Attached files
file | filename |
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S-1 - United States Commodity Index Funds Trust | v169761_s1.htm |
EX-3.1 - United States Commodity Index Funds Trust | v169761_ex3-1.htm |
Exhibit
3.2
DECLARATION
OF TRUST
AND
TRUST
AGREEMENT
OF
UNITED
STATES COMMODITY INDEX FUNDS TRUST
THIS
DECLARATION OF TRUST AND TRUST AGREEMENT is made as of December 21, 2009 (this
“Declaration”), by and among United States Commodity Funds LLC, a Delaware
limited liability company, as sponsor (the “Sponsor”), and Wilmington Trust
Company, a Delaware banking corporation, with its principal place of business in
the State of Delaware, as Delaware trustee (the “Trustee”). The
Sponsor and the Trustee hereby agree as follows:
1. The trust
created hereby shall be known as the United States Commodity Index Funds Trust
(the “Trust”), in which name the Trustee or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The
Sponsor hereby assigns, transfers, conveys and sets over to the Trust the sum of
$1000. The Trust has received such amount in bank accounts in the
name of the Trust controlled by the Sponsor, which amount shall constitute the
initial trust estate. The trust estate shall be held 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 “Statutory Trust Act”), and
that this Declaration constitute the governing instrument of the
Trust. 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 accordance with the Statutory Trust Act.
3. The
Sponsor and the Trustee will 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 a Series
(as defined below) of the units 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 Statutory Trust Act,
and (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. Notwithstanding
the foregoing, the Trustee may, but shall not be required to, take all actions
which the Sponsor deems necessary, convenient or incidental to effect the
transactions contemplated herein. The Sponsor 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 Statutory Trust
Act.
4. The
Trustee shall not have any duty or obligation under or in connection with this
Declaration or any document contemplated hereby, except as expressly provided by
the terms of this Declaration, and no implied duties or obligations shall be
read into this Declaration 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)
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The
Trustee shall have no liability or responsibility for the validity or
sufficiency of this Declaration, any agreement contemplated hereunder, or
for the form, character, genuineness, sufficiency, value or validity of
any units;
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(b)
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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;
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(c)
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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;
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(d)
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The
Trustee shall not have any duty or obligation to supervise or monitor the
performance of, or compliance with this Declaration by, the Sponsor or its
delegatees or any beneficial owner of the
Trust.
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(e)
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No
provision of this Trust Agreement shall require the Trustee to act or
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 such action, repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to
it;
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(f)
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Under
no circumstances shall the Trustee be liable for indebtedness evidenced by
or other obligations of the Trust arising under this Declaration or any
other agreements to which the Trust is a party;
and
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(g)
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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.
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5. 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 units of any Series under the securities or
“Blue Sky” laws of such jurisdictions as the Sponsor, on behalf of the Trust and
any Series, 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 units of any Series and/or any other interests in the Trust or any Series;
(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 units of any Series as it deems necessary or
desirable.
6. The
Trustee is authorized to take such action or refrain from taking such action
under this Declaration 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 Declaration 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 Declaration 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.
7. 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.
8. 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 the
Indemnified Parties. The indemnities contained in this Section shall
survive the termination of this Declaration, the termination of the Trust or the
removal or resignation of the Trustee.
9. 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 Statutory Trust Act, 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 or remove without cause any trustee of the Trust at any
time.
10. This
Declaration may be executed in two or more counterparts.
11. This
Declaration shall be governed by, and construed in accordance with, the laws of
the State of Delaware (without regard to conflict of laws
principles).
12. The
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 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
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.
13. In
the exercise or administration of the trusts 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 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.
14. Any
trustee of the Trust, including the Trustee, may resign upon sixty days’ prior
written notice to the Sponsor and the other trustee(s), if any. 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 Declaration 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.
15. 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 Statutory
Trust Act. Any remaining expenses of the Trust shall be paid by the
Sponsor.
16. The
Trust shall be a series trust pursuant to Sections 3804(a) and 3806(b)(2) of the
Statutory Trust Act. 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 “Series”). Each Series shall be a separate series of the
Trust within the meaning of Section 3806(b)(2) of the Statutory Trust
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 (directly
or indirectly, including through a nominee or otherwise) and accounted for by
the Trust separately from the assets of any other Series or of the Trust
generally. 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 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 as may otherwise be provided in an
amended and restated declaration of trust and 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 of the Trust generally. Notice of this
limitation on interseries 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 Statutory Trust Act 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 Series.
[SIGNATURE PAGE
FOLLOWS]
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.
UNITED
STATES COMMODITY FUNDS LLC, as Sponsor |
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By:
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/s/ Howard Mah | |
Name: Howard Mah | |||
Title: Management Director | |||
WILMINGTON
TRUST COMPANY, as Trustee |
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By:
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/s/ Joseph B. Feil | |
Name: Joseph B. Feil | |||
Title: Vice President | |||