FORM OF ADMINISTRATIVE AGENCY AGREEMENT
Exhibit
10.4
FORM OF
THIS ADMINISTRATIVE
AGENCY AGREEMENT (the
“Agreement”) is made as of ____________, 2009 by and
among ▇▇▇▇▇ BROTHERS
▇▇▇▇▇▇▇▇ & CO., a
limited partnership organized under the laws of the State of New York (the
“Administrator”), UNITED STATES
COMMODITY FUNDS LLC, a
Delaware limited liability company (the “General
Partner”) and UNITED STATES 12
MONTH NATURAL GAS FUND, LP,
a limited partnership organized under the laws of the State of Delaware (the
“Fund”).
WITNESSETH:
WHEREAS, the Fund is a limited partnership that
is registered as a commodity pool;
WHEREAS, the General Partner has exclusive
responsibility for the management and control of the business and affairs of the
Fund; and
WHEREAS, the Fund and the General Partner
desire to retain the Administrator to render certain services to the Fund and/or
the General Partner, as the case may be, and the Administrator is willing to
render such services.
NOW,
THEREFORE, in consideration
of the premises and mutual covenants herein contained, the parties hereto agree
as follows:
1. Appointment
of Administrator. The Fund and the General
Partner hereby employ and appoint the Administrator to act as administrative
agent on the terms set forth in this Agreement, and the Administrator accepts
such appointment.
2. Delivery
of Documents. The Fund and the General
Partner will on a continuing basis provide the Administrator
with:
2.1 properly certified or authenticated
copies of resolutions of the General Partner’s Board of Directors (including ▇▇.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇) authorizing the appointment of the Administrator as
administrative agent of the Fund and approving this
Agreement;
2.2 a copy of the Fund’s most recent
registration statement under the Securities Act of 1933, as
amended;
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2.3 copies of all agreements between the
Fund and its service providers, including without limitation, advisory,
distribution and administration agreements and distribution and/or unitholder
agreements;
2.4 a copy of the Fund’s valuation
procedures;
2.5 a copy of the Fund’s Limited Partnership
Agreement, as may be amended from time to time;
2.6 a copy of the General Partner’s Fourth
Amended and Restated Limited Liability Company Agreement, as may be amended from
time to time;
2.7 any other documents or resolutions
(including, but not limited to directions or resolutions of the General
Partner’s Board of Directors, Management Directors, and/or Audit Committee)
which relate to or affect the Administrator’s performance of its duties
hereunder or which the Administrator may at any time reasonably request;
and
2.8 copies of any and all amendments or
supplements to the foregoing.
3. Duties
as Administrator. Subject to the supervision and direction
of the General Partner’s Board of Directors, Management Directors and Audit
Committee, the Administrator will perform the administrative services described
in Appendix A hereto. Additional services may be provided by the
Administrator upon the request of the Fund as mutually agreed from time to
time. In performing its duties and obligations hereunder, the
Administrator will act in accordance with the General Partner’s instructions as
defined in Section 5 (“Instructions”). It is agreed and understood
that the Administrator shall not be responsible for the Fund’s or the General
Partner’s compliance with any applicable documents, laws or regulations, or for
losses, costs or expenses arising out of the Fund’s or the General Partner’s
failure to comply with said documents, laws or regulations or the Fund’s or the
General Partner’s failure or inability to correct any non-compliance
therewith. The Administrator shall in no event be required to take
any action, which is in contravention of any applicable law, rule or regulation
or any order or judgment of any court of competent
jurisdiction.
3.1 Records. The Administrator will maintain
and retain such records as required by the Securities Exchange Act of 1934, as
amended, the NYSE Arca Equities Rules, 17 C.F.R 4.23 (specifically, the records
specified in 17 C.F.R. 4.23(a)(1) through (8), (10) through (12) and (b)(1)),
and other applicable federal securities laws and created pursuant to the
performance of the Administrator’s obligations under this
Agreement. The Administrator will maintain such other records as
requested by the Fund or the General Partner and received by the
Administrator. The Administrator shall not be responsible for the
accuracy and completeness of any records not created by the
Administrator. The Administrator acknowledges that the records
maintained and preserved by the Administrator pursuant to this Agreement are the
property of the Fund and will be, at the Fund’s expense, surrendered promptly
upon reasonable request. In performing its obligations under this
Section, the Administrator may utilize micrographic and electronic storage media
as well as independent third party storage facilities.
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4. Duties
of the Fund and the General Partner. The Fund and the General Partner shall notify the Administrator promptly
of any matter affecting the performance by the Administrator of its services
under this Agreement. Where the Administrator is providing fund
accounting services pursuant to this Agreement, the Fund and the General Partner
shall promptly notify the Administrator as to the accrual of liabilities of the
Fund and of liabilities of the Fund not appearing on the books of account kept
by the Administrator, as well as to the existence, status and proper treatment
of reserves, if any, authorized by the Fund or the General
Partner. The Fund and the General Partner agree to provide such information to
the
Administrator as may be
requested under the banking and securities laws of the United States or other
jurisdictions relating to “Know Your Customer” and money laundering
prevention rules and
regulations (collectively, the “KYC Requirements”). For purposes of this
subsection, and in connection with all applicable KYC Requirements, the Fund is the “client” or “customer” of
the
Administrator. The Fund and the General Partner further
represent that each will perform all obligations required under applicable KYC
Requirements with respect to the Fund’s “customers” (as defined in the KYC
Requirements) and that, because these customers do not constitute “customers” or
“clients” of the Administrator under such applicable rules and regulations, the
Administrator is under no such similar obligations.
