FORM OF UNITED STATES HEATING OIL FUND, LP MARKETING AGENT AGREEMENT
FORM
OF
MARKETING
AGENT AGREEMENT (the “Agreement”) made as of ___________, 2008, by and among
United States Heating Oil Fund, LP, a Delaware limited partnership (the “Fund”),
Victoria Bay Asset Management, LLC, a Delaware limited liability company, as
General Partner of the Fund (the “General Partner”) and ALPS Distributors, Inc.,
a Colorado corporation (the “Marketing Agent”).
WHEREAS,
the General Partner, on behalf of the Fund, has filed with the Securities and
Exchange Commission (the “Commission” or “SEC”) a registration statement on Form
S-1 (Registration No. 333-_________) and amendments thereto, including as part
thereof a prospectus (the
“Prospectus”),
under
the Securities Act of 1933, as amended (the “1933 Act”), the forms of which have
heretofore been delivered to the Marketing Agent;
WHEREAS,
as
described in the Prospectus and the authorized purchaser agreements to be
entered into by the General Partner and certain broker dealers from time to
time
including the agreement with [initial
AP],
dated
_____________, in the form attached hereto as Exhibit A (each such agreement,
an
“Authorized Purchaser Agreement”), units of fractional undivided beneficial
interest in and ownership of the limited partnership (the “Units”) may be
created or redeemed by an Authorized Purchaser in aggregations of one hundred
thousand (100,000) Units (each aggregation, a “Creation Basket” or “Redemption
Basket,” respectively; collectively, “Baskets”); and
1
SECTION
1
1.1 Definitions.
In
addition to the other terms that are defined in this Agreement, the following
terms shall have the following meanings assigned to them. All other capitalized
terms used herein, but not otherwise defined herein, shall have the meanings
assigned to such terms in the Partnership Agreement.
“Authorized
Purchaser” means the broker-dealer who enters into an Authorized Purchaser
Agreement with the General Partner, including the initial Authorized Purchaser,
[initial
AP].
“Business
Day” means any
day
other than a day on which the American Stock Exchange, the New York Mercantile
Exchange or the New York Stock Exchange is closed for regular
trading.
“Control”
means, with respect to any Person, the possession, directly or indirectly,
of
the power to direct or cause the direction of the management or policies of
a
Person, whether through the ownership of voting securities, by contract or
otherwise.
“Governmental
Entity” means any supranational, national, state, local, foreign, political
subdivision, court, administrative agency, commission or department or other
governmental authority or instrumentality.
“Law”
means any law, statute, treaty, rule, directive, regulation or guideline or
Order of any Governmental Entity.
“Orders”
means judgments, writs, decrees, compliance agreements, injunctions or orders
of
any Governmental Entity or arbitrator.
“Person”
shall be construed broadly and shall include an individual, a partnership,
a
corporation, a limited liability company, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization or another entity,
including a Governmental Entity (or any department, agency or political
subdivision thereof).
“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.
“Prospectus”
means, except when otherwise specified, the prospectus, in the form filed by
the
General Partner on behalf of the Fund with the Commission on or before the
second business day after the date hereof (or such earlier time as may be
required under the 0000 Xxx) or, if no such filing is required, the form of
final prospectus included in the Registration Statement at the time it became
effective.
“Representative”
means officers, directors, employees, agents, attorneys, accountants and
financial advisors of a Person, as the case may be.
“Registration
Statement” means, except when otherwise specified, the Fund’s registration
statement on Form S-1 (File No. 333-137871) filed by the General Partner with
the Commission as amended when it becomes effective under the 1933 Act,
including all documents filed as a part thereof.
2
SECTION
2
OF
THE
GENERAL PARTNER
2.1 Representations
and Warranties of the General Partner.
