FORM OF AUTHORIZED PURCHASER AGREEMENT
Exhibit
10.1
FORM
OF
This
Authorized Purchaser Agreement (the “Agreement”), dated as of _____________, is
entered into by and among United States Commodity Funds LLC, a Delaware limited
liability company (the “Sponsor”), the United States Commodity Index Funds
Trust, a Delaware statutory trust (the “Trust”), on its own behalf and on behalf
of each series established and designated by the Trust as a fund and listed on
Annex A, including the United States Commodity Index Fund (each, a “Fund”), and
[AUTHORIZED PURCHASER], a [STATE/ TYPE OF ENTITY] (the “Authorized
Purchaser”).
This
Agreement shall constitute a separate agreement between the Authorized
Purchaser, the Sponsor, the Trust and each Fund, as if such Fund had executed a
separate Authorized Purchaser Agreement. The Authorized Purchaser hereby
acknowledges that its rights and obligations with respect to a Fund shall not
create any right or other obligations with respect to any other Fund listed on
Annex A, and acknowledges the additional limitation on liability of the Sponsor,
Trust and the Fund described in Section 10(c) of this Agreement. Any Fund that
becomes a party hereto by executing an amendment to this Agreement substantially
in the form of Annex B (each such amendment together with the schedules attached
thereto, an “Amendment”) shall become a party to this Agreement and any
references herein to the Fund shall be treated as refer ences to such
Fund.
SUMMARY
The
Sponsor serves in its capacity as Sponsor of the Trust and each Fund pursuant to
the Amended and Restated Declaration of Trust and Trust Agreement dated as of
April 1, 2010, as amended or supplemented from time to time (the “Trust
Agreement”). ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ Co. (the “Administrator” or
“Custodian”) and ALPS Distributors (the “Marketing Agent”) each serve as agents
of the Sponsor and for all purposes of this Agreement, and all references to
agreements, obligations or duties of the Administrator, Custodian or Marketing
Agent herein shall be deemed references to agreements, obligations of duties of
the Sponsor acting through the relevant agent. As provided in the
Trust Agreement and described in the prospectus of the applicable Fund (the
“Prospectus”), as supplemented
and amended from time to time, Units of fractional undivided beneficial interest
in and ownership of such Fund (the “Units”) may be created or redeemed through
the Marketing Agent by the Authorized Purchaser in aggregations of one hundred
thousand (100,000) Units (each aggregation, a “Creation Basket” or “Redemption
Basket,” respectively; collectively, “Baskets”). Creation Baskets are
offered only pursuant to the most recent registration statement of a Fund, as
declared effective by the Securities and Exchange Commission (the “SEC”) and as
the same may be amended from time to time thereafter (collectively, the
“Registration Statement”). Authorized Purchasers are the only persons
that may place orders to create and redeem Creation Baskets or Redemption
Baskets.
Capitalized
terms used but not defined in this Agreement shall have the meanings assigned to
such terms in the applicable Prospectus of each Fund and the defined terms in
the applicable schedules for each fund as listed on Annex A. To the
extent there is a conflict between any provision of this Agreement other than
the indemnities provided in Section 9 and the provisions of the applicable
Prospectus of each Fund, the provisions of the Prospectus shall
control.
To give
effect to the foregoing premises and in consideration of the mutual covenants
and agreements set forth below, the parties hereto agree as
follows:
Section 1. Order
Placement.
To place
an order for the creation or redemption of one or more Baskets, an Authorized
Purchaser must follow the procedures for creation and redemption referred to in
Section 3 of this Agreement and attached to this Agreement as Exhibit A;
provided, however, that in the case of an Authorized Purchaser’s initial order
to purchase one or more Creation Baskets on the first day the Baskets are to be
offered and sold, the procedures for creation will be as attached to this
Agreement as Exhibit A-1.
Section 2. Status and
Obligations of Authorized Purchaser.
The
Authorized Purchaser represents and warrants and covenants the
following:
(a) The
Authorized Purchaser is a participant of the Depository Trust Company (“DTC”)
(as such a participant, a “DTC Participant”). If the Authorized
Purchaser ceases to be a DTC Participant, the Authorized Purchaser shall
give prompt notice to the Sponsor of such event, and this Agreement
shall terminate immediately as of the date the Authorized Purchaser ceased to be
a DTC Participant.
(b) Unless
Section 2(c) applies, the Authorized Purchaser either (i) is registered as a
broker-dealer under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and is a member in good standing of the Financial Industry
Regulatory Authority (“FINRA”), or (ii) is exempt from being, or otherwise is
not required to be, licensed as a broker-dealer or a member of FINRA, and in
either case is qualified to act as a broker or dealer in the states or other
jurisdictions where the nature of its business so requires. The
Authorized Purchaser will maintain any such registrations, qualifications and
membership in good standing and in full force and effect throughout the term of
this Agreement. The Authorized Purchaser wil l comply with all
applicable federal law, the laws of the states or other jurisdictions concerned,
and the rules and regulations promulgated thereunder, including, but not limited
to those applicable to securities and commodities transactions, and with the
Constitution, By-Laws and Conduct Rules of FINRA (if it is a FINRA member) to
the extent the foregoing relate to the Authorized Purchaser’s transactions in,
and activities with respect to the Baskets. The Authorized Purchaser
will not directly or indirectly offer or sell Units in or from any state or
jurisdiction where they may not lawfully be offered or sold.
(c) If
the Authorized Purchaser is offering or selling Units in jurisdictions outside
the several states, territories and possessions of the United States and is not
otherwise required to be registered, qualified or a member of FINRA as set forth
in Section 2(b) above, the Authorized Purchaser will (i) observe the applicable
laws of the jurisdiction in which such offer and/or sale is made, (ii) comply
with the full disclosure requirements of the Securities Act of 1933, as amended
(the “1933 Act”) and the Commodities Exchange Act, as amended (the “CEA”), and
the rules and regulations promulgated thereunder, and (iii) conduct its business
in accordance with the spirit of the FINRA Conduct Rules, in each case to the
extent the foregoing relate to the Authorized Purchaser’s transactions in, and
activities with respect to the Baskets.
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(d) The
Authorized Purchaser has written policies and procedures reasonably
designed to comply with the money laundering and related provisions of the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, as amended (the “PATRIOT Act”),
and the regulations promulgated thereunder, if the Authorized Purchaser is
subject to the requirements of the PATRIOT Act.
(e) The
Authorized Purchaser has the capability to send and receive communications via
an authenticated telecommunication facility to and from the Sponsor and its
agents, ALPS Distributors, Inc. and ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ &
Co. The Authorized Purchaser shall confirm such capability to the
satisfaction of the Sponsor and the Marketing Agent by the end of the Business
Day (as defined in Section 6) before placing its first order with the Marketing
Agent (whether such order is to create or to redeem Baskets). If
required by the Marketing Agent, the Administrator or the Custodian with respect
to authorized telecommunications by telephonic facsimile, the Authorized
Purchaser shall enter into a separate agreement with the Marketing Agent, the
Administ rator or the Custodian, as the case may be, indemnifying such party
with respect to its communications by telephonic facsimile.
(f) Because
new Baskets can be created and Units therein issued on an ongoing basis, at any
point during the life of the trust, a “distribution,” as such term is used in
the 1933 Act, may be occurring with respect to resales of these
Units. The Authorized Purchaser is cautioned that some of its
activities may result in its being deemed a participant in a distribution in a
manner that would render it a statutory underwriter and subject it to the
prospectus-delivery and liability provisions of the 1933 Act. The
Authorized Purchaser should review the “What is the Plan of Distribution?”
portion of the Prospectus and consult with its own counsel in connection with
entering into this Agreement and placing an Order (as defined in Se ction
3). In addition to satisfying the prospectus-delivery and disclosure
requirements of the 1933 Act, the Authorized Purchaser and any other participant
in the distribution of the Units purchased by the Authorized Purchaser also has
the obligation to comply with the disclosure delivery requirements under the
CEA. To the extent the Authorized Purchaser has distributed a
Preliminary Prospectus to prospective investors, if the Authorized
Purchaser has been notified by the Sponsor of material changes made to that
document as compared to the final Prospectus, the Authorized Purchaser shall
give notice to any prospective investor who received the Preliminary Prospectus
of such material change prior to consummating a sale.
Section 3.
Orders.
(a) All
orders to create or redeem Baskets shall be made in accordance with the terms of
the Prospectus, this Agreement and the creation and redemption procedures
attached hereto as Exhibit A (the “Procedures”), except in the case of an
Authorized Purchaser’s initial order to purchase one or more Creation Baskets on
the first day the Baskets are to be offered and sold which will be governed by
the procedures set forth in Exhibit A-1. Each party will comply with
such foregoing procedures to the extent applicable to it. The Sponsor
may issue additional or other procedures from time to time relating to the
manner of creating or redeeming Baskets and the Authorized Purchaser will comply
with such procedures. The Authorized P urchaser hereby consents to
the use of recorded telephone lines; provided that the Sponsor shall promptly
provide copies of recordings of any such calls to the Authorized Purchaser upon
reasonable request by the Authorized Purchaser unless such recordings have been
erased or destroyed prior to receipt of such request in the normal course of
business in accordance with the recording party’s general record keeping
policies and procedures. The Sponsor shall take such actions as
necessary to satisfy Authorized Purchasers’ reasonable request for copies of
recordings.
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(b) The
Authorized Purchaser acknowledges and agrees it is acting solely as principal
and not on behalf of any party for which it is acting (whether such party is a
customer or otherwise), and that each order to create a Basket (a “Purchase
Order”) and each order to redeem a Basket (a “Redemption Order,” and each
Purchase Order and Redemption Order, an “Order”) may not be withdrawn by the
Authorized Purchaser. A form of Purchase/Redemption Order is attached
hereto as Exhibit B.
Section
4. Fees.
In
connection with each Order by an Authorized Purchaser to create or redeem one or
more Baskets, the Sponsor shall charge, and the Authorized Purchaser shall pay
to the Sponsor, the Transaction Fee applicable to such creation or
redemption. The Transaction Fee may be adjusted from time to time as
set forth in the Prospectus.
Section
5. Authorized Persons.
Concurrently
with the execution of this Agreement and as requested in writing from time to
time thereafter, the Authorized Purchaser shall deliver to the Sponsor and the
Marketing Agent, notarized and duly certified as appropriate by its secretary or
other duly authorized official, a certificate in the form of Certified
Authorized Persons of the Authorized Purchaser (attached as Schedule 2 to this
Agreement (or Schedule 2 to the applicable Amendment with respect to a Fund as
set forth in Annex A hereto)) setting forth the names and signatures of all
persons authorized to give instructions relating to activity contemplated hereby
or by any other notice, request or instruction given on behalf of the Authorized
Purchaser (each, an “Authorized Person”). The Sponsor or the
Marketing Agent may accept and rely upon such certificate as conclusive evidence
of the facts set forth therein and shall consider such certificate to be in full
force and effect until the Sponsor receives a superseding certificate bearing a
subsequent date. Upon the termination or revocation of authority of
any Authorized Person by the Authorized Purchaser, the Authorized Purchaser
shall give immediate written notice of such fact to the Sponsor and the
Marketing Agent, and such notice shall be effective upon receipt by the
Sponsor.
Section
6. Creation Procedures.
On any
Business Day, an Authorized Purchaser may place an order with the Marketing
Agent to create one or more Creation Baskets in accordance with this Agreement
and the Procedures. Purchase orders must be placed by the Purchase Order Cut-off
Time. The day on which the Marketing Agent receives a valid Purchase
Order is the Purchase Order Date. By placing a Purchase Order, an
Authorized Purchaser agrees to deposit Treasuries, cash, or a combination of
Treasuries and cash with the Custodian of the Fund. The number and
type of contracts specified shall be determined by the Sponsor, in its sole
discretion, to meet the Fund’s investment objective and shall be purchased as a
result of the Authorized Purchaser’s purchase of Units.