5. Instructions.
5.1 The Administrator shall not be liable
for, and shall be indemnified by the Fund against any and all losses, costs,
damages or expenses arising from or as a result of, any action taken or omitted
in reliance upon Instructions or upon any other written notice, request,
direction, instruction, certificate or other instrument believed by it to be
genuine and signed or authorized by the proper party or parties. A
list of persons so authorized by the General Partner (“Authorized Persons”) is
attached hereto as Appendix B and upon which the Administrator may rely until
its receipt of notification to the contrary by the General
Partner.
5.2 Instructions shall include a written
request, direction, instruction or certification signed or initialed on behalf
of the Fund by one or more Authorized Persons.
5.3 Telephonic or other oral instructions or
instructions given by telefax transmission may be given by any one of the above
Authorized Persons and will also be considered Instructions if the Administrator
believes them to have been given by a person authorized to give such
Instructions with respect to the transaction involved.
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5.4 With respect to telefax transmissions,
the Fund and the General Partner hereby acknowledge that (i) receipt of legible
instructions cannot be assured, (ii) the Administrator cannot verify that
authorized signatures on telefax instructions are original, and (iii) the
Administrator shall not be responsible for losses or expenses incurred through
actions taken in reliance on such telefax instructions. The Fund and
the General Partner agree that such telefax instructions shall be conclusive
evidence of the Fund’s/General Partner’s Instruction to the Administrator to act
or to omit to act.
5.5 Instructions given orally will not be
confirmed in writing and the lack of such confirmation shall in no way affect
any action taken by the Administrator in reliance upon such oral
Instructions. The Fund and the General Partner authorize the
Administrator to tape record any and all telephonic or other oral Instructions
given to the Administrator by or on behalf of the Fund (including any of the
Fund’s or the General Partner’s officers, directors, trustees, employees or
agents or any investment manager or adviser or person or entity with similar
responsibilities which is authorized to give Instructions on behalf of the Fund
to the Administrator.)
6. Expenses
and Compensation. For the services to be
rendered and the facilities to be furnished by the Administrator as provided for
in this Agreement, the Fund shall pay the Administrator rendered pursuant to
this Agreement a fee based on such fee schedule as may from time to time be
agreed upon in writing among the General Partner, Fund and the
Administrator. Additional services performed by the Administrator as
requested by the Fund shall be subject to additional fees as mutually agreed
from time to time. In addition to any such fees, the Administrator
shall ▇▇▇▇ the Fund separately for any out-of-pocket disbursements of the
Administrator based on an out-of-pocket disbursement schedule as may from time
to time be agreed upon in writing among the General Partner, the Fund and the
Administrator. The foregoing fees and disbursements shall be billed
to the Fund by the Administrator and shall be paid promptly by wire transfer or
other appropriate means to the Administrator.
7. Standard
of Care. The Administrator shall be
held to the exercise of reasonable care and diligence in carrying out the
provisions of this Agreement, provided that the Administrator shall not thereby
be required to take any action which is in contravention of any applicable law,
rule or regulation or any order or judgment of any court of competent
jurisdiction.
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8. General
Limitations on Liability. The Administrator shall
incur no liability with respect to any telecommunications, equipment or power
failures, or any failures to perform or delays in performance by postal or
courier services or third-party information providers (including, without
limitation those listed on Appendix C).
8.1 The Administrator shall also incur no
liability under this Agreement if the Administrator or any agent or entity
utilized by the Administrator shall be prevented, forbidden or delayed from
performing, or omits to perform, any act or thing which this Agreement provides
shall be performed or omitted to be performed, by reason of causes or events
beyond its control, including but not limited to:
8.1.1 any Sovereign Event. A
“Sovereign Event” shall mean any nationalization; expropriation; devaluation;
revaluation; confiscation; seizure; cancellation; destruction; strike; act of
war, terrorism, insurrection or revolution; or any other act or event beyond the
Administrator’s control;
8.1.2 any provision of any present or future
law, regulation or order of the United States or any state thereof, or of any
foreign country or political subdivision thereof, or of any securities
depository or clearing agency; and
8.1.3 any provision of any order or judgment
of any court of competent jurisdiction.
8.2 The Administrator shall not be held
accountable or liable for any losses, damages or expenses the General Partner,
the Fund, the Fund’s commodity broker, the Fund’s commodity trading advisor (if
any), any unitholder or former unitholder of the Fund or any other person may
suffer or incur arising from acts, omissions, errors or delays of the
Administrator in the performance of its obligations and duties as provided in
Section 3 hereof, including without limitation any error of judgment or mistake
of law, except a loss, damage or expense directly resulting from the
Administrator’s willful malfeasance, bad faith or negligence in the performance
of such Administrator’s obligations and duties.
9. Specific
Limitations on Liability. In addition to, and without limiting the
application of the general limitations on liability contained in Section 8,
above, the following specific limitations on the Administrator’s liability shall
apply to the particular administrative services set forth on Appendix A
hereto.
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9.1 Liability
for Fund Accounting Services. Without limiting the
provisions in Section 8 hereof, the Administrator’s liability for acts,
omissions, errors or delays relating to its fund accounting obligations and
duties shall be limited to the amount of any expenses associated with a required
recalculation of net asset value per unit (“NAV”) or any direct damages suffered
by unitholders in connection with such recalculation. The
Administrator’s liability or accountability for such acts, omissions, errors or
delays shall be further subject to clauses 9.1.1 through 9.1.4
below.
9.1.1 The
parties hereto acknowledge that the Administrator’s causing an error or delay in
the determination of NAV may, but does not in and of itself, constitute
negligence or reckless or willful misconduct. The parties further
acknowledge that in accordance with industry practice the liability of the
Administrator for fund accounting services shall accrue and the recalculation of
NAV shall be performed in accordance with this Section 9.1 only with regard to
errors in the calculation of the NAV that are (i) greater than or equal to $.01
per unit of the Fund and (ii) greater than or equal to ½% of the total net
assets of the Fund.
