FORM OF DECLARATION OF TRUST AND TRUST AGREEMENT
EXHIBIT
4.1
FORM
OF DECLARATION OF TRUST AND TRUST AGREEMENT
TRUST
AGREEMENT, dated as of October 1, 2007 (this “Trust Agreement”), between DB
COMMODITY SERVICES LLC, a Delaware limited liability company, as managing owner
(the “Managing Owner”), and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as owner trustee (the “Owner Trustee”). The Managing
Owner and the Owner Trustee hereby agree as follows:
1. Formation
of Trust.
(a) The
trust created hereby shall be known as “DB-New York Nuclear Uranium Fund” in
which name the Owner Trustee may conduct the business of the Trust, make and
execute contracts, and xxx and be sued.
(b) The
Managing Owner hereby assigns, transfers, conveys and sets over to the Trust the
sum of $1,000. The Owner Trustee hereby acknowledges that the Trust
has received such amount in bank accounts in the name of the Trust controlled by
the Managing Owner, which amount shall constitute the initial trust
estate. The Owner Trustee hereby declares that it will hold the trust
estate in trust for the Managing Owner. It is the intention of the
parties hereto that the Trust created hereby constitute a statutory trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. § 3801 et seq. and that
this Trust Agreement constitute the governing instrument of the
Trust. The Owner Trustee is hereby authorized and directed to execute
and file a certificate of trust with the Delaware Secretary of State in the form
attached hereto.
(c) The
Owner Trustee is hereby authorized and directed to enter into such documents and
take such other action as the Managing Owner specifically directs in written
instructions delivered to the Owner Trustee; provided, however, the Owner
Trustee shall not be required to take any action if the Owner Trustee shall
determine, or shall be advised by counsel, that such action is likely to result
in personal liability or is contrary to applicable law or any agreement to which
the Owner Trustee is a party.
2. Concerning
the Owner Trustee.
(a) Except
as otherwise expressly required by Section 1 of this Trust Agreement, the Owner
Trustee shall not have any duty or liability with respect to the administration
of the Trust, the investment of the Trust's property or the payment of dividends
or other distributions of income or principal to the Trust's beneficiaries, and
no implied obligations shall be inferred from this Trust Agreement on the part
of the Owner Trustee. The Owner Trustee shall not be liable for the
acts or omissions of the Managing Owner nor shall the Owner Trustee be liable
for any act or omission by it in good faith in accordance with the directions of
the Managing Owner.
(b) The
Owner Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to the same but only upon the terms of this Trust
Agreement. The
Owner Trustee shall not be personally liable under any circumstances, except for
its own willful misconduct or gross negligence. In particular, but
not by way of limitation:
(c) The
Owner Trustee shall not be personally liable for any error of judgment made in
good faith by an officer or employee of the Owner Trustee;
(i) No
provision of this Trust Agreement shall require the Owner Trustee to expend or
risk its personal funds or otherwise incur any financial liability in the
performance of its rights or duties hereunder, if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(ii) Under
no circumstance shall the Owner Trustee be personally liable for any
representation, warranty, covenant or indebtedness of the Trust;
(iii) The
Owner Trustee shall not be personally responsible for or in respect of the
genuineness, form or value of the Trust property, the validity or sufficiency of
this Trust Agreement or for the due execution hereof by the Managing
Owner;
(iv) In
the event that the Owner Trustee is unsure of the course of action to be taken
by it hereunder, the Owner Trustee may request instructions from the Managing
Owner and to the extent the Owner Trustee follows such instructions in good
faith it shall not be liable to any person. In the event that no instructions
are provided within the time requested by the Owner Trustee, it shall have no
duty or liability for its failure to take any action or for any action it takes
in good faith;
(v) All
funds deposited with the Owner Trustee hereunder may be held in a non-interest
bearing trust account and the Owner Trustee shall not be liable for any interest
thereon or for any loss as a result of the investment thereof at the direction
of the Managing Owner; and
(vi) To
the extent that, at law or in equity, the Owner Trustee has duties and
liabilities relating thereto to the Managing Owner or the Trust, the Managing
Owner agrees that such duties and liabilities are replaced by the terms of this
Trust Agreement.
(d) The
Owner Trustee shall incur no liability to anyone in acting upon any document
believed by it to be genuine and believed by it to be signed by the proper party
or parties. The Owner 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 manner of ascertainment of which is not specifically prescribed
herein, the Owner Trustee may for all purposes hereof rely on a certificate,
signed by the Managing Owner, as to such fact or matter, and such certificate
shall constitute full protection to the Owner Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon.
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(e) In
the exercise or administration of the trusts hereunder, the Owner Trustee (i)
may act directly or, at the expense of the Trust, through agents or attorneys,
and the Owner Trustee shall not be liable for the default or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by the
Owner Trustee in good faith, and (ii) may, at the expense of the Trust, consult
with counsel, accountants and other experts, and it shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
advice or opinion of any such counsel, accountants or other
experts.