Prior to
the delivery of Baskets for a Purchase Order, the Authorized Purchaser must also
have wired to the Custodian the non-refundable transaction fee due for the
Purchase Order. “Treasuries” shall be any U.S. treasury security with two years
or less remaining to maturity with an aggregate market value, as determined in
the sole discretion of the Administrator using the valuation procedures set
forth in Exhibit C, that together with any cash amount, will equal the purchase
price of the Creation Basket being purchased.
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The total
deposit required to create each basket (“Creation Basket Deposit”) will be an
amount of Treasuries and/or cash that is in the same proportion to the total
assets of the Fund (net of estimated accrued but unpaid fees, expenses and other
liabilities) on the date the order to purchase is accepted as the number of
Units to be created under the Purchase Order is in proportion to the total
number of Units outstanding on the date the order is received.
The
Sponsor determines, directly in its sole discretion, or in consultation with the
Administrator, the requirements for Treasuries and/or the amount of cash,
including the maximum permitted remaining maturity of a Treasury and the
proportions of Treasuries and cash, that may be included in deposits to create
Baskets. The Marketing Agent will publish such requirements at the
beginning of each Business Day. Unless otherwise determined by the
Sponsor, if Treasuries and cash are to be deposited, the amount of the cash
deposit required will be the difference between (i) the aggregate market value
of the Treasuries required to be included in a Creation Basket Deposit as of
4:00 PM New York time on the Purchase Order Date and (ii) the total required
deposit.
An
Authorized Purchaser who places a Purchase Order is responsible for transferring
to the Fund’s account with the Custodian the required amount of Treasuries
and/or cash by the end of the third Business Day following the Purchase Order
Date, except in the case of an Authorized Purchaser’s initial order to purchase
one or more Creation Baskets on the first day the Baskets are to be offered and
sold when the Creation Basket Deposit will be due by 12:00 PM New York time on
the date the Purchase Order was accepted by the Marketing Agent. Upon receipt of
the deposit amount, the Administrator will cause DTC to credit the number of
Baskets ordered to the Authorized Purchaser’s DTC account on the third Business
Day following the Purchase Order Date, except in the case of an Authorized
Purchaser’s initial order to purch ase one or more Creation Baskets, when the
Administrator will cause DTC to credit the number of Baskets so ordered upon
confirmation by the Custodian that the Creation Basket Deposit has been received
by the Custodian. The expense and risk of delivery and ownership of
Treasuries until such Treasuries have been received by the Custodian on behalf
of the Fund shall be borne solely by the Authorized Purchaser.
Section
7. Redemption Procedures.
On any
Business Day, an Authorized Purchaser may place an order with the Marketing
Agent to redeem one or more Redemption Baskets in accordance with this Section 7
and the Procedures. Redemption Orders must be placed by the
Redemption Order Cut-off Time. A Redemption Order so received is
effective on the date it is received in satisfactory form by the Marketing
Agent. The day on which the Marketing Agent receives a valid
Redemption Order is the “Redemption Order Date”. By placing a
Redemption Order, an Authorized Purchaser agrees to deliver the Redemption
Basket to be redeemed through DTC’s book-entry system to the Fund’s account with
the Custodian not later than 12:00 PM New York time on the third Business Day
following the effective date of the Redemption Order (R 20;Redemption
Distribution Date”). The number and type of contracts specified shall
be determined by the Sponsor, in its sole discretion, to meet the Fund’s
investment objective and shall be sold as a result of the Authorized Purchaser’s
sale of Units. Prior to the delivery of the redemption distribution
for a Redemption Order, the Authorized Purchaser must also have wired to the
Fund’s account at the Custodian the non-refundable Transaction Fee due for the
Redemption Order.
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The
redemption distribution from the Fund consists of a transfer to the redeeming
Authorized Purchaser of an amount of Treasuries and/or cash with a value that is
in the same proportion to the total assets of the Fund (net of estimated accrued
but unpaid fees, expenses and other liabilities) on the date the order to redeem
is properly received as the number of Units to be redeemed under the Redemption
Order is in proportion to the total number of Units outstanding on the date the
order is received. The Sponsor, directly or in consultation with the
Administrator, will determine the requirements for Treasuries and/or the amount
of cash, including the maximum permitted remaining maturity of a Treasury, and
the proportions of Treasuries and cash, that may be included in distributions to
redeem Baskets. The Marketing Agent will publish an
estimate of the redemption distribution per basket as of the beginning of each
business day.
The
redemption distribution due from the Fund is delivered to the Authorized
Purchaser on the Redemption Distribution Date if, by 3:00 PM New York time on
such Redemption Distribution Date, the Fund’s DTC account has been credited with
the Baskets to be redeemed. If the Fund’s DTC account has not been
credited with all of the Baskets to be redeemed by such time, the redemption
distribution is delivered to the extent of whole Baskets
received. Any remainder of the redemption distribution is delivered
on the next Business Day to the extent of remaining whole Baskets received if
the Fund receives the fee applicable to the extension of the Redemption
Distribution Date which the Sponsor may, from time to time, determine and the
remaining Baskets to be redeemed are credited to the Fund’s DTC account by 3:00
PM New York time on such next Business Day. Any further remaining amount of the
redemption order shall be cancelled and the Authorized Purchaser will indemnify
the Sponsor, the Trust and the Fund for any losses, if any, due to such
cancellation, including but not limited to the difference in the price of
investments sold as a result of the redemption order and investments made to
reflect that such order has been cancelled. Pursuant to instruction
from the Sponsor, the Custodian may also deliver the redemption distribution
notwithstanding that the Baskets to be redeemed are not credited to the Fund’s
DTC account by 3:00 PM New York time on the Redemption Distribution Date if the
Authorized Purchaser has collateralized its obligation to deliver the Baskets
through DTC’s book entry system on such terms as the Sponsor may from time to
time determine.
Section 8. Role of
Authorized Purchaser.
(a) The
Authorized Purchaser acknowledges that, for all purposes of this Agreement, the
Authorized Purchaser is and shall be deemed to be an independent contractor and
has and shall have no authority to act as agent for the Fund, the Trust, the
Sponsor, the Marketing Agent, the Administrator or the Custodian in any matter
or in any respect.
(b) The
Authorized Purchaser will, to the extent reasonably practicable, make itself and
its employees available, upon request, during normal business hours to consult
with the Sponsor and the Marketing Agent concerning the performance of the
Authorized Purchaser’s responsibilities under this Agreement; provided that the
Authorized Purchaser shall be under no obligation to divulge or otherwise
discuss any information that the Authorized Purchaser believes (i) is
confidential or proprietary in nature or (ii) the disclosure of which to third
parties would be prohibited.
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(c) Notwithstanding
the provisions of Section 8(b), the Authorized Purchaser will maintain records
of all sales of Creation Baskets made by or through it and, upon reasonable
request of the Sponsor, except if prohibited by applicable law and subject to
any privacy obligations or other obligations arising under federal or state
securities laws it may have to its customers, will furnish the Sponsor with the
names and addresses of the purchasers of such Creation Baskets and the number of
Creation Baskets purchased if and to the extent that the Sponsor, the Trust or
the Fund has been requested to provide such information to the Commodities
Futures Trading Commission, Securities Exchange Commission, Financial Industry
Regulatory Authority, or the Internal Revenue Service (“Fund
Regulators”). For the avoidance of doubt, all such information
provided by the Authorized Purchaser shall be Confidential Information (as
defined in Section 18) and shall not be used for any purpose other than to
satisfy requests of Fund Regulators.
(d) The
Trust and/or the Fund may from time to time be obligated to deliver
prospectuses, proxy materials, annual or other reports of the Trust and/or the
Fund or other similar information (“Fund Documents”) to its
Unitholders. The Authorized Purchaser agrees (i) subject to any
privacy obligations or other obligations arising under federal or state
securities laws it may have to its customers, to reasonably assist the Sponsor
in ascertaining certain information regarding sales of Creation Baskets made by
or through the Authorized Purchaser that is necessary for the Trust and/or the
Fund to comply with such obligations upon written request of the Sponsor or (ii)
in lieu thereof, and at the option of the Authorized Purchaser, the Authorized
Purchaser may undertake to deliver Fund Documents to the Authorized Purchaser’s
customers that custody Units with the Authorized Purchaser, after receipt from
the Trust and/or the Fund of sufficient quantities of such Fund Documents to
allow mailing thereof to such customers. The expenses associated with
such transmissions shall be borne by the Sponsor in accordance with usual custom
and practice in respect of such communications. The Sponsor agrees that the
names, addresses and other information concerning the Authorized Purchaser’s
customers are and shall remain the sole property of the Authorized Purchaser,
and none of the Sponsor, the Trust, the Fund or any of their respective
affiliates shall use such names, addresses or other information for any purposes
except in connection with the performance of their duties and responsibilities
hereunder and except to the extent necessary for the Trust and/or the Fund to
meet its regulatory requirements as set forth in Section 8(b) and in this
Section 8(c) of the Agreement.
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Section
9. Indemnification.
(a) Indemnification
of Authorized Purchaser. The Sponsor agrees to indemnify, defend and
hold harmless the Authorized Purchaser, its partners, stockholders, members,
directors, officers, employees, affiliates, agents and any person who controls
such persons within the meaning of Section 15 of the 1933 Act or Section 20 of
the Exchange Act, and the successors and assigns of all of the foregoing persons
(each a “Sponsor Indemnified Person”), from and against any loss, damage,
expense, liability or claim (including reasonable attorney fees and the
reasonable cost of investigation) which the Authorized Purchaser or any such
person may incur under the 1933 Act, the Exchange Act, the CEA, the common law
or otherwise, insofar as such loss, damage, expense , liability or claim arises
out of or is based upon:
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(1)
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any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or in the Registration Statement as amended
or supplemented) or in a Prospectus (the term Prospectus for the purpose
of this Section 9 being deemed to include the Prospectus and the
Prospectus as amended or supplemented) or any omission or alleged omission
to state a material fact required to be stated in either such Registration
Statement or such Prospectus or necessary to make the statements made
therein not misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity
with information concerning the Authorized Purchaser furnished in writing
by or on behalf of the Authorized Purchaser to the Sponsor expressly for
use in such Registration Statement;
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(2)
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any
untrue statement or alleged untrue statement of a material fact or breach
by the Sponsor of any representation or warranty contained in this
Agreement;
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(3)
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the
failure by the Sponsor, the Trust, the Fund or their respective agents to
perform when and as required, any agreement, obligation, duty or covenant
contained herein;
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(4)
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the
failure by the Sponsor, the Trust, the Fund or their respective agents to
comply with applicable laws and the rules and regulations of any
governmental entity or any self-regulatory organization to the extent the
foregoing relates to transactions in, and activities with respect to
Baskets; or
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(5)
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the
Authorized Purchaser’s performance of its duties under this Agreement
except in the case of this clause (5), for any loss, damage, expense,
liability or claim resulting from the gross negligence or willful
misconduct of the Authorized
Purchaser.
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In no
case is the indemnity of the Sponsor in favor of the Authorized Purchaser and
such other persons as are specified in this Section 9(a) to be deemed to protect
the Authorized Purchaser and such persons against any liability to the Sponsor,
the Trust or the Fund to which the Authorized Purchaser would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement.
If any
action, suit or proceeding (each, a “Proceeding”) is brought against a Sponsor
Indemnified Person or any such person in respect of which indemnity may be
sought against the Sponsor pursuant to the foregoing paragraph, such Sponsor
Indemnified Person shall promptly notify the Sponsor in writing of the
institution of such Proceeding, provided, however, that the omission to so
notify the Sponsor shall not relieve the Sponsor or the Fund from any liability
which it may have to the Sponsor Indemnified Person except to the extent that it
has been materially prejudiced by such failure and has not otherwise learned of
such Proceeding. The Sponsor Indemnified Person shall have the right to employ
its own counsel in any such case and the fees and expenses of such counsel shall
be borne by the Sponsor and the Fund and paid as i ncurred (it being understood,
however, that neither the Sponsor nor the Fund shall 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 Sponsor Indemnified Persons who are parties to such Proceeding)
or for the expenses and fees incurred with respect to matters that are not
indemnifiable in accordance with the preceding paragraph. A Sponsor
Indemnified Person shall give the Sponsor reasonable prior notice of settlement
of any Proceeding in respect of which indemnity may be sought against the
Sponsor pursuant to this Section 9(a), provided, however that the omission to so
notify the Sponsor shall not relieve the Sponsor or the Fund from any liability
which it may have to the Sponsor Indemnified Person.