9.1.2 In no event shall the Administrator be
liable or responsible to the General Partner, the Fund, the Fund’s commodity
broker, the Fund’s commodity trading advisor (if any), any present or former
unitholder of the Fund, or any other person for any error or delay that
continued or was undetected after the date of an audit performed by the
certified public accountants employed by or on behalf of the Fund if, in the
exercise of reasonable care in accordance with generally accepted accounting
standards, such accountants should have become aware of such error or delay in
the course of performing such audit.
9.1.3 The Administrator shall not be held
accountable or liable to the General Partner, the Fund, the Fund’s commodity
broker, the Fund’s commodity trading advisor (if any), any unitholder or former
unitholder of the Fund or any other person for any delays or losses, damages or
expenses any of them may suffer or incur resulting from (i) the Administrator’s
usage of a third party service provider for the purpose of storing records
delivered to the Administrator by or on behalf of the Fund and which the
Administrator did not create in the performance of its obligations hereunder;
(ii) the Administrator’s failure to receive timely and suitable notification
concerning quotations or corporate actions relating to or affecting portfolio
securities of the Fund; or (iii) any errors in the computation of NAV based upon
or arising out of quotations or information as to corporate actions if received
by the Administrator either (a) from a source which the Administrator was
authorized to rely upon (including those sources listed on Appendix C), or (b)
from a source which in the Administrator’s reasonable judgment was as reliable a
source for such quotations or information as such authorized sources; or (iv)
any errors in the computation of NAV as a result of relevant information known
to the General Partner, the Fund, a futures commission merchant, securities
brokers or dealers, or any of the Fund’s other service providers including
futures commission merchants in contract with the Fund, which would impact the
calculation of NAV, but was not communicated to the Administrator. To
the extent that Fund assets are not in the custody of the Administrator, the
Administrator may conclusively rely on any reporting in connection with such
assets provided to the Administrator by a third party on behalf of the Fund,
including, without limitation any futures commission
merchant.
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9.1.4 In the event of any error or delay in
the determination of such NAV for which the Administrator may be liable, the
General Partner, the Fund and the Administrator will consult and make good faith
efforts to reach agreement on what actions should be taken in order to mitigate
any loss suffered by the Fund or its present or former unitholders, in order
that the Administrator’s exposure to liability shall be reduced to the extent
possible after taking into account all relevant factors and
alternatives. It is understood that in attempting to reach agreement
on the actions to be taken or the amount of the loss which should appropriately
be borne by the Administrator, the General Partner, the Fund and the
Administrator will consider such relevant factors as the amount of the loss
involved, the Fund’s/General Partner’s desire to avoid loss of unitholder
goodwill, the fact that other persons or entities
could have been reasonably expected to have detected the error sooner than the
time it was actually discovered, the appropriateness of limiting or eliminating
the benefit which unitholders or former unitholders might have obtained by
reason of the error, and the possibility that other parties providing services
to the Fund might be induced to absorb a portion of the loss
incurred.
10. Indemnification.
10.1 The General Partner and the Fund hereby
agree to indemnify and hold harmless the Administrator, its partners, stockholders, members,
directors, officers and employees and any subsidiary or affiliate of the
foregoing (“Affiliate”), and the successors and assigns of all of the foregoing
persons, against any and
all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any act, omission, error or delay or
any claim, demand, action or suit, in connection with or arising out of
performance of its obligations and duties under this Agreement, not resulting
from the willful malfeasance, bad faith or negligence of the Administrator in
the performance of such obligations and duties. The provisions of
this Section 10 shall survive the termination of this
Agreement.
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10.1.1 If any action, suit or proceeding (each,
a “Proceeding”) is brought against the Administrator or any such person in
respect of which indemnity may be sought against the General Partner pursuant to
the foregoing subsection, the Administrator or such person shall promptly notify
the General Partner in writing of the institution of such Proceeding and the
General Partner shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify the General Partner shall not release the General Partner from any
liability which it may have to the Administrator or any such person except to
the extent that it has been materially prejudiced by such failure and has not
otherwise learned of such Proceeding. The Administrator or such person shall
have the right to employ its own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of the Administrator or of such
person unless the employment of such counsel shall have been authorized in
writing by the General Partner in connection with the defense of such Proceeding
or the General Partner shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to have charge of the defense of
such Proceeding or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from, additional to or in conflict with those available to the General Partner
(in which case the General Partner shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by the General Partner
and paid as incurred (it being understood, however, that the General Partner
shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding).
10.1.2 The General Partner shall not be liable
for any settlement of any Proceeding effected without the General Partner’s
written consent but if settled with the General Partner’s written consent, the
General Partner agrees to indemnify and hold harmless the Administrator and any
such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this subsection, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 Business Days (defined as
any day other than a day on which the New York Stock Exchange, NYSE Arca, Inc.
(“NYSE Arca”), or the New
York Mercantile Exchange (“NYMEX”) is closed for regular trading (each a
“Business Day”)), after receipt by
such indemnifying party of the aforesaid request, (ii) such indemnifying party
shall not have fully reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 Business Days’ prior notice
of its intention to settle. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened Proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
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10.2 Subject to Sections 7, 8 and 9 of this
Agreement, the Administrator agrees to indemnify and hold harmless the General
Partner and the Fund, its
partners, stockholders, members, directors, officers and employees and any
Affiliate of the foregoing, and the successors and assigns of all of the
foregoing persons, against
any and all losses, claims, damages, liabilities or expenses (including
reasonable counsel fees and expenses) resulting from any act, omission, error or
delay or any claim, demand, action or suit, in connection with or arising out of
performance of its obligations and duties under this Agreement, resulting from
the willful malfeasance, bad faith or negligence of the Administrator in the
performance of such obligations and duties. The provisions of this
Section 10 shall survive the termination of this Agreement.
