DISTRIBUTION SERVICES AGREEMENT
Exhibit 10.6
THIS DISTRIBUTION SERVICES AGREEMENT (the “Agreement”) is made and entered into
effective the 16th day of January, 2007 (the “Effective Date”) by and among GreenHaven
Continuous Commodity Index Tracking Fund, a Delaware statutory trust (the “Fund”), ALPS
Distributors, Inc., a Colorado corporation and a registered broker-dealer under the Securities
Exchange Act of 1934 (the “Distributor”), and GreenHaven Commodity Services, LLC, a
Delaware limited liability company (the “Managing Owner”). Capitalized terms that are used
but are not defined herein shall have the same meanings ascribed to them in the Fund’s Prospectus
included in its Registration Statement on Form S-1 (Registration No. ___), as such Prospectus
may be amended or supplemented from time to time.
WHEREAS, the Managing Owner serves as the sole managing owner of the Fund; and
WHEREAS, the Managing Owner and the Fund wish to engage the Distributor to provide the
services listed on Schedule “A” hereto and such additional services as may be agreed and
added to such Schedule from time to time Hereinafter, the “Services”).
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein contained, the
parties agree as follows:
1. Provision of the Services. The Distributor hereby agrees to provide the Services
to the Fund, and the Managing Owner and the Fund accepts the provision of the Services by the
Distributor.
2. Fees for the Services. In exchange for the Distributor’s provision of the
Services, the Managing Owner agrees to pay to the Distributor a fee in an amount to be agreed upon
in writing by the parties hereto from time to time, subject to any limitation imposed by any
applicable law, rule or regulation.
3. Expenses and Disbursements. The Managing Owner shall reimburse the Distributor for
any reasonable expenses or disbursements incurred by the Distributor in connection with the
performance by the Distributor of its Services hereunder. For any expenses or disbursements in
excess of $10,000, the Distributor will obtain the prior written consent of the Managing Owner.
Unless otherwise agreed to by the parties hereto in writing, the Distributor shall not be
responsible for the expenses and disbursements incurred in connection with: (a) preparing, setting
in type, filing, printing and mailing to the public any Registration Statement, Prospectus or
Statement of Additional Information, and any amendments and supplements to any of the foregoing,
used in connection with the offering of the Shares for sale to the public, and sending any such
documents and information to existing Fund shareholders; (b) preparing, setting in type, printing
and mailing any report (including annual and semi-annual reports) or other communication to
shareholders of the Fund; and (c) the “Blue Sky” registration and qualification of the Shares for
sale in the various states in which the officers of the Fund shall determine it advisable to
qualify such Shares for sale (including registering the Fund as a broker or dealer or any officer
of the Fund as an agent or salesman in any such state).
4. Documents. To assist the Distributor in providing such Services, the Fund has
furnished, or will furnish upon the Distributor’s written request, the Distributor with copies of
the Fund’s Declaration of Trust, Advisory Agreement, Custodian Agreement, Transfer Agency
Agreement, Administration Agreement and current Registration Statement, Prospectus and Statement of
Additional Information, and all forms relating to any plan, program or service offered by the Fund.
The Fund shall promptly furnish to the Distributor copies of any amendment or supplement to any of
the aforementioned documents. Upon the Distributor’s written request, the Fund shall promptly
furnish to the Distributor any
1
additional documents deemed by it to be reasonably necessary or advisable in order for it to
provide the Services hereunder. As used in this Agreement the terms “Registration Statement,”
“Prospectus” and “Statement of Additional Information” shall mean any registration statement,
prospectus and statement of additional information filed by the Fund with the Securities and
Exchange Commission (“SEC”) and any amendments and supplements thereto that are filed with
the SEC.
5. Authorized Representations. The Distributor is not authorized by the Fund to give
any information or to make any representations other than those contained in the Registration
Statement, the Prospectus and the Statement of Additional Information, or contained in shareholder
reports or other material that may be prepared by or on behalf of the Fund for the Distributor’s
use. Consistent with the foregoing, the Distributor may prepare and distribute sales literature or
other material as it may deem appropriate in consultation with the Fund, provided that such sales
literature complies with applicable law and regulations.
6. Registration of the Shares. The Fund agrees that it will take all action necessary
to register the Shares under the 1933 Act (subject to the necessary approval of its shareholders).
