TEUCRIUM COMMODITY TRUST DECLARATION OF TRUST AND TRUST AGREEMENT
DECLARATION
OF TRUST
AND
THIS
DECLARATION OF TRUST AND TRUST AGREEMENT is made and entered into as of
September 11, 2009 (“Trust Agreement”), by and between Teucrium Trading, LLC, a
Delaware limited liability company, as sponsor of the Teucrium Commodity Trust
(the “Trust”) (the “Sponsor”), and Wilmington Trust Company, a Delaware banking
corporation, with its principal place of business in the State of Delaware, as
Delaware trustee of the Trust (the “Trustee”).
In
consideration of the agreements and obligations set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Sponsor and the Trustee hereby agree as follows:
1. Name. The Trust as
created hereby shall be known as the Teucrium Commodity Trust, in which name the
Trustee and the Sponsor, to the extent provided herein, may engage in the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust, and ▇▇▇ and be sued on behalf of the Trust.
2. Declaration of
Trust. The Sponsor hereby assigns, transfers, conveys, and
sets over to the Trust the sum of $100. The Trustee hereby
acknowledges receipt of such amount in trust from the Sponsor, which amount
shall constitute the initial trust estate. The Trustee hereby
declares that it will hold the initial trust estate in trust for the
Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a statutory trust organized in series under chapter 38
of Title 12 of the Delaware Code, 12 Del. C. § 3801, et seq. (the “Delaware
Trust Statute”), and that this Trust Agreement constitute the governing
instrument of the Trust, until such time as one or more Amended and Restated
Declarations of Trust are entered into. The Trustee is hereby
authorized and directed to execute and file a certificate of trust with the
Secretary of State of the State of Delaware in connection with the formation of
the Trust under the Delaware Trust Statute.
3. Amended and Restated Declaration of
Trust. The Sponsor and the Trustee shall enter into an amended
and restated declaration of trust and trust agreement satisfactory to each such
party to provide for the contemplated operation of the Trust created hereby and
the issuance by the Trust of the Shares referred to therein. Prior to
the execution and delivery of such amended and restated declaration of trust and
trust agreement: (i) the Trustee shall not have any duty or
obligation hereunder or with respect to the trust estate, except accepting legal
process served on the Trust in the State of Delaware and the
execution of any certificates required to be filed with the Delaware Secretary
of State which the Trustee is required to execute under Section 3811 of the
Delaware Trust Statute, (ii) the Sponsor shall take or cause to be taken any
action as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise, and
(iii) the Sponsor shall be the sole beneficial owner of the
Trust. Notwithstanding the foregoing, the Trustee may take all
actions which the Sponsor deems necessary, convenient or incidental to effect
the transactions contemplated herein and which the Sponsor expressly directs in
writing.
4. Series Trust. The
Trust shall be a series trust pursuant to Sections 3804(a) and 3806(b)(2) of the
Delaware Trust Statute. The Trust shall issue one or more series of
beneficial interests having the rights and preferences set forth in an amended
and restated declaration of trust and trust agreement of the Trust to be entered
into by the Trustee, as the same may be amended or supplemented from time to
time (each a “Fund”). Each Fund shall be a separate series of the
Trust within the meaning of Section 3806(b)(2) of the Delaware Trust
Statute. As such, separate and distinct records shall be maintained
by the Trust for each Fund and the assets of the Trust associated with a
particular Fund shall be held and accounted for by the Trust separately from the
assets of any other Fund. Except as may otherwise be provided in an
amended and restated declaration of trust and trust agreement, the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular Fund shall be enforceable against the
assets of such Fund only, and not against the assets of the Trust generally or
the assets of any other Fund. Notice of this limitation on
inter-series liabilities shall be set forth in the Certificate of Trust and upon
the giving of such notice in the Certificate of Trust, the statutory provisions
of Section 3804 of the Delaware Trust Statute relating to limitations on
interseries liabilities (and the statutory effect under Section 3804 of setting
forth such notice in the Certificate of Trust) shall become applicable to the
Trust and each Fund.
5. Term and Resignation of
Trustee
(a) The
number of trustees of the Trust initially shall be one (1), and thereafter the
number of trustees of the Trust shall be such number as shall be fixed from time
to time by a written instrument signed by the Sponsor which may increase or
decrease the number of trustees of the Trust; provided, however, to the
extent required by the Delaware Trust Statute, there shall at all times be one
trustee of the Trust that shall either be a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware and otherwise meets the
requirements of applicable law. Subject to the foregoing, the Sponsor
is entitled to appoint additional trustees and remove without cause any trustee
of the Trust at any time.
(b) Any
trustee of the Trust, including the Trustee, may resign upon 60 days’ prior
written notice to the Sponsor and the other trustee(s), if any; provided, however, that such
resignation shall not become effective unless and until a successor Trustee
shall have been appointed by the Sponsor. If no successor has been
appointed within such sixty-day period, the Trustee may, at the expense of the
Trust, petition a court to appoint a successor trustee. Any person
into which the Trustee may be merged or with which it may be consolidated, or
any person resulting from any merger or consolidation to which the Trustee shall
be a party, or any person which succeeds to all or substantially all of the
corporate trust business of the Trustee, shall be the successor 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.
2
6. Compensation and Expenses of
Trustee. The Trustee shall be entitled to receive from the
Sponsor or an affiliate of the Sponsor (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 Sponsor or an affiliate of the
Sponsor (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.
