement. Nothing in this Agreement shall be construed to
give the Trustee or the Managing Owner the power to vary the investment of the Beneficial Owners
within the meaning of Treasury Regulation Section 301.7701-4(c) or similar or successor provisions
of United States Treasury Regulations under the Code, nor shall the Managing Owner take any action
that would vary the investment of the Beneficial Owners.



     1.6. Tax Treatment.




     (a) Each of the parties hereto, by entering into this Trust Agreement directly, or
indirectly as a purchaser of units in GREENHAVEN CONTINUOUS COMMODITY INDEX FUND, (i) expresses
its intention that the Shares will qualify under applicable tax law as interests in a
partnership which holds the Trust Estate for their benefit, (ii) agrees that it will file its
own U.S. federal, state and local income, franchise and other tax returns in a manner that is
consistent with the treatment of the Fund as a partnership in which each of the Shareholders
thereof is a partner, either directly or indirectly, by virtue of holding units in GREENHAVEN
CONTINUOUS COMMODITY INDEX FUND, and (iii) agrees to use reasonable efforts to notify the
Managing Owner promptly upon a receipt of any notice from any taxing authority having
jurisdiction over such holders of Shares with respect to the treatment of the Shares as
anything other than interests in a partnership.




     (b) The Tax Matters Partner (as defined in Section 6231 of the Code and any corresponding
state and local tax law) initially shall be the Managing Owner. The Tax Matters Partner, at the
expense of the Fund, shall prepare or cause to be prepared and filed tax returns as a
partnership for U.S. federal, state and local tax purposes and (ii) shall be authorized to
perform all duties imposed by Section 6221 et seq. of the Code, including, without limitation:
(i) the power to conduct all audits and other administrative proceedings with respect to tax
items; (ii) the power to extend the statute of limitations for all Shareholders with respect to
tax items; (iii) the power to file a petition with an appropriate



 









 







U.S. federal court for review of a final administrative adjustment; and (iv) the power to
enter into a settlement with the IRS on behalf of, and binding upon, the Limited Owner. The
designation made by each Shareholder in this Section 1.6(b), either directly or indirectly as a
holder of units in GREENHAVEN CONTINUOUS COMMODITY INDEX FUND, is hereby approved by each
Shareholder as an express condition to becoming a Shareholder. Each Shareholder agrees to take
any further action as may be required by regulation or otherwise to effectuate such
designation. Subject to Section 4.7, the Fund hereby indemnifies, to the full extent permitted
by law, the Managing Owner from and against any damages or losses (including attorneys’ fees)
arising out of or incurred in connection with any action taken or omitted to be taken by it in
carrying out its responsibilities as Tax Matters Partner, provided such action taken or omitted
to be taken does not constitute fraud, gross negligence or willful misconduct.




     (c) Each Shareholder shall furnish the Managing Owner and the Trustee with information
necessary to enable the Managing Owner to comply with U.S. federal income tax information
reporting requirements in respect of such Shareholder’s Shares.



     1.7. General Liability of the Managing Owner.




     (a) The Managing Owner shall be liable for the acts, omissions, obligations and expenses
of the Trust, to the extent not paid out of the assets of the Trust, to the same extent the
Managing Owner would be so liable if the Trust were a partnership under the Delaware Revised
Uniform Limited Partnership Act and the Managing Owner were a general partner of such
partnership. The foregoing provision shall not, however, limit the ability of the Managing
Owner to limit its liability by contract. The obligations of the Managing Owner under this
Section 1.7 shall be evidenced by its ownership of the General Units which, solely for purposes
of the Delaware Trust Statute, will be deemed to be a separate class of Units. Without limiting
or affecting the liability of the Managing Owner as set forth in this Section 1.7,
notwithstanding anything in this Trust Agreement to the contrary, Persons having any claim
against the Trust by reason of the transactions contemplated by this Trust Agreement and any
other agreement, instrument, obligation or other undertaking to which the Trust is a party,
shall look only to the Trust Estate for payment or satisfaction thereof.




     (b) Subject to Sections 8.1 and 8.3 hereof, no Unitholder, other than the Managing Owner,
to the extent set forth above, shall have any personal liability for any liability or
obligation of the Trust.



     1.8. Legal Title. Legal title to all of the Trust Estate shall be vested in the Trust
as a separate legal entity; provided, however, that where applicable law in any jurisdiction
requires any part of the Trust Estate to be vested otherwise, the Managing Owner may cause legal
title to the Trust Estate or any portion thereof to be held by or in the name of the Managing Owner
or any other Person (other than a Unitholder) as nominee.



 









 




ARTICLE II




THE TRUSTEE




     2.1. Term; Resignation.






     (a) CSC Trust Company of Delaware has been appointed and hereby agrees to serve as the
Trustee of the Trust. The Trust shall have only one trustee unless otherwise determined by the
Managing Owner. The Trustee shall serve until such time as the Managing Owner removes the
Trustee or the Trustee resigns and a successor Trustee is appointed by the Managing Owner in
accordance with the terms of Section 2.5 hereof.




     The trustee is appointed to serve as the trustee of the Trust in the State of Delaware for
the purpose of satisfying the requirement of Section 3807(a) of the Delaware Statutory Trust
Act that the Trust have at least one trustee with a principal place of business in Delaware.
It is understood and agreed by the parties hereto that the Trustee shall have none of the
duties or liabilities of the Managing Owner. The duties of the Trustee shall be limited to (i)
accepting legal process served on the Trust in the State of Delaware, (ii) the execution of any
certificates required to be filed with the Secretary of State of the State of Delaware which
the Trustee is required to execute under Section 3811 of the Delaware Statutory Trust Act, and
(iii) any other duties specifically allocated to the Trustee in the Trust Agreement. To the
extent that, at law or in equity, the Trustee has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or the Beneficial Owners, it is hereby understood and
agreed by the other parties hereto that such duties and liabilities are replaced by the duties
and liabilities of the Trustee expressly set forth in this Agreement.




     (b) The Trustee may resign at any time upon the giving of at least sixty (60) days’
advance written notice to the Trust; provided, that such resignation shall not become effective
unless and until a successor Trustee shall have been appointed by the Managing Owner in
accordance with Section 2.5 hereof. If the Managing Owner does not act within such sixty (60)
day period, the Trustee may apply, at the expense of the Trust, to the Court of Chancery of the
State of Delaware for the appointment of a successor Trustee.



     2.2. Powers. Except to the extent expressly set forth in Section 1.3(a) and this
Article II, the duty and authority of the Trustee to manage the business and affairs of the Trust
is hereby delegated to the Managing Owner, which duty and authority the Managing Owner may further
delegate as provided herein, all pursuant to Section 3806(b)(7) of the Delaware Trust Statute. The
Trustee shall have only the rights, obligations and liabilities specifically provided for herein
and shall have no implied rights, duties, obligations and liabilities with respect to the business
and affairs of the Trust. The Trustee shall have the power and authority to execute and file
certificates as required by the Delaware Trust Statute and to accept service of process on the
Trust in the State of Delaware. The Trustee shall provide prompt notice to the Managing Owner of
its performance of any of the foregoing. The Managing Owner shall reasonably keep the Trustee
informed of any actions taken by the Managing Owner with respect to the Trust that would reasonably
be expected to affect the rights, obligations or liabilities of the Trustee hereunder or under the
Delaware Trust Statute.



     2.3. Compensation and Expenses of the Trustee. The Trustee shall be entitled to
receive from the Managing Owner or an Affiliate of the Managing Owner (including the Trust)
reasonable compensation for its services hereunder as set forth in a separate fee agreement and
shall be entitled to be reimbursed by the Managing Owner or an Affiliate of the Managing Owner
(including the Trust) for reasonable out-of-pocket expenses incurred by it in the performance of
its duties hereunder, including without limitation, the reasonable compensation,



 









 







out-of-pocket expenses and disbursements of counsel and such other agents as the Trustee may
employ in connection with the exercise and performance of its rights and duties hereunder.



     2.4. Indemnification. The Managing Owner agrees (and any additional Managing Owner
admitted pursuant to Section 4.2(g) will be deemed to agree), whether or not any of the
transactions contemplated hereby shall be consummated, to assume liability for, and does hereby
indemnify, protect, save and keep harmless CSC Trust Company of Delaware (in its capacity as
Trustee and individually) and its successors, assigns, legal representatives, officers, directors,
employees, agents and servants (the “Indemnified Parties”) from and against any and all
liabilities, obligations, losses, damages, penalties, taxes (excluding any taxes payable by the
Trustee on or measured by any compensation received by the Trustee for its services hereunder or
any indemnity payments received by the Trustee pursuant to this Section 2.4), claims, actions,
suits, costs, expenses or disbursements (including legal fees and expenses) of any kind and nature
whatsoever (collectively, “Expenses”), which may be imposed on, incurred by or asserted
against the Indemnified Parties in any way relating to or arising out of the formation, operation
or termination of the Trust, the execution, delivery and performance of any other agreements to
which the Trust is a party or the action or inaction of the Trustee hereunder or thereunder, except
for Expenses resulting from the gross negligence, willful misconduct or recklessness of the
Indemnified Parties. The indemnities contained in this Section 2.4 shall survive the termination of
this Trust Agreement or the removal or resignation of the Trustee. The source of payments made in
respect of indemnification under this Trust Agreement shall be the assets of the Trust.



     2.5. Successor Trustee. Upon the resignation or removal of the Trustee, the Managing
Owner shall appoint a successor Trustee by delivering a written instrument to the outgoing Trustee.
Any successor Trustee must satisfy the requirements of Section 3807 of the Delaware Trust Statute.
Any resignation or removal of the Trustee and appointment of a successor Trustee shall not become
effective until a written acceptance of appointment is delivered by the successor Trustee to the
outgoing Trustee and the Managing Owner and any fees and expenses due to the outgoing Trustee are
paid. Following compliance with the preceding sentence, the successor Trustee shall become fully
vested with all of the rights, powers, duties and obligations of the outgoing Trustee under this
Trust Agreement, with like effect as if originally named as Trustee, and the outgoing Trustee shall
be discharged of its duties and obligations under this Trust Agreement.



     2.6. Liability of Trustee. Except as otherwise provided in this Article II, in
accepting the trust created hereby, CSC Trust Company of Delaware acts solely as Trustee hereunder
and not in its individual capacity, and all Persons having any claim against CSC Trust Company of
Delaware by reason of the transactions contemplated by this Trust Agreement and any other agreement
to which the Trust is a party shall look only to the Trust Estate for payment or satisfaction
thereof; provided, however, that in no event is the foregoing intended to affect or limit the
liability of the Managing Owner as set forth in Section 1.7 hereof. The Trustee shall not be liable
or accountable hereunder to the Trust or to any other Person or under any other agreement to which
the Trust is a party, except for the Trustee’s own gross negligence, willful misconduct or
recklessness. In particular, but not by way of limitation:




     (a) The Trustee shall have no liability or responsibility for the validity or sufficiency
of this Trust Agreement or for the form, character, genuineness, sufficiency, value or validity
of any Trust Estate;



 









 






     (b) The Trustee shall not be liable for any actions taken or omitted to be taken by it in
accordance with the instructions of the Managing Owner or the Liquidating Trustee;




     (c) The Trustee shall not have any liability for the acts or omissions of the Managing
Owner or its delegatees;




     (d) The Trustee shall not be liable for its failure to supervise the performance of any
obligations of the Managing Owner or its delegatees or any Participant;




     (e) No provision of this Trust Agreement shall require the Trustee to act or expend or
risk its own funds or otherwise incur any financial liability in the performance of any of its
rights or powers hereunder if the Trustee shall have reasonable grounds for believing that such
action, repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;




     (f) Under no circumstances shall the Trustee be liable for indebtedness evidenced by or
other obligations of the Trust arising under this Trust Agreement or any other agreements to
which the Trust is a party; and




     (g) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Trust Agreement, or to institute, conduct or defend any litigation under
this Trust Agreement or any other agreements to which the Trust is a party, at the request,
order or direction of the Managing Owner unless the Managing Owner has offered to CSC Trust
Company of Delaware (in its capacity as Trustee and individually) security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be incurred by CSC
Trust Company of Delaware (including, without limitation, the reasonable fees and expenses of
its counsel) therein or thereby;




     (i) Notwithstanding anything contained herein to the contrary, the Trustee shall not
be required to take any action in any jurisdiction other than in the State of Delaware if
the taking of such action will require the consent or approval or authorization or order
of or the giving of notice to, or the registration with or taking of any action in respect
of, any state or other governmental authority or agency of any jurisdiction other than the
State of Delaware, (ii) result in any fee, tax or other governmental charge under the laws
of any jurisdiction or any political subdivision thereof in existence as of the date
hereof other than the State of Delaware becoming payable by the Trustee or (iii) subject
the Trustee to personal jurisdiction, other than in the State of Delaware, for causes of
action arising from personal acts unrelated to the consummation of the transactions by the
Trustee, as the case may be, contemplated hereby; and




     (ii) To the extent that, at law or in equity, the Trustee has duties (including
fiduciary duties) and liabilities relating thereto to the Trust, the Unitholders or to any
other Person, the Trustee acting under this Agreement shall not be liable to the Trust,
the Unitholders or to any other Person for its good faith reliance on the provisions of
this Agreement. The provisions of this Agreement, to the extent that they restrict the
duties and liabilities of the Trustee otherwise existing at law or in equity are agreed by
the parties hereto to replace such other duties and liabilities of the Trustee.