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(b) The
Authorized Purchaser agrees to indemnify, defend and hold harmless each of the
Fund, the Trust, the Sponsor and their respective partners, stockholders,
members, trustees, directors, officers, employees and any person who controls
the Sponsor within the meaning of Section 15 of the 1933 Act or Section 20 of
the Exchange Act, and the successors and assigns of all of the foregoing persons
(each, an “AP Indemnified Person”), from and against any loss, damage, expense,
liability or claim (including reasonable attorney fees and the reasonable cost
of investigation) which the AP Indemnified Person may incur as a result of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in and in conformity with information furnished in writing by or
on behalf of the Authorized Purchaser to the Sponsor expressly for use in the
Registration Statement (or in the Registration Statement as amended or
supplemented by any post-effective amendment thereof) or in a Prospectus, or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such information
not misleading.
The
Authorized Purchaser will also indemnify each AP Indemnified Person from and
against any loss, damage, expense, liability or claim (including the reasonable
cost of investigation) which such AP Indemnified Person may incur as a result of
or in connection with any actions of an AP Indemnified Person in accordance with
any instructions by the Authorized Purchaser except in the case of any loss,
damage, expense, liability or claim resulting from the gross negligence or
willful misconduct of an AP Indemnified Person. In no case is the
indemnity of the Authorized Purchaser in favor of each AP Indemnified Person to
be deemed to protect the AP Indemnified Person and such persons against any
liability to the Authorized Purchaser to which the AP Indemnified Person would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement.
If any
Proceeding is brought against an AP Indemnified Person, such AP Indemnified
Person shall promptly notify the Authorized Purchaser in writing of the
institution of such Proceeding; provided, however, that the omission to so
notify the Authorized Purchaser shall not relieve the Authorized Purchaser from
any liability which it may have to such AP Indemnified Person except to the
extent that it has been materially prejudiced by such failure and has not
otherwise learned of such Proceeding. The AP Indemnified Person or
such person shall have the right to employ its own counsel and the fees and
expenses of such counsel shall be borne by the Authorized Purchaser and paid as
incurred (it being understood, however, that the Authorized Purchaser shall not
be liable for the expenses of more than one separate counsel (in additio n to
any local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the AP Indemnified Persons who are parties to
such Proceeding) or for the expenses and fees incurred with respect to matters
that are not indemnifiable in accordance with the preceding
paragraph. An AP Indemnified Person shall give the Authorized
Purchaser reasonable prior notice of settlement of any Proceeding in respect of
which indemnity may be sought against the Authorized participant pursuant to
this Section 9(b), provided, however that the omission to so notify the Sponsor
shall not relieve the Sponsor or the Fund from any liability which it may have
to the Sponsor Indemnified Person.
9
(c) The
indemnity agreements contained in this Section 9 and the covenants, warranties
and representations of the Sponsor contained in this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Authorized Purchaser, its partners, stockholders, members, directors,
officers, employees and or any person (including each partner, stockholder,
member, director, officer or employee of such person) who controls the
Authorized Purchaser within the meaning of Section 15 of the 1933 Act or Section
20 of the Exchange Act, or by or on behalf of each of the Sponsor, the Trust,
the Fund, their partners, stockholders, members, trustees, directors, officers,
employees or any person who controls the Sponsor or the Fund within the meani ng
of Section 15 of the 1933 Act or Section 20 of the Exchange Act, and shall
survive any termination of this Agreement or the initial issuance and delivery
of the Units. The Sponsor and the Authorized Purchaser agree promptly to notify
each other of the commencement of any Proceeding against it and, in the case of
the Sponsor, against any of the Sponsor’s officers or directors in connection
with the issuance and sale of the Units, or in connection with the Registration
Statement or the Prospectus.
Section
10.
(a) Limitation
of Liability. None of the Sponsor, the Trust, the Fund, the
Authorized Purchaser, the Marketing Agent, the Administrator, or the Custodian,
shall be liable to each other or to any other person, including any party
claiming by, through or on behalf of the Authorized Purchaser, for any losses,
liabilities, damages, costs or expenses arising out of any mistake or error in
data or other information provided to any of them by each other or any other
person or out of any interruption or delay in the electronic means of
communications used by them.
(b) Tax
Liability. The Authorized Purchaser shall be responsible for the
payment of any transfer tax, sales or use tax, stamp tax, recording tax, value
added tax and any other similar tax or government charge applicable to the
creation or redemption of any Basket made pursuant to this Agreement, regardless
of whether or not such tax or charge is imposed directly on the Authorized
Purchaser. To the extent the Sponsor, the Trust or the Fund is
required by law to pay any such tax or charge, the Authorized Purchaser agrees
to promptly indemnify such party for any such payment, together with any
applicable penalties, additions to tax or interest thereon.
(c) Additional
Limitation on Liability of the Sponsor, Trust and the Fund. The
Authorized Purchaser agrees to look solely to the assets of the Fund and to the
Sponsor and its assets in respect of any claim against or obligation of the
Fund. The Authorized Purchaser acknowledges and agrees that liability
of the Fund, as a series of the Trust, is limited pursuant to Section 3804(a) of
the Delaware Statutory Trust Act, such that (a) the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to the Fund shall be enforceable against the assets of the Fund only,
and not against the assets of the Trust generally or the assets of any other
series of the Trust, and (b) none of the debts, liabilities, obligati ons and
expenses incurred, contracted for, or otherwise existing with respect to the
Trust generally and any other series of the Trust shall be enforceable against
the assets of the Fund.
10
Section
11. Acknowledgment.
The
Authorized Purchaser acknowledges receipt of a copy of the Prospectus and
represents that it has reviewed and understands such document.
Section
12. Effectiveness and Termination.
Upon the
execution of this Agreement by the parties hereto, this Agreement shall become
effective in this form as of the date first set forth above with respect to the
Fund, and any Amendment to this Agreement shall become effective as of the date
set forth on such Amendment, and may be terminated with respect to any Fund at
any time by any party upon thirty (30) days prior written notice to the other
parties unless earlier terminated: (i) in accordance with Section 2(a); (ii)
upon notice to the Authorized Purchaser by the Sponsor in the event of a breach
by the Authorized Purchaser of this Agreement or the procedures described or
incorporated herein; or (iii) at such time as the Fund is
terminated. Termination of this Agreement with respect to any Fund
shall not result in the termination of this Agreement with respect to an y other
Fund listed on Annex A.
Section
13. Marketing Materials; Representations Regarding Baskets; Identification in
Registration Statement.
(a) The
Authorized Purchaser represents, warrants and covenants that, (i) without the
written consent of the Sponsor, the Authorized Purchaser will not make, or
permit any of its representatives to make, in connection with any sale or
solicitation of a sale of Baskets any representations concerning the Units or
the Sponsor, the Trust, the Fund or any AP Indemnified Person other than
representations consistent with (A) the then-current Prospectus of the Fund, (B)
printed information approved by the Sponsor as information supplemental to such
Prospectus or (C) any promotional materials or sales literature furnished to the
Authorized Purchaser by the Sponsor, and (ii) the Authorized Purchaser will not
furnish or cause to be furnished to any person or display or publish any
information or material relating to the Baskets or any AP Indemnified Person,
including the Fund, that is not consistent with the Fund’s then current
Prospectus. Copies of the then-current Prospectus of the Fund and any such
printed supplemental information will be supplied by the Sponsor to the
Authorized Purchaser in reasonable quantities upon request.
(b) The
Authorized Purchaser agrees to comply with the prospectus and disclosure
delivery requirements of the federal securities and commodities
laws. In connection therewith, the Authorized Purchaser will provide
each prospective purchaser with a copy of the Fund’s Prospectus.
(c) The
Authorized Purchaser hereby agrees that for the term of this Agreement the
Sponsor or its agent, the Marketing Agent, may deliver the then-current
Prospectus, and any supplements or amendments thereto or recirculation thereof,
to the Authorized Purchaser in Portable Document Format (“PDF”) via electronic
mail to __________________ in lieu of delivering the Prospectus in paper
form. The Authorized Purchaser may revoke the foregoing agreement at
any time by delivering written notice to the Sponsor and, whether or not such
agreement is in effect, the Authorized Purchaser may, at any time, request
reasonable quantities of the Prospectus, and any supplements or amendments
thereto or recirculation thereof, in paper form from the Sponsor or its ag ent,
the Marketing Agent. The Authorized Purchaser acknowledges that it
has the capability to access, view, save and print material provided to it in
PDF and that it will incur no appreciable extra costs by receiving the
Prospectus in PDF instead of in paper form. The Sponsor will, when requested by
the Authorized Purchaser, make available at no cost the software and technical
assistance necessary to allow the Authorized Purchaser to access, view and print
the PDF version of the Prospectus.
11
(d) For
as long as this Agreement is effective, the Authorized Purchaser agrees to be
identified as an authorized purchaser of the Fund at the Sponsor’s discretion
(i) in the section of the Prospectus included within the Registration Statement
entitled “Creation and Redemption of Units,” and in any other section as may be
required by the SEC and (ii) on the Fund’s website.
Section 14. Certain Covenants of the
Sponsor.
The
Sponsor and the Trust, on its own behalf and on behalf of the Fund, covenant and
agree:
(a) the
Sponsor shall notify the Authorized Purchaser promptly of the happening of any
event during the term of this Agreement which could require the making of any
change in the Prospectus then being used so that the Prospectus would not
include an untrue statement of material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading, and, during such time, to prepare and
deliver or otherwise make available, at the expense of the Fund, to the
Authorized Purchaser copies of such amendments or supplements to such Prospectus
as may be necessary to reflect any such change at such time and in such numbers
as necessary to enable the Authorized Purchaser to comply with any obligat ion
it may have to deliver such revised, supplemented or amended Prospectus to
customers.
(b) the
Sponsor shall notify the Authorized Purchaser when a revised, supplemented, or
amended Prospectus is available and to deliver or otherwise make available to
the Authorized Purchaser copies of such revised, supplemented or amended
Prospectus at such time and in such numbers as to enable the Authorized
Purchaser to comply with any obligation it may have to deliver such revised,
supplemented or amended Prospectus to customers, provided that as a general
matter the Sponsor will make such revised, supplemented or amended Prospectus
available to the Authorized Purchaser on or before its effective
date;
(c) the
Sponsor shall cause ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, accountants to the Fund, to deliver,
at each time (i) the Registration Statement or the Prospectus is amended or
supplemented by the filing of a post-effective amendment, (ii) a new
Registration Statement is filed to register additional Baskets in reliance on
Rule 429 of the 1933 Act, and (iii) there is financial information incorporated
by reference into the Registration Statement or the Prospectus, letters dated
such dates and addressed to the Authorized Purchaser, containing statements and
information of the type ordinarily included in accountants’ letters to
underwriters with respect to the financial statements and other financial
information contained in or incorporated by reference into the Registration
Statem ent and the Prospectus;
12
(d) the
Sponsor shall deliver to the Authorized Purchaser, at each time (i) the
Registration Statement or the Prospectus is amended or supplemented by the
filing of a post-effective amendment, (ii) a new Registration Statement is filed
to register additional Baskets in reliance on Rule 429 of the 1933 Act, and
(iii) there is financial information incorporated by reference into the
Registration Statement or the Prospectus, a certification by a duly authorized
officer of the Sponsor in the form attached hereto as Exhibit D. In
addition, any certificate signed by any officer of the Sponsor and delivered to
the Authorized Purchaser or counsel for the Authorized Purchaser pursuant hereto
shall be deemed to be a representation and warranty by the Sponsor as to matte
rs covered thereby to the Authorized Purchaser;
(e) the
Sponsor shall furnish directly or through the Marketing Agent to the Authorized
Purchaser, at each time (i) the Registration Statement or the Prospectus is
amended or supplemented by the filing of a post-effective amendment, (ii) a new
Registration Statement is filed to register additional Baskets in reliance on
Rule 429 of the 1933 Act, and (iii) there is financial information incorporated
by reference into the Registration Statement or the Prospectus, such documents
and certificates in the form as reasonably requested; and
Section
15. Third Party Beneficiaries.
Each AP
Indemnified Person, to the extent it is not a party to this Agreement, is a
third-party beneficiary of this Agreement and may proceed directly against the
Authorized Purchaser (including by bringing proceedings against the Authorized
Purchaser in its own name) to enforce any obligation of the Authorized Purchaser
under this Agreement which directly or indirectly benefits such AP Indemnified
Person. Each Sponsor Indemnified Person, to the extent it is not a
party to this Agreement, is a third-party beneficiary of this Agreement and may
proceed directly against the Sponsor, the Fund or their respective agents
(including by bringing proceedings against the Sponsor, the Fund or their
respective agents in its own name) to enforce any obligation of the Sponsor, the
Fund or their agents under this Agreement which directly o r indirectly benefits
such Sponsor Indemnified Person; provided, however, for the avoidance of doubt,
that such Sponsor Indemnified Person shall be subject to limitations set forth
in Section 10(c) of this Agreement.
