Exhibit 3.5
AMENDMENT NO. 3 TO THE
AMENDED AND RESTATED
DECLARATION OF TRUST
AND TRUST AGREEMENT
OF
MLM INDEX FUND
This AMENDMENT ("Amendment") is made and entered into as of the 14th day
of June, 2001 by and among MOUNT ▇▇▇▇▇ MANAGEMENT CORPORATION, a Delaware
corporation, as manager (the "Manager"), WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as trustee (the "Trustee") and the Interest Holders whose
signatures appear on the execution page hereof and who hold in the aggregate
more than 10% of the outstanding Interests of each Series as of the date
hereof (exclusive of the Interests of the Manager) (the "Signing Interest
Holders"), and is made with reference to, and pursuant to the authority
granted by Section 11.1 of that certain Amended and Restated Declaration of
Trust and Trust Agreement dated the 31st day of August, 1998, by and among the
Manager, the Trustee and the Interest Holders of the MLM Index Fund (the
"Trust"), as amended by that Amendment No. 1 to the Amended and Restated
Declaration of Trust and Trust Agreement of the Trust entered into as of March
23, 1999 and that Amendment No. 2 to the Amended and Restated Declaration of
Trust and Trust Agreement of the Trust entered into as of February 2000 (as
amended, the "Trust Agreement"). Capitalized terms used but not defined herein
shall have the meaning assigned thereto in the Trust Agreement.
WHEREAS, it is desired that the Trust Agreement be amended as provided
below;
NOW, THEREFORE, the parties agree as follows and the Manager and the
Signing Interest Holders hereby direct the Trustee, pursuant to the Trust
Agreement, to execute and deliver this Amendment:
1. The definition of Offering Memorandum is amended to read in its
entirety as follows:
"Offering Memorandum means with respect to all Series and Classes
which are not offered exclusively to Qualified Eligible Persons (as
that term is defined in CFTC regulations) the relevant Confidential
Offering Memorandum of the Trust, as filed with the CFTC, as amended
or supplemented. With respect to Series and Classes which are
offered exclusively to Qualified Eligible Persons, Offering
Memorandum means the relevant Confidential Offering Memorandum
supplied to the Interest Holders of such Series or Classes, as
amended or supplemented."
2. The following sentences shall be inserted into Section 3.1(e) after
the third sentence in such section:
"The Trust shall issue Interests in a separate Series entitled the
"Class C Enhanced Series". The Class C Enhanced Series will attempt
to replicate the MLM Index at a leverage ratio of 3 to 1."
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3. The following sentence shall be inserted into Section 4.8 after the
first sentence in such section:
"The Manager shall receive from the Class C Enhanced Series a
management fee at an annual rate of two and five one hundredths
percent (2.05%) based upon the Net Asset Value of such Series,
determined and paid as of the first day of each calendar month."
4. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to principles or
rules of conflicts of laws);
5. This Amendment may be executed and delivered in any number of
counterparts, each of which shall be an original, with the same effect as if
all signatures were on the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
MOUNT ▇▇▇▇▇ MANAGEMENT
CORPORATION, as Manager
By:_________________________________
Name: ______________________________
Title:______________________________
WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Trustee
By:_________________________________
Name: ______________________________
Title:______________________________
INTEREST HOLDERS