TRUST AGREEMENT OF VOC ENERGY TRUST
Exhibit 3.5
This Trust Agreement of VOC Energy Trust is entered into effective as of the 3rd day of
November, 2010 (this “Trust Agreement”), by and among VOC BRAZOS ENERGY PARTNERS, LP, a
Texas limited partnership with its principal office in Wichita, Kansas (together with its
successors and assigns, “VOC Brazos”) as trustor, and WILMINGTON TRUST COMPANY, a banking
corporation organized under the laws of the State of Delaware with its principal office in
Wilmington, Delaware (“Wilmington Trust”), and THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A., a national association organized under the laws of the State of New York with its principal
place of business in New York, New York (the “Bank”), as trustees (collectively referred to
herein as the “Trustees”). VOC Brazos and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as “VOC Energy Trust” (the “Trust”), in which
name the Trustees or VOC Brazos, to the extent provided herein, may conduct the business of the
Trust, make and execute contracts, and xxx and be sued.
2. VOC Brazos hereby assigns, transfers, conveys and sets over to the Trust the sum of $10. Such
amount shall constitute the initial trust estate. It is the intention of the parties hereto that
the Trust created hereby constitute a statutory trust under the Delaware Statutory Trust Act, Title
12, Chapter 38 of the Delaware Code, Sections 3801, et seq. (the “Trust Act”), and that
this Trust Agreement constitute the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the Secretary of State of
the State of Delaware in such form as the Trustees may approve.
3. VOC Brazos and the Trustees will enter into an amended and restated Trust Agreement satisfactory
to each such party to provide for the contemplated operation of the Trust created hereby and the
issuance of the trust securities referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement, the Trustees shall not have any duty or obligation hereunder
or with respect of the trust estate, except as otherwise contemplated by this Trust Agreement,
required by applicable law or 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 Trustees may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
4. VOC Brazos, as trustor of the Trust, is hereby authorized, in its sole discretion, (i) to
prepare and file with the Securities and Exchange Commission (the “Commission”) and to
execute, in the case of the 1933 Act Registration Statement and 1934 Act Registration Statement (as
herein defined), on behalf of the Trust, (a) a Registration Statement (the “1933 Act
Registration Statement”), including all pre-effective and post-effective amendments thereto,
relating to the registration under the Securities Act of 1933, as amended (the “1933 Act”),
of the trust securities of the Trust, (b) any preliminary prospectus or prospectus or supplement
thereto relating to the trust securities of the Trust required to be filed pursuant to the 1933
Act, and (c) a Registration Statement on Form 8-A or other appropriate form (the “1934 Act
Registration Statement”), including all pre-effective and post-effective amendments thereto,
relating to the
registration of the trust securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) if and at such time as determined by VOC Brazos, to file with the New York Stock
Exchange or other exchange, or the Financial Industry Regulatory Authority, Inc. (“FINRA”),
and execute on behalf of the Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or desirable to cause the
trust securities of the Trust to be listed on the New York Stock Exchange or such other exchange,
including the NASDAQ Global Market; (iii) to file and execute on behalf of the Trust, such
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 the trust
securities of the Trust under the securities or “blue sky” laws of such jurisdictions as VOC
Brazos, on behalf of the Trust, may deem necessary or desirable; (iv) to execute and deliver
letters or documents to, or instruments for filing with, a depository relating to the trust
securities of the Trust; and (v) to execute, deliver and perform on behalf of the Trust an
underwriting agreement with one or more underwriters relating to the offering of the trust
securities of the Trust.
In the event that any filing referred to in this Section 4 is required by the rules and
regulations of the Commission, the New York Stock Exchange or other exchange, FINRA, or state
securities or “blue sky” laws to be executed on behalf of the Trust by the Trustees, the Trustees,
in their capacity as trustees of the Trust, are hereby authorized 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 Trustees,
in their capacity as trustees of the Trust, shall not be required to join in any such filing or to
execute on behalf of the Trust any such document unless required by the rules and regulations of
the Commission, the New York Stock Exchange or other exchange, FINRA, or state securities or “blue
sky” laws; provided, however, that the Trustees in their discretion may resign if they elect not to
join in any such filing or to execute any such document.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be two 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 VOC Brazos that may increase or decrease the number of trustees of the Trust; provided,
however, that to the extent required by the Trust Act, one trustee of the Trust shall either be a
natural person who is a resident of the State of Delaware or, if not a natural person, an entity
that has its principal place of business in the State of Delaware and otherwise meets the
requirements of applicable law. Subject to the foregoing, VOC Brazos is entitled to appoint or
remove without cause any trustee of the Trust at any time. Any trustee of the Trust may resign
upon thirty days’ prior notice to VOC Brazos. In the event of the removal or resignation of
Wilmington Trust where a successor trustee meeting the requirements of the Trust Act is required,
if no such successor trustee shall have been appointed within 30 days after notice of such removal
or resignation has been given, Wilmington Trust may, after delivery of written notice to VOC Brazos
and at the expense of VOC Brazos, petition a court of competent jurisdiction for the appointment of
a successor.