10.2.1 If any Proceeding is brought against the
General Partner or any such person in respect of which indemnity may be sought
against the Administrator pursuant to the foregoing subsection, the General
Partner or such person shall promptly notify the Administrator in writing of the
institution of such Proceeding and the Administrator shall assume the defense of
such Proceeding, including the employment of counsel reasonably satisfactory to
such indemnified party and payment of all fees and expenses; provided, however,
that the omission to so notify the Administrator shall not relieve the
Administrator from any liability which it may have to the General Partner or any
such person except to the extent that it has been materially prejudiced by such
failure and has not otherwise learned of such Proceeding. The General Partner or
such person shall have the right to employ its own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of the General
Partner or of such person unless the employment of such counsel shall have been
authorized in writing by the Administrator in connection with the defense of
such Proceeding or the Administrator shall not have, within a reasonable period
of time in light of the circumstances, employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from, additional to or in conflict with those available to the
Administrator (in which case the General Partner shall not have the right to
direct the defense of such Proceeding on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Administrator and paid as incurred (it being understood, however, that the
Administrator shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding).
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10.2.2 The Administrator shall not be liable
for any settlement of any Proceeding effected without the Administrator’s
written consent but if settled with the Administrator’s written consent, the
Administrator agrees to indemnify and hold harmless the General Partner and any
such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this subsection, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 Business Days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have fully reimbursed the indemnified party in accordance with
such request prior to the date of such settlement and (iii) such indemnified
party shall have given the indemnifying party at least 30 Business Days’ prior
notice of its intention to settle. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
11. Reliance
by the Administrator on Opinions of Counsel and Opinions of Certified Public
Accountants.
The Administrator may consult with its
counsel or the Fund/General Partner’s counsel in any case where so doing appears
to the Administrator to be necessary or desirable. The Administrator
shall not be considered to have engaged in any misconduct or to have acted
negligently and shall be without liability in acting upon the advice of its
counsel or of the Fund’s/General Partner’s counsel.
The Administrator may consult with a
certified public accountant or the Fund’s Treasurer (or persons performing such
function) in any case where so doing appears to the Administrator to be
necessary or desirable. The Administrator shall not be considered to
have engaged in any misconduct or to have acted negligently and shall be without
liability in acting upon the advice of such certified public accountant or of
the Fund’s Treasurer or persons performing such function.
12. Termination
of Agreement. This Agreement may be
terminated by any of the parties in accordance with the provisions of this
Section 12.
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12.1 This Agreement shall have an initial
term of two (2) years from the date hereof. Thereafter, this Agreement shall
automatically renew for successive one (1) year periods unless any party
terminates this Agreement by providing written notice no later than seventy-five
(75) days prior to the expiration of the applicable term to the other parties at
their address set forth herein. Upon the completion of the initial
term, either the Administrator, on the one hand, or the General Partner, on the
other hand, may elect to terminate this Agreement at any time by delivering
ninety (90) days notice thereof to the other party. Notwithstanding the
foregoing provisions, any party may terminate this Agreement at any time (a) for
cause, which is a material breach of the Agreement not cured within sixty (60)
days of written notice of such breach, in which case termination shall be
effective upon receipt of written notice by the non-terminating parties, or
(b) upon thirty (30) days’ written notice to the other parties in the event
that a party is adjudged bankrupt or insolvent, or there shall be commenced
against such party a case under any applicable bankruptcy, insolvency, or other
similar law now or hereafter in effect. In the event a termination notice is
given by a party hereto, all expenses associated with the movement of records
and materials and the conversion thereof shall be paid by the Fund for which
services shall cease to be performed hereunder. The Administrator
shall be responsible for completing all actions in progress when such
termination notice is given unless otherwise agreed.
12.2. Upon
termination of this Agreement in accordance with this Section 12, the Fund may
request the Administrator to promptly deliver to the Fund or to any designated
third party all records created and maintained by the Administrator pursuant to
Section 3.1 of this Agreement, as well as any Fund records maintained but not
created by the Administrator. If such request is provided in writing
by the Fund to the Administrator within seventy-five (75) days of the date of
termination of the Agreement, the Administrator shall provide to the Fund a
certification that all records created by the Administrator pursuant to its
obligations under Section 3.1 of this Agreement are accurate and
complete. After seventy-five (75) days of the date of termination of
this Agreement, no such certification will be provided to the Fund by the
Administrator and the Administrator is under no further obligation to ensure
that records created by the Administrator pursuant to Section 3.1 of this
Agreement are maintained in a form that is accurate or complete.
13. Confidentiality
and Privacy.
13.1 The
parties hereto agree that each shall treat confidentially the terms and
conditions of this Agreement and all information provided by each party to the
other regarding its business and operations. All confidential
information provided by a party hereto shall be used by any other party hereto
solely for the purpose of rendering or obtaining services pursuant to this
Agreement and, except as may be required in carrying out this Agreement, shall
not be disclosed to any third party without the prior consent of such providing
party. The foregoing shall not be applicable to any information that
is publicly available when provided or thereafter becomes publicly available
other than through a breach of this Agreement, or that is required to be
disclosed by or to any regulatory authority, any auditor of the parties hereto,
or by judicial or administrative process or otherwise by applicable
law.
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13.2 In the course of carrying out its
obligations under this Agreement, Administrator shall maintain physical,
procedural and electronic safeguards to protect information regarding the Fund
and its investors that Administrator has obtained or to which the Administrator has gained access.
14. Tape-recording. The parties
consent to recording of any and all telephonic or other oral
instructions. This authorization will remain in effect until and
unless revoked by the Fund, the General Partner or the Administrator in
writing. Each party further agrees to solicit valid written or other
consent from any of its employees, officers, directors or agents with respect to
telephone communications to the extent such consent is required by applicable
law.