Section 16. Force
Majeure.
No party
to this Agreement shall incur any liability for any delay in performance, or for
the non-performance, of any of its obligations under this Agreement by reason of
any cause beyond its reasonable control. This includes any act of God
or war or terrorism, any breakdown, malfunction or failure of transmission in
connection with or other unavailability of any wire, communication or computer
facilities, any transport, port, or airport disruption, industrial action, acts
and regulations and rules of any governmental or supra national bodies or
authorities or regulatory or self-regulatory organization or failure of any such
body, authority or organization for any reason, to perform its
obligations.
13
Section
17. Power of Attorney
(a) The
Authorized Purchaser, by virtue of its purchase of Units in a Fund, irrevocably
constitutes and appoints the Sponsor with full power of substitution, as the
true and lawful attorney-in-fact and agent for the Authorized Purchaser in its
capacity as a Unitholder of the Fund with full power and authority to act in the
Authorized Purchaser’s name and on its behalf in the execution, acknowledgment,
filing and publishing of Trust documents, including, but not limited to, the
following:
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(1)
|
Any
certificates and other instruments, including but not limited to, any
applications for authority to do business and amendments thereto, which
the Sponsor deems appropriate to qualify or continue the Trust as a
business or statutory trust in the jurisdictions in which the Trust may
conduct business, so long as such qualifications and continuations are in
accordance with the terms of this Trust Agreement or any amendment hereto,
or which may be required to be filed by the Trust or the Unitholders under
the laws of any jurisdiction;
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(2)
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Any
instrument which may be required to be filed by the Trust under the laws
of any state or by any governmental agency, or which the Sponsor deems
advisable to file; and
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(3)
|
The
Trust Agreement and any documents which may be required to effect an
amendment to the Trust Agreement approved under the terms of the Trust
Agreement, and the continuation of the Trust, the increase or decrease of
the Global Certificates pursuant to Section 4.6 of the Trust Agreement, or
the termination of the Trust, provided such continuation, increase,
decrease or termination is in accordance with the terms of the Trust
Agreement.
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(b) The
Power of Attorney granted to the Sponsor by the Authorized Purchaser in its
capacity as a Unitholder:
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(1)
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Is
a special, irrevocable Power of Attorney coupled with an interest, and
shall survive and not be affected by the death, disability, dissolution,
liquidation, termination or incapacity of the Authorized Purchaser as
Unitholder;
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(2)
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May
be exercised by the Sponsor for the Authorized Purchaser by facsimile
signature and/or by a single signature of one of its officers acting as
attorney-in-fact for all of them;
and
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(3)
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Shall
survive the delivery of an assignment by the Authorized Purchaser of the
whole or any portion of its Units, as applicable, except that where the
records of a Direct Participant or Indirect Participant reflect a transfer
by the Authorized Purchaser of its Units that has otherwise been
effectuated in accordance with the provisions of the Trust Agreement, the
Prospectus, the Depository’s procedures and the procedures of such Direct
Participant or Indirect Participant, as applicable, the Power of Attorney
of the assignor shall survive the delivery of such assignment for the sole
purpose of enabling the Sponsor to execute, acknowledge and file any
instrument necessary to effect such
transfer.
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(c) The
Authorized Purchaser in its capacity as a Unitholder agrees to be bound by any
representations made by the Sponsor and by any successor thereto, determined to
be acting in good faith pursuant to such Power of Attorney and not constituting
gross negligence or willful misconduct.
(d) The
Power of Attorney granted to the Sponsor by the Authorized Purchaser in its
capacity as a Unitholder shall not authorize the Sponsor to act on behalf of the
Authorized Purchaser in its capacity as a Unitholder in any situation in which
the Trust Agreement requires the approval of Unitholders unless such approval
has been obtained as required by the Trust Agreement. In the event of
any conflict between the Trust Agreement and any instruments filed by the
Sponsor or any new Sponsor pursuant to this Power of Attorney, the Trust
Agreement shall control.
14
Section 18.
Miscellaneous.
(a) Entire
Agreement. This Agreement (including any schedules and exhibits
attached hereto and thereto) contains all of the agreements among the parties
hereto (and thereto) with respect to the transactions contemplated hereby (and
thereby) and supersedes all prior agreements or understandings, whether written
or oral, among the parties with respect thereto.
(b) Amendment
and Modification. This Agreement may be amended, modified or
supplemented only by a written instrument executed by all the
parties.
(c) Successors
and Assigns; Assignment. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. This Agreement shall not be
assigned by any party without the prior written consent of the other parties and
any assignment without such consent shall be null and void.
(d) Waiver
of Compliance. Except as otherwise provided in this Agreement, any
failure of any of the parties to comply with any obligation, covenant, agreement
or condition herein may be waived by the party entitled to the benefits thereof
only by a written instrument signed by the party granting such waiver, but any
such waiver, or the failure to insist upon strict compliance with any
obligation, covenant, agreement or condition herein, shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other failure or
breach.
(e) Severability. The
parties hereto desire that the provisions of this Agreement be enforced to the
fullest extent permissible under the law and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, in the event that any
provision of this Agreement would be held in any jurisdiction to be invalid,
prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. Notwithstanding the foregoing, if such
provision could be more narrowly drawn so as not to be invalid, prohibited or
unenforceable in such jurisdiction, it shall, as to such j urisdiction, be so
narrowly drawn, without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
15
(f) Notices. All
notices, waivers, or other communications pursuant to this Agreement shall be in
writing and shall be deemed to be sufficient if delivered personally, by
facsimile (and, if sent by facsimile, followed by delivery by
nationally-recognized express courier), sent by nationally-recognized express
courier or mailed by registered or certified mail (return receipt requested),
postage prepaid, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
if to the
Sponsor, to:
United
States Commodity Funds LLC
c/o
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
if to the
Trust, to:
c/o
United States Commodity Funds LLC
c/o
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
if to the
Authorized Purchaser, to:
All such
notices and other communications shall be deemed to have been delivered and
received (i) in the case of personal delivery or delivery by facsimile or
e-mail, on the date of such delivery if delivered during business hours on a
Business Day or, if not delivered during business hours on a Business Day, the
first Business Day thereafter, (ii) in the case of delivery by
nationally-recognized express courier, on the first Business Day following
dispatch, and (iii) in the case of mailing, on the third Business Day following
such mailing.
(g) Governing
Law; Jurisdiction.
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(1)
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All
questions concerning the construction, interpretation and validity of this
Agreement and all transactions hereunder shall be governed by and
construed and enforced in accordance with the domestic laws of the State
of New York, without giving effect to any choice or conflict of law
provision or rule (whether in the State of New York or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York. In furtherance of the
foregoing, the internal law of the State of New York will control the
interpretation and construction of this Agreement, even if under such
jurisdiction’s choice of law or conflict of law analysis, the substantive
law of some other jurisdiction would ordinarily or necessarily
apply.
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(2)
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Each
party irrevocably consents and agrees, for the benefit of the other
parties, that any legal action, suit or proceeding against it with respect
to its obligations, liabilities or any other matter arising out of or in
connection with this Agreement or any related agreement may be brought in
the courts of the State of New York and hereby irrevocably consents and
submits to the non-exclusive jurisdiction of each such court in personam,
generally and unconditionally with respect to any action, suit or
proceeding for itself and in respect of its properties, assets and
revenues. Each party irrevocably waives any immunity to jurisdiction to
which it may otherwise be entitled or become entitled (including sovereign
immunity, immunity to pre-judgment attachment and execution) in any legal
suit, action or proceeding against it arising out of or based on this
Agreement or any related agreement or the transactions ▇▇▇▇▇ mplated
hereby or thereby which is instituted in any court of the State of New
York.
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16
The
provisions of this Section 18(g) shall survive any termination of this
Agreement, in whole or in part.
(h) No
Partnership. Nothing in this Agreement is intended to, or will be
construed to constitute the Sponsor, the Trust or the Fund, on the one hand, and
the Authorized Purchaser or any of its Affiliates, on the other hand, as
partners or joint venturers; it being intended that the relationship between
them will at all times be that of independent contractors.
(i) Interpretation. The
article and section headings contained in this Agreement are solely for the
purpose of reference, are not part of the agreement of the parties and shall not
in any way affect the meaning or interpretation of this Agreement.
(j) No
Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any
party.
(k) Counterparts;
Facsimile Signatures. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Facsimile
counterpart signatures to this Agreement shall be acceptable and
binding.
(l) Other
Usages. The following usages shall apply in interpreting this
Agreement: (i) references to a governmental or quasigovernmental agency,
authority or instrumentality shall also refer to a regulatory body that succeeds
to the functions of such agency, authority or instrumentality; and (ii)
“including” means “including, but not limited to.”
Section
19. Confidentiality.
(a) The
Sponsor, the Trust and the Authorized Purchaser shall maintain in confidence,
use only for the purposes provided for in this Agreement, and not disclose to
any third party, without obtaining prior written consent of the Sponsor and the
Trust, in the case of the Authorized Purchaser, or the Authorized Purchaser, in
the case of the Sponsor or the Trust, any and all Confidential Information (as
defined below) that the Authorized Purchaser receives from the Sponsor or the
Trust or that the Sponsor or the Trust receive from the Authorized Purchaser;
provided, however, that any party may disclose Confidential Information received
from any other party to those of its internal and external representatives as
may be necessary for such party to carry out its obligations un der this
Agreement.
17
“Confidential
Information” shall mean (i) all information or data of the Authorized Purchaser
or its customers that is disclosed to or received by the Sponsor or the Trust,
whether orally, visually or in writing, in any form, including, without
limitation, information or data which relates to the Authorized Purchaser’s
business or operations, research and development, marketing plans or activities,
or actual or potential products; and (ii) all information or data of the
Sponsor, the Trust, the Fund or their respective customers that is
disclosed to or received by the Authorized Purchaser, whether orally, visually
or in writing, in any form, including, without limitation, information or data
which relates to the business or operations, research and development, marketing
plans or activities, or actual or pot ential products of the Sponsor, the Trust
or the Fund.