 









 





     2.7. Reliance; Advice of Counsel.




     (a) In the absence of bad faith, the Trustee may conclusively rely upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this Trust Agreement in
determining the truth of the statements and the correctness of the opinions contained therein,
and shall incur no liability to anyone in acting on any signature, instrument, notice,
resolutions, request, consent, order, certificate, report, opinion, bond or other document or
paper believed by it to be genuine and believed by it to be signed by the proper party or
parties and need not investigate any fact or matter pertaining to or in any such document;
provided, however, that the Trustee shall have examined any certificates or opinions so as to
reasonably determine compliance of the same with the requirements of this Trust Agreement. The
Trustee may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any fact or matter
the method of the determination of which is not specifically prescribed herein, the Trustee may
for all purposes hereof rely on a certificate, signed by the president or any vice president or
by the treasurer or other authorized officers of the relevant party, as to such fact or matter,
and such certificate shall constitute full protection to the Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon.




     (b) In the exercise or administration of the Trust hereunder and in the performance of its
duties and obligations under this Trust Agreement, the Trustee, at the expense of the Managing
Owner or an Affiliate of the Managing Owner (including the Trust) (i) may act directly or
through its agents, attorneys, custodians or nominees pursuant to agreements entered into with
any of them, and the Trustee shall not be liable for the conduct or misconduct of such agents,
attorneys, custodians or nominees if such agents, attorneys, custodians or nominees shall have
been selected by the Trustee with reasonable care and (ii) may consult with counsel,
accountants and other skilled professionals to be selected with reasonable care by it. The
Trustee shall not be liable for anything done, suffered or omitted in good faith by it in
accordance with the opinion or advice of any such counsel, accountant or other such Persons.



     2.8. Payments to the Trustee. Any amounts paid to the Trustee pursuant to this Article
shall be deemed not to be a part of the Trust Estate immediately after such payment. Any amounts
owing to the Trustee under this Trust Agreement shall constitute a claim against the Trust Estate.



ARTICLE III




UNITS; CAPITAL CONTRIBUTIONS




     3.1. General. The Managing Owner shall have the power and authority, without Limited
Owner approval, to issue Units from time to time as it deems necessary or desirable. The number of
Units authorized shall be unlimited, and the Units so authorized may be represented in part by
fractional Units, calculated to four decimal places. From time to time, the Managing Owner may
divide or combine the Units into a greater or lesser number without thereby changing the
proportionate beneficial interests. The Managing Owner may issue Units for such consideration and
on such terms as it may determine (or for no consideration if pursuant to a Unit dividend or
split-up), all without action or approval of the Limited Owners. All Units when so issued on the
terms determined by the Managing Owner shall be fully paid and non-assessable. The Units initially
shall be divided into two classes: General Units and Limited Units. Every Unitholder, by



 









 




virtue of having purchased or otherwise acquired a Unit, shall be deemed to have expressly
consented and agreed to be bound by the terms of this Trust Agreement.




     3.2. Offer of Limited Units.




     (a) Initial Offering Period. During the Initial Offering Period, the Trust shall
offer Limited Units to Participants in Creation Baskets pursuant to Rule 415 promulgated under
the Securities Act of 1933, as amended, at an offering price of $30 per Limited Unit ($1.5
million per Creation Basket), up to a maximum of 10 million Limited Units ($300 million). The
offering shall be made pursuant to and on the terms and conditions set forth in the Prospectus.
The Managing Owner shall make such arrangements for the sale of the Limited Units as it deems
appropriate.




     (b) Effect of the Sale of at least 200,000 Limited Units. In the event that at
least 200,000 Limited Units (4 Creation Baskets) are sold during the Initial Offering Period,
the Managing Owner will admit all accepted Subscribing Participants pursuant to the Prospectus
into the Trust as Limited Owners, by causing such Limited Owners to execute this Trust
Agreement, pursuant to the Power of Attorney set forth in the Subscription Agreement, and
otherwise in accordance with Sections 3.3 and 3.4 of this Trust Agreement with the Participant
Agreements.




     (c) Effect of the Sale of Less than 200,000 Limited Units. In the event that at
least 200,000 Limited Units (4 Creation Baskets) are not sold during the Initial Offering
Period, all proceeds of the sale of Limited Units, together with any interest earned thereon,
will be returned to the Subscribing Participants on a pro rata basis (taking into account the
amount and time of deposit), as promptly as practicable but in no even more than seven (7) days
after the conclusion of the Initial Offering Period for the Units. Such action will terminate
the Trust.




     (d) Offer of Limited Units After Initial Offering Period. In the event that
200,000 or more of the Limited Units are sold during the Initial Offering Period for the Units,
the Trust may continue to offer Limited Units to Participants in Creation Baskets and admit
additional Limited Owners and/or accept additional contributions from existing Limited Owners
pursuant to the Prospectus, Sections 3.3 and 3.4 of this Trust Agreement and the Participant
Agreements.



     3.3. Procedures for Creation and Issuance of Creation Baskets.




     (a) General. The following procedures, as supplemented by the more detailed
procedures specified in the attachment to the Participant Agreement, which may be amended from
time to time in accordance with the provisions of the Participant Agreement (and any such
amendment will not constitute an amendment of this Trust Agreement), will govern the Trust with
respect to the creation and issuance of additional Creation Baskets. Subject to the limitations
upon and requirements for issuance of Creation Baskets stated herein and in such procedures,
the number of Creation Baskets which may be issued by the Trust is unlimited.




     (i) On any Business Day, a Participant may submit to the Managing Owner a purchase
order and subscription agreement to subscribe for and agree to purchase one



 









 







or more Creation Baskets (such request by a Participant, a “Purchase Order
Subscription Agreement”) in the manner provided in the Participant Agreement. Purchase
Order Subscription Agreements must be received by the Order Cut-Off Time on a Business Day
(the “Purchase Order Subscription Date”). The Managing Owner will process Purchase
Order Subscription Agreements only from Participants with respect to which the Participant
Agreement is in full force and effect. The Managing Owner will maintain and make available
at the Trust’s principal offices during normal business hours a current list of the
Participants with respect to which the Participant Agreement is in full force and effect.
The Managing Owner will deliver (or cause to be delivered) a copy of the Prospectus to
each Participant prior to its execution and delivery of the Participant Agreement and
prior to accepting any Purchase Order Subscription Agreement.




     (ii) Any Purchase Order Subscription Agreement is subject to rejection by the
Managing Owner pursuant to Section 3.3(c).




     (iii) After accepting a Participant’s Purchase Order Subscription Agreement, the
Managing Owner will issue and deliver Creation Baskets to fill a Participant’s Purchase
Order Subscription Agreement as of noon New York time on the Business Day immediately
following the Purchase Order Subscription Date, but only if by such time the Managing
Owner has received (A) for its own account, the Transaction Fee, and (B) for the account
of the Trust the Creation Basket Capital Contribution due from the Participant submitting
the Purchase Order Subscription Agreement.




     (b) Deposit with the Depository. Upon issuing a Creation Basket pursuant to a
Purchase Order Subscription Agreement, the Managing Owner will cause the Trust to deposit the
Creation Basket with the Depository in accordance with the Depository’s customary procedures,
for credit to the account of the Participant that submitted the Purchase Order Subscription
Agreement.




     (c) Rejection. The Managing Owner shall have the absolute right, but shall have no
obligation, to reject any Purchase Order Subscription Agreement or Creation Basket Capital
Contribution: (i) determined by the Managing Owner not to be in proper form; (ii) that the
Managing Owner has determined would have adverse tax consequences to the Trust or to Limited
Owners; (iii) the acceptance or receipt of which would, in the opinion of counsel to the
Managing Owner, be unlawful; or (iv) if circumstances outside the control of the Managing Owner
make it for all practical purposes not feasible to process creations of Creation Baskets. The
Managing Owner shall not be liable to any person by reason of the rejection of any Purchase
Order Subscription Agreement or Creation Basket Capital Contribution.




     (d) Transaction Fee. A non-refundable transaction fee will be payable by a
Participant to the Managing Owner for its own account in connection with each Purchase Order
Subscription Agreement pursuant to this Section and in connection with each Redemption Order of
such Participant pursuant to Section 7.1 (each a “Transaction Fee”). The Transaction
Fee charged in connection with each such creation and redemption shall be initially $500, but
may be changed as provided below. Even though a single Purchase Order Subscription Agreement or
Redemption Order may relate to multiple Creation Baskets, only a single Transaction Fee will be
due for each Purchase Order or Redemption Order. The



 









 







Transaction Fee may subsequently be waived, modified, reduced, increased or otherwise
changed by the Managing Owner, but will not in any event exceed [0.10%] of the Net Asset Value
Per Basket at the time of creation of a Creation Basket or redemption of a Redemption Basket,
as the case may be. The Managing Owner shall notify the Depository of any agreement to change
the Transaction Fee and shall not implement any increase for redemptions of outstanding Units
until thirty (30) days after the date of that notice. The amount of the Transaction Fee in
effect at any given time shall be made available by the Trustee upon request.




     (e) Global Certificate Only. Certificates for Creation Baskets will not be issued,
other than the Global Security issued to the Depository. So long as the Depository Agreement is
in effect, Creation Baskets will be issued and redeemed and Limited Units will be transferable
solely through the book-entry systems of the Depository and the DTC Participants and their
Indirect Participants as more fully described in Section 3.4. The Depository may determine to
discontinue providing its service with respect to Creation Baskets and Limited Units by giving
notice to the Managing Owner pursuant to and in conformity with the provisions of the
Depository Agreement and discharging its responsibilities with respect thereto under applicable
law. Under such circumstances, the Managing Owner shall take action either to find a
replacement for the Depository to perform its functions at a comparable cost and on terms
acceptable to the Managing Owner or, if such a replacement is unavailable, to terminate the
Trust.



     3.4. Book-Entry-Only System, Global Security.




     (a) Global Security. The Trust and the Managing Owner will enter into the
Depository Agreement pursuant to which the Depository will act as securities depository for
Limited Units. Limited Units will be represented by the Global Security (which may consist of
one or more certificates as required by the Depository), which will be registered, as the
Depository shall direct, in the name of Cede & Co., as nominee for the Depository and deposited
with, or on behalf of, the Depository. No other certificates evidencing Limited Units will be
issued. The Global Security shall be in the form attached hereto as Exhibit B and shall
represent such Limited Units as shall be specified therein, and may provide that it shall
represent the aggregate amount of outstanding Limited Units from time to time endorsed thereon
and that the aggregate amount of outstanding Limited Units represented thereby may from time to
time be increased or decreased to reflect creations or redemptions of Baskets. Any endorsement
of a Global Security to reflect the amount, or any increase or decrease in the amount, of
outstanding Limited Units represented thereby shall be made in such manner and upon
instructions given by the Managing Owner on behalf of the Trust as specified in the Depository
Agreement.




     (b) Legend. Any Global Security issued to The Depository Trust Company or its
nominee shall bear a legend substantially to the following effect: “Unless this certificate is
presented by an authorized representative of The Depository Trust Company, a New York
corporation (“DTC”), to the Trust or its agent for registration of transfer, exchange,
or payment, and any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is made to Cede &
Co. or to such other entity as is required by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR



 









 







OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.”




     (c) The Depository. The Depository has advised the Trust and the Managing Owner as
follows: The Depository is a limited-purpose trust company organized under the laws of the
State of New York, a member of the U.S. federal Reserve System, a “clearing corporation” within
the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered
pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934, as amended.
The Depository was created to hold securities of its participants (the “DTC Participants”) and
to facilitate the clearance and settlement of securities transactions among the DTC
Participants in such securities through electronic book-entry changes in accounts of the DTC
Participants, thereby eliminating the need for physical movement of securities certificates.
DTC Participants include securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations, some of whom (and/or their representatives) own
the Depository. Access to the Depository’s system is also available to others such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial relationship
with a DTC Participant, either directly or indirectly (“Indirect Participants”).