(f) Except
as expressly provided in this Section 2, in accepting and performing the trusts
hereby created, the Owner Trustee acts solely as trustee hereunder and not in
its individual capacity, and all persons having any claim against the Owner
Trustee by reason of the transactions contemplated by this Trust Agreement shall
look only to the Trust's property for payment or satisfaction
thereof.
3. Compensation
and Indemnification.
(a) The
Managing Owner hereby agrees to (i) compensate the Owner Trustee in accordance
with a separate fee agreement with the Owner Trustee, (ii) reimburse the Owner
Trustee for all reasonable expenses (including reasonable fees and expenses of
counsel and other experts) and (iii) indemnify, defend and hold harmless the
Owner Trustee and any of the officers, directors, employees and agents of the
Owner Trustee (the "Indemnified Persons") from and against any and all losses,
damages, liabilities, claims, actions, suits, costs, expenses, disbursements
(including the reasonable fees and expenses of counsel), taxes and penalties of
any kind and nature whatsoever (collectively, "Expenses"), to the extent that
such Expenses arise out of or are imposed upon or asserted at any time against
such Indemnified Persons with respect to the performance of this Trust
Agreement, the creation, operation or termination of the Trust or the
transactions contemplated hereby; provided, however, that the Managing Owner
shall not be required to indemnify any Indemnified Person for any Expenses which
are a result of the willful misconduct, bad faith or gross negligence of such
Indemnified Person.
(b) To
the fullest extent permitted by law, Expenses to be incurred by an Indemnified
Person shall, from time to time, be advanced by, or on behalf of, the Managing
Owner prior to the final disposition of any matter upon receipt by the Managing
Owner of an undertaking by, or on behalf of, such Indemnified Person
to repay such amount if it shall be determined that the Indemnified Person is
not entitled to be indemnified under this Agreement.
(c) As
security for any amounts owing to the Owner Trustee hereunder, the Owner Trustee
shall have a lien against the Trust property, which lien shall be prior to the
rights of the Managing Owner or any other beneficial owner of the
Trust. The obligations of the Managing Owner under this Section 3
shall survive the termination of this Trust Agreement.
4. The
Owner Trustee may resign upon thirty days prior notice to the Managing Owner. If
no successor has been appointed within such thirty day period, the Owner Trustee
may, at the expense of the Trust, petition a court to appoint a successor
trustee. Any Person into which the Owner Trustee may be merged or
with which it may be consolidated, or
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any
Person resulting from any merger or consolidation to which the Owner Trustee
shall be a party, or any Person which succeeds to all or substantially all of
the corporate trust business of the Owner Trustee, shall be the successor Owner
Trustee under this Trust Agreement without the execution, delivery or filing of
any paper or instrument or further act to be done on the part of the parties
hereto, except as may be required by applicable law.
5. This
Trust Agreement represents the entire agreement between the parties hereto with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings between the parties, whether written or oral.
6. This
Trust Agreement shall be governed by and construed in accordance with the laws
of the State of Delaware, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws. Sections 3540 and 3561 of
Title 12 of the Delaware Code shall not apply to the Trust.
7. This
Trust Agreement may be executed in two or more counterparts, each of which shall
be an original, but all such counterparts shall together constitute one and the
same agreement.
8. This
Trust Agreement may be amended and restated by the parties hereto as necessary
to provide for the operation of the Trust; provided, however, that the Owner
Trustee shall not be required to enter into any amendment hereto which adversely
affects the rights, duties or immunities of the Owner Trustee.
9. The
Trust may dissolve at the written direction of the Managing
Owner. Upon dissolution, the Owner Trustee shall, at the written
direction and expense of the Managing Owner, file a certificate of cancellation
in accordance with the Act. Any remaining expenses of the Trust shall
be paid by the Managing Owner.
[signature
page follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly
executed by their respective officers hereunto duly authorized, as of the day
and year first above written.
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DB
COMMODITY SERVICES LLC , as Managing Owner
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By:_____________________________________
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Name:
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Title:
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By:_____________________________________
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Name:
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Title:
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WILMINGTON
TRUST COMPANY, as Owner Trustee
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By:_____________________________________
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Name:
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Title:
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FORM OF
CERTIFICATE OF
TRUST
OF
THIS
Certificate of Trust of DB-New York Nuclear Uranium 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 DB-New York
Nuclear Uranium Fund.
2. Delaware
Trustee. The name and business address of the trustee of the
Trust in the State of Delaware are Wilmington Trust Company, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000.
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.
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WILMINGTON
TRUST COMPANY, not in its individual capacity but solely as Owner Trustee
of the Trust
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By:_______________________________
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Name:
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Title:
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