(b) Notwithstanding
the provisions of this Agreement to the contrary, no party shall have liability
to the any other party for the disclosure or use of any of its Confidential
Information if the Confidential Information:
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(1)
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is
known to such party at the time of disclosure other than as the result of
a breach of this Section 19 by such
party;
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(2)
|
has
been or becomes publicly known, other than as the result of a breach of
this Section 19 by such party, or has been or is publicly disclosed by the
Sponsor and the Trust, in the case of its Confidential Information, or the
Authorized Purchaser, in the case of its Confidential
Information;
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(3)
|
is
received by such party after the date of this Agreement from a third party
(unless such third party breaches an obligation of confidentiality to any
other party); or
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(4)
|
is
required to be disclosed by law or similar compulsion or in connection
with any legal proceeding or request for information on behalf of a
governmental authority or self-regulatory organization, provided that such
party shall promptly inform the other parties in writing of such
requirement and that such disclosure shall be limited to the extent so
required.
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(c) The
parties recognize and acknowledge that a breach or threatened breach by a party
of the provisions of this Section 18 may cause irreparable and material loss and
damage to the other parties which cannot be adequately remedied at law and that,
accordingly, in addition to, and not in lieu of, any damages or other remedy to
which the non-breaching party may be entitled, the issuance of an injunction or
other equitable remedy (without the requirement that a bond or other security be
posted) is an appropriate remedy for the non-breaching party for any breach or
threatened breach of the obligations set forth in this Section 19.
(d) Each
party agrees that it will use the same degree of care, but no less than a
reasonable degree of care, in safeguarding the Confidential Information of the
other parties as it uses for its own Confidential Information of a similar
nature. Each party shall promptly notify the other parties in writing
of any misuse, misappropriation or unauthorized disclosure of the Confidential
Information of any other party that may come to such party’s
attention.
(e) Upon
the termination of this Agreement, if requested in writing by (i) the Sponsor or
the Trust, the Authorized Purchaser shall, at its option, promptly destroy or
return to the Sponsor all Confidential Information received from the Sponsor,
the Trust or the Fund, all copies and extracts of such Confidential Information
and all documents or other media containing any such Confidential Information;
and (ii) the Authorized Purchaser, the Sponsor shall, at its option, promptly
destroy or return to the Authorized Purchaser all Confidential Information
received from the Authorized Purchaser, all copies and extracts of such
Confidential Information and all documents or other media containing any such
Confidential Information.
{Signature
page follows}
18
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their duly authorized representatives as of the date first set forth
above.
| UNITED STATES COMMODITY FUNDS LLC | ||
|
By:
|
||
| Name: | ||
| Title: | ||
| UNITED STATES COMMODITY INDEX FUNDS TRUST, on its own behalf and on behalf of the United States Commodity Index Fund | ||||
|
|
By: United States Commodity Funds LLC, as Sponsor | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [AUTHORIZED PURCHASER] | ||
|
By:
|
||
| Name: | ||
| Title: | ||
| Address: | ||
| Telephone: | ||
| Facsimile: | ||
19
▇▇▇▇▇▇▇
▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇OMMODITY INDEX FUND
CREATION
AND REDEMPTION PROCEDURES
Scope of
Procedures and Overview
These
procedures (the “Procedures”) describe the processes by which one or more
Baskets of Fund Units (the “Units”) may be purchased by an Authorized Purchaser,
or, once Units have been issued, redeemed by an Authorized Purchaser. Units may
be created or redeemed only in blocks of 100,000 Units (each such block, a
“Basket”).
Capitalized
terms used but not defined in this Agreement shall have the meanings assigned to
such terms in the applicable Prospectus of each Fund and the defined terms in
the applicable schedules for each fund as listed on Annex A.
Baskets
are issued pursuant to the Prospectus, which will be delivered by the Marketing
Agent to each Authorized Purchaser prior to its execution of the Authorized
Purchaser Agreement, and are issued and redeemed in accordance with the
Authorized Purchaser Agreement. Baskets may be issued and redeemed on
any Business Day by the Marketing Agent in exchange for cash and/or Treasuries,
which the Custodian receives from Authorized Purchasers or transfers to
Authorized Purchasers, in each case on behalf of the Fund.
Upon
acceptance of the Authorized Purchaser Agreement, the Marketing Agent will
assign a personal identification number (a “PIN number”) to each Authorized
Person authorized to act for the Authorized Purchaser. This will allow the
Authorized Purchaser through its Authorized Person(s) to place Purchase Order(s)
or Redemption Order(s) for Baskets.
Important
Notes:
Any Order
is subject to rejection by the Sponsor or the Marketing Agent, as agent of the
Sponsor, for the reasons set forth in the Authorized Purchaser
Agreement.
All
Orders are subject to the provisions of the Trust Agreement, the Prospectus and
the Authorized Purchaser Agreement relating to unclear or ambiguous
instructions.
The
Authorized Purchaser, and each distributor offering and selling Units as part of
the distribution of such Units, shall comply with the prospectus delivery and
disclosure requirements of the 1933 Act as well as the analogous requirements
under the CEA, including, the requirement that prospective investors provide an
acknowledgement of receipt of such disclosure materials prior to the payment for
any Units to the extent the foregoing relates to the Authorized Purchaser’s
transactions in, and activities with respect to, Units.
1
CREATION
PROCESS
An Order
to purchase one or more Baskets placed by an Authorized Purchaser with the
Marketing Agent by the Purchase Order Cut-Off Time on a Business Day (such day,
“CREATION T”) results in the transfer to the Authorized Purchaser’s account at
The Depository Trust Company (“DTC”) of Baskets the Authorized Purchaser has
purchased, in most instances, by 9:00 AM New York time on CREATION
T+3:
CREATION
PROCEDURES
|
1.
|
By
the Purchase Order Cut-Off Time, an Authorized Person of the Authorized
Purchaser calls the Marketing Agent at (▇▇▇) ▇▇▇-▇▇▇▇ to notify such agent
that the Authorized Purchaser wishes to place a Purchase Order to create
an identified number of Baskets and to request that it be provided with an
order number (an “Order Number”). The Authorized Person
provides a PIN number as identification. The Marketing Agent
provides the Authorized Purchaser with an Order Number for the Authorized
Purchaser’s Purchase Order Form. The Authorized Purchaser then
completes and faxes to the Marketing Agent the Purchase Order Form
included as Exhibit B to the Authorized Purchaser
Agreement. The Purchase Order Form must include the Authorized
Person’s signature, the name of the Fund, number of Baskets being
purchased, and the Order Number.
|
|
2.
|
If
the Marketing Agent has not received the Purchase Order Form from the
Authorized Purchaser within 15 minutes after the Marketing Agent receives
the phone call from the Authorized Purchaser referenced in item (1) above,
the Marketing Agent places a phone call to the Authorized Purchaser to
enquire about the status of the Order. If the Authorized
Purchaser does not fax the Purchase Order Form to the Marketing Agent
within 15 minutes after the Marketing Agent’s phone call, the Authorized
Purchaser’s Order is cancelled. The Marketing Agent will then
notify the Authorized Purchaser that the Order has been cancelled via
telephone call.
|
|
3.
|
By
placing a Purchase Order, an Authorized Purchaser agrees to deposit
Treasuries, cash, or a combination of Treasuries and cash with the
Custodian of the Fund. The number and type of contracts
specified shall be determined by the Sponsor, in its sole discretion, to
meet the Fund’s investment objective and shall be purchased as a result of
the Authorized Purchaser’s purchase of Units. If the Marketing
Agent has received the Authorized Purchaser’s Purchase Order Form on time
in accordance with the preceding timing rules, then by 1:00 PM New York
time the Marketing Agent returns to the Authorized Purchaser a copy of the
Purchase Order Form submitted, marking it “Affirmed.” The
Marketing Agent shall indicate on the Purchase Order Form the details of
the method of payment to be used for the Transaction
Fee.
|
|
4.
|
Based
on the Purchase Orders placed with it on CREATION T, the Marketing Agent
sends a facsimile to the Transfer Agent indicating the total number of
creation Units and total amount of cash and/or Treasuries for which the
Marketing Agent will require an allocation into the custodial accounts of, respectively, the
Authorized Purchaser and the Fund on CREATION T+3. If the
Marketing Agent rejects a Purchase Order pursuant to the Authorized
Purchaser Agreement after the foregoing messages are given to the
Custodian, the Marketing Agent will notify the Transfer Agent of such
rejection as soon as practicable but, in any event, by 1:30 PM New York
time the same day, identifying the Authorized Purchaser whose Purchase
Order was rejected and the amount of Units contained in the rejected
Purchase Order. The Transfer Agent will address any such r
ejection notifications received after 1:30 PM New York time only on a best
efforts basis.
|
2
|
5.
|
The
Sponsor acting by itself or through the Marketing Agent shall have the
absolute right, but shall have no obligation, to reject any Purchase Order
or Creation Basket Deposit (as defined in Section 6) (i) if the Sponsor or
its designee determines that the Purchase Order or Creation Basket Deposit
is not in proper form; (ii) determined by the Sponsor not to be in the
best interest of the Unitholders; (iii) that, due to position limits or
otherwise, the Sponsor determines investment alternatives that will enable
a Fund to meet its investment objective are not available to such Fund at
that time; (iv) the acceptance or receipt of which the Sponsor, in its
sole discretion, believes would have adverse tax consequences to the
Trust, the Fund or the Unitholders; (v) the acceptance or receipt of which
would, in the opinion of counsel to the Sponsor, be unlawful; (vi) if
circumstances outside the control of the Sponsor or its designee,
including the Marketing Agent or the Custodian, make it, for all practical
purposes, in the Sponsor’s determination, not feasible to process
creations of Creation Baskets. Neither the Sponsor nor any
designee, including the Marketing Agent and the Custodian, shall be liable
to any person by reason of the rejection of any Purchase Order or Creation
Basket Deposit.
|
REDEMPTION
PROCESS
An order
to redeem one or more Baskets placed by an Authorized Purchaser with the
Marketing Agent by the Redemption Order Cut-off Time (such day, “REDEMPTION T”)
results in the following taking place by 3:00 PM New York time on REDEMPTION
T+3:
Transfer
to the account at DTC and the subsequent cancellation of the relevant number of
the Authorized Purchaser’s Baskets; and
Transfer
to the Authorized Purchaser by credit to the Authorized Purchaser’s account of
cash and Treasuries, if any, in the relevant amount(s) corresponding to the
Baskets delivered for redemption (the “Redemption Distribution”).
3
REDEMPTION
PROCEDURES
REDEMPTION
T (REDEMPTION ORDER TRADE DATE)
|
1.
|
By
the Redemption Order Cut-off Time, an Authorized Person of the Authorized
Purchaser calls the Marketing Agent at (▇▇▇) ▇▇▇-▇▇▇▇ to notify the
Marketing Agent that the Authorized Purchaser wishes to place a Redemption
Order with the Marketing Agent to redeem an identified number of Baskets
and to request that the Marketing Agent provide an Order
Number. The Authorized Person provides a PIN number as
identification to the Marketing Agent. The Marketing Agent
provides the Authorized Purchaser with an Order Number for the Authorized
Purchaser’s Redemption Order Form. The Authorized Purchaser
then completes and faxes to the Marketing Agent the Redemption Order Form
included as Exhibit B to the Authorized Purchaser
Agreement. The Redemption Order Form must include the
Authorized Person’s signature, the name of the Fund, the number of Baskets
being redeemed, an d the Order Number previously provided by the Marketing
Agent.
|
|
2.
|
If
the Marketing Agent has not received the Redemption Order Form from the
Authorized Purchaser within 15 minutes after the Marketing Agent receives
the phone call from the Authorized Purchaser referenced in item (1) above,
the Marketing Agent places a phone call to the Authorized Purchaser to
enquire about the status of the Order. If the Authorized
Purchaser does not fax the Redemption Order Form to the Marketing Agent
within 15 minutes after the Marketing Agent’s phone call, the Authorized
Purchaser’s Order is cancelled. The Marketing Agent will then
notify the Authorized Purchaser that the Order has been cancelled via
telephone call and via fax.
|
|
3.