     (d) Beneficial Owners. As provided in the Depository Agreement, upon the
settlement date of any creation, transfer or redemption of Limited Units, the Depository will
credit or debit, on its book-entry registration and transfer system, the number of Limited
Units so created, transferred or redeemed to the accounts of the appropriate DTC Participants.
The accounts to be credited and charged shall be designated by the Managing Owner on behalf of
the Trust and each Participant, in the case of a creation or redemption of Baskets. Ownership
of beneficial interest in Limited Units will be limited to DTC Participants, Indirect
Participants and persons holding interests through DTC Participants and Indirect Participants.
Owners of beneficial interests in Limited Units (“Beneficial Owners”) will be shown on,
and the transfer of beneficial ownership by Beneficial Owners will be effected only through, in
the case of DTC Participants, records maintained by the Depository and, in the case of Indirect
Participants and Beneficial Owners holding through a DTC Participant or an Indirect
Participant, through those records or the records of the relevant DTC Participants. Beneficial
Owners are expected to receive from or through the broker or bank that maintains the account
through which the Beneficial Owner has purchased Limited Units a written confirmation relating
to their purchase of Limited Units.




     (e) Reliance on Procedures. So long as Cede & Co., as nominee of the Depository,
is the registered owner of Limited Units, references herein to the registered or record owners
of Limited Units shall mean Cede & Co. and shall not mean the Beneficial Owners of Limited
Units. Beneficial Owners of Limited Units will not be entitled to have Limited Units registered
in their names, will not receive or be entitled to receive physical delivery of certificates in
definitive form and will not be considered the record or registered holder of Limited Units
under this Agreement. Accordingly, to exercise any rights of a holder of Limited Units under
the Agreement, a Beneficial Owner must rely on the procedures of the Depository and, if such
Beneficial Owner is not a DTC Participant, on the procedures of each DTC Participant or
Indirect Participant through which such Beneficial Owner holds its interests. The Trust and the
Managing Owner understand that under existing industry practice, if the Trust requests any
action of a Beneficial Owner, or a Beneficial Owner desires to take any action that the
Depository, as the record owner of all outstanding Limited



 









 







Units, is entitled to take, in the case of a Trustee request, the Depository will notify
the DTC Participants regarding such request, such DTC Participants will in turn notify each
Indirect Participant holding Limited Units through it, with each successive Indirect
Participant continuing to notify each person holding Limited Units through it until the request
has reached the Beneficial Owner, and in the case of a request or authorization to act being
sought or given by a Beneficial Owner, such request or authorization is given by the Beneficial
Owner and relayed back to the Trust through each Indirect Participant and DTC Participant
through which the Beneficial Owner’s interest in the Limited Units is held.




     (f) Communication between the Trust and the Beneficial Owners. As described
above, the Trust will recognize the Depository or its nominee as the owner of all Limited Units
for all purposes except as expressly set forth in this Agreement. Conveyance of all notices,
statements and other communications to Beneficial Owners will be affected as follows. Pursuant
to the Depository Agreement, the Depository is required to make available to the Trust upon
request and for a fee to be charged to the Trust a listing of the Limited Unit holdings of each
DTC Participant. The Trust shall inquire of each such DTC Participant as to the number of
Beneficial Owners holding Limited Units, directly or indirectly, through such DTC Participant.
The Trust shall provide each such DTC Participant with sufficient copies of such notice,
statement or other communication, in such form, number and at such place as such DTC
Participant may reasonably request, in order that such notice, statement or communication may
be transmitted by such DTC Participant, directly or indirectly, to such Beneficial Owners. In
addition, the Trust shall pay to each such DTC Participant an amount as reimbursement for the
expenses attendant to such transmittal, all subject to applicable statutory and regulatory
requirements.




     (g) Distributions. Distributions on Limited Units pursuant to Section 3.9 shall be
made to the Depository or its nominee, Cede & Co., as the registered owner of all Limited
Units. The Trust and the Managing Owner expect that the Depository or its nominee, upon receipt
of any payment of distributions in respect of Limited Units, shall credit immediately DTC
Participants’ accounts with payments in amounts proportionate to their respective beneficial
interests in Limited Units as shown on the records of the Depository or its nominee. The Trust
and the Managing Owner also expect that payments by DTC Participants to Indirect Participants
and Beneficial Owners held through such DTC Participants and Indirect Participants will be
governed by standing instructions and customary practices, as is now the case with securities
held for the accounts of customers in bearer form or registered in a “street name,” and will be
the responsibility of such DTC Participants and Indirect Participants. None of the Trust, the
Trustee or the Managing Owner will have any responsibility or liability for any aspects of the
records relating to or notices to Beneficial Owners, or payments made on account of beneficial
ownership interests in Limited Units, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests or for any other aspect of the relationship
between the Depository and the DTC Participants or the relationship between such DTC
Participants and the Indirect Participants and Beneficial Owners owning through such DTC
Participants or Indirect Participants or between or among the Depository, any Beneficial Owner
and any person by or through which such Beneficial Owner is considered to own Limited Units.




     (h) Limitation of Liability. The Global Security to be issued hereunder is
executed and delivered solely on behalf of the Trust by the Managing Owner, as Managing Owner,
in the exercise of the powers and authority conferred and vested in it by this Trust Agreement.
The



 









 







representations, undertakings and agreements made on the part of the Trust in the Global
Security are made and intended not as personal representations, undertakings and agreements by
the Managing Owner or the Trustee, but are made and intended for the purpose of binding only
the Trust. Nothing in the Global Security shall be construed as creating any liability on the
Managing Owner or the Trustee, individually or personally, to fulfill any representation,
undertaking or agreement other than as expressly provided in this Agreement.




     (i) Successor Depository. If a successor to The Depository Trust Company shall be
employed as Depository hereunder, the Trust and the Managing Owner shall establish procedures
acceptable to such successor with respect to the matters addressed in this Section 3.4.



     3.5. Escrow Agreement. All proceeds from the sale of Limited Units offered pursuant to
the Prospectus shall be deposited in an interest bearing escrow account with an escrow agent to be
selected by the Managing Owner until the conclusion of the Initial Offering Period. In the event
subscriptions for at least 200,000 Units are received and accepted during the Initial Offering
Period, all interest earned on the proceeds of subscriptions from accepted Subscribing Participants
for Limited Units during its Initial Offering Period will be contributed to the Trust, for which
the Limited Owners will receive additional Units on a pro rata basis (taking into account time and
amount of deposit).



     3.6. Termination of the Trust. If the minimum number of Units being offered are not
sold during the Initial Offering Period, then the Trust shall be terminated in accordance with
Section 3808(e) of the Delaware Trust Statute, and the Trustee, at the expense and direction of the
Managing Owner, shall cause the certificate of cancellation required by Section 3810 of the
Delaware Trust Statute to be filed.



     3.7. Assets. All consideration received by the Trust for the issue or sale of Units
together with all of the Trust Estate in which such consideration is invested, all income,
earnings, profits, and proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, shall belong to the Trust for all purposes, subject only to the rights
of creditors of the Trust and except as may otherwise be required by applicable tax laws, and shall
be so recorded upon the books of account of the Trust.



     3.8. Liabilities. The Trust Estate shall be charged with the liabilities of the Trust;
and all expenses, costs, charges and reserves attributable to the Trust. The Managing Owner shall
have full discretion, to the extent not inconsistent with applicable law, to determine which items
shall be treated as income and which items as capital, and each such determination and allocation
shall be conclusive and binding upon the Unitholders.



     3.9. Distributions.




     (a) Distributions on Units may be paid with such frequency as the Managing Owner may
determine, which may be daily or otherwise, to the Unitholders, from such of the income and
capital gains, accrued or realized, from the Trust Estate, after providing for actual and
accrued liabilities. All distributions on Units thereof shall be distributed pro rata to the
Unitholders in proportion to the total outstanding Units held by such Unitholders at the date
and time of record established for the payment of such distribution and in



 









 







accordance with Section 3.4(g). Such distributions may be made in cash or Units as
determined by the Managing Owner or pursuant to any program that the Managing Owner may have in
effect at the time for the election by each Unitholder of the mode of the making of such
distribution to that Unitholder.




     (b) The Units shall represent units of beneficial interest in the Trust Estate. Each
Unitholder shall be entitled to receive its pro rata share of distributions of income and
capital gains in accordance with Section 3.9(a).



     3.10. Voting Rights. Notwithstanding any other provision hereof, on each matter
submitted to a vote of the Unitholders, each Unitholder shall be entitled to a proportionate vote
based upon the product of the Net Asset Value per Unit multiplied by the number of Units, or
fraction thereof, standing in its name on the books of the Trust in accordance with Section 3.4(g).



     3.11. Equality. Except as provided herein, all Units shall represent an equal
proportionate beneficial interest in the assets of the Trust subject to the liabilities of the
Trust, and each Unit shall be equal to each other Unit. The Managing Owner may from time to time
divide or combine the Units into a greater or lesser number of Units without thereby changing the
proportionate beneficial interest in the assets of the Trust or in any way affecting the rights of
Unitholders.



ARTICLE IV




THE MANAGING OWNER




     4.1. Management of the Trust. Pursuant to Section 3806(b)(7) of the Delaware Trust
Statute, the Trust shall be managed by the Managing Owner and the conduct of the Trust’s business
shall be controlled and conducted solely by the Managing Owner in accordance with this Trust
Agreement.



     4.2. Authority of Managing Owner. In addition to and not in limitation of any rights
and powers conferred by law or other provisions of this Trust Agreement, and except as limited,
restricted or prohibited by the express provisions of this Trust Agreement or the Delaware Trust
Statute, the Managing Owner shall have and may exercise on behalf of the Trust, all powers and
rights necessary, proper, convenient or advisable to effectuate and carry out the purposes,
business and objectives of the Trust, which shall include, without limitation, the following:




     (a) To enter into, execute, deliver and maintain, and to cause the Trust to perform its
obligations under, contracts, agreements and any or all other documents and instruments, and to
do and perform all such things as may be in furtherance of Trust purposes or necessary or
appropriate for the offer and sale of the Units and the conduct of Trust activities;




     (b) To establish, maintain, deposit into, sign checks and/or otherwise draw upon accounts
on behalf of the Trust with appropriate banking and savings institutions, and execute and/or
accept any instrument or agreement incidental to the Trust’s business and in furtherance of its
purposes, any such instrument or agreement so executed or accepted by



 









 







the Managing Owner in the Managing Owner’s name shall be deemed executed and accepted on
behalf of the Trust by the Managing Owner;




     (c) To deposit, withdraw, pay, retain and distribute the Trust Estate or any portion
thereof in any manner consistent with the provisions of this Trust Agreement;




     (d) To supervise the preparation and filing of the Registration Statement and supplements
and amendments thereto, and the Prospectus;




     (e) To pay or authorize the payment of distributions to the Unitholders and expenses of
the Trust;




     (f) To make any elections on behalf of the Trust under the Code, or any other applicable
U.S. federal or state tax law as the Managing Owner shall determine to be in the best interests
of the Trust; and




     (g) In the sole discretion of the Managing Owner, to admit an Affiliate or Affiliates of
the Managing Owner as additional Managing Owners; provided, that notwithstanding the foregoing,
the Managing Owner may not admit Affiliate(s) of the Managing Owner as an additional Managing
Owner if it has received notice of its removal as a Managing Owner, pursuant to Section 8.2(d)
hereof, or if the concurrence of at least a majority in interest (over 50%) of the outstanding
Units (not including Units owned by the Managing Owner) is not obtained.