The
General Partner, on its own behalf and in its capacity as General Partner of
the
Fund, represents and warrants to, and agrees with, the Marketing Agent
that:
(a)
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At
the time of purchase of a Creation Basket by an Authorized Purchaser
under
the Authorized Purchaser Agreement, the Registration Statement shall
have
become effective and no stop order of the SEC with respect thereto
has
been issued and no proceedings for such purpose have been instituted
or,
to the General Partner’s knowledge after due inquiry, is contemplated by
the SEC; any Preliminary Prospectus provided to prospective investors,
at
the time of filing thereof, complied in all material respects to
the
requirements of the 1933 Act; the Registration Statement complies
and will
comply when it becomes effective and at the time of purchase of a
Creation
Basket by an Authorized Purchaser, in all material respects with
the
requirements of the 1933 Act and the Prospectus will comply, as of
its
date and at the time of purchase of a Creation Basket by an Authorized
Purchaser, 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
and
will be so described or filed; the conditions to the use of Form
S-1 have
been satisfied; the Registration Statement does not and will not
when it
becomes effective and at the time of purchase of a Creation Basket
by an
Authorized Purchaser 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
will not,
as of its date and at the time of purchase of the Creation Baskets
by the
Authorized Purchaser, 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 General
Partner makes no warranty or representation with respect to any statement
contained in any Preliminary Prospectus, the Registration Statement
or any
Prospectus in reliance upon and in conformity with information concerning
the Marketing Agent and furnished in writing by or on behalf of the
Marketing Agent to the General Partner expressly for use in the
Registration Statement or such Prospectus; and the General Partner
has not
distributed nor will distribute any offering material in connection
with
the offering or creation of the Baskets by the Authorized Purchaser
other
than any Preliminary Prospectus provided to prospective investors,
the
Registration Statement or the
Prospectus;
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3
(b)
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as
of the date of this Agreement, and as of the time of purchase of
a
Creation Basket by an Authorized Purchaser, respectively, the statement
of
financial position as set forth in the section of the Registration
Statement and the Prospectus entitled “Financial Condition of USNG”
accurately reflects the financial condition of the Fund as of the
date
specified in such statement of financial
position;
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(c)
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at
the time of purchase of a Creation Basket by an Authorized Purchaser,
the
Fund has been duly formed and is validly existing as a limited partnership
under the laws of the State of Delaware, as described in the Registration
Statement and the Prospectus;
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(d)
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the
General Partner 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;
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(e)
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each
of the Fund and the General Partner is duly qualified and is in good
standing in each jurisdiction where the conduct of its business requires
such qualification;
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(f)
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at
the time of purchase of a Creation Basket by an Authorized Purchaser,
the
Units in a Creation Basket will have been duly and validly authorized
and,
when issued and delivered against payment therefor, will be duly
and
validly issued, fully paid and non-assessable and free of statutory
and
contractual preemptive rights, rights of first refusal and similar
rights;
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(g)
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at
the time of purchase of a Creation Basket by an Authorized Purchaser, the
Units will 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, except as set forth in the Partnership Agreement as
in
effect at that time;
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(h)
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this
Agreement has been duly authorized, executed and delivered by the
General
Partner and constitutes the valid and binding obligations of the
General
Partner, enforceable against the General Partner in accordance with
its
terms;
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(i)
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the
General Partner 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 respective 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 General Partner 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
issuance and sale of Units in Creation Baskets to the Authorized
Purchaser
and the consummation of the transactions contemplated hereby will
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 General Partner, 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
General Partner is a party or by which, respectively, the General
Partner
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 General Partner;
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4
(j)
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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 General Partner as a Commodity Pool Operator
with the National Futures Association (the “NFA”) under the Commodities
Exchange Act (the “CEA”) and the filing of the Prospectus with the NFA,
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 the American Stock Exchange
(“AMEX”);
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(k)
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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 General Partner 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 interests 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;
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(l)
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the
General Partner 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 General Partner is
not in
violation of, or in default under, or has 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
General Partner;
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(m)
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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;
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5
(n)
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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 General Partner’s knowledge after due inquiry,
contemplated to which the General Partner, or (to the extent that
is or
could be material in the context of the offering and sale of the
Baskets
to the Authorized Purchaser) any of the General Partner’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;
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(o)
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Xxxxxx
Xxxxxxxx LLP, whose report on the audited financial statements of
the Fund
is filed with the Commission as part of the Registration Statement
and the
Prospectus, are independent public accountants as required by the
1933
Act;
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(p)
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the
audited financial statements included in the Prospectus, together
with the
related notes and schedules, present fairly the financial position
of the
Fund as of the date indicated and have 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;
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(q)
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Subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, and prior to the purchase