|
By
placing a Redemption Order, an Authorized Purchaser agrees to deliver the
Redemption Basket to be redeemed through DTC’s book-entry system to the
Fund’s account with the Custodian not later than 3:00 PM New York time on
the third Business Day following the effective date of the Redemption
Order. The number and type of contracts specified shall be
determined by the Sponsor, in its sole discretion, to meet the Fund ’s
investment objective and shall be sold as a result of the Authorized
Purchaser’s sale of Units. If the Marketing Agent has received
the Authorized Purchaser’s Redemption Order Form on time in accordance
with the preceding timing rules, then by 1:00 PM New York time the
Marketing Agent returns to the Authorized Purchaser a copy of the
Redemption Order Form submitted, marking it “Affirmed.” The
Marketing Agent shall indicate on the Redemption Order Form the amount of
Treasuries and/or cash, if any, to be delivered in the Redemption
Distribution, and provides details of the method of payment to be used for
the Transaction Fee and the method of delivery of the Treasuries and/or
cash portion, if any, of the Redemption Distribution. The Marketing Agent
shall also indicate on the returned Redemption Order Form the specific
number and type of futures contracts to be sold at the closing settlement
price for such contracts on the Redemption Order
Date.
|
|
4.
|
By
1:00 PM New York time, the Marketing Agent sends a facsimile containing
instructions to the Transfer Agent to transfer on REDEMPTION T+3 from the
custodial accounts of, respectively, the Authorized Purchaser and the Fund
(“deallocate”) the total number of redemption Units and the total amount
of cash and/or Treasuries required to settle the Redemption Orders
received by the Marketing Agent on REDEMPTION T. If the
Marketing Agent rejects a Redemption Order pursuant to the Authorized
Purchaser Agreement after the foregoing message is sent, the Marketing
Agent will notify the Transfer Agent of such rejection as soon as
practicable but, in any event, by 1:30 PM New York time the same day,
identifying the Authorized Purchaser whose Redemption Order was rejected
and the amount of Units contained in the rejected Redemption
Order. The Transfer Agent will address any such rejection no
tifications received after 1:30 PM New York time only on a best efforts
basis.
|
4
|
5.
|
The
Sponsor acting by itself or through the Marketing Agent may, in its sole
discretion, reject any Redemption Order (i) the Sponsor determines that
the Redemption Order is not in proper form (ii) the fulfillment of which
its counsel advises may be illegal under applicable laws and regulations,
or (iii) if circumstances outside the control of the Sponsor, the
Marketing Agent or the Custodian make it for all practical purposes not
feasible for the Units to be delivered under the Redemption Order. The
Sponsor may also reject a redemption order if the number of units being
redeemed would reduce the remaining outstanding units to 100,000 units
(i.e., one basket) or less, unless the Sponsor has reason to believe that
the placer of the redemption order does in fact possess all the
outstanding units and can deliver
them.
|
|
6.
|
The
Sponsor may, in its discretion, suspend the right of redemption, or
postpone the Redemption Distribution Date, (1) for any period during which
NYSE Arca, the NYMEX, or any of the Futures Exchanges upon which a
Benchmark Component Futures Contract is traded is closed other
than customary weekend or holiday closings, or trading is suspended or
restricted, (2) for any period during which an emergency exists as a
result of which delivery, disposal or evaluation of Treasuries or other
assets of the Fund is not reasonably practicable, or (3) for such other
period as the Sponsor determines to be necessary for the protection of the
Unitholders. None of the Sponsor, the Marketing Agent, the
Administrator or the Custodian will be liable to any person or in any way
for any loss or damages that may result from any such suspension or
postponement.
|
REDEMPTION
T+3
|
1.
|
By
3:00 PM New York time, the Authorized Purchaser delivers free to the
relevant account at DTC the Baskets to be
redeemed.
|
|
2.
|
If
the Custodian does not receive from a redeeming Authorized Purchaser all
Units comprising the Baskets being redeemed by 3:00 PM New York time, (i)
the Custodian will, only upon instruction from the Sponsor, settle the
Redemption Order to the extent of whole Baskets received from the
Authorized Purchaser and (ii) the Marketing Agent will keep the redeeming
Authorized Purchaser’s Redemption Order open until 9:00 AM New York time
on the following Business Day (REDEMPTION T+4) as to the balance of the
Redemption Order (such balance, the “Suspended Redemption
Order”). For each day (whether or not a Business Day) the
Redemption Order is held open, the Authorized Purchaser will be charged
the greater of $300 or $30 times the number of Units included in the
Suspended Redemption Order, as determined in the sole discretion of the
Sponsor.
|
5
REDEMPTION
T+4
|
1.
|
By
9:00 AM New York time, the redeeming Authorized Purchaser must deliver
free to the account at DTC the Basket(s) comprising the Suspended
Redemption Order. The Marketing Agent will settle the Suspended
Redemption Order to the extent of whole Baskets received. Any
balance of the Suspended Redemption Order may be cancelled at the
discretion of the Sponsor.
|
|
2.
|
The
sequence of instructions and events related to the settlement of the
Suspended Redemption Order on REDEMPTION T+4 will be made in the manner
provided for a Redemption Order under REDEMPTION
T+3.
|
* * *
*
6
▇▇▇▇▇▇▇
▇-▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇OMMODITY INDEX FUND
INITIAL
CREATION PROCEDURES
Scope of
Procedures and Overview
These
procedures (the “Initial Procedures”) describe the process by which one or more
Baskets of Units of the United States Commodity Index Fund (the “Units”) may be
purchased by an Authorized Purchaser. Units may be created only in
blocks of 100,000 Units (each such block, a “Basket”).
Capitalized
terms used but not defined in this Agreement shall have the meanings assigned to
such terms in the applicable Prospectus of each Fund and the defined terms in
the applicable schedules for each fund as listed on Annex A.
Baskets
are issued pursuant to the Prospectus, which will be delivered by the Marketing
Agent to the Authorized Purchaser prior to its execution of the Authorized
Purchaser Agreement, and are issued in accordance with the Authorized Purchaser
Agreement. Baskets may be issued on any Business Day by the Marketing
Agent in exchange for cash and/or Treasuries, which the Custodian receives from
the Authorized Purchaser on behalf of the Fund.
Upon
acceptance of the Authorized Purchaser Agreement, the Marketing Agent will
assign a personal identification number (a “PIN number”) to the Authorized
Person authorized to act for the Authorized Purchaser. This will allow the
Authorized Purchaser through its Authorized Person(s) to place the initial
Purchase Order for Baskets.
It is
anticipated that on the effective date (the date the SEC declares the
registration statement relating to the Fund effective), the initial Authorized
Purchaser will, though it is under no obligation to do so, purchase one or more
Creations Baskets at a price per Unit of $50.00 The Units are
expected to begin trading on the day following the effective date.
Important
Notes:
Any Order
is subject to rejection by the Sponsor or the Marketing Agent, as agent of the
Sponsor, for the reasons set forth in the Authorized Purchaser
Agreement.
All
Orders are subject to the provisions of the Trust Agreement, the Prospectus and
the Authorized Purchaser Agreement relating to unclear or ambiguous
instructions.
The
Authorized Purchaser, and each distributor offering and selling Units as part of
the distribution of such Units, shall comply with the prospectus delivery and
disclosure requirements of the 1933 Act as well as the analogous requirements
under the CEA, including, the requirement that prospective investors provide an
acknowledgement of receipt of such disclosure materials prior to the payment for
any Units to the extent the foregoing relates to the Authorized Purchaser’s
transactions in, and activities with respect to Units.
1
CREATION
PROCESS
An Order
to purchase one or more of the initial Baskets placed by the Authorized
Purchaser with the Marketing Agent by 10:30 AM New York time (the “Order Cut-Off
Time”) on a Business Day (such day, “CREATION T”) results in the transfer to the
Authorized Purchaser’s account at The Depository Trust Company (“DTC”) of
Baskets the Authorized Purchaser has purchased by 12:00 PM New York time on
CREATION T+0 if payment for such Baskets has been received by the Custodian
prior to that time:
CREATION
PROCEDURES
1. By
the Order Cut-Off Time (the earlier of the close of regular trading on NYSE Arca
or 10:30 AM New York time), an Authorized Person of the Authorized Purchaser
calls the Marketing Agent at (▇▇▇) ▇▇▇-▇▇▇▇ to notify such agent that the
Authorized Purchaser wishes to place a Purchase Order to create an identified
number of Baskets and to request that it be provided with an order number (an
“Order Number”). The Authorized Person provides a PIN number as
identification. The Marketing Agent provides the Authorized Purchaser
with an Order Number for the Authorized Purchaser’s Purchase Order
Form. The Authorized Purchaser then completes and faxes to the
Marketing Agent the Purchase Order Form included as Exhibit B to the Auth orized
Purchaser Agreement. The Purchase Order Form must include the
Authorized Person’s signature, the number of Baskets being purchased, and the
Order Number.
2. If
the Marketing Agent has not received the Purchase Order Form from the Authorized
Purchaser within 15 minutes after the Marketing Agent receives the phone call
from the Authorized Purchaser referenced in item (1) above, the Marketing Agent
places a phone call to the Authorized Purchaser to enquire about the status of
the Order. If the Authorized Purchaser does not fax the Purchase
Order Form to the Marketing Agent within 15 minutes after the Marketing Agent’s
phone call, the Authorized Purchaser’s Order is cancelled. The
Marketing Agent will then notify the Authorized Purchaser that the Order has
been cancelled via telephone call.
3. By
placing a Purchase Order, an Authorized Purchaser agrees to (1) deposit
Treasuries, cash, or a combination of Treasuries and cash with the Custodian of
the Fund, and (2) if required by the Sponsor in its sole discretion, enter into
or arrange for a block trade, an exchange for physical or exchange for swap, or
any other over-the-counter commodity transaction (through itself or a designated
acceptable broker) with the Fund for the purchase of a number and type of
futures contracts at the closing settlement price or, in
the case of an over-the-counter contract, with an equivalent value based on such
futures contracts, for such contracts on the Purchase Order Date, as
specified in the Purchase Order Form (see Exhibit B). Fail ure to
consummate (1) and (2) above shall result in the cancellation of the order. If
the Marketing Agent has received the Authorized Purchaser’s Purchase Order Form
on time in accordance with the preceding timing rules, then by 10:00 AM New York
time the Marketing Agent returns to the Authorized Purchaser a copy of the
Purchase Order Form submitted, marking it “Affirmed.” The Marketing
Agent shall also have completed Part II of the Purchase Order Form, which
includes the specific number and type of futures contracts to be purchased at
the closing settlement price on the Purchase Order Date.
2
4. Based
on the Purchase Orders placed with it on CREATION T, the Marketing Agent sends a
facsimile to the Transfer Agent indicating the total number of creation Units
and total amount of cash and/or Treasuries for which the Marketing Agent will
require an allocation into the custodial accounts of, respectively, the
Authorized Purchaser and the Fund on CREATION T+0 once the Custodian confirms to
the Transfer Agent that the payment for such Baskets in same day funds has been
received by it from the Authorized Purchaser. If the Marketing Agent
rejects a Purchase Order pursuant to the Authorized Purchaser Agreement after
the foregoing messages are given to the Custodian, the Marketing Agent will
notify the Tr ansfer Agent of such rejection as soon as practicable but, in any
event, by 10:30 AM New York time the same day, identifying the amount of cash
and/or Treasuries contained in the rejected Purchase Order. The
Transfer Agent will address any such rejection notifications received after
10:30 AM New York time only on a best efforts basis.
