This Trust Agreement involves
Title: FORM OF DECLARATION OF TRUST AND TRUST AGREEMENT
Governing Law: Delaware Date: 1/29/2010
DECLARATION OF TRUST AND TRUST AGREEMENT
TRUST AGREEMENT, dated as of January 15, 2010 (this “Trust Agreement”), between SUPERFUND ADVISORS INC., a New York corporation, as managing owner (the “Managing Owner”), and BNY MELLON TRUST OF DELAWARE, a state bank chartered under the laws of the State of Delaware, as trustee (the “Trustee”). The Managing Owner and the Trustee hereby agree as follows:
1. Formation of Trust.
(a) The trust formed hereby shall be known as “[NAME OF TRUST]” (the “Trust”) in which name the Managing Owner and the Trustee may conduct the business of the Trust, make and execute contracts, and sue and be sued.
(b) The Managing Owner hereby assigns, transfers, conveys and sets over to the Trust the sum of $1,000. 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 trust estate shall be held in trust for the Managing Owner. It is the intention of the parties hereto that the Trust created hereby constitutes a statutory trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. § 3801 et seq. (the “Delaware Act”) and that this Trust Agreement constitute the governing instrument of the Trust. The 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. The Trust is a series trust pursuant to Section 3804 and 3806(b)(2) of the Delaware Act and each series (as designated by the Managing Owner) of beneficial interests issued by the Trust shall be a separate series of the Trust within the meaning of Section 3806(b)(2) of the Delaware Act. As such, separate and distinct records shall be maintained by the Trust for each Series and the assets of the Trust associated with a particular Series shall be held in such separate and distinct records separately from all other Trust assets and from the assets of any other Series. Except to the extent otherwise expressly provided by this Trust Agreement, the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular Series shall be enforceable against the assets of such Series only, and not against the assets of the Trust generally or the assets of any other Series. Further, except to the extent otherwise expressly provided in this Trust Agreement, none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular Series shall be enforceable against the assets of any other Series.
(c) The 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 Trustee in accordance with such separate written procedures as may be agreed between the Managing Owner and the Trustee from time to time; provided, however, the Trustee shall not be required to take any action if the 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 Trustee is a party. The Managing Owner shall have the exclusive authority to manage the business and affairs of the Trust as an agent of the Trust pursuant to Section 3806(b)(7) of the Delaware Act.
2. Concerning the Trustee.
(a) Except as otherwise expressly required by Section 1 of this Trust Agreement, the 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 Trustee. The Trustee shall not be liable for the acts or omissions of the Managing Owner nor shall the Trustee be liable for any act or omission by it in good faith in accordance with the directions of the Managing Owner.
(b) The 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 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:
(i) The Trustee shall not be personally liable for any error of judgment made in good faith by an officer or employee of the Trustee;
(ii) No provision of this Trust Agreement shall require the 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 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;
(iii) Under no circumstance shall the Trustee be personally liable for any representation, warranty, covenant or indebtedness of the Trust;
(iv) The 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;
(v) In the event that the Trustee is unsure of the course of action to be taken by it hereunder, the Trustee may request instructions from the Managing Owner and to the extent the 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 Trustee, it shall have no duty or liability for its failure to take any action or for any action it takes in good faith;
(vi) All funds deposited with the Trustee hereunder may be held in a non-interest bearing trust account and the 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;
(vii) Under no circumstance shall the Trustee be liable to the Managing Owner, the Trust or any third party for indirect, consequential or special damages arising in connection with this Trust Agreement;
(viii) Notwithstanding anything in this Trust Agreement to the contrary, the Trustee shall not be responsible for any losses resulting from any event beyond the reasonable control of the Trustee; and
(ix) To the extent that, at law or in equity, the 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.
(c) The Trustee shall incur no liability to anyone in acting upon any document believed by it to be genuine and believed by it