by
the Authorized Purchaser of the Baskets, there has not been (i) any
material adverse change, (ii) any transaction which is material to
the
General Partner or the Fund taken as a whole, (iii) any obligation,
direct
or contingent (including any off-balance sheet obligations), incurred
by
the General Partner, which is material to the Fund, (iv) any change
in the
outstanding indebtedness of the General Partner or the Fund, or (v)
any
dividend or distribution of any kind declared, paid or made on the
Units;
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(r)
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the
Fund is not and, after giving effect to the offering and sale of
the
Baskets, will not be an “investment company” or an entity “controlled” by
an “investment company,” as such terms are defined in the Investment
Company Act of 1940, as amended (the “Investment Company
Act”);
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6
(s)
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except
as set forth in the Registration Statement and the Prospectus, the
General
Partner and the Fund 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 described in the
Registration Statement and the Prospectus as being owned or licensed
by
them or which are necessary for the conduct of their respective
businesses, (collectively, “Intellectual Property”); (i) except as set
forth in the Registration Statement and the Prospectus, to the knowledge
of the General Partner or the Fund, 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 General Partner or the Fund; (ii) to the knowledge
of the
General Partner or the Fund, there is no infringement by third parties
of
any Intellectual Property; (iii) there is no pending or, to the knowledge
of the General Partner or the Fund, threatened action, suit, proceeding
or
claim by others challenging the General Partner’s or the Fund’s rights in
or to any Intellectual Property, and the General Partner and the
Fund are
unaware of any facts which could form a reasonable basis for any
such
claim; (iv) there is no pending or, to the knowledge of the General
Partner or the Fund, 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 General Partner or
the
Fund, threatened action, suit, proceeding or claim by others that
the
General Partner or the Fund infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of
others,
and the General Partner and the Fund are unaware of any facts which
could
form a reasonable basis for any such claim; (vi) to the knowledge
of the
General Partner or the Fund, there is no patent or patent application
that
contains claims that interfere with the issued or pending claims
of any of
the Intellectual Property; and (vii) to the knowledge of the General
Partner or the Fund, there is no prior art that may render any patent
application licensed to the General Partner
unpatentable;
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(t)
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all
tax returns required to be filed by the General Partner 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 Fund as of the date of this
Agreement;
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(u)
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the
General Partner 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 General Partner or any other party to any such contract or
agreement;
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7
(v)
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on
behalf of the Fund, the General Partner has established and maintains
disclosure controls and procedures (as such term is defined in Rule
13a-14
and 15d-14 under the Exchange Act of 1934, as amended (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 General Partner, and such disclosure controls and procedures
are effective to perform the functions for which they were established;
on
behalf of the Fund, the General Partner 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; and any material weaknesses in internal
controls have been identified for the Fund’s
auditors;
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(w)
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any
statistical and market-related data included in the Registration
Statement
and the Prospectus are based on or derived from sources that the
General
Partner believes to be reliable and accurate, and the General Partner
has
obtained the written consent to the use of such data from such sources
to
the extent required; and
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(x)
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neither
the General Partner, nor any of the General Partner’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;
and to
the General Partner’s knowledge after due inquiry, there are no
affiliations or associations between any member of the AMEX and any
of the
General Partner’s officers, directors or 5% or greater securityholders,
except as may be set forth in the Registration Statement and the
Prospectus.
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In
addition, any certificate signed by any officer of the General Partner and
delivered to the Marketing Agent or counsel for the Marketing Agent in
connection with the offering of the Units shall be deemed to be a representation
and warranty by the General Partner as to matters covered thereby, to the
Marketing Agent.
8
SECTION
3
The
Marketing Agent represents and warrants and covenants the following:
3.1. The
Marketing Agent (a) is either (i) registered as a broker-dealer under the
Exchange Act, and is a member in good standing of the Financial Industry
Regulatory Authority (“FINRA”), or (ii) 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; and (b) has all
other 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 activities as contemplated
by this Agreement. The Marketing Agent will maintain any such registrations,
qualifications and membership in good standing and in full force and effect
throughout the term of this Agreement. The Marketing Agent will comply with
all
applicable federal laws, including but not limited to, federal securities and
commodities laws, the laws of the states or other jurisdictions concerned,
and
the rules and regulations promulgated thereunder, and with the Constitution,
By-Laws and Conduct Rules of FINRA (if it is a FINRA member) and, to the extent
applicable, the rules and regulations of the NFA, and is solely responsible
for
determining the application of any such laws or regulations in all cases at
its
own expense. The Marketing Agent will not directly or indirectly offer, sell
or
deliver Baskets in or from any state or jurisdiction where they may not lawfully
be offered, sold and/or delivered;
3.2. If
the
Marketing Agent 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 3.1 above, the Marketing Agent 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 1933 Act, and the rules and regulations
promulgated thereunder, and (iii) conduct its business in accordance with the
spirit of FINRA Conduct Rules;
3.3. The
Marketing Agent is in compliance 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 (the “PATRIOT
Act”), and the regulations promulgated thereunder, if the Marketing Agent is
subject to the requirements of the PATRIOT Act;
3.4. The
Marketing Agent agrees to comply with the prospectus delivery and disclosure
requirements of the 1933 Act, as well as the disclosure delivery requirements
under the CEA;
3.5. The
Marketing Agent (i) has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Colorado, with
full
power and authority to conduct its business and has all requisite power and
authority to execute and deliver this Agreement and (ii) is duly qualified
and
is in good standing in each jurisdiction where the conduct of its business
requires such qualification; and
3.6. This
Agreement has been duly authorized, executed and delivered by the Marketing
Agent and constitutes the valid and binding obligations of the Marketing Agent,
enforceable against the Marketing Agent in accordance with its
terms.