3
EXHIBIT
B
PURCHASE/REDEMPTION
ORDER FORM
FOR
[__________________________________] FUND
CONTACT
INFORMATION FOR ORDER EXECUTION:
|
Telephone
order number:
|
Telex
Number
|
|
Facsimile
number:
|
Business
Number
|
ALL ITEMS
IN PART I MUST BE COMPLETED BY AN AUTHORIZED PURCHASER. THE SPONSOR
AND/OR THE MARKETING AGENT, IN THEIR DISCRETION, MAY REJECT ANY ORDER NOT
SUBMITTED IN COMPLETE FORM.
|
I.
|
TO
BE COMPLETED BY AUTHORIZED PURCHASER:
|
|
Date:
|
Time:
|
|
Broker Name:
|
Firm Name:
|
|
NSCC Participant Number:
|
DTC Participant Number:
|
|
Telephone Number:
|
Telex Number:
|
|
Fax Number:
|
Type of
Order (Check One)
|
Amount
Created Units (100,000 Units)
|
_____________
|
|
Amount
Written Out
|
_____________
|
|
Amount
Redeemed Units (100,000 Units)
|
_____________
|
|
Amount
Written Out:
|
_____________
|
|
Order
#:
|
___________________
|
Pursuant
to Se▇▇▇▇▇ ▇▇ ▇▇▇ ▇.21(b), the above-listed Fund may not accept or receive
funds, securities or other property from a prospective participant unless it
first receives from the prospective participant the following
acknowledgment:
IN
ADDITION TO THE PLACEMENT OF THE ORDER ABOVE, ON BEHALF OF THE AUTHORIZED
PURCHASER AS A PROSPECTIVE PARTICIPANT OF THE ABOVE-LISTED FUND, I HEREBY
ACKNOWLEDGE AND AFFIRM THAT I HAVE RECEIVED THE PROSPECTUS FOR THE UNITED STATES
COMMODITY INDEX FUNDS TRUST AND THE ABOVE-LISTED FUND.
By: ________________________________,
an Authorized Person
Name: ________________________________
1
TO BE COMPLETED BY ALPS
DISTRIBUTORS, INC.:
This
certifies that the above order has been:
___________
Accepted by the
Marketing Agent (for purchase or redemption)
___________
Declined
- Reason: ________________________________________________
|
_____________
|
__________
|
_______________________
|
|
Date
|
Time
|
Authorized
Signature
|
2
EXHIBIT
C
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.
EXHIBIT
D
UNITED
STATES COMMODITY INDEX FUND
OFFICER’S
CERTIFICATE
The
undersigned, a duly authorized officer of United States Commodity Funds LLC, a
Delaware limited liability company (the “Sponsor”), and pursuant to Section
13(d) of the Authorized Purchaser Agreement dated as of ____________, as amended or
supplemented (the “Authorized Purchaser Agreement”) by and among the Sponsor,
the United States Commodity Index Funds Trust, a Delaware statutory trust (the
“Trust”), on its own behalf and on behalf of the series established and
designated by the Trust, the United States Commodity Index Fund (the “Fund”),
and [AUTHORIZED PURCHASER], a [STATE/ TYPE OF ENTITY] (the “Authorized
Purchaser”), hereby certifies that:
1. Each
of the following representations and warranties of the Sponsor is true and
correct in all material respects as of the date hereof:
(a) the
Prospectus does not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; the Registration Statement complies in all material respects
with the requirements of the 1933 Act and the Prospectus complies in all
material respects with the requirements of the 1933 Act and any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement have been so described or filed; the conditions to the
use of Form S-1 or S-3, if applicable, have been satisfied; the Registration
Stat ement does not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus does not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Sponsor makes no warranty or representation with respect to any
statement contained in the Registration Statement or any Prospectus in reliance
upon and in conformity with information concerning the Authorized Purchaser and
furnished in writing by or on behalf of the Authorized Purchaser to the Sponsor
expressly for use in the Registration Statement or such Prospectus; and neither
the Sponsor nor any person known to the Sponsor acting on behalf of the Fund has
distributed nor will distribute any offering material other than the
Registration Stateme nt or the Prospectus;
(b) the
Trust has been duly formed and is validly existing as a statutory trust with
separate series under the laws of the State of Delaware, as described in the
Registration Statement and the Prospectus, and as described in the Prospectus,
the Marketing Agent is authorized to issue and deliver the Baskets of the Fund’s
Units to the Authorized Purchaser;
(c) the
Sponsor has been duly organized and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware, with full
power and authority to conduct its business as described in the Registration
Statement and the Prospectus, and has all requisite power and authority to
execute and deliver this Agreement;
(d) the
Sponsor is duly qualified and is in good standing in each jurisdiction where the
conduct of its business requires such qualification;
(e) the
outstanding Units have been duly and validly issued and are fully paid and
non-assessable and free of statutory and contractual preemptive rights, rights
of first refusal and similar rights;
(f) the
Units conform in all material respects to the description thereof contained in
the Registration Statement and the Prospectus and the holders of the Units will
not be subject to personal liability by reason of being such
holders;
(g) this
Agreement has been duly authorized, executed and delivered by the Sponsor and
constitutes the valid and binding obligations of the Sponsor, enforceable
against the Sponsor in accordance with its terms;
(h) the
Sponsor is not in breach or violation of or in default under (nor has any event
occurred which with notice, lapse of time or both would result in any breach or
violation of, constitute a default under or give the holder of any indebtedness
(or a person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness) its
constitutive documents, or any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument to which the Sponsor is a party or by
which any of them or any of their properties may be bound or affected, and the
execution, delivery and performance of this Agreement, the issuan ce and sale of
Units to the Authorized Purchaser hereunder and the consummation of the
transactions contemplated hereby does not conflict with, result in any breach or
violation of or constitute a default under (nor constitute any event which with
notice, lapse of time or both would result in any breach or violation of or
constitute a default under), respectively, the amended and restated limited
liability company agreement of the Sponsor, as the same may be amended from time
to time, or any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which the Sponsor is a party or by which,
respectively, the Sponsor or any of its properties may be bound or affected, or
any federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Sponsor;
(i) no
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency is required in connection with the issuance and sale of the Units
other than registration of the Units under the 1933 Act and the registration of
the Sponsor as a Commodity Pool Operator with the NFA under the CEA and the
filing of the Prospectus with the National Futures Association, which has been
or will be effected, and any necessary qualification under the securities or
blue sky laws of the various jurisdictions in which the Units are being offered
or any requirements for listing under the rules and regulations of NYSE Arca,
Inc. (“NYSE Arca”);
2
(j) except
as set forth in the Registration Statement and the Prospectus (i) no person has
the right, contractual or otherwise, to cause the Fund to issue or sell to it
any Units or other equity interests of the Fund, and (ii) no person has the
right to act as an underwriter or as a financial advisor to the Fund in
connection with the offer and sale of the Units, in the case of each of the
foregoing clauses (i), and (ii), whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the Units as
contemplated thereby or otherwise; no person has the right, contractual or
otherwise, to cause the Sponsor on behalf of the Fund or the Fund to register
under the 1933 Act any other equity interests of the Fund, or to include any
such units or int erests in the Registration Statement or the
offering contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the Units as
contemplated thereby or otherwise;
(k) each
of the Sponsor and the Fund has all necessary licenses, authorizations, consents
and approvals and has made all necessary filings required under any federal,
state, local or foreign law, regulation or rule, and has obtained all necessary
authorizations, consents and approvals from other persons, in order to conduct
its respective business; the Sponsor is not in violation of, or in default
under, or has not received notice of any proceedings relating to revocation or
modification of, any such license, authorization, consent or approval or any
federal, state, local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Sponsor;
(l) all
legal or governmental proceedings, affiliate transactions, off-balance sheet
transactions, contracts, licenses, agreements, leases or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement have been so
described or filed as required;
(m) except
as set forth in the Registration Statement and the Prospectus, there
are no actions, suits, claims, investigations or proceedings pending or
threatened or, to the Sponsor’s knowledge after due inquiry, contemplated to
which the Sponsor or the Fund, or (to the extent that such action, suit, claim,
investigation or proceeding is or could be material in the context of the
offering and sale of the Units) any of the Sponsor’s directors or officers, is
or would be a party or of which any of their respective properties are or would
be subject at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or
agency;
(n) ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, whose report on the audited financial statements of the Fund is
filed with the SEC as part of the Registration Statement and the Prospectus, are
independent public accountants as required by the 1933 Act;
(o) the
audited financial statement(s) included in the Prospectus, together with the
related notes and schedules, presents fairly the financial position of the Fund
as of the date indicated and has been prepared in compliance with the
requirements of the 1933 Act and in conformity with generally accepted
accounting principles; there are no financial statements (historical or pro
forma) that are required to be included in the Registration Statement and the
Prospectus that are not included as required; and the Fund does not have any
material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not disclosed in the Registration Statement and
the Prospectus;
3
(p) subsequent
to the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been (i) any material adverse
change, (ii) any transaction which is material to the Sponsor or the Fund taken
as a whole, (iii) any obligation, direct or contingent (including any
off-balance sheet obligations), incurred by the Sponsor or the Fund, which is
material to the Fund, (iv) any change in the Units purchased by the Authorized
Purchaser or outstanding indebtedness of the Sponsor or the Fund or (v) any
dividend or distribution of any kind declared, paid or made on such
Units;
(q) the
Fund is not and, after giving effect to the offering and sale of the Units, will
not be an “investment company” or an entity “controlled” by an “investment
company,” as such terms are defined in the Investment Company Act;
(r) except
as set forth in the Registration Statement and the Prospectus, the Sponsor and
the Trust own, or have obtained valid and enforceable licenses for, or other
rights to use, the inventions, patent applications, patents, trademarks (both
registered and unregistered), tradenames, copyrights, trade secrets and other
proprietary information applicable to the Fund and described in the Registration
Statement and the Prospectus as being owned or licensed by the Sponsor or the
Trust for use by the Fund (collectively, “Intellectual Property”);
|
|
(i)
|
except
as set forth in the Registration Statement and the Prospectus, to the
knowledge of the Sponsor, there are no third parties who have or will be
able to establish rights to any Intellectual Property, except for the
ownership rights of the owners of the Intellectual Property which is
licensed to the Sponsor or the
Trust;
|
|
|
(ii)
|
to
the knowledge of the Sponsor, there is no infringement by third parties of
any Intellectual Property;
|
|
|
(iii)
|
there
is no pending or, to the knowledge of the Sponsor, threatened action,
suit, proceeding or claim by others challenging the Sponsor’s or the
Fund’s rights in or to any Intellectual Property, and the Sponsor is not
aware of any facts which could form a reasonable basis for any such
claim;
|
|
|
(iv)
|
there
is no pending or, to the knowledge of the Sponsor, threatened action,
suit, proceeding or claim by others challenging the validity or scope of
any Intellectual Property;
|
|
|
(v)
|
there
is no pending or, to the knowledge of the Sponsor, threatened action,
suit, proceeding or claim by others that the Sponsor or the Fund infringes
or otherwise violates any patent, trademark, copyright, trade secret or
other proprietary rights of others, and the Sponsor is not aware of any
facts which could form a reasonable basis for any such claim;
and
|
|
|
(vi)
|
to
the knowledge of the Sponsor, there is no patent or patent application
that contains claims that interfere with the issued or pending claims of
any of the Intellectual Property;
|
4
(s) all
tax returns required to be filed by the Sponsor have been filed, and all taxes
and other assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties applicable
thereto due or claimed to be due from such entities have been paid; and no tax
returns or tax payments are due with respect to the Trust as of the date of this
Agreement;
(t) the
Sponsor has not sent or received any communication regarding termination of, or
intent not to renew, any of the contracts or agreements referred to or described
in, or filed as an exhibit to, the Registration Statement, and no such
termination or non-renewal has been threatened by the Sponsor or any other party
to any such contract or agreement;
(u) on
behalf of the Fund, the Sponsor has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-14 and 15d-14 under
the Exchange Act, giving effect to the rules and regulations, and SEC staff
interpretations, thereunder)); such disclosure controls and procedures are
designed to ensure that material information relating to the Fund, is made known
to the Sponsor, and such disclosure controls and procedures are effective to
perform the functions for which they were established; on behalf of the Fund,
the Sponsor has been advised of: (i) any significant deficiencies in the design
or operation of internal controls which could adversely affect the Fund’s
ability to record, process, summarize, and report financial data; and (ii) any
fraud, whether or not material, that involves management or other employees who
have a role in the Fund’s internal controls; any material weaknesses in internal
controls have been identified for the Fund’s auditors;
(v) any
statistical and market-related data included in the Registration Statement and
the Prospectus are based on or derived from sources that the Sponsor believes to
be reliable and accurate, and the Sponsor has obtained the written consent to
the use of such data from such sources to the extent required; and
(w) neither
the Sponsor, nor any of the Sponsor’s directors, members, officers, affiliates
or controlling persons has taken, directly or indirectly, any action designed,
or which has constituted or might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, the stabilization or manipulation of the
price of any security or asset of the Fund to facilitate the sale or resale of
the Units.