15. Procedures. Procedures applicable to
the Administrator’s services to be performed hereunder may be established from
time to time by agreement among the Fund, the General Partner and the
Administrator. The Administrator shall have the right to utilize any
unitholder accounting and recordkeeping systems that, in its opinion,
enables it to perform any services to be performed hereunder.
16. Entire
Agreement; Amendment. This Agreement constitutes
the entire understanding and agreement of the parties hereto and supersedes any
other oral or written agreements heretofore in effect between the parties with
respect to the subject matter hereof. No provision of this Agreement
may be amended or terminated except by a statement in writing signed by the
party against which enforcement of the amendment or termination is
sought.
17. Severability. In the event any provision
of this Agreement is determined to be void or unenforceable, such determination
shall not affect the remainder of this Agreement, which shall continue to be in
force.
18. Headings. The section headings in this Agreement
are for the convenience of reference only and shall not modify, define, expand
or limit any of the terms or provisions thereof.
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19. Governing
Law. This Agreement
shall be governed by and construed according to the laws of the State of New
York without giving effect to conflicts of law provisions thereof and each of
the parties hereto irrevocably consents to the exclusive jurisdiction of the
United States District Court for the Southern District of New York or if that
court lacks or declines to exercise subject matter jurisdiction, the Supreme
Court of the State of New York, New York County. The General Partner
and the Fund irrevocably waive any objection each may now or hereafter have to
the laying of venue of any action or proceeding in any of the aforesaid courts
and any claim that any such action or proceeding has been brought in an
inconvenient forum. Furthermore, each party hereto irrevocably waives
any right that it may have to trial by jury in any action, proceeding or
counterclaim arising out of or related to this Agreement or the services
contemplated hereby.
20. Notices. Notices
and other writings delivered or mailed postage prepaid to the General Partner
and Fund shall be addressed to the Fund/General Partner at United States
Commodity Funds LLC, ▇/▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
CA 94570, or such other address as the General Partner or the Fund
may have designated to the Administrator in writing, or to the Administrator at
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Manager, Fund
Administration Department, or to such other address as the Administrator may
have designated to the General Partner and the Fund in writing, shall be deemed
to have been properly delivered or given hereunder to the respective
addressee.
21. Binding
Effect; Assignment. This
Agreement shall be binding upon and inure to the benefit of the General Partner,
the Fund and the Administrator and their respective successors and assigns,
provided that no party hereto may assign this Agreement or any of its rights or
obligations hereunder without the written consent of the other
parties. Each party agrees that only the parties to this Agreement
and/or their successors in interest shall have a right to enforce the terms of
this Agreement. Accordingly, no client of the General Partner,
unitholder of the Fund or other third party shall have any rights under this
Agreement and such rights are explicitly disclaimed by the parties.
22. Counterparts. This Agreement may be
executed in any number of counterparts each of which shall be deemed to be an
original. This Agreement shall become effective when one or more counterparts
have been signed and delivered by each of the parties. A photocopy or
telefax of this Agreement shall be acceptable evidence of the existence of this
Agreement and the Administrator shall be protected in relying on the photocopy
or telefax until the Administrator has received the original of this
Agreement.
23. Exclusivity. The services furnished by
the Administrator hereunder are not to be deemed exclusive, and the
Administrator shall be free to furnish similar services to
others.
13
24. Authorization. The General Partner hereby represents
and warrants that the Management Directors of its Board of Directors including
▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ have authorized the execution and delivery of this
Agreement and that Authorized Persons of the General Partner and the Fund have
signed this Agreement, Appendices A, B and C and the fee schedule
hereto.
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed and delivered by their duly
authorized officers as of the date first written above.
The undersigned acknowledges that (I/we)
have received a copy of this document.
▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ &
CO.
By:
__________________________________
Name:
Title:
Date:
By: United States Commodity Funds LLC, as General
Partner
By:
________________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Management Director
Date:
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Management Director
Date:
UNITED
STATES COMMODITY FUNDS LLC
By:
Name: ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: President and Management
Director
Date:
14
APPENDIX
A
ADMINISTRATIVE
SERVICES OF THE ADMINISTRATIVE AGENT
Dated as
of _____________, 2009
Fund
Accounting Services
The
Administrator will provide the following fund accounting services to the Fund on
any Business Day: transaction processing and review, custodial reconciliation,
securities pricing and investment accounting.
Transaction Processing and
Review. The Administrator shall input and reconcile the Fund’s investment
activity including with respect to:
|
|
·
|
Investment
taxlots
|
|
|
·
|
Income
|
|
|
·
|
Dividends
|
|
|
·
|
Principal
paydowns
|
|
|
·
|
Capital
activity
|
|
|
·
|
Expense
accruals
|
|
|
·
|
Cash
activity
|
|
|
·
|
Corporate
Reorganizations
|
Custodial
Reconciliation. The Administrator shall reconcile the following positions
of the Fund against the records of the Custodian:
|
|
·
|
Securities,
Futures and Over-the-Counter Contract (“OTC”)
holdings
|
|
|
·
|
Cash
including cash transfers, fees assessed and other investment related cash
transactions
|
|
|
·
|
Trade
settlements
|
Securities, Futures and OTC
Valuation. Using the Valuation Procedures set forth in Appendix D, the
Administrator shall update each security, Futures and OTC position of the Fund
as to the following:
|
|
·
|
Market
prices obtained from approved sources including those listed on Appendix C
or Fair Valuations obtained from an Authorized Person of the
Fund
|
|
|
·
|
▇▇▇▇
to market of non-base receivables/payables utilizing approved foreign
exchange quotations as quoted in Appendix
C
|
|
|
·
|
▇▇▇▇
to market of non-base currency positions utilizing the approved sources
quoted in Appendix C or Fair Valuations obtained from an Authorized Person
of the Fund
|
Investment
Accounting. The Administrator shall provide the following investment
accounting services to each Portfolio:
|
|
·
|
Amortization/accretion
at the individual tax lot level
|
|
|
·
|
General
ledger entries
|
|
|
·
|
Book
value calculations
|
|
|
·
|
Trade
Date + 1 accounting
|
|
|
·
|
Calculation
of Net Asset Value Per Unit (“NAV”) as of the earlier of 4:00 p.m. New
York time or the close of trading on the NYSE Arca, and published shortly
after the close of trading on the NYSE
Arca
|
15
Financial
Reporting Services
|
|
·
|
The
Administrator shall accumulate information for and
prepare
|
|
|
o
|
Within
a 30 day period following the end of the Fund’s required monthly reporting
period, an Account Statement in compliance with the requirements of CFTC
Rule §4.22(a), including a Statement of Income (Loss) and a Statement of
Changes in Net Asset Value; such preparation includes the coordination and
review of all printer and author edits. The Fund and/or General Partner
shall make arrangements for the printing and mailing of the Account
Statements.