     4.3. Obligations of the Managing Owner. In addition to the obligations expressly
provided by the Delaware Trust Statute or this Trust Agreement, the Managing Owner shall:




     (a) Devote such of its time to the business and affairs of the Trust as it shall, in its
discretion exercised in good faith, determine to be necessary to conduct the business and
affairs of the Trust for the benefit of the Trust and the Limited Owners;




     (b) Execute, file, record and/or publish all certificates, statements and other documents
and do any and all other things as may be appropriate for the formation, qualification and
operation of the Trust and for the conduct of its business in all appropriate jurisdictions;




     (c) Retain independent public accountants to audit the accounts of the Trust;




     (d) Employ attorneys to represent the Trust;




     (e) Use its best efforts to maintain the status of the Trust as a “statutory trust” for
state law purposes, and as a “partnership” for U.S. federal income tax purposes;




     (f) Have fiduciary responsibility for the safekeeping and use of the Trust Estate, whether
or not in the Managing Owner’s immediate possession or control;




     (g) enter into a Participant Agreement with each Participant and discharge the duties and
responsibilities of the Trust and the Managing Owner thereunder;



 









 






     (h) receive from Participants and process properly submitted Purchase Order Subscription
Agreements, as described in Section 3.3(a)(i);




     (i) in connection with Purchase Order Subscription Agreements, receive Creation Basket
Capital Contributions from Participants;




     (j) in connection with Purchase Order Subscription Agreements, deliver or cause the
delivery of Creation Baskets to the Depository for the account of the Participant submitting a
Purchase Order Subscription Agreement for which the Managing Owner has received the requisite
Transaction Fee and the Trust has received the requisite Purchase Order Capital Contribution,
as described in Section 3.3(c);




     (k) receive from Participants and process properly submitted Redemption Orders, as
described in Section 7.1(a), or as may from time to time be permitted by Section 7.2;




     (l) in connection with Redemption Orders, receive from the redeeming Participant through
the Depository, and thereupon cancel or cause to be cancelled, Limited Units corresponding to
the Redemption Baskets to be redeemed as described in Section 7.1, or as may from time to time
be permitted by Section 7.2;




     (m) interact with the Depository as required; and




     (n) delegate those of its duties hereunder as it shall determine from time to time to one
or more Administrators or commodity trading advisors.



     4.4. General Prohibitions. The Trust shall not:




     (a) Invest proceeds received on the issuance or sale of Units in anything other than
Master Fund Shares;




     (b) Reinvest distributions received in respect of Master Fund Shares;




     (c) Redeem Master Fund Shares other than to fund a redemption request by a Participant;




     (d) Borrow money from or loan money to any Unitholder (including the Managing Owner) or
other Person;




     (e) Create, incur, assume or suffer to exist any lien, mortgage, pledge conditional sales
or other title retention agreement, charge, security interest or encumbrance, except (i) liens
for taxes not delinquent or being contested in good faith and by appropriate proceedings and
for which appropriate reserves have been established, (ii) deposits or pledges to secure
obligations under workmen’s compensation, social security or similar laws or under unemployment
insurance, (iii) deposits or pledges to secure contracts (other than contracts for the payment
of money), leases, statutory obligations, surety and appeal bonds and other obligations of like
nature arising in the ordinary course of business, or (iv) mechanic’s, warehousemen’s,
carrier’s, workmen’s, materialmen’s or other like liens arising in the ordinary course of
business with respect to obligations which are not due or which are being



 









 







contested in good faith, and for which appropriate reserves have been established if
required by generally accepted accounting principles, and liens arising under ERISA; or




     (f) Cause the Trust to elect to be treated as an association taxable as a corporation for
U.S. federal income tax purposes.



     4.5. Liability of Covered Persons. A Covered Person shall have no liability to the
Trust or to any Unitholder or other Covered Person for any loss suffered by the Trust which arises
out of any action or inaction of such Covered Person if such Covered Person, in good faith,
determined that such course of conduct was in the best interest of the Trust and such course of
conduct did not constitute gross negligence or willful misconduct of such Covered Person. Subject
to the foregoing, neither the Managing Owner nor any other Covered Person shall be personally
liable for the return or repayment of all or any portion of the capital or profits of any Limited
Owner or assignee thereof, it being expressly agreed that any such return of capital or profits
made pursuant to this Trust Agreement shall be made solely from the assets of the Trust without any
rights of contribution from the Managing Owner or any other Covered Person. A Covered Person shall
not be liable for the conduct or misconduct of any Administrator or other delegatee selected by the
Managing Owner with reasonable care.



     4.6. Fiduciary Duty.




     (a) To the extent that, at law or in equity, the Managing Owner has duties (including
fiduciary duties) and liabilities relating thereto to the Trust, the Unitholders or to any
other Person, the Managing Owner acting under this Agreement shall not be liable to the Trust,
the Unitholders or to any other Person for its good faith reliance on the provisions of this
Agreement subject to the standard of care in Section 4.5 herein. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of the Managing Owner
otherwise existing at law or in equity are agreed by the parties hereto to replace such other
duties and liabilities of the Managing Owner. Any material changes in the Trust’s basic
investment policies or structure shall occur only upon the written approval or affirmative vote
of Limited Owners holding Units equal to at least a majority (over 50%) of the Net Asset Value
(excluding Units held by the Managing Owner and its Affiliates) of the Trust pursuant to
Section 11.1(a) below.




     (b) Unless otherwise expressly provided herein:




     (i) whenever a conflict of interest exists or arises between the Managing Owner or
any of its Affiliates, on the one hand, and the Trust or any Unitholder or any other
Person, on the other hand; or




     (ii) whenever this Agreement or any other agreement contemplated herein or therein
provides that the Managing Owner shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust, any Unitholder or any other Person,


the Managing Owner shall 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 Managing Owner, the





 









 







resolution, action or terms so made, taken or provided by the Managing Owner shall not constitute a
breach of this Agreement or any other agreement contemplated herein or of any duty or obligation of
the Managing Owner at law or in equity or otherwise.





     (c) The Managing Owner and any Affiliate of the Managing Owner 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
Managing Owner. If the Managing Owner 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 Managing Owner shall not be liable
to the Trust or to the Unitholders for breach of any fiduciary or other duty by reason of the
fact that the Managing Owner 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 Unitholder shall have any rights or obligations by virtue of this 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
activities of the Trust, shall not be deemed wrongful or improper. Except to the extent
expressly provided herein, the Managing Owner may engage or be interested in any financial or
other transaction with the Trust, the Unitholders or any Affiliate of the Trust or the
Unitholders.



     4.7. Indemnification of the Managing Owner.




     (a) The Managing Owner shall be indemnified by the Trust against any losses, judgments,
liabilities, expenses and amounts paid in settlement of any claims sustained by the Managing
Owner in connection with its activities for the Trust, provided that (i) the Managing Owner was
acting on behalf of or performing services for the Trust and has determined, in good faith,
that such course of conduct was in the best interests of the Trust and such liability or loss
was not the result of gross negligence, willful misconduct, or a breach of this Trust Agreement
on the part of the Managing Owner and (ii) any such indemnification will only be recoverable
from the Trust Estate. All rights to indemnification permitted herein and payment of associated
expenses shall not be affected by the dissolution or other cessation to exist of the Managing
Owner, or the withdrawal, adjudication of bankruptcy or insolvency of the Managing Owner, or
the filing of a voluntary or involuntary petition in bankruptcy under Title 11 of the Code by
or against the Managing Owner. The source of payments made in respect of indemnification under
this Trust Agreement shall be the assets of the Trust.




     (b) Notwithstanding the provisions of Section 4.7(a) above, the Managing Owner and any
Person acting as broker-dealer for the Trust shall not be indemnified for any losses,
liabilities or expenses arising from or out of an alleged violation of U.S. federal or state
securities laws unless (i) there has been a successful adjudication on the merits of each count
involving alleged securities law violations as to the particular indemnitee and the court
approves the indemnification of such expenses (including, without limitation, litigation
costs), (ii) such claims have been dismissed with prejudice on the merits by a court of
competent jurisdiction as to the particular indemnitee and the court approves the
indemnification of such expenses (including, without limitation, litigation costs) or (iii) a
court of competent jurisdiction approves a settlement of the claims against a particular



 









 







indemnitee and finds that indemnification of the settlement and related costs should be
made.




     (c) The Trust shall not incur the cost of that portion of any insurance which insures any
party against any liability, the indemnification of which is herein prohibited.




     (d) Expenses incurred in defending a threatened or pending civil, administrative or
criminal action, suit or proceeding against the Managing Owner shall be paid by the Trust in
advance of the final disposition of such action, suit or proceeding, if: (i) the legal action
relates to the performance of duties or services by the Managing Owner on behalf of the Trust;
(ii) the legal action is initiated by a third party who is not a Limited Owner or the legal
action is initiated by a Limited Owner and a court of competent jurisdiction specifically
approves such advance; and (iii) the Managing Owner undertakes to repay the advanced funds with
interest to the Trust in cases in which it is not entitled to indemnification under this
Section 4.7.




     (e) The term “Managing Owner” as used only in this Section 4.7 shall include, in addition
to the Managing Owner, any other Covered Person performing services on behalf of the Trust and
acting within the scope of the Managing Owner’s authority as set forth in this Trust Agreement.




     (f) In the event the Trust is made a party to any claim, dispute, demand or litigation or
otherwise incurs any loss, liability, damage, cost or expense as a result of or in connection
with any Limited Owner’s (or assignee’s) obligations or liabilities unrelated to Trust
business, such Limited Owner (or assignees cumulatively) shall indemnify, defend, hold
harmless, and reimburse the Trust for all such loss, liability, damage, cost and expense
incurred, including attorneys’ and accountants’ fees.



     4.8. Expenses and Limitations Thereon.





     (a) (i) The Managing Owner or an Affiliate of the Managing Owner shall be responsible for
the payment of all Organization and Offering Expenses incurred in connection with the creation
of the Trust and sale of Units during or prior to the Initial
Offering Period and the Continuous Offering Period.



 









 





     (ii) Organization and Offering Expenses shall mean those expenses incurred in
connection with the formation, qualification and registration of the Trust and the Units
and in offering, distributing and processing the Units under applicable U.S. federal and
state law, and any other expenses actually incurred and, directly or indirectly, related
to the organization of the Trust or the initial and continuous offering of the Units,
including, but not limited to, expenses such as: (i) initial and ongoing registration
fees, pre-paid licensing fees, filing fees, escrow fees and taxes, (ii) costs of
preparing, printing (including typesetting), amending, supplementing, mailing and
distributing the Registration Statement, the Exhibits thereto and the Prospectus during
the Initial Offering Period and the Continuous Offering Period, (iii) the costs of
qualifying, printing, (including typesetting), amending, supplementing, mailing and
distributing sales materials used in connection with the offering and issuance of the
Units during the Initial Offering Period and the Continuous Offering Period, (iv) travel,
telegraph, telephone and other expenses in connection with the offering and issuance of
the Units during the Initial Offering Period and the Continuous
Offering Period, and (v)
accounting, auditing and legal fees (including disbursements related thereto) incurred in
connection therewith.




     (b) All ongoing charges, costs and expenses of the Trust’s operation, including, but not
limited to, the routine expenses associated with: (i) preparation of monthly, quarterly,



 









 







annual and other reports required by applicable U.S. federal and state regulatory
authorities; (ii) Trust meetings and preparing, printing and mailing of proxy statements and
reports to Unitholders; (iii) the payment of any distributions related to redemption of Units;
(iv) routine services of the Trustee, legal counsel and independent accountants; (v) routine
accounting and bookkeeping services, whether performed by an outside service provider or by
Affiliates of the Managing Owner; (vi) postage and insurance; (vii) client relations and
services; (viii) computer equipment and system maintenance; (ix) the Managing Owner’s
management fee described in Section 4.8(c) below and any ongoing licensing fees; and (x)
extraordinary expenses (including, but not limited to, legal claims and liabilities and
litigation costs and any indemnification related thereto) shall be billed to and/or paid by the
Trust.




     (c) The Managing Owner or any Affiliate of the Managing Owner may only be reimbursed for
the actual cost to the Managing Owner or such Affiliate of any expenses which it advances on
behalf of the Trust for which payment the Trust is responsible. In addition, payment to the
Managing Owner or such Affiliate for indirect expenses incurred in performing services for the
Trust in its capacity as the managing owner of the Trust, such as salaries and fringe benefits
of officers and directors, rent or depreciation, utilities and other administrative items
generally falling within the category of the Managing Owner’s “overhead,” is prohibited.



     4.9. Compensation to the Managing Owner. The Managing Owner shall be entitled to
compensation for its services as managing owner of the Trust as set forth in the Prospectus.



     4.10. Other Business of Unitholders. Except as otherwise specifically provided herein,
any of the Unitholders and any shareholder, officer, director, member, manager, employee or other
person holding a legal or beneficial interest in an entity which is a Unitholder, may engage in or
possess an interest in other business ventures of every nature and description, independently or
with others, and the pursuit of such ventures, even if competitive with the business of the Trust,
shall not be deemed wrongful or improper.



     4.11. Voluntary Withdrawal of the Managing Owner. The Managing Owner may withdraw
voluntarily as the Managing Owner of the Trust only upon one hundred and twenty (120) days’ prior
written notice to all Limited Owners and the Trustee. If the withdrawing Managing Owner is the last
remaining Managing Owner, Limited Owners holding Units equal to at least a majority (over 50%) of
the Net Asset Value (not including Units held by the Managing Owner) may vote to elect and appoint,
effective as of a date on or prior to the withdrawal, a successor Managing Owner who shall carry on
the business of the Trust. In the event of its removal or withdrawal, the Managing Owner shall be
entitled to redemption of its Units at the Net Asset Value. If the Managing Owner withdraws and a
successor Managing Owner is named, the withdrawing Managing Owner shall pay all expenses as a
result of its withdrawal.