For
purposes hereof, the term “Registration Statement” means the Registration
Statement as amended or supplemented from time to time through and including the
date hereof; the term “Preliminary Prospectus” means the preliminary prospectus
dated ______________, relating to the Units and any other prospectus dated prior
to effectiveness of the Registration Statement relating to the Units; and the
term “Prospectus” means the Prospectus as amended or supplemented from time to
time through and including the date hereof.
5
2. Each
of the obligations of the Sponsor to be performed by it on or before the date
hereof pursuant to the terms of the Agreement, and each of the provisions
thereof to be complied with by the Sponsor on or before the date hereof, has
been duly performed and complied with in all material
respects. Capitalized terms used, but not defined herein shall have
the meanings assigned to such terms in the Agreement.
IN
WITNESS WHEREOF, I have hereunto, on behalf of the Sponsor, subscribed my name
this ___ day of ________, ____.
By:
________________________
Name:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
I, ▇▇▇▇▇▇
▇▇▇, in my capacity as Secretary, hereby certify that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is the
duly elected President of the Sponsor, and that the signature set forth
immediately above is his genuine signature.
IN
WITNESS WHEREOF, I have hereunto set my hand as of the date first set forth
above.
By:
________________________
Name:
▇▇▇▇▇▇ ▇▇▇
Title:
Secretary
6
ANNEX
A
LIST
OF SERIES TRUST(S) ESTABLISHED
|
Fund
|
Relevant
Schedules
|
|
|
1.
|
United
States Commodity Index Fund
|
Schedules
1 & 2 to this Agreement
|
ANNEX
B
FORM
OF AMENDMENT AGREEMENT TO ADD SERIES TRUST(S) TO
TO
THE AUTHORIZED PURCHASER AGREEMENT
This Amendment to the Authorized
Purchaser Agreement dated ____________ (this “Amendment”), is made and entered
into by and among United States Commodity Funds LLC, a Delaware limited
liability company (the “Sponsor”), the United States Commodity Index Funds
Trust, a Delaware statutory trust (the “Trust”), on its own behalf and on behalf
of the United States Commodity Index Fund and [INSERT FUND NAME] (each, a
“Fund”), and [AUTHORIZED PURCHASER], a [STATE/ TYPE OF ENTITY] (the “Authorized
Purchaser”) (each, a “Party” and collectively, “the Parties”).
WHEREAS, the Parties have entered into
a certain Authorized Purchaser Agreement dated ______________ (the “Agreement”);
and
WHEREAS, the parties hereto desire to
amend the Agreement as provided herein by amending Annex A of this Agreement and
supplementing this Agreement with the attached Schedules 1 and 2 to this
Amendment.
NOW
THEREFORE, for and in consideration of the agreements herein made and other good
and valuable consideration, the parties hereto agree as follows:
I. AMENDMENTS
The
Agreement is hereby amended by making the following change to Annex A
thereto:
LIST
OF SERIES TRUST(S) ESTABLISHED
|
Fund
|
Relevant
Schedules
|
|
|
1.
|
United
States Commodity Index Fund
|
Schedules
1 & 2 to this Agreement
|
|
2.
|
[INSERT
FUND NAME]
|
Schedules
1 & 2 to the Amendment Agreement dated _____________
|
|
3.
|
||
|
4.
|
||
|
5.
|
The
Parties acknowledge that Schedule 1 and 2 of this Amendment shall supplement and
not supersede Schedules 1 and 2 of the Agreement.
II. REPRESENTATIONS
Each
Party represents to the other Parties that:-
(a) Status. It is duly
organized and validly existing under the laws of the jurisdiction of its
organization or incorporation and, if relevant under such laws, in good
standing;
(b) Powers. It has the
power to execute and deliver this Amendment and to perform its obligations
hereunder, and has taken all necessary action to authorize such execution,
delivery and performance;
(c) No Violation or
Conflict. Such execution, delivery and performance do not
violate or conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgment of any court or other agency of
government applicable to it or any of its assets or any contractual restriction
binding on or affecting it or any of its assets;
(d) Consents. All
governmental and other consents that are required to have been obtained by it
with respect to this Amendment have been obtained and are in full force and
effect and all conditions of any such consents have been complied with;
and
(e) Obligations
Binding. Its obligations under this Amendment constitute its
legal, valid and binding obligations, enforceable in accordance with its
respective terms (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors’ rights generally and subject, as
to enforceability, to equitable principles of general application (regardless of
whether enforcement is sought in a proceeding in equity or at
law)).
III. MISCELLANEOUS
(a) Entire
Agreement. The Amendment constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings (except as other wise provided herein)
with respect thereto.
(b) Counterparts. This
Amendment may be executed in multiple counterparts, each of which when executed
and delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument.
(c) Headings. The
headings used in this Amendment are for convenience of reference only and are
not to affect the construction of or to be taken into consideration in
interpreting this Amendment.
(d) Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
(e) Terms. Terms used
in this Amendment, unless otherwise defined herein, shall have the meanings
ascribed to them in the Agreement.
2
(f) Agreement. Any
and all references to the Agreement shall hereafter refer to the Agreement as
amended by this Amendment and as the same may be amended, supplemented or
modified from time to time. Unless otherwise defined herein,
capitalized terms not defined herein shall have the same meanings assigned to
such terms in the Agreement as amended by this Amendment.
Except as
amended hereby, all other terms and conditions of the Agreement shall remain the
same and in full force and effect.
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment effective as of
the date first written above.
| UNITED STATES COMMODITY FUNDS LLC | ||
|
By:
|
||
| Name: | ||
| Title: | ||
| UNITED STATES COMMODITY INDEX FUNDS TRUST, on its own behalf and on behalf of the United States Commodity Index Fund | ||||
|
|
By: United States Commodity Funds LLC, as Sponsor | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
| UNITED STATES COMMODITY INDEX FUNDS TRUST, on behalf of [INSERT FUND NAME] | ||||
|
|
By: United States Commodity Funds LLC, as Sponsor | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [AUTHORIZED PURCHASER] | ||
|
By:
|
||
| Name: | ||
| Title: | ||
| Address: | ||
| Telephone: | ||
| Facsimile: | ||
3
SCHEDULE
1
TO
THE AMENDMENT AGREEMENT DATED ____________________
DEFINED
TERMS RELATING TO
[INSERT
NAME OF FUND]
Benchmark
Component Futures Contract shall mean _____________________.
Business
Day shall mean _____________________.
The Fund
shall mean _____________________.
Purchase Order
Cut-off Time shall mean _____________________.
Redemption Order
Cut-off Time shall mean _____________________.
Transaction Fee
shall mean _____________________.
4
SCHEDULE
2
TO
THE AMENDMENT AGREEMENT DATED ____________________
FORM
OF CERTIFIED AUTHORIZED PERSONS
OF
AUTHORIZED PURCHASER FOR [INSERT FUND NAME]
The
following are the names, titles and signatures of all persons (each an
“Authorized Person”) authorized to give instructions relating to any activity
contemplated by the Authorized Purchaser Agreement dated as of ____________, as amended or
supplemented (the “Authorized Purchaser Agreement”) by and among United States
Commodity Funds LLC, a Delaware limited liability company (the “Sponsor”), the
United States Commodity Index Funds Trust, a Delaware statutory trust (the
“Trust”), on its own behalf and on behalf of the series established and
designated by the Trust, the [INSERT FUND NAME] (the “Fund”), and [AUTHORIZED
PURCHASER], a [STATE/ TYPE OF ENTITY] (the “Authorized Purchaser”) or any other
notice, requ est or instruction on behalf of the Authorized Purchaser pursuant
to the aforementioned agreement.
Authorized
Purchaser: _______________________
Name: _________________________
Title: _________________________
Signature: _________________________
Name: _________________________
Title: _________________________
Signature: _________________________
Name: _________________________
Title: _________________________
Signature: _________________________
The
undersigned, [name], [title] of [company], does hereby certify that the persons
listed above have been duly elected to the offices set forth beneath their
names, that they presently hold such offices, that they have been duly
authorized to act as Authorized Persons pursuant to the Authorized Purchaser
Agreement and that their signatures set forth above are their own true and
genuine signatures.
5
IN WITNESS WHEREOF, the undersigned has
hereby set his/her hand and the seal of [company] on the date set forth
below.
Subscribed
and sworn to before me
this
___ day of ___________, ______.
By:
Name: _________________________
Signature: _________________________
Notary
Public
6
SCHEDULE
1
TO
THE AUTHORIZED PURCHASER AGREEMENT
DATED
_________________________
DEFINED
TERMS RELATING TO
UNITED
STATES COMMODITY INDEX FUND
Benchmark
Component Futures Contract shall mean the Futures Contracts (as defined
in the Prospectus) that at any given time make up the index of the
Fund.
Business
Day shall mean, for purposes of processing Purchase and Redemption Orders
any day other than a day when any of the NYSE Arca, New York Mercantile Exchange
or the New York Stock Exchange is closed for regular trading.
The Fund
shall mean United States Commodity Index Fund.
Purchase Order
Cut-off Time shall mean 10:30 AM New York time or the close of regular
trading on NYSE Arca, whichever is earlier, except in the case of an Authorized
Purchaser’s initial order to purchase one or more Creation Baskets on the first
day the Baskets are to be offered and sold, when such orders shall be placed by
9:00 AM New York time on the day agreed to by the Sponsor and the Authorized
Purchaser.
Redemption Order
Cut-off Time shall mean 10:30 AM New York time or the close of regular
trading on NYSE Arca, whichever is earlier.
Transaction Fee
shall mean one thousand dollars ($1,000).
SCHEDULE
2
TO
THE AUTHORIZED PURCHASER AGREEMENT
DATED
_________________________
FORM
OF CERTIFIED AUTHORIZED PERSONS OF
AUTHORIZED
PURCHASER FOR UNITED STATES COMMODITY INDEX FUND
The
following are the names, titles and signatures of all persons (each an
“Authorized Person”) authorized to give instructions relating to any activity
contemplated by the Authorized Purchaser Agreement dated as of ____________, as amended or
supplemented (the “Authorized Purchaser Agreement”) by and among United States
Commodity Funds LLC, a Delaware limited liability company (the “Sponsor”), the
United States Commodity Index Funds Trust, a Delaware statutory trust (the
“Trust”), on its own behalf and on behalf of the series established and
designated by the Trust, the United States Commodity Index Fund (the “Fund”),
and [AUTHORIZED PURCHASER], a [STATE/ TYPE OF ENTITY] (the “Authorized
Purchaser”) or any ot her notice, request or instruction on behalf of the
Authorized Purchaser pursuant to the aforementioned agreement.
Authorized
Purchaser: _______________________
Name: _________________________
Title: _________________________
Signature: _________________________
Name: _________________________
Title: _________________________
Signature: _________________________
Name: _________________________
Title: _________________________
Signature: _________________________
The
undersigned, [name], [title] of [company], does hereby certify that the persons
listed above have been duly elected to the offices set forth beneath their
names, that they presently hold such offices, that they have been duly
authorized to act as Authorized Persons pursuant to the Authorized Purchaser
Agreement and that their signatures set forth above are their own true and
genuine signatures.
2
IN WITNESS WHEREOF, the undersigned has
hereby set his/her hand and the seal of [company] on the date set forth
below.
Subscribed
and sworn to before me
this
___ day of ___________, ______.
By:
Name: _________________________
Signature: _________________________
Notary
Public
3