The Fund shall make available to the Distributor, at the Distributor’s expense, such number of
copies of the Fund’s Prospectus and Statement of Additional Information as the Distributor may
reasonably request. The Fund shall furnish to the Distributor copies of all information, financial
statements and other papers which the Distributor may reasonably request in writing for use in
connection with the distribution of the Shares of the Fund.
7. Use of the Distributor’s Name. The Fund shall not use the name of the Distributor,
or any of its affiliates, in any Prospectus or Statement of Additional Information, sales
literature and other material relating to the Fund in any manner without the prior written consent
of the Distributor (which consent shall not be unreasonably withheld); provided, however, that the
Distributor hereby approves all lawful uses of its name and the names of its affiliates in the
Prospectus and Statement of Additional Information of the Fund and in all other materials which in
each case merely refer to accurate terms to the Distributor’s engagement hereunder or which are
required by the SEC, NASD, OCC or any state securities authority.
8. Use of the Fund’s Name. Neither the Distributor nor any of its affiliates shall
use the Fund’s name in any publicly disseminated materials, including but specifically not limited
to sales literature, in any manner without the prior consent of the Fund (which consent shall not
be unreasonably withheld); provided, however, that the Fund hereby approves all lawful uses of its
name in any required regulatory filings of the Distributor which in each case merely refer in
accurate terms to the Distributor’s engagement hereunder, or which are required by the SEC, NASD,
OCC or any state securities authority.
9. Indemnification.
(a) The Fund agrees to indemnify and hold harmless the Distributor, its directors and
officers, and each person, if any, who “controls” the Distributor (within the meaning of Section 15
of the 1933 Act), against any loss, liability, claim, damages or expenses (including the reasonable
cost of investigating or defending any alleged loss, liability, claim, damages or expense and
reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring
any of the Shares, based upon the finding that the Registration Statement, Prospectus, Statement of
Additional Information, shareholder report or other information filed or made public by the Fund
(as any such material is from time to time amended or supplemented) included an untrue statement of
a material fact or omitted to state a material fact required to be stated or necessary in order to
make the statements not misleading under the 1933 Act or any other statute or the common law.
However, the Fund does not agree to indemnify the Distributor or hold it harmless to the extent
that the statement or omission was made in reliance upon, and in conformity with, information
furnished to the Fund by or on behalf of the Distributor. In no case: (i) is
2
the indemnity of the Fund in favor of the Distributor or any person indemnified hereunder to be
deemed to protect the Distributor or any such person against any liability to the Fund or its
security holders to which the Distributor or such 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; or (ii) is the Fund to
be liable under its indemnity agreement contained in this paragraph (a) with respect to any claim
made against the Distributor or any person indemnified unless the Distributor or person, as the
case may be, shall have notified the Fund in writing of the claim promptly after the summons or
other first written notification giving information of the nature of the claims shall have been
served upon the Distributor or any such person (or after the Distributor or such person shall have
received notice of service on any designated agent). However, failure to notify the Fund of any
claim shall not relieve the Fund from any liability which it may have to any person against whom
such action is brought otherwise than on account of its indemnity agreement contained in this
paragraph. The Fund shall be entitled to participate at its own expense in the defense, or, if it
so elects, to assume the defense of any suit brought to enforce any claims, and if the Fund elects
to assume the defense, then the defense shall be conducted by counsel chosen by the Fund. If the
Fund elects to assume the defense of any suit and retain counsel, then the Distributor, its
officers and directors, and any controlling person(s), in their capacity as defendant(s) in the
suit, shall bear the fees and expenses of any additional counsel retained by them. If the Fund does
not elect to assume the defense of any suit, then it will reimburse the Distributor, its officers
and directors, and any controlling person(s) in their capacity as defendant(s) in the suit, for the
reasonable fees and expenses of any counsel retained by them. The Fund agrees to notify the
Distributor promptly of the commencement of any litigation or proceeding against the Fund or any of
its trustees, officers, managers, members, employees, representatives and agents in connection with
the issuance or sale of any of the Shares.