     4.12. Authorization of Registration Statement. Each Limited Owner (or any permitted
assignee thereof) hereby agrees that the Trust, the Managing Owner and the Trustee are authorized
to execute, deliver and perform the agreements, acts, transactions and matters contemplated hereby
or described in or contemplated by the Registration Statement on behalf of the Trust without any
further act, approval or vote of the Limited Owners of the Trust, notwithstanding any other
provision of this Trust Agreement, the Delaware Trust Statute or any applicable law, rule or
regulation.



 









 





     4.13. Litigation. The Managing Owner is hereby authorized to prosecute, defend, settle
or compromise actions or claims at law or in equity as may be necessary or proper to enforce or
protect the Trust’s interests. The Managing Owner shall satisfy any judgment, decree or decision of
any court, board or authority having jurisdiction or any settlement of any suit or claim prior to
judgment or final decision thereon, first, out of any insurance proceeds available therefore, next,
out of the Trust’s assets and, thereafter, out of the assets (to the extent that it is permitted to
do so under the various other provisions of this Agreement) of the Managing Owner.



ARTICLE V




TRANSFERS OF UNITS




     5.1. General Prohibition. A Limited Owner may not sell, assign, transfer or otherwise
dispose of, or pledge, hypothecate or in any manner encumber any or all of its Units or any part of
its right, title and interest in the capital or profits in the Trust except as permitted in this
Article V and any act in violation of this Article V shall not be binding upon or recognized by the
Trust (regardless of whether the Managing Owner shall have knowledge thereof), unless approved in
writing by the Managing Owner.



     5.2. Transfer of Managing Owner’s General Units.




     (a) Upon an Event of Withdrawal (as defined in Section 13.1), the Managing Owner’s General
Units shall be purchased by the Trust for a purchase price in cash equal to the Net Asset Value
thereof. The Managing Owner will not cease to be a Managing Owner of the Trust merely upon the
occurrence of its making an assignment for the benefit of creditors, filing a voluntary
petition in bankruptcy, filing a petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar relief under any
statute, law or regulation, filing an answer or other pleading admitting or failing to contest
material allegations of a petition filed against it in any proceeding of this nature or
seeking, consenting to or acquiescing in the appointment of a trustee, receiver or liquidator
for itself or of all or any substantial part of its properties.




     (b) To the full extent permitted by law, and on sixty (60) days’ prior written notice to
the Limited Owners, of their right to vote thereon, if the transaction is other than with an
Affiliated entity, nothing in this Trust Agreement shall be deemed to prevent the merger of the
Managing Owner with another corporation or other entity, the reorganization of the Managing
Owner into or with any other corporation or other entity, the transfer of all the capital stock
of the Managing Owner or the assumption of the rights, duties and liabilities of the Managing
Owner by, in the case of a merger, reorganization or consolidation, the surviving corporation
or other entity by operation of law or the transfer of the Managing Owner’s Units to an
Affiliate of the Managing Owner. Without limiting the foregoing, none of the transactions
referenced in the preceding sentence shall be deemed to be a voluntary withdrawal for purposes
of Section 4.11 or an Event of Withdrawal or assignment of Units for purposes of Sections
5.2(a) or 5.2(c).




     (c) Upon assignment of all of its Units, the Managing Owner shall not cease to be a
Managing Owner of the Trust, or to have the power to exercise any rights or powers as a



 









 







Managing Owner, or to have liability for the obligations of the Trust under Section 1.7
hereof, until an additional Managing Owner, who shall carry on the business of the Trust, has
been admitted to the Trust.



     5.3. Transfer of Limited Units. Beneficial Owners that are not DTC Participants may
transfer Limited Units by instructing the DTC Participant or Indirect Participant holding the
Limited Units for such Beneficial Owner in accordance with standard securities industry practice.
Beneficial Owners that are DTC Participants may transfer Limited Units by instructing the
Depository in accordance with the rules of the Depository and standard securities industry
practice.



ARTICLE VI




DISTRIBUTIONS




     6.1. Distributions of Cash Received from the Master Fund Other than Redemption
Proceeds. In the event the Trust receives any distributions of cash from the Master Fund other
than from the Trust’s redemption of interests in the Master Fund, the Managing Owner shall cause
the Trust to distribute such amounts to the Unitholders in accordance with their interests therein
as promptly as practicable. Any such distributions shall be made in a manner that is in compliance
with the Federal income tax rules applicable to partnerships and Treasury Regulation Section
1.704-1.



     6.2. Liability for State and Local and Other Taxes. In the event that the Trust shall
be separately subject to taxation by any state or local or by any foreign taxing authority, the
Trust shall be obligated to pay such taxes to such jurisdiction. In the event that the Trust shall
be required to make payments to any Federal, state or local or any foreign taxing authority in
respect of any Unitholder’s allocable share of income, the amount of such taxes shall be considered
a loan by the Trust to such Unitholder, and such Unitholder shall be liable for, and shall pay to
the Trust, any taxes so required to be withheld and paid over by the Trust within ten (10) days
after the Managing Owner’s request therefore. Such Unitholder shall also be liable for (and the
Managing Owner shall be entitled to redeem additional Units of the foreign Unitholder as necessary
to satisfy) interest on the amount of taxes paid over by the Trust to the IRS or other taxing
authority, from the date of the Managing Owner’s request for payment to the date of payment or the
redemption, as the case may be, at the rate of two percent (2%) over the prime rate charged from
time to time by Citibank, N.A. The amount, if any, payable by the Trust to the Unitholder in
respect of its Units so redeemed, or in respect of any other actual distribution by the Trust to
such Unitholder, shall be reduced by any obligations owed to the Trust by the Unitholder,
including, without limitation, the amount of any taxes required to be paid over by the Trust to the
IRS or other taxing authority and interest thereon as aforesaid. Amounts, if any, deducted by the
Trust from any actual distribution or redemption payment to such Unitholder shall be treated as an
actual distribution to such Unitholder for all purposes of this Trust Agreement.



 









 






ARTICLE VII




REDEMPTIONS






     7.1. Redemption of Redemption Baskets. The following procedures, as supplemented by
the more detailed procedures specified in the attachment to the Participant Agreement, which may be
amended from time to time in accordance with the provisions of the Participant Agreement (and any
such amendment will not constitute an amendment of this Trust Agreement), will govern the Trust
with respect to the redemption of Redemption Baskets.




     (a) On any Business Day, a Participant with respect to which a Participant Agreement is in
full force and effect (as reflected on the list maintained by the Managing Owner pursuant to
Section 3.3(a)(i)) may redeem one or more Redemption Baskets standing to the credit of the
Participant on the records of the Depository by delivering a request for redemption to the
Managing Owner (such request, a “Redemption Order”) in the manner specified in the
procedures specified in the attachment to the Participant Agreement.




     (b) To be effective, a Redemption Order must be submitted on a Business Day by the Order
Cut-Off Time in form satisfactory to the Managing Owner (the Business Day on which the
Redemption Order is so submitted, the “Redemption Order Date”). The Managing Owner
shall reject any Redemption Order the fulfillment of which its counsel advises may be illegal
under applicable laws and regulations, and the Managing Owner shall have no liability to any
person for rejecting a Redemption Order in such circumstances.




     (c) Subject to deduction of any tax or other governmental charges due thereon, the
redemption distribution (“Redemption Distribution”) shall consist of cash in an amount
equal to the product obtained by multiplying (i) the number of Redemption Baskets set forth in
the relevant Redemption Order by (ii) the Net Asset Value Per Basket as of the closing time of
the Exchange or the last to close of the exchanges on which any of the Index Commodities is
traded, whichever is later, on the Redemption Order Date.




     (d) By noon, New York time, on the Business Day immediately following the Redemption Order
Date (the “Redemption Settlement Time”), if the Managing Owner’s account at the
Depository has by noon, New York time, on such day been credited with the Redemption Baskets
being tendered for redemption and the Managing Owner has by such time received the Transaction
Fee, then the Managing Owner shall deliver the Redemption Distribution through the Depository
to the account of the Participant as recorded on the book entry system of the Depository. If by
such Redemption Settlement Time the Managing Owner has not received from a redeeming
Participant all Redemption Baskets comprising the Redemption Order, the Managing Owner will (i)
settle the Redemption Order to the extent of whole Redemption Baskets received from the
Participant and (ii) keep the redeeming Participant’s Redemption Order open until noon, New
York time, on the first Business Day following the Redemption Settlement Date as to the balance
of the Redemption Order (such balance, the “Suspended Redemption Order”). If
the Redemption Basket(s) comprising the Suspended Redemption Order are credited to the Managing
Owner’s account at the Depository by noon, New York time, on such following Business Day, the
Redemption Distribution with respect to the Suspended Redemption Order shall be paid in the
manner provided in the second preceding sentence. If by such Redemption Settlement Time the
Managing Owner has not received from the redeeming Participant all Redemption Baskets
comprising the Suspended Redemption Order, the Managing Owner will settle the Suspended
Redemption Order to the extent of whole Redemption Baskets then received and any balance of the
Suspended Redemption will be cancelled.



 









 







Notwithstanding the foregoing, when and under such conditions as the Managing Owner may
from time to time determine, the Managing Owner shall be authorized to deliver the Redemption
Distribution notwithstanding that a Redemption Basket has not been credited to the Trust’s
account at the Depository if the Participant has collateralized its obligation to deliver the
Redemption Basket on such terms as the Managing Owner may, in its sole discretion, from time to
time agree.




     (e) The Managing Owner may, in its discretion, suspend the right of redemption, or
postpone the Redemption Settlement Date: (i) for any period during which the Exchange is closed
other than customary weekend or holiday closings, or trading is suspended or restricted; (ii)
for any period during which an emergency exists as a result of which delivery, disposal or
evaluation of the Trust’s assets is not reasonably practicable; or (iii) for such other period
as the Managing Owner determines to be necessary for the protection of Beneficial Owners. The
Managing Owner is not liable to any Person or in any way for any loss or damages that may
result from any such suspension or postponement.




     (f) Redemption Baskets effectively redeemed pursuant to the provisions of this Section 7.1
shall be cancelled by the Trust in accordance with the Depository’s procedures.




     (g) Baskets may not be redeemed during the Initial Offering Period.



     7.2. Other Redemption Procedures. The Managing Owner from time to time may, but shall
have no obligation to, establish procedures with respect to redemption of Limited Units in lot
sizes smaller than the Redemption Basket and permitting the Redemption Distribution to be in a
form, and delivered in a manner, other than that specified in Section 7.1.



ARTICLE VIII




THE LIMITED OWNERS




     8.1. No Management or Control; Limited Liability; Exercise of Rights through
DTC. The Limited Owners shall not participate in the management or control of the Trust’s
business nor shall they transact any business for the Trust or have the power to sign for or bind
the Trust, said power being vested solely and exclusively in the Managing Owner. Except as provided
in Section 8.3 hereof, no Limited Owner shall be bound by, or be personally liable for, the
expenses, liabilities or obligations of the Trust in excess of its Capital Contribution plus its
share of any Trust Estate in which such Limited Owner owns a Unit and the Trust’s remaining
profits, if any. Except as provided in Section 8.3 hereof, each Limited Unit owned by a Limited
Owner shall be fully paid and no assessment shall be made against any Limited Owner. No salary
shall be paid to any Limited Owner in its capacity as a Limited Owner, nor shall any Limited Owner
have a drawing account or earn interest on its capital. By the purchase and acceptance or other
lawful delivery and acceptance of Limited Units, each Beneficial Owner shall be deemed to be a
Limited Owner and beneficiary of the Trust and vested with beneficial undivided interest in the
Trust to the extent of the Limited Units owned beneficially by such Beneficial Owner, subject to
the terms and conditions of this Trust Agreement. The rights of Beneficial Owners under this Trust
Agreement must be exercised by DTC Participants acting on their behalf in accordance with the rules
and procedures of the Depository, as provided in Section 3.4.



