AMENDMENT NO. 2 TO THE AMENDED AND RESTATED DECLARATION OF TRUST AND TRUST AGREEMENT OF DB COMMODITY INDEX TRACKING MASTER FUND
Exhibit 4.2.2
AMENDMENT NO. 2 TO THE
AMENDED AND RESTATED
DECLARATION OF TRUST AND TRUST AGREEMENT
OF
DB COMMODITY INDEX TRACKING MASTER FUND
This Amendment No. 2 (“Amendment No. 2”) to the Amended and Restated Declaration of Trust and Trust Agreement dated as of December 1, 2005 (the “Declaration of Trust”) of DB Commodity Index Tracking Master Fund (the “Fund”) by and among DB Commodity Services LLC (the “Managing Owner”), Wilmington Trust Company and DB Commodity Index Tracking Fund.
WHEREAS, the Managing Owner has deemed it advisable for the Fund to amend the Declaration of Trust to memorialize changes in certain fee provisions disclosed in the Declaration of Trust as previously agreed to by the Fund and the Managing Owner;
WHEREAS, the Managing Owner wishes to amend the Declaration of Trust pursuant to Section 11.1(b)(iii) thereof to give effect to the foregoing.
NOW, THEREFORE, in consideration of the premises and of other good and valuable consideration, the receipt and sufficiency of all of which are hereby acknowledged, the Declaration of Trust is amended as follows:
| 1. | Effective as of March 2, 2006 through July 11, 2006, Section 4.8(a)(iii) shall be amended and replaced in its entirety as follows: |
“(iii) In no event shall the Managing Owner be entitled to reimbursement under Section 4.8(a)(i) in an aggregate amount in excess of 2.50% of the aggregate amount of all subscriptions accepted during the Initial Offering Period and the first 36 months of the Continuous Offering Period. In no event shall the aggregate amount of the reimbursement payments from the Trust to the Managing Owner under Sections 4.8(a)(i) and (ii) in any month exceed 0.10% per annum of the Net Asset Value of the Trust as of the beginning of such month.”
| 2. | Effective as of July 12, 2006, Section 4.8(a)(i), (ii) and (iii) shall be amended and replaced in its entirety as follows: |
“(a) Organization and Offering Expenses.
(i) The Managing Owner or an Affiliate of the Managing Owner shall be responsible for the payment of all Organization and Offering Expenses incurred and accrued but unpaid in connection with the creation of the Master Fund and sale of Shares during or prior to the Initial Offering Period.
(ii) The Managing Owner or an Affiliate of the Managing Owner also shall be responsible for the payment of all Organization and Offering Expenses incurred after the Initial Offering Period.
(iii) [Reserved].”
| 3. | Effective as of July 12, 2006, Section 4.8(b) shall be amended and replaced in its entirety as follows: |
“(b) Routine Operational, Administrative and Other Ordinary and Extraordinary Expenses. All ongoing charges, costs and expenses of the Master Fund’s operation, including, but not limited to, the routine expenses associated with (i) all brokerage commissions, including applicable exchange fees, NFA fees, give-up fees, pit brokerage fees and other transaction related fees and expenses charged in connection with trading activities; (ii) preparation of monthly, quarterly, annual and other reports required by applicable U.S. federal and state regulatory authorities; (iii) Master Fund meetings and preparing, printing and mailing of proxy statements and reports to Shareholders; (iv) the payment of any distributions related to redemption of Baskets; (v) routine services of the Trustee, legal counsel and independent accountants; (vi) routine accounting and bookkeeping services, whether performed by an outside service provider or by Affiliates of the Managing Owner; (vii) postage and insurance; (viii) client relations and services; (ix) computer equipment and system maintenance; and (x) required payments to any other service providers of the Master Fund pursuant to any applicable contract; shall be billed to and/or paid by the Managing Owner. The Management Fee and 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.”
| 4. | Effective as of July 12, 2006, Section 4.9 shall be amended and replaced in its entirety as follows: |
“SECTION 4.9. Compensation to the Managing Owner. The Master Fund shall pay to the Managing Owner, monthly in arrears, a management fee in an amount equal to 0.0625% (0.75% per annum) (the “Management Fee”) of the Master Fund’s Net Asset Value as of the end of each month. The Managing Owner shall, in its capacity as a Shareholder, be entitled to receive allocations and distributions pursuant to the provisions of this Trust Agreement.”
| 5. | This Amendment No. 2 to the Declaration of Trust shall be governed by, and construed in accordance with, the laws of the State of Delaware. |
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IN WITNESS WHEREOF, this Amendment No. 2 has been executed for and on behalf of the undersigned as of the 8th day of August, 2006.
| DB COMMODITY SERVICES LLC, as Managing Owner | ||
| By: | /S/ XXXXX XXXX | |
| Name: Xxxxx Xxxx Title: Director and Chief Executive Officer | ||
| By: | /S/ XXXXXXX XXXXXXX | |
| Name: Xxxxxxx Xxxxxxx Title: Vice President and Chief Operating Officer | ||
Acknowledged:
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee of the Fund
| By: | /S/ XXXXXX X. XXXX | |
| Name: Xxxxxx X. Xxxx Title: Assistant Vice President | ||
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