|
|
|
·
|
Upon
review and approval of each above-mentioned report by the General
Partner’s Treasurer and/or Chief Financial Officer (or such person
performing such functions), the Administrator shall file such reports with
the CFTC and/or NFA as required, including any applicable executive
officer certifications or other exhibits to such
reports.
|
|
|
·
|
In
connection with the preparation of each Annual Report on Form 10-K, the
Administrator shall coordinate the audit of the Fund by its independent
public accountant (e.g., manage open items lists, host weekly audit
meeting, etc.).
|
The
Administrator shall assist the Fund and/or the General Partner in preparing Fund
press releases with respect to interim statements and quarterly results and
transmitting such press releases to the NYSE Arca and such other entities as
requested by the Fund or the General Partner.
Assistant
Treasurer Services
The
Administrator shall perform the following services as requested by the General
Partner’s Treasurer (or person performing such function):
|
|
·
|
Prepare
and obtain authorization of Fund expense invoices on a bi-monthly
basis
|
|
|
·
|
Prepare
the Fund’s quarterly budget and make recommendations for adjustments as
appropriate
|
|
|
·
|
Prepare
a monthly expense pro forma for the
Fund
|
|
|
·
|
Provide
consultative services with respect to financial matters of the Fund as may
be requested and agreed to among the Fund, the General Partner and the
Administrator from time to time
|
Corporate
Secretarial Services
The
Administrator shall perform the following secretarial services:
|
|
·
|
Provide
an “Assistant Secretary” who may be approved as an officer of the Fund by
the Board of Directors
|
|
|
·
|
Maintain
a calendar for Board and Audit Committee matters/approvals in a form to be
agreed upon by the parties from time to
time
|
|
|
·
|
Prepare
quarterly Board and Audit Committee meeting materials, including notices,
scripts, agendas, resolutions, memoranda, minutes, and mail the materials
to the Board and such other persons as instructed by the General
Partner
|
|
|
·
|
Attend
quarterly Board and Audit Committee meetings, take minutes of the
meetings, make presentations as required and follow up on matters raised
at the meetings. In the event that the
Administrator is asked to perform secretarial services for more than four
quarterly Board or Audit Committee meetings per calendar year, the Fund
will be assessed special meeting fees. Fees may range between $2,500 and
$10,000 per meeting, depending upon the complexity of the meeting
materials and discussion and the location of the
meeting. Out-of-pocket expenses associated with the production
and mailing of all Board and committee meeting materials, as well as
travel expenses associated with in-person attendance at meetings, will be
charged to the Fund
|
16
|
|
·
|
Prepare
the annual directors and officers questionnaires and distribute the
questionnaires to the directors and officers of the General
Partner
|
Regulatory
Support Services
The
Administrator shall perform the following regulatory services for the
Fund:
|
|
·
|
Maintain
a calendar for all SEC, CFTC, NFA and NYSE Arca regulatory matters in the
form of Exhibit
B; provided that the Fund and/or General Partner shall notify the
Administrator of additional regulatory matters to be added to such
calendar as soon as practicable.
|
|
|
·
|
Within a 45 day
production cycle, or shorter time period as required by the U.S.
Securities and Exchange Commission (the “SEC”) and communicated to the
Administrator by the Fund and/or the General Partner, one first fiscal
quarter report of the Fund, one second fiscal quarter report of the Fund
and one third fiscal quarter report of the Fund, each on Form
10-Q.
|
|
|
·
|
Within
a 90 day production cycle, or shorter time period as required by the
SEC and
communicated to the Administrator by the Fund and/or General Partner, one
annual report of the Fund on Form 10-K per fiscal year. The
preparation of the Form 10-K includes the coordination of all printer and
author edits and the review of printer
drafts.
|
|
|
·
|
Within
90 days after the end of the Fund’s fiscal year, an Annual Report of the
Fund in compliance with the requirements of the NFA and CFTC Rule
§4.22(c); such preparation includes the coordination of all printer and
author edits and the review of printer drafts. The Fund and/or
General Partner shall make arrangements for the printing and mailing of
the Annual Report.
|
Upon
review and approval of each above-mentioned report by the General Partner’s
Treasurer and/or Chief Financial Officer (or such person performing such
functions), the Administrator shall Edgarize and file, or cause to be Edgarized
and filed, such reports with the SEC, CFTC and/or NFA as required, including any
applicable executive officer certifications or other exhibits to such
reports.