 









 





     8.2. Rights and Duties. The Limited Owners shall have the following rights, powers,
privileges, duties and liabilities:




     (a) The Limited Owners shall have the right to obtain from the Managing Owner information
regarding all things affecting the Trust, provided that such is for a purpose reasonably
related to the Limited Owner’s interest as a beneficial owner of the Trust, including, without
limitation, such reports as are set forth in Article IX and the list of Participants
contemplated by Section 3.3(a)(i). In the event that the Managing Owner neglects or refuses to
produce or mail to a Limited Owner a copy of the list of Participants contemplated by Section
3.3(a)(i), the Managing Owner shall be liable to such Limited Owner for the costs, including
reasonable attorney’s fees, incurred by such Limited Owner to compel the production of such
information, and for any actual damages suffered by such Limited Owner as a result of such
refusal or neglect; provided, however, it shall be a defense of the Managing Owner that the
actual purpose of the Limited Owner’s request for such information was not reasonably related
to the Limited Owner’s interest as a beneficial owner in the Trust (e.g., to secure such
information in order to sell it, or to use the same for a commercial purpose unrelated to the
participation of such Limited Owner in the Trust). The foregoing rights are in addition to, and
do not limit other remedies available to Limited Owners under U.S. federal or state law.




     (b) The Limited Owners shall receive the share of the distributions provided for in this
Trust Agreement in the manner and at the times provided for in this Trust Agreement.




     (c) Except for the Limited Owners’ redemption rights set forth in Article VII hereof,
Limited Owners shall have the right to demand the return of their capital account only upon the
dissolution and winding up of the Trust and only to the extent of funds available therefore. In
no event shall a Limited Owner be entitled to demand or receive property other than cash. No
Limited Owner shall have priority over any other Limited Owner either as to the return of
capital or as to profits, losses or distributions. No Limited Owner shall have the right to
bring an action for partition against the Trust.




     (d) Limited Owners holding Units representing at least a majority (over 50%) (except in
the case of (ii) and (vii) below, in which case the Units must equal or exceed 75%) in Net
Asset Value (not including Units held by the Managing Owner and its Affiliates) may vote to (i)
continue the Trust as provided in Section 13.1(a), (ii) remove the Managing Owner on reasonable
prior written notice to the Managing Owner, (iii) elect and appoint one or more additional
Managing Owners, or consent to such matters as are set forth in Section 5.2(b), (iv) approve a
material change in the trading policies, as set forth in the Prospectus, which change shall not
be effective without the prior written approval of such majority, (v) approve the termination
of any agreement entered into between the Trust and the Managing Owner or any Affiliate of the
Managing Owner for any reason, without penalty, (vi) approve amendments to this Trust Agreement
as set forth in Section 11.1 hereof, and (vii) terminate the Trust as provided in Section
13.1(e), and in the case of (iii), (iv) and (v) in each instance on sixty (60) days’ prior
written notice.



     Except as set forth above, the Limited Owners shall have no voting or other rights with
respect to the Trust.




 









 




     8.3. Limitation on Liability.





     (a) Except as provided in Sections 4.7(f), and 6.2 hereof, and as otherwise provided under
Delaware law, the Limited Owners shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the general
corporation law of Delaware and no Limited Owner shall be liable for claims against, or debts
of the Trust in excess of his Capital Contribution and his share of the applicable Trust Estate
and undistributed profits. In addition, and subject to the exceptions set forth in the
immediately preceding sentence, the Trust shall not make a claim against a Limited Owner with
respect to amounts distributed to such Limited Owner or amounts received by such Limited Owner
upon redemption unless, under Delaware law, such Limited Owner is liable to repay such amount.




     (b) The Trust shall indemnify to the full extent permitted by law and the other provisions
of this Agreement, and to the extent of the applicable Trust Estate, each Limited Owner
(excluding the Managing Owner to the extent of its ownership of any Limited Units) against any
claims of liability asserted against such Limited Owner solely because it is a beneficial owner
of one or more Units as a Limited Owner (other than for taxes for which such Limited Owner is
liable under Section 6.2 hereof).




     (c) Every written note, bond, contract, instrument, certificate or undertaking made or
issued by the Managing Owner shall give notice to the effect that the same was executed or made
by or on behalf of the Trust and that the obligations of such instrument are not binding upon
the Limited Owners individually but are binding only upon the assets and property of the Trust,
and no resort shall be had to the Limited Owners’ personal property for satisfaction of any
obligation or claim thereunder, and appropriate references may be made to this Trust Agreement
and may contain any further recital which the Managing Owner deems appropriate, but the
omission thereof shall not operate to bind the Limited Owners individually or otherwise
invalidate any such note, bond, contract, instrument, certificate or undertaking. Nothing
contained in this Section 8.3 shall diminish the limitation on the liability of the Trust to
the extent set forth in Section 3.7 and 3.8 hereof.



ARTICLE IX




BOOKS OF ACCOUNT AND REPORTS




     9.1. Books of Account. Proper books of account for the Trust shall be kept and shall
be audited annually by an independent certified public accounting firm selected by the Managing
Owner in its sole discretion, and there shall be entered therein all transactions, matters and
things relating to the Trust’s business as are required by the CE Act and regulations promulgated
thereunder, and all other applicable rules and regulations, and as are usually entered into books
of account kept by Persons engaged in a business of like character. The books of account shall be
kept at the principal office of the Trust and each Limited Owner (or any duly constituted designee
of a Limited Owner) shall have, at all times during normal business hours upon reasonable advance
written notice, access to and the right to inspect and copy the same (at such Limited Owner’s own
cost) for any purpose reasonably related to the Limited Owner’s interest as a beneficial owner of
the Trust, including such access as is required under CFTC rules and regulations. Such books of
account shall be kept, and the Trust shall report its Profits and Losses



 









 




on, the accrual method of accounting for financial accounting purposes on a Fiscal Year basis
as described in Article X.




     9.2. Annual Reports and Monthly Statements. Each Limited Owner shall be furnished as
of the end of each month and as of the end of each Fiscal Year with (a) such reports (in such
detail) as are required to be given to Limited Owners by the CFTC and the NFA, (b) any other
reports (in such detail) required to be given to Limited Owners by any other governmental authority
which has jurisdiction over the activities of the Trust and (c) any other reports or information
which the Managing Owner, in its discretion, determines to be necessary or appropriate.



     9.3. Tax Information. Appropriate tax information (adequate to enable each Limited
Owner to complete and file its U.S. federal tax return) shall be delivered to each Limited Owner as
soon as practicable following the end of each Fiscal Year but generally no later than March 30.



     9.4. Calculation of Net Asset Value. Net Asset Value shall be calculated at such times
as the Managing Owner shall determine from time to time.



     9.5. Maintenance of Records. The Managing Owner shall maintain: (a) for a period of at
least six (6) Fiscal Years all books of account required by Section 9.1 hereof; a list of the names
and last known address of, and number of Units owned by, all Unitholders, a copy of the Certificate
of Trust and all certificates of amendment thereto, together with executed copies of any powers of
attorney pursuant to which any certificate has been executed; copies of the Trust’s Federal, state
and local income tax returns and reports, if any; and a record of the information obtained to
indicate that a Limited Owner meets the investor suitability standards set forth in the Prospectus;
and (b) for a period of at least six (6) Fiscal Years copies of any effective written trust
agreements, subscription agreements and any financial statements of the Trust. The Managing Owner
may keep and maintain the books and records of the Trust in paper, magnetic, electronic or other
format at the Managing Owner may determine in its sole discretion, provided the Managing Owner uses
reasonable care to prevent the loss or destruction of such records.



     9.6. Certificate of Trust. Except as otherwise provided in the Delaware Trust Statute
or this Trust Agreement, the Managing Owner shall not be required to mail a copy of any Certificate
of Trust filed with the Secretary of State of the State of Delaware to each Limited Owner; however,
such certificates shall be maintained at the principal office of the Trust and shall be available
for inspection and copying by the Limited Owners in accordance with this Trust Agreement.



ARTICLE X




FISCAL YEAR




     10.1. Fiscal Year. The Fiscal Year shall begin on the 1st day of January and end on
the 31st day of December of each year. The first Fiscal Year of the Trust shall commence
on the date of filing of the Certificate of Trust and end on the 31st day of December
2006. The Fiscal Year in which the Trust shall terminate shall end on the date of termination.





 









 






ARTICLE XI





AMENDMENT OF TRUST AGREEMENT; MEETINGS




     11.1. Amendments to the Trust Agreement.




     (a) Amendments to this Trust Agreement may be proposed by the Managing Owner or by Limited
Owners holding Units equal to at least ten percent (10%) of the Net Asset Value of the Trust.
Following such proposal, the Managing Owner shall submit to the Limited Owners a verbatim
statement of any proposed amendment, and statements concerning the legality of such amendment
and the effect of such amendment on the limited liability of the Limited Owners. The Managing
Owner shall include in any such submission its recommendations as to the proposed amendment.
The amendment shall become effective only upon the written approval or affirmative vote of
Limited Owners holding Units (excluding Units held by the Managing Owner and its Affiliates)
equal to at least a majority (over 50%) of the Net Asset Value (excluding Units held by the
Managing Owner and its Affiliates) of the Trust or such higher percentage as may be required by
applicable law, and upon receipt of an opinion of independent legal counsel to the effect that
the amendment is legal, valid and binding and will not adversely affect the limitations on
liability of the Limited Owners as described in Section 8.3 of this Trust Agreement.
Notwithstanding the foregoing, where any action taken or authorized pursuant to any provision
of this Trust Agreement requires the approval or affirmative vote of Limited Owners holding a
greater interest in Limited Units than is required to amend this Trust Agreement under this
Section 11.1, and/or the approval or affirmative vote of the Managing Owner, an amendment to
such provision(s) shall be effective only upon the written approval or affirmative vote of the
minimum number of Unitholders which would be required to take or authorize such action, or as
may otherwise be required by applicable law, and upon receipt of an opinion of independent
legal counsel as set forth above in this Section 11.1.




     (b) Notwithstanding any provision to the contrary contained in Section 11.1(a) hereof, the
Managing Owner may, without the approval of the Limited Owners, make such amendments to this
Trust Agreement which: (i) are necessary to add to the representations, duties or obligations
of the Managing Owner or surrender any right or power granted to the Managing Owner herein, for
the benefit of the Limited Owners; (ii) are necessary to cure any ambiguity, to correct or
supplement any provision herein which may be inconsistent with any other provision herein or in
the Prospectus, or to make any other provisions with respect to matters or questions arising
under this Trust Agreement or the Prospectus which will not be inconsistent with the provisions
of the Trust Agreement or the Prospectus; or (iii) the Managing Owner deems advisable;
provided, however, that no amendment shall be adopted pursuant to this clause (iii) unless the
adoption thereof: (A) is not adverse to the interests of the Limited Owners; (B) is consistent
with Section 4.1 hereof; (C) except as otherwise provided in Section 11.1(c) below, does not
affect the allocation of Profits and Losses among the Limited Owners or between the Limited
Owners and the Managing Owner; and (D) does not adversely affect the limitations on liability
of the Limited Owners, as described in Article VIII hereof or the status of the Trust as a
partnership for U.S. federal income tax purposes. Amendments to this Trust Agreement which
adversely affect (i) the rights of Limited Owners, (ii) the appointment of a new Managing Owner
pursuant to Section 4.2(g) above, (iii) the dissolution of the Trust pursuant to Section
13.1(f) below and (iv) any material changes in the Trust’s basic investment policies or
structure shall occur only upon the written approval or affirmative vote of Limited Owners
holding Units equal



 









 







to at least a majority (over 50%) of the Net Asset Value (excluding Units held by the
Managing Owner and its Affiliates) pursuant to Section 11.1(a) above.




     (c) Notwithstanding any provision to the contrary contained in Sections 11.1(a) and (b)
hereof, the Managing Owner may, without the approval of the Limited Owners, amend the
provisions of this Trust Agreement if the Trust is advised at any time by the Trust’s
accountants or legal counsel that the amendments made are necessary to ensure that the Trust’s
status as a partnership will be respected for U.S. federal income tax purposes.




     (d) Upon amendment of this Trust Agreement, the Certificate of Trust shall also be
amended, if required by the Delaware Trust Statute, to reflect such change.




     (e) No amendment shall be made to this Trust Agreement without the consent of the Trustee
if it reasonably believes that such amendment adversely affects any of the rights, duties or
liabilities of the Trustee; provided, however, that the Trustee may not withhold its consent
for any action which the Limited Owners are permitted to take under Section 8.2(d) above. At
the expense of the Managing Owner, the Trustee shall execute and file any amendment to the
Certificate of Trust if so directed by the Managing Owner or if such amendment is required in
the opinion of the Trustee.




     (f) The Trustee shall be under no obligation to execute any amendment to the Trust
Agreement or to any agreement to which the Trust is a party until it has received an
instruction letter from the Managing Owner, in form and substance reasonably satisfactory to
the Trustee (i) directing the Trustee to execute such amendment, (ii) representing and
warranting to the Trustee that such execution is authorized and permitted by the terms of the
Trust Agreement and (if applicable) such other agreement to which the Trust is a party and does
not conflict with or violate any other agreement to which the Trust is a party and (iii)
confirming that such execution and acts related thereto are covered by the indemnity provisions
of the Trust Agreement in favor of the Trustee.