7. Notwithstanding any provision of this Trust Agreement to the contrary, Wilmington Trust shall
not have any of the powers or duties of the Trustees set forth herein and shall be a Trustee of the
Trust for the sole purpose of satisfying the requirements of Section 3807 of the Trust Act.
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8. The Trustees (as such and in their individual capacities) and their respective officers,
directors, employees, shareholders and agents shall be indemnified and held harmless by VOC Brazos
with respect to any loss, liability, claim, damage, action, suit, tax, penalty, cost, disbursement
or expense of any kind or nature whatsoever (including the reasonable fees and expenses of counsel)
incurred by the Trustees (as such and in their individual capacities) arising out of or incurred in
connection with the acceptance or performance by the Trustees of their respective duties and
obligations contained in this Trust Agreement, the creation, operation, administration or
termination of the Trust or the transactions contemplated hereby; provided, however, that the
Trustees (including their respective officers, directors, employees, shareholders and agents) shall
not be indemnified or held harmless as to any such loss, liability, claim, damage, action, suit,
tax, penalty, cost, disbursement or expense of any kind or nature whatsoever (including the
reasonable fees and expenses of counsel) incurred by reason of their respective willful misconduct,
bad faith or gross negligence. The obligations of VOC Brazos under this Section 8 shall survive
the resignation or removal of the Trustees and the termination of this Trust Agreement.
9. The Trust may be dissolved and terminated before the issuance of the trust securities of the
Trust at the election of VOC Brazos.
10. 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); PROVIDED, HOWEVER, THAT THERE
SHALL NOT BE APPLICABLE TO THE PARTIES HEREUNDER OR THIS AGREEMENT ANY PROVISION OF THE LAWS
(COMMON OR STATUTORY) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN
A MANNER INCONSISTENT WITH THE TERMS HEREOF, (A) THE FILING WITH ANY COURT OR GOVERNMENTAL BODY OR
AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS
TO POST BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR
OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION
OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR
EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F)
RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS
OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST
ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON
THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR AUTHORITIES AND POWERS
OF THE TRUSTEES HEREUNDER AS SET FORTH OR REFERENCED IN THIS AGREEMENT. SECTION 3540 OF TITLE 12
OF THE DELAWARE CODE SHALL NOT APPLY TO THE TRUST.
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IN WITNESS WHEREOF, VOC Brazos, the Bank and Wilmington Trust have caused this Agreement to be
duly executed the day and year first above written.
| VOC BRAZOS ENERGY PARTNERS, LP | ||||||||
| By: | Xxxx Texas Partners, LLC | |||||||
| its General Partner | ||||||||
| By: | Xxxx Holding Corporation, | |||||||
ATTEST:
|
its Manager | |||||||
| /s/ Xxxxx X. Xxxxxxxx | By: | /s/ J. Xxxxxxx Xxxx | ||||||
| Name: Xxxxx X. Xxxxxxxx | J. Xxxxxxx Xxxx | |||||||
| Title: | Designated Representative | |||||||
| ATTEST: | THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | |||||||
| /s/ Xxxxx Xxxxxx | By: | /s/ Xxxxxxx Xxxxxx | ||||||
| Name: Xxxxx Xxxxxx | Xxxxxxx Xxxxxx | |||||||
| Title: Assistant Treasurer | Vice President | |||||||
| ATTEST: | WILMINGTON TRUST COMPANY | |||||||
| /s/ Xxxx Xxxxxxxxx | By: | /s/ Xxxx X. Xxxxxxx | ||||||
| Name: Xxxx Xxxxxxxxx | Name: Xxxx X. Xxxxxxx | |||||||
| Title: Senior Financial Services Officer | Title: Assistant Vice President | |||||||
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