(b) The Distributor also covenants and agrees that it will indemnify and hold harmless the
Fund, the Managing Owner, and each of their respective trustees, officers, managers, members,
employees, representatives and agents, and any person who controls the Fund or the Managing Owner
within the meaning of Section 15 of the 1933 Act (each, an “Indemnified Party”), against any loss,
liability, damages, claims or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in
connection therewith) arising by reason of any person acquiring any of the Shares, based upon the
1933 Act or any other statute or common law, alleging: (a) any wrongful act of the Distributor or
any of its directors, officers, employees, representatives or agents; or (b) that any sales
literature, advertisements, information, statements or representations used or made by the
Distributor or any of its affiliates or employees or that the Registration Statement, Prospectus or
Statement of Additional Information (as each of the foregoing is from time to time amended or
supplemented) included an untrue statement of a material fact or omitted to state a material fact
required to be stated or necessary in order to make the statements not misleading, insofar as the
statement or omission was made in reliance upon, and in conformity with, information furnished to
the Fund or the Managing Owner by or on behalf of the Distributor. In no case: (i) is the
indemnity of the Distributor in favor of an Indemnified Party to be deemed to protect any such
Indemnified Party against any liability to which the Indemnified Party 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, or (ii) is
the Distributor to be liable under its indemnity agreement contained in this paragraph (b) with
respect to any claim made against any Indemnified Party unless such Indemnified Party shall have
notified the Distributor in writing of the claim promptly after the summons or other first written
notification giving information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of service on any
designated agent). However, failure to notify the Distributor of any claim shall not relieve the
Distributor from any liability which it may have to the Indemnified Party against whom the action
is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the
case of any notice to the Distributor it shall be entitled to participate, at its own expense, in
the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim,
3
and if the Distributor elects to assume the defense, then the defense shall be conducted by counsel
chosen by it and satisfactory to the Indemnified Party, in its capacity as a defendant in the suit.
If the Distributor elects to assume the defense of any suit and retain counsel, then the
Indemnified Party, in its capacity as a defendant in the suit, shall bear the fees and expense of
any additional counsel retained by it. If the Distributor does not elect to assume the defense of
any suit, then it will reimburse the Indemnified Party for the reasonable fees and expenses of any
counsel retained by it. The Distributor agrees to notify the Indemnified Party promptly of the
commencement of any litigation or proceedings against it in connection with the issuance or sale of
any of the Shares.
10. Supplemental Information.
(a) The Distributor and the Fund shall regularly consult with each other regarding the
Distributor’s performance of its obligations under this Agreement. In connection therewith, the
Fund shall submit to the Distributor at a reasonable time in advance of filing with the SEC
reasonably final copies of any amended or supplemented Registration Statement (including exhibits)
under the 1933 Act; provided, however, that nothing contained in this Agreement shall in any way
limit the Fund’s right to file at any time such amendments to any Registration Statement and/or
supplements to any Prospectus or Statement of Additional Information, of whatever character, as the
Fund may deem advisable, such right being in all respects absolute and unconditional.
(b) The Distributor acknowledges that the only information provided to it by the Fund is that
contained in the Registration Statement, the Prospectus, the Statement of Additional Information
and reports and financial information referred to herein. Neither the Distributor nor any other
person is authorized by the Fund to give any information or to make any representations, other than
those contained in such documents and any sales literature or advertisements specifically approved
by appropriate representatives of the Fund.
11. Term. This Agreement is effective as of the Effective Date and shall continue for
two (2) years following such date (the “Initial Term”), unless sooner terminated as
provided herein. Following the expiration of the Initial Term, this Agreement shall continue
automatically for successive one (1) year periods (each, a “Renewal Term”), provided that
such continuance is specifically approved at least annually by the Managing Owner. This Agreement
is terminable without penalty on sixty (60) days’ written notice by the Managing Owner or by the
Distributor. This Agreement shall automatically terminate in the event of its assignment. Upon the
termination of this Agreement, the Distributor, at the Fund’s expense and direction, shall transfer
to such successor distributor as the Fund shall specify all relevant books, records and other data
established or maintained by the Distributor under this Agreement.
12. Notice. Any notice required or permitted to be given by any party to the other
parties hereunder shall be deemed sufficient if sent by (i) telecopier (receipt confirmed) or
electronic (email) delivery, (ii) overnight courier service such as United Parcel Service of
Federal Express, or (iii) registered or certified mail, postage prepaid, addressed by the party
giving notice to the other parties at the last address furnished by the other parties to the party
giving notice:
if to the Fund or the Managing Owner, at:
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, III
Facsimile No.: (404)
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, III
Facsimile No.: (404)
4
if to the Distributor, at:
0000 Xxxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx, 00000
Attn: General Counsel
Facsimile No.: (000) 000.0000
Xxxxxx, Xxxxxxxx, 00000
Attn: General Counsel
Facsimile No.: (000) 000.0000
or such other telecopier number, email address or street address as may be furnished by one party
to the other.