The
Administrator shall perform the following additional regulatory services for the
Fund:
|
|
·
|
Prepare
the materials for and attend one unitholder meeting per calendar year
(including preparation of the proxy statement, notice and other
solicitation materials and filing such materials with the SEC and taking
minutes of the meeting), at the Fund’s
request
|
|
|
·
|
Coordinate
with the Fund’s transfer agent or solicitor in monitoring the unitholder
vote solicitation and tabulation for one unitholder meeting per calendar
year, at the Fund’s request
|
|
|
·
|
Prepare
and file, or cause to be filed, the following regulatory
notices/forms/reports:
|
|
|
o
|
With
the SEC, Forms 3, 4 and 5 and Schedules 13D and 13G for the officers and
directors of the General Partner and such other persons as requested by
the Fund
|
|
|
o
|
With
the SEC, Current Reports on Form 8-K as circumstances
warrant.
|
|
|
o
|
With
the NYSE Arca, such notices/forms as agreed to among the Fund, the General
Partner and the Administrator
|
Transfer
Agency Services
The
Administrator shall perform the following transfer agency services:
I. Issuance
and Redemption of Fund Units. It is agreed and understood that the Fund, and the
Administrator on the Fund’s behalf, shall issue and redeem Units of the Fund in
blocks of 100,000 Units (“Creation Baskets” and “Redemption Baskets,”
respectively) to and from such persons as are identified by the Fund as
“Authorized Purchasers” or “Authorized Participants.”
|
A.
|
Pursuant
to such purchase orders that the Administrator as the Index Receipt Agent
shall receive from the ALPS Distributors, Inc. (“Marketing Agent”) and
pursuant to the procedures set forth in the Authorized Purchaser Agreement
entered into by the Fund, Administrator shall transfer appropriate trade
instructions to the Fund’s custodian, ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & Co.
(“Custodian”) and pursuant to such orders register the appropriate number
of book entry only Fund Units in the name of The Depository Trust Company
(“DTC”) or its nominee as a unitholder (each a “Unitholder”) of the Fund
and deliver the Units of the Fund on the
business.
|
17
|
B.
|
Pursuant
to such redemption orders that Index Receipt Agent shall receive from the
Marketing Agent, pursuant to the procedures set forth in the Authorized
Purchaser Agreement entered into by the Fund, Administrator shall transfer
appropriate trade instructions to the Custodian and, pursuant to such
orders, redeem the appropriate number of Fund Units that are delivered to
the designated DTC Participant Account of the Custodian for redemption and
debit such Units from the account of the Unitholder on the register of the
Fund.
|
|
C.
|
On
behalf of the Fund, Administrator shall issue Fund Units in Creation
Baskets for settlement with purchasers through DTC as the purchaser is
authorized to receive. Beneficial ownership of Fund Units shall be shown
on the records of DTC and DTC Participants and not on any records
maintained by the Administrator. In issuing Fund Units through
DTC to a purchaser, Administrator shall be entitled to rely upon the
latest Instructions that are received from the Marketing Agent by the
Administrator as Index Receipt Agent concerning the issuance and delivery
of such Units for settlement.
|
|
D.
|
Administrator
shall not issue on behalf of the Fund any Fund Units where it has received
an Instruction from the Fund, the General Partner or the Marketing Agent
or written notification from any federal or state authority that the sale
of the Fund Units has been suspended or discontinued, and Administrator
shall be entitled to rely upon such Instructions or written
notification.
|
|
|
E.
|
Upon
the issuance of Fund Units as provided herein, Administrator shall not be
responsible for the payment of any original issue or other taxes, if any,
required to be paid by the Fund, the General Partner or the Marketing
Agent in connection with such
issuance.
|
|
|
F.
|
Fund
Units may be redeemed in accordance with the procedures set forth in the
relevant Authorized Purchaser Agreement and Administrator shall duly
process all redemption requests.
|
|
|
G.
|
Administrator will act only upon
Instruction from the Fund and/or the General Partner in addressing any
failure in the delivery of cash, treasuries and/or Shares in connection
with the issuance and redemption of Fund
Units.
|
II. Payment of Dividends and
Distributions on Fund Units.
|
|
A.
|
As instructed by the Fund and/or
the General Partner, the Administrator shall prepare and make payments for
dividends and distributions declared by the Fund or the General
Partner.
|
|
|
B.
|
The Fund and/or the General
Partner shall promptly notify the Administrator of the declaration of any
dividend or distribution. The Fund and/or the General Partner
shall furnish to the Administrator a statement signed by an Authorized
Person: (i) indicating that dividends have been declared on a specific
periodic basis and Instructions specifying the date of the declaration of
such dividend or distribution, the date of payment thereof, the record
date as of which unitholders shall be entitled to payment, the total
amount payable to the unitholders and the total amount payable to
Administrator as transfer agent on the payment date; or (ii) setting forth
the date of the declaration of any dividend or distribution, the date of
payment thereof, the record date as of which the unitholders are entitled
to payment, and the amount payable per unit to each unitholder as of that
date and the total amount payable to Administrator as transfer agent on
the payment date.
|
18
|
|
C.
|
Based upon the amount of Fund
Units outstanding on its books and records, the Fund and/or the General
Partner shall calculate the total dollar amount of the dividend or
distribution and notify the Administrator of this amount. The
Fund and/or the General Partner shall then instruct the Administrator to
direct the Custodian to place in a separate cash account maintained by the
Administrator funds equal to the total cash amount of the dividend or
distribution to be paid out. Should the Custodian determine
that it does not have sufficient cash in the Custody Account to pay the
total amount of the dividend or distribution to the Administrator, the
Administrator shall advise the Fund and/or the General Partner and the
Fund and/or the General Partner shall either adjust the rate of the
dividend or distribution or provide additional cash directly to the
Custodian for credit to the separate cash account maintained by the
Custodian. When instructed by the Fund and/or the General
Partner, the Administrator shall direct the Custodian to make payment of
such dividend or distribution to the account of each
unitholder.
|
|
|
D.
|
Should the Administrator or the
Custodian not receive from the Fund sufficient cash to make payment as
provided in the immediately preceding Subsection, the Administrator shall
notify the Fund and/or the General Partner, and the Administrator shall
withhold payment to the unitholders until sufficient cash is provided to
the Custodian and the Administrator shall not be liable for any claim
arising out of such
withholding.
|
III. Maintenance
of Registry of Limited Partners and Persons Applying to Become Limited
Partners.