     (g) No provision of this Agreement may be amended, waived or otherwise modified orally but
only by a written instrument adopted in accordance with this Section.



     11.2. Meetings of the Trust. Meetings of the Unitholders may be called by the
Managing Owner and will be called by it upon the written request of Limited Owners holding Units
equal to at least ten percent (10%) of the Net Asset Value of the Trust. Such call for a meeting
shall be deemed to have been made upon the receipt by the Managing Owner of a written request from
the requisite percentage of Limited Owners. The Managing Owner shall deposit in the United States
mails, within fifteen (15) days after receipt of said request, written notice to all Unitholders
thereof of the meeting and the purpose of the meeting, which shall be held on a date, not less than
thirty (30) nor more than sixty (60) days after the date of mailing of said notice, at a reasonable
time and place. Any notice of meeting shall be accompanied by a description of the action to be
taken at the meeting and an opinion of independent counsel as to the effect of such proposed action
on the liability of Limited Owners for the debts of the Trust. Unitholders may vote in person or by
proxy at any such meeting.



     11.3. Action without a Meeting. Any action required or permitted to be taken by
Unitholders by vote may be taken without a meeting by written consent setting forth the actions so
taken. Such written consents shall be treated for all purposes as votes at a meeting. If the vote
or



 









 







consent of any Unitholder to any action of the Trust or any Unitholder, as contemplated by
this Agreement, is solicited by the Managing Owner, then the solicitation shall be effected by
notice to each Unitholder given in the manner provided in Section 15.4. The vote or consent of each
Unitholder so solicited shall be deemed conclusively to have been cast or granted as requested in
the notice of solicitation, whether or not the notice of solicitation is actually received by that
Unitholder, unless the Unitholder expresses written objection to the vote or consent by notice
given in the manner provided in Section 15.4 below and actually received by the Trust within twenty
(20) days after the notice of solicitation is effected. The Managing Owner and all persons dealing
with the Trust shall be entitled to act in reliance upon any vote or consent which is deemed cast
or granted pursuant to this Section and shall be fully indemnified by the Trust in so doing. Any
action taken or omitted in reliance on any such deemed vote or consent of one or more Unitholders
shall not be void or voidable by reason of timely communication made by or on behalf of all or any
of such Unitholders in any manner other than as expressly provided in Section 15.4.



ARTICLE XII




TERM




     12.1. Term. The term for which the Trust is to exist commenced on the date of the
filing of the Certificate of Trust, and shall terminate pursuant to the provisions of Article XIII
hereof or as otherwise provided by law.



ARTICLE XIII




TERMINATION




     13.1. Events Requiring Dissolution of the Trust. The Trust shall dissolve at any time
upon the happening of any of the following events:




     (a) The filing of a certificate of dissolution or revocation of the Managing Owner’s
charter (and the expiration of 90 days after the date of notice to the Managing Owner of
revocation without a reinstatement of its charter) or upon the withdrawal, removal,
adjudication or admission of bankruptcy or insolvency of the Managing Owner (each of the
foregoing events an “Event of Withdrawal”) unless at the time there is at least one remaining
Managing Owner and that remaining Managing Owner carries on the business of the Trust or (ii)
within ninety (90) days of such Event of Withdrawal all the remaining Unitholders agree in
writing to continue the business of the Trust and to select, effective as of the date of such
event, one or more successor Managing Owners. If the Trust is terminated as the result of an
Event of Withdrawal and a failure of all remaining Unitholders to continue the business of the
Trust and to appoint a successor Managing Owner as provided in clause (a)(ii) above, within 120
days of such Event of Withdrawal, Limited Owners holding Units representing at least a majority
(over 50%) of the Net Asset Value (not including Units held by the Managing Owner and its
Affiliates) may elect to continue the business of the Trust by forming a new statutory trust
(the “Reconstituted Trust”) on the same terms and provisions as set forth in this Trust
Agreement (whereupon the parties hereto shall execute and deliver any documents or instruments
as may be necessary to



 









 







reform the Trust). Any such election must also provide for the election of a Managing
Owner to the Reconstituted Trust. If such an election is made, all Limited Owners of the Trust
shall be bound thereby and continue as Limited Owners of the Reconstituted Trust.




     (b) The occurrence of any event which would make unlawful the continued existence of the
Trust.




     (c) In the event of the suspension, revocation or termination of the Managing Owner’s
registration as a commodity pool operator under the CE Act, or membership as a commodity pool
operator with the NFA (if, in either case, such registration is required under the CE Act or
the rules promulgated thereunder) unless at the time there is at least one remaining Managing
Owner whose registration or membership has not been suspended, revoked or terminated.




     (d) The Trust becomes insolvent or bankrupt.




     (e) The Limited Owners holding Units representing at least a majority (over 75%) of the
Net Asset Value (which excludes the Units of the Managing Owner) vote to dissolve the Trust,
notice of which is sent to the Managing Owner not less than ninety (90) Business Days prior to
the effective date of termination.




     (f) The determination of the Managing Owner that the aggregate net assets of the Trust in
relation to the operating expenses of the Trust make it unreasonable or imprudent to continue
the business of the Trust, or, in the exercise of its reasonable discretion, the determination
by the Managing Owner to dissolve the Trust because the aggregate Net Asset Value of the Trust
as of the close of business on any Business Day declines below $5 million.




     (g) The Trust is required to be registered as an investment company under the Investment
Company Act of 1940, as amended.




     (h) DTC is unable or unwilling to continue to perform its functions, and a comparable
replacement is unavailable.



     The death, legal disability, bankruptcy, insolvency, dissolution, or withdrawal of any Limited
Owner (as long as such Limited Owner is not the sole Limited Owner of the Trust) shall not result
in the termination of the Trust, and such Limited Owner, his estate, custodian or personal
representative shall have no right to withdraw or value such Limited Owner’s Units. Each Limited
Owner (and any assignee thereof) expressly agrees that in the event of his death, he waives on
behalf of himself and his estate, and he directs the legal representative of his estate and any
person interested therein to waive the furnishing of any inventory, accounting or appraisal of the
assets of the Trust and any right to an audit or examination of the books of the Trust, except for
such rights as are set forth in Article IX hereof relating to the books of account and reports of
the Trust.



     13.2. Distributions on Dissolution. Upon the dissolution of the Trust, the Managing
Owner (or in the event there is no Managing Owner, such person (the “Liquidating Trustee”)
as the majority in interest of the Limited Owners may propose and approve) shall take full charge
of the Trust Estate. Any Liquidating Trustee so appointed shall have and may exercise, without
further



 









 







authorization or approval of any of the parties hereto, all of the powers conferred upon the
Managing Owner under the terms of this Trust Agreement, subject to all of the applicable
limitations, contractual and otherwise, upon the exercise of such powers, and provided that the
Liquidating Trustee shall not have general liability for the acts, omissions, obligations and
expenses of the Trust. Thereafter, in accordance with Section 3808(e) of the Delaware Trust
Statute, the business and affairs of the Trust shall be wound up and all assets shall be liquidated
as promptly as is consistent with obtaining the fair value thereof, and the proceeds therefrom
shall be applied and distributed in the following order of priority: (a) to the expenses of
liquidation and termination and to creditors, including Unitholders who are creditors, to the
extent otherwise permitted by law, in satisfaction of liabilities of the Trust (whether by payment
or the making of reasonable provision for payment thereof) other than liabilities for distributions
to Unitholders; and (b) to the Managing Owner and each Limited Owner pro rata in accordance with
its positive book capital account balance, less any amount owing by such Unitholder, after giving
effect to any adjustments and any distributions theretofore made to the Unitholders.



     13.3. Termination; Certificate of Cancellation. Following the dissolution and
distribution of the assets of the Trust, the Trust shall terminate and the Managing Owner or the
Liquidating Trustee, as the case may be, shall instruct the Trustee to execute and cause such
certificate of cancellation of the Certificate of Trust to be filed in accordance with the Delaware
Trust Statute. Notwithstanding anything to the contrary contained in this Trust Agreement, the
existence of the Trust as a separate legal entity shall continue until the filing of such
certificate of cancellation.



ARTICLE XIV




POWER OF ATTORNEY




     14.1. Power of Attorney Executed Concurrently. Concurrently with the written
acceptance and adoption of the provisions of this Trust Agreement, each Limited Owner shall execute
and deliver to the Managing Owner a Power of Attorney as part of the Subscription Agreement, or in
such other form as may be prescribed by the Managing Owner. Each Limited Owner, by its execution
and delivery hereof, irrevocably constitutes and appoints the Managing Owner and its officers,
directors and managers, with full power of substitution, as the true and lawful attorney-in-fact
and agent for such Limited Owner with full power and authority to act in his name and on his behalf
in the execution, acknowledgment, filing and publishing of Trust documents, including, but not
limited to, the following:




     (a) Any certificates and other instruments, including but not limited to, any applications
for authority to do business and amendments thereto, which the Managing Owner deems appropriate
to qualify or continue the Trust as a business or statutory trust in the jurisdictions in which
the Trust may conduct business, so long as such qualifications and continuations are in
accordance with the terms of this Trust Agreement or any amendment hereto, or which may be
required to be filed by the Trust or the Unitholders under the laws of any jurisdiction;




     (b) Any instrument which may be required to be filed by the Trust under the laws of any
state or by any governmental agency, or which the Managing Owner deems advisable to file; and



 









 






     (c) This Trust Agreement and any documents which may be required to effect an amendment to
this Trust Agreement approved under the terms of the Trust Agreement, and the continuation of
the Trust, the admission of the signer of the Power of Attorney as a Limited Owner or of others
as additional or substituted Limited Owners, or the termination of the Trust, provided such
continuation, admission or termination is in accordance with the terms of this Trust Agreement.



     14.2. Effect of Power of Attorney. The Power of Attorney concurrently granted by each
Limited Owner to the Managing Owner:




     (a) Is a special, irrevocable Power of Attorney coupled with an interest, and shall
survive and not be affected by the death, disability, dissolution, liquidation, termination or
incapacity of the Limited Owner;




     (b) May be exercised by the Managing Owner for each Limited Owner by a facsimile signature
of one of its officers or by a single signature of one of its officers acting as
attorney-in-fact for all of them; and




     (c) Shall survive the delivery of an assignment by a Limited Owner of the whole or any
portion of his Limited Units; except that where the assignee thereof has been approved by the
Managing Owner for admission to the Trust as a substituted Limited Owner, the Power of Attorney
of the assignor shall survive the delivery of such assignment for the sole purpose of enabling
the Managing Owner to execute, acknowledge and file any instrument necessary to effect such
substitution.



     Each Limited Owner agrees to be bound by any representations made by the Managing Owner and by
any successor thereto, determined to be acting in good faith pursuant to such Power of Attorney and
not constituting negligence or misconduct.



     14.3. Limitation on Power of Attorney. The Power of Attorney concurrently granted by
each Limited Owner to the Managing Owner shall not authorize the Managing Owner to act on behalf of
Limited Owners in any situation in which this Trust Agreement requires the approval of Limited
Owners unless such approval has been obtained as required by this Trust Agreement. In the event of
any conflict between this Trust Agreement and any instruments filed by the Managing Owner or any
new Managing Owner pursuant to this Power of Attorney, this Trust Agreement shall control.



ARTICLE XV




MISCELLANEOUS




     15.1. Governing Law. The validity and construction of this Trust Agreement and all
amendments hereto shall be governed by the laws of the State of Delaware, and the rights of all
parties hereto and the effect of every provision hereof shall be subject to and construed according
to the laws of the State of Delaware without regard to the conflict of laws provisions thereof;
provided, however, that causes of action for violations of U.S. federal or state securities laws
shall not be governed by this Section 15.1, and provided, further, that the parties hereto intend
that the provisions hereof shall control over any contrary or limiting statutory or common law of



 









 




the State of Delaware (other than the Delaware Trust Statute) and that, to the maximum extent
permitted by applicable law, there shall not be applicable to the Trust, the Trustee, the Managing
Owner, the Unitholders or this Trust Agreement any provision of the laws (statutory or common) of
the State of Delaware (other than the Delaware Trust Statute) pertaining to trusts which relate to
or regulate in a manner inconsistent with the terms hereof: (a) the filing with any court or
governmental body or agency of trustee accounts or schedules of trustee fees and charges; (b)
affirmative requirements to post bonds for trustees, officers, agents, or employees of a trust; (c)
the necessity for obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property; (d) fees or other sums payable to trustees,
officers, agents or employees of a trust; (e) the allocation of receipts and expenditures to income
or principal; (f) restrictions or limitations on the permissible nature, amount or concentration of
trust investments or requirements relating to the titling, storage or other manner of holding of
trust assets; or (g) the establishment of fiduciary or other standards or responsibilities or
limitations on the acts or powers of trustees or managers that are inconsistent with the
limitations on liability or authorities and powers of the Trustee or the Managing Owner set forth
or referenced in this Trust Agreement. Section 3540 of Title 12 of the Delaware Code shall not
apply to the Trust. The Trust shall be of the type commonly called a “statutory trust,” and without
limiting the provisions hereof, the Trust may exercise all powers that are ordinarily exercised by
such a trust under Delaware law. The Trust specifically reserves the right to exercise any of the
powers or privileges afforded to statutory trusts and the absence of a specific reference herein to
any such power, privilege or action shall not imply that the Trust may not exercise such power or
privilege or take such actions.