13 Confidential Information. The Distributor and its officers, directors, employees
and agents will treat confidentially and as proprietary information of the Fund all records and
other information relative to the Fund and with respect to the Fund’s prior or present shareholders
or to those persons or entities who respond to the Distributor’s inquiries concerning investment in
the Fund, and will not use such records and information for any purposes other than in the
performance of its Services hereunder. If the Distributor is requested or required by, but not
limited to, depositions, interrogatories, requests for information or documents, subpoena, civil
investigation, demand or other action, proceeding or process or as otherwise required by law,
statute, regulation, writ, decree or the like to disclose such information, then the Distributor
will provide the Fund with prompt written notice of any such request or requirement so that the
Fund may seek an appropriate protective order or other appropriate remedy and/or waive compliance
with this Section 13. If such order or other remedy is not sought or obtained, or if a waiver is
not received within a reasonable period following such notice, then the Distributor may without
liability hereunder disclose to the person, entity or agency requesting or requiring the
information that portion of the information that is legally required to disclose in the reasonable
opinion of the Distributor’s counsel.
14. Limitation of Liability.
(a) The Distributor agrees that the obligations assumed by the Fund under this Agreement
shall be limited in all cases to the Fund and its assets, except as expressly set forth herein. The
Distributor agrees that it shall not seek satisfaction of any such obligation from the Fund’s
shareholders, from any individual shareholder, or from the trustees, officers, representatives or
agents of the Fund, nor shall the Distributor seek satisfaction of any such obligations from the
Managing Owner or its members, managers, directors or officers.
(b) Any obligations of the Fund entered into in its name or on its behalf by the Managing
Owner through its members, managers, officers, representatives or agents are not made individually
but are made in such capacities, and are not binding upon any of the Managing Owner or its members,
managers, officers, representatives or agents personally, but bind only the Fund property, and all
persons dealing with the Fund must look solely to the Fund property for the enforcement of any
claims against the Fund.
15. Miscellaneous. Each party hereto agrees to perform such further acts and to
execute such further documents as are necessary to effectuate the purposes hereof. This Agreement
shall be governed by, construed, interpreted and enforced in accordance with the laws of the State
of Colorado. The captions in this Agreement are included for convenience of reference only and in
no way define or delimit any of the provisions hereof or otherwise affect their construction or
effect. This Agreement may not be changed, waived, discharged or amended except by a written
instrument that shall make specific reference to this Agreement and which shall be signed by the
party against which enforcement of such change, waiver, discharge or amendment is sought. This
Agreement may be executed simultaneously in two or more counterparts, each of which taken together
shall constitute one and the same instrument. All
5
activities by the Distributor and its agents and employees as the distributor of the Shares shall
comply with all applicable laws, rules and regulations including, without limitation, all rules and
regulations made or adopted by the SEC or any securities association registered under the Exchange
Act. The Distributor will promptly transmit to the Fund’s Transfer Agent any orders received by
the Distributor for the purchase, redemption or exchange of the Shares.
Remainder of page intentionally left blank. Signature page follows.
6
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of the date set
forth beneath the parties’ respective names below, with the Agreement to be effective as of the
Effective Date.
| GREENHAVEN CONTINUOUS COMMODITY INDEX TRACKING FUND |
||||
| By: | ||||
| Name: | ||||
| Title: | Trustee | |||
| Dated: | ||||
| ALPS DISTRIBUTORS, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. May | |||
| Title: | Managing Director | |||
| Dated: | ||||
| GREENHAVEN COMMODITY SERVICES, LLC |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxxxx, III | |||
| Title: | Manager | |||
| Dated: | ||||
7
Schedule A
List of Services
List of Services
The Distributor will provide the following Services to the Fund:
| • | Review distribution-related legal documents and contracts. | ||
| • | Coordinate the processing of Share creations with Fund’s Transfer Agent. | ||
| • | Coordinate and help to maintain Fund creation and redemption records. | ||
| • | Consult with the Managing Owner’s marketing staff on the development of compliant marketing campaigns. | ||
| • | Review and file all marketing materials (including internet sites) with the appropriate regulatory agencies. | ||
| • | Consult with the Managing Owner on marketing/sales strategy | ||
| • | 800 line telephone servicing |
Distribution fees will be waived for the Initial Term of the Agreement.
8