Pursuant to the Limited Partnership
Agreement for the Fund, all purchasers of Units who wish to become limited
partners or record holders and receive cash distributions (if any) must deliver
an executed transfer application in which the purchaser or transferee must
certify that, among other things, he/she agrees to be bound by the Funds Limited
Partnership Agreement and is eligible to purchase the Fund’s
securities. Any transfer of Units will not be recorded by the
transfer agent unless a completed transfer application is delivered to the
General Partner or the Administrator.
The Administrator shall keep a record of
all transfer applications received, with each applicant deemed as a holder of
record until the application is approved by the Fund. All
applications will be forwarded by the Administrator to the General Partner to
obtain its consent. Once such consent is obtained, the holder shall
become Limited Partners. The Administrator shall maintain a registry
of all Limited Partners and holders of record of the Fund.
IV. Recordkeeping.
|
|
A.
|
The
Administrator shall record the issuance of Fund Creation Baskets and
maintain, pursuant to Rule 17Ad-6(b) under the Securities Exchange Act of
1934, as amended, a record of the total number of Fund Creation Baskets
that are authorized, issued and outstanding based upon data provided to
Administrator by the
Fund and/or the General Partner. The Administrator shall also
provide the Fund and/or the General Partner on a regular basis with the
total number of Fund Units authorized, issued and outstanding; provided
however that the Administrator shall not be responsible for monitoring the
issuance of such Units or compliance with any laws relating to the
validity of the issuance or the legality of the sale of such
▇▇▇▇▇.
|
▇▇
▇▇▇▇▇▇▇▇
▇ TO THE
List of Authorized
Persons
By: United States Commodity Funds LLC, as General
Partner
By:
________________________________
Name: ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: President and Management
Director
Date:
UNITED
STATES COMMODITY FUNDS LLC
By:
Name: ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: President and Management
Director
Date:
20
APPENDIX C TO THE
AUTHORIZED
SOURCES
The General Partner and
the Fund hereby acknowledge that the Administrator is authorized to use the
following authorized sources for financial reporting, pricing
(including corporate actions, dividends and rights offering), and foreign
exchange quotations, to assist it in fulfilling its obligations under the
aforementioned Agreement.
BLOOMBERG
EXTEL (LONDON)
FUTURES COMMISSION
MERCHANTS
FUND MANAGERS
INTERACTIVE DATA
CORPORATION
BROKERS
REUTERS
SUBCUSTODIAN
BANKS
TELEKURS
VALORINFORM (GENEVA)
REPUTABLE FINANCIAL
PUBLICATIONS
STOCK
EXCHANGES
FINANCIAL INFORMATION INC.
CARD
▇▇ ▇▇▇▇▇
FRI
CORPORATION
By: United States Commodity Funds LLC, as General
Partner
By:
________________________________
Name: ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: President and Management
Director
Date:
UNITED
STATES COMMODITY FUNDS LLC
By:
Name:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Management
Director
Date:
21
APPENDIX D
BBH Pricing Policies
Futures, Forwards, Swaps, Options and
Treasuries
The pricing policies stated below are
used for all BBH clients, including Mutual Fund Registered Investment
Companies. These policies have been audited by numerous accounting
firms during annual fund audits.
Futures
Futures traded on exchanges are valued
using the closing settlement prices quoted on the relevant exchange and obtained
from pricing sources, typically Bloomberg or Reuters.
Forward
Currency Contracts
BBH obtains the WM Reuters London Close
closing spot rates and the WM Reuters London Close forward point rates on a
daily basis. The currency forward contract pricing model derives the
differential in point rates to the expiration date of the forward and calculates
its present value. The forward is valued at the net of the present
value and the spot rate.
Swaps
Swaps and other similar derivative or
contractual type instruments are valued at a price provided by a single broker
or dealer, typically the counterparty. If no such price is available, the
contract is valued at a price at which the counterparty to such contract would
repurchase the instrument or terminate the contract.
Options
Option contracts on securities,
currencies, indices, futures contracts, commodities and other instruments shall
be valued at the last sale price on the exchange or market that is the Primary
Market. If a contract did not trade on the Primary Market, it shall
be valued at the last sale price on another exchange or market where it did
trade. If there is no such sale price, the value shall be the
most recent bid quotation.
Sale prices and bid quotations indicated
above shall be supplied by a Pricing Service (Reuters, Bloomberg, IDC, etc.). If
a Pricing Service is not able to provide such sale prices or bid quotations, the
value shall be determined by taking the mean between the bid and the asked
quotations provided by a single broker or dealer, unless the broker or dealer
can only provide a bid quotation, in which case the value shall be such bid
quotation.
Except as provided below, OTC currency
options are valued by uploading the applicable implied volatility rates from
Reuters or Bloomberg. Other inputs are either uploaded (interest
rates, spots) or are specified when the ticker symbols are set up (expiration
date, strike). OTC currency options are then priced by using the
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ modified Black-Scholes formula, which adjusts for a constant
yield versus a fixed dividend.
Except as provided below, OTC
equity/index options are priced according to the contract specifications (days
to expiration, current spot index level, interest rates, dividends, strike
price) using the Black-Scholes pricing model, modified for
dividends. The volatility input assumption is interpolated from the
previous day’s price.
US Treasuries
BBH uses an evaluated bid supplied by
IDC for treasury prices.
22