7. Indemnification of
Trustee. The Sponsor agrees, 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 the Trustee (in its
capacity as Trustee and individually) and its successors, assigns, legal
representatives, officers, directors, shareholders, 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), claims, actions, suits, costs, expenses or disbursements
(including reasonable 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 or willful misconduct of any of the
Indemnified Parties. The indemnities contained in this Section shall
survive the termination of this Trust Agreement, the termination of the Trust,
or the removal or resignation of the Trustee.
8. Liability of
Trustee. The Trustee shall not have any duty or obligation
under or in connection with this Trust Agreement or any document contemplated
hereby, except as expressly provided by the terms of this Trust Agreement, and
no implied duties or obligations shall be read into this Trust Agreement against
the Trustee or with respect to the Trustee. The right of the Trustee
to perform any discretionary act enumerated herein shall not be construed as a
duty.
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 or willful misconduct. 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, any agreement contemplated hereunder, or for the form, character,
genuineness, sufficiency, value or validity of any Shares;
(b) The
Trustee shall not be liable for any actions taken or omitted to be taken by it
in good faith in accordance with the instructions of the Sponsor;
(c) The
Trustee shall not have any liability for the acts or omissions of the Sponsor or
its delegatees, any beneficial owners or any other person;
3
(d) The
Trustee shall not have any duty or obligation to supervise or monitor the
performance of, or compliance with this Trust Agreement by, the Sponsor or its
delegatees or any beneficial owner of the Trust.
(e) No
provision of this Trust Agreement shall require the Trustee to 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 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) 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: (i) 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.
9. Reliance; Advice of
Counsel.
(a) The
Trustee is authorized to take such action or refrain from taking such action
under this Trust Agreement as it may be directed in writing by or on behalf of
the Sponsor from time to time; provided, however, that the
Trustee shall not be required to take or refrain from taking any such action if
it shall have determined, or shall have been advised by counsel, that such
performance is likely to involve the Trustee in personal liability or is
contrary to the terms of this Trust Agreement or of any document contemplated
hereby to which the Trust or the Trustee is a party or is otherwise contrary to
law. If at any time the Trustee determines that it requires or
desires guidance regarding the application of any provision of this Trust
Agreement or any other document, or regarding compliance with any direction
received by it hereunder, then the Trustee may deliver a notice to the Sponsor
requesting written instructions as to the course of action desired by the
Sponsor, and such instructions by or on behalf of the Sponsor shall constitute
full and complete authorization and protection for actions taken and other
performance by the Trustee in reliance thereon. Until the Trustee has
received such instructions after delivering such notice, it may refrain from
taking any action with respect to the matters described in such
notice.
(b) The
Trustee shall incur no liability to anyone in acting upon any document
reasonably believed by it to be genuine and reasonably believed by it to be
signed by the proper party or parties. The Trustee may accept a
certified copy of a resolution of the Board of Trustees of the Trust 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 Trustee may for all purposes
hereof rely on a certificate, signed by the Sponsor, 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.
4
(c) In
the exercise or administration of the Trust hereunder, the
Trustee: (i) may act directly or, at the expense of the Trust,
through agents or attorneys, and the 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 Trustee with reasonable care; and (ii) may, at the expense
of the Trust, consult with counsel, accountants and other experts selected by
the Trustee with reasonable care. The Trustee 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.
10. Authority and Obligations of
Sponsor
The
Sponsor, as sponsor and agent of the Trust, is hereby authorized, in its
discretion: (i) to prepare, execute and file on behalf of the Trust,
such registration statements, applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents that shall be necessary or desirable to register or establish the
exemption from registration of the Shares of the Trust under the securities or
“Blue Sky” laws of such jurisdictions as the Sponsor, on behalf of the Trust,
may deem necessary or desirable; (ii) to negotiate, execute, deliver and perform
on behalf of the Trust one or more placement agent agreements, dealer/manager
agreements, escrow agreements, subscription agreements and other similar or
related agreements providing for or relating to the sale and issuance of the
Shares of the Trust and/or any other interests in the Trust; (iii) to prepare,
execute and deliver on behalf of the Trust any and all documents, certificates,
papers, instruments and other writings as it deems desirable in connection with
any of the foregoing; and (iv) to prepare, execute and deliver letters or
documents to, or instruments for filing with, a depository relating to the
Shares of the Trust as it deems necessary or desirable.
In the
event that any filing referred to in this Section 10 is required by the rules
and regulations of Securities and Exchange Commission (the “Commission”) or
state securities or Blue Sky laws to be executed on behalf of the Trust by a
trustee, the Trustee, in its capacity as a trustee of the Trust, so required to
execute such filings is hereby authorized and, to the extent so required,
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that the Trustee, in its capacity
as a trustee of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required to do so by the
rules and regulations of the Commission or applicable state securities or Blue
Sky laws.
11. Dissolution of the
Trust. The Trust may dissolve at the written direction of the
Sponsor. Upon dissolution, the Trustee shall, at the written
direction and expense of the Sponsor, file a certificate of cancellation in
accordance with the Delaware Trust Statute. Any remaining expenses of
the Trust shall be paid by the Sponsor.
5
12. Governing
Law. This Trust Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
13. Counterparts. This
Trust Agreement may be executed in two or more counterparts.
IN
WITNESS WHEREOF, the parties hereto have caused this Declaration of Trust and
Trust Agreement to be duly executed as of the day and year first above
written.
|
TEUCRIUM TRADING,
LLC,
|
||
|
as
Sponsor
|
||
|
By:
|
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
Title:
|
President
|
|
|
WILMINGTON TRUST
COMPANY,
|
||
|
as
Trustee
|
||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇ ▇.
▇▇▇▇
|
|
|
Title:
|
Vice
President
|
|
6