     15.2. Provisions In Conflict With Law or Regulations.




     (a) The provisions of this Trust Agreement are severable, and if the Managing Owner shall
determine, with the advice of counsel, that any one or more of such provisions (the
“Conflicting Provisions”) are in conflict with the Code, the Delaware Trust Statute or
other applicable U.S. federal or state laws, the Conflicting Provisions shall be deemed never
to have constituted a part of this Trust Agreement, even without any amendment of this Trust
Agreement pursuant hereto; provided, however, that such determination by the Managing Owner
shall not affect or impair any of the remaining provisions of this Trust Agreement or render
invalid or improper any action taken or omitted prior to such determination. No Managing Owner
or Trustee shall be liable for making or failing to make such a determination.




     (b) If any provision of this Trust Agreement shall be held invalid or unenforceable in any
jurisdiction, such holding shall not in any manner affect or render invalid or unenforceable
such provision in any other jurisdiction or any other provision of this Trust Agreement in any
jurisdiction.



     15.3. Construction. In this Trust Agreement, unless the context otherwise requires,
words used in the singular or in the plural include both the plural and singular and words denoting
any gender include all genders. The title and headings of different parts are inserted for
convenience and shall not affect the meaning, construction or effect of this Trust Agreement.



     15.4. Notices. All notices or communications under this Trust Agreement (other than
requests for redemption of Units, notices of assignment, transfer, pledge or encumbrance of Units,
and reports and notices by the Managing Owner to the Limited Owners) shall be in



 









 







writing and shall be effective upon personal delivery, or if sent by mail, postage prepaid, or
if sent electronically, by facsimile or by overnight courier; and addressed, in each such case, to
the address set forth in the books and records of the Trust or such other address as may be
specified in writing, of the party to whom such notice is to be given, upon the deposit of such
notice in the United States mail, upon transmission and electronic confirmation thereof or upon
deposit with a representative of an overnight courier, as the case may be. Requests for redemption,
notices of assignment, transfer, pledge or encumbrance of Units shall be effective upon timely
receipt by the Managing Owner in writing.



     15.5. Counterparts. This Trust Agreement may be executed in several counterparts, and
all so executed shall constitute one agreement, binding upon all of the parties hereto,
notwithstanding that all the parties are not signatories to the original or the same counterpart.



     15.6. Binding Nature of Trust Agreement. The terms and provisions of this Trust
Agreement shall be binding upon and inure to the benefit of the heirs, custodians, executors,
estates, administrators, personal representatives, successors and permitted assigns of the
respective Unitholders. For purposes of determining the rights of any Unitholder or assignee
hereunder, the Trust and the Managing Owner may rely upon the Trust records as to who are
Unitholders and permitted assignees, and all Unitholders and assignees agree that the Trust and the
Managing Owner, in determining such rights, shall rely on such records and that Limited Owners and
assignees shall be bound by such determination.



     15.7. No Legal Title to Trust Estate. Subject to the provisions of Section 1.8 in the
case of the Managing Owner, the Unitholders shall not have legal title to any part of the Trust
Estate.



     15.8. Creditors. No creditors of any Unitholders shall have any right to obtain
possession of, or otherwise exercise legal or equitable remedies with respect to the Trust Estate.



     15.9. Integration. This Trust Agreement constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and
understandings pertaining thereto.



     15.10. Goodwill; Use of Name. No value shall be placed on the name or goodwill of the
Trust, which shall belong exclusively to GreenHaven Commodity Services, LLC.



     IN WITNESS WHEREOF, the undersigned have duly executed this Declaration of Trust and Trust
Agreement as of the day and year first above written.



	 	 	 
	CSC TRUST COMPANY OF DELAWARE,
	as Trustee
	 
	 	 
	By:

	 	/s/
	 

	 	 
	 

	 	Name:
	 

	 	Title:






 









 






	 	 	 
	GREENHAVEN COMMODITY SERVICES, LLC,
	as Managing Owner
	 
	 	 
	By:

	 	/s/
	 

	 	 
	 

	 	Name:
	 

	 	Title:





All Limited Owners now and hereafter admitted as Limited Owners of the Trust
and reflected in the records maintained by the Depository, the DTC Participants
or the Indirect Participants, as the case may be, as Limited Owners from time
to time, pursuant to powers of attorney now and hereafter executed in favor of,
and granted and delivered to, the Managing Owner by each of the Limited Owners




	 	 	 
	By:

	 	GREENHAVEN COMMODITY SERVICES, LLC,
	 

	 	as attorney-in-fact
	 
	 	 
	By:

	 	/s/
	 

	 	 
	 

	 	Name:
	 

	 	Title:






 









 





EXHIBIT A




CERTIFICATE OF TRUST

OF

GREENHAVEN CONTINUOUS COMMODITY INDEX FUND




     This Certificate of Trust of GreenHaven Continuous Commodity Index Fund (the “Trust”) is
being duly executed and filed on behalf of the Trust by the undersigned, as trustee, to form a
statutory trust under the Delaware Statutory Trust Act (12 Del. C. § 3801 et seq.)(the “Act”).



     1. Name. The name of the statutory trust formed by this Certificate of Trust is
GreenHaven Continuous Commodity Index Fund.



     2. Delaware Trustee. The name and business address of the trustee of the Trust in the
State of Delaware are CSC Trust Company of Delaware, 2711 Centerville Road, Suite 210, Wilmington,
DE 19808.



     3. Effective Date. This Certificate of Trust shall be effective upon filing.



     IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of Trust in accordance
with Section 3811(a)(1) of the Act.


CSC TRUST COMPANY OF
DELAWARE, not in its
individual capacity but
solely as Owner Trustee
of the Trust




	 	 	 
	By:

	 	/s/
	 

	 	 
	 

	 	Name:
	 

	 	Title:






 









 





EXHIBIT B




[FORM OF GLOBAL CERTIFICATE]




CERTIFICATE OF BENEFICIAL INTEREST

-Evidencing-

All Limited Units

-In-




GREENHAVEN CONTINUOUS COMMODITY INDEX FUND



UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



This is to certify that CEDE & CO. is the owner and registered holder of this Certificate
evidencing the ownership of all issued and outstanding Limited Units (“Units”), each of which
represents a fractional undivided unit of beneficial interest in GreenHaven Continuous Commodity
Index Fund (the “Trust”), a Delaware statutory trust formed under the Delaware Statutory Trust Act
(12 Del. C. § 3801 et seq.) pursuant to a Certificate of Trust, dated as of and filed in the
offices of the Secretary of State of the State of Delaware on October___, 2006, and a Declaration of
Trust and Trust Agreement, dated as of October ___, 2006, by and among GreenHaven Commodity
Services, LLC, a Delaware limited liability company, as managing owner, CSC Trust Company of
Delaware, a Delaware corporation, as trustee, and the unitholders from time to time thereunder
(hereinafter called the “Trust Agreement”), copies of which are available at the principal offices
of the Trust.




     At any given time this Certificate shall represent all limited units of beneficial interest in
the Trust, which shall be the total number of Units that are outstanding at such time. The Trust
Agreement provides for the deposit of cash with the Trust from time to time and the issuance by the
Trust of additional Creation Baskets representing the undivided units of beneficial interest in the
assets of the Trust. At the request of the registered holder this Certificate may be exchanged for
one or more Certificates issued to the registered holder in such denominations as the registered
holder may request, provided, however, that, in the aggregate, the Certificates issued to the
registered holder hereof shall represent all Units outstanding at any given time.



     Each Authorized Participant hereby grants and conveys all of its rights, title and interest in
and to the Trust to the extent of the undivided interest represented hereby to the registered
holder of this Certificate subject to and in pursuance of the Trust Agreement, all the terms,
conditions and covenants of which are incorporated herein as if fully set forth at length.



 









 





     The registered holder of this Certificate is entitled at any time upon tender of this
Certificate to the Trust, endorsed in blank or accompanied by all necessary instruments of
assignment and transfer in proper form, at its principal office in the State of New York and, upon
payment of any tax or other governmental charges, to receive at the time and in the manner provided
in the Trust Agreement, such holder’s ratable portion of the assets of the Trust for each
Redemption Basket tendered and evidenced by this Certificate.



     The holder of this Certificate, by virtue of the purchase and acceptance hereof, assents to
and shall be bound by the terms of the Trust Agreement, copies of which are on file and available
for inspection at reasonable times during business hours at the principal office of the Trust, to
which reference is made for all the terms, conditions and covenants thereof.



     The Trust may deem and treat the person in whose name this Certificate is registered upon the
books of the Trust as the owner hereof for all purposes and the Trust shall not be affected by any
notice to the contrary.



     The Trust Agreement permits, with certain exceptions as therein provided, the amendment
thereof, by the Managing Owner with the consent of the Beneficial Owners holding Units (excluding
Units held by the Managing Owner and its Affiliates) equal to at least a majority (over 50%) of the
net asset value of the Trust or such higher percentage as may be required by applicable law, and
upon receipt of an opinion of independent legal counsel to the effect that the amendment is legal,
valid and binding and will not adversely affect the limitations on liability of the Beneficial
Owners; provided, however that the Managing Owner may, without the approval of the Beneficial
Owners, make such amendments to the Trust Agreement which: (i) are necessary to add to the
representations, duties or obligations of the Managing Owner or surrender any right or power
granted to the Managing Owner in the Trust Agreement, for the benefit of the Beneficial Owners;
(ii) are necessary to cure any ambiguity, to correct or supplement any provision in the Trust
Agreement which may be inconsistent with any other provision in the Trust Agreement or in the
Prospectus, or to make any other provisions with respect to matters or questions arising under the
Trust Agreement or the Prospectus which will not be inconsistent with the provisions of the Trust
Agreement or the Prospectus; or (iii) the Managing Owner deems advisable; provided, however, that
no amendment shall be adopted pursuant to clause (iii) unless the adoption thereof: (A) is not
adverse to the interests of the Beneficial Owners; (B) is consistent with Managing Owner’s control
of and power to conduct the business of the Trust; (C) with certain exceptions, does not affect the
allocation of Profits and Losses among the Beneficial Owners or between the Beneficial Owners and
the Managing Owner; and (D) does not adversely affect the limitations on liability of the
Beneficial Owners or the status of the Trust as a partnership for U.S. federal income tax purposes.
Any such consent or waiver by the holder of Units shall be conclusive and binding upon such holder
of Units and upon all future holders of Units, and shall be binding upon any Units, whether
evidenced by a Certificate or held in uncertificated form, issued upon the registration or transfer
hereof whether or not notation of such consent or waiver is made upon this Certificate and whether
or not the Units evidenced hereby are at such time in uncertificated form. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the consent of any holders
of Units.



     The Trust Agreement, and this Certificate, is executed and delivered by GreenHaven Commodity
Services, LLC, as managing owner, in the exercise of the powers and authority conferred and vested
in it by the Trust Agreement. The representations, undertakings and



 









 







agreements made on the part of the Trust in the Trust Agreement or this Certificate are made
and intended not as personal representations, undertakings and agreements by GreenHaven Commodity
Services, LLC but are made and intended for the purpose of binding only the Trust. Nothing in the
Agreement or this Certificate shall be construed as creating any liability on GreenHaven Commodity
Services, LLC, individually or personally, to fulfill any representation, undertaking or agreement
other than as provided in the Trust Agreement or this Certificate.



     This Certificate shall not become valid or binding for any purpose until properly executed by
the Managing Owner pursuant to the Trust Agreement.



     Terms not defined herein have the same meaning as in the Trust Agreement.



     IN WITNESS WHEREOF, GreenHaven Commodity Services, LLC, as Managing Owner, has caused this
Certificate to be executed in its name by the manual or facsimile signature of one of its
Authorized Officers.



	 	 	 
	GreenHaven Commodity Services LLC,
	     as managing owner
	 
	 	 
	By:

	 	                                                            

Authorized Officer
	 
	 	 
	Date:

	 	                    , 2006