9
SECTION
4
4.1 Appointment.
The
General Partner hereby appoints the Marketing Agent as the exclusive marketing
agent for Units on the terms and for the periods set forth in this Agreement,
and as set forth in the Authorized Purchaser Agreements as may be entered into
from time to time. The Marketing Agent hereby accepts such appointment and
agrees to act in such capacity hereunder.
4.2 Name
of the Fund; License.
For the
term of this Agreement, the General Partner shall cause the name of the Fund
to
be “United States Heating Oil Fund, LP.”
4.3
Marketing
Agent Fee.
The
Marketing Agent shall be paid by the General Partner for the services of the
Marketing Agent as marketing agent to the Fund hereunder, a fee for its services
hereunder, calculated daily and payable monthly, as follows (the
“Fee”):
· |
.06%
on the Fund’s assets up to $3,000,000,000
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· |
.04%
on the Fund’s assets in excess of
$3,000,000,000
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The
Marketing Agent will provide an annual marketing budget equal to 33% of the
Fee
for purposes of marketing the Fund’s Units. The above fees do not include the
following expenses, which will be billed back to the General Partner: cost
of
placing advertisements in various periodicals; web construction and development;
or the printing and production of various marketing materials.
4.4 Expenses.
Except
as otherwise expressly provided in this Agreement or agreed to in writing by
the
parties, each party hereto shall bear its own fees and expenses incurred in
connection with this Agreement and the transactions contemplated hereby and
thereby (including, without limitation, the legal, accounting and due diligence
fees, costs and expenses incurred by such party).
SECTION
5
5.1 Certain
Covenants of the General Partner.
The
General Partner, on its own behalf and in its capacity as General Partner of
the
Fund, covenants and agrees:
(a)
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to
furnish such information as may be required and otherwise to cooperate
in
qualifying the Units for offering and sale under the securities or
blue
sky laws of such states and foreign jurisdictions as the Marketing
Agent
may reasonably designate and to maintain such qualifications in effect
so
long as the Marketing Agent may request during the term of this Agreement;
provided that the Fund shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws
of any
such jurisdiction (except service of process with respect to the
offering
and sale of the Units); and to promptly advise the Marketing Agent
of the
receipt by the General Partner or the Fund of any notification with
respect to the suspension of the qualification of the Units for sale
in
any jurisdiction or the initiation or threatening of any proceeding
for
such purpose;
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(b)
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to
take all necessary action to register the Units under the 1933 Act
in
order to sell the initial Creation Basket and take, from time to
time,
such steps, including payment of the related filing fees, as may
be
necessary to register additional Units under the 1933 Act to the
end that
all Units sold in additional Creation Baskets will be properly registered
under the 1933 Act and to keep the Registration Statement effective
and
current during the term of this
Agreement;
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(c)
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to
make available to the Marketing Agent, as soon as practicable after
the
Registration Statement becomes effective, and thereafter from time
to
time, furnish to the Marketing Agent, as many copies of the Prospectus
(or
of the Prospectus as amended or supplemented if any amendments or
supplements have been made thereto after the effective date of the
Registration Statement) as the Marketing Agent may request for the
purposes contemplated by the 1933 Act;
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(d)
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to
advise the Marketing Agent promptly and, if requested by the Marketing
Agent, to confirm such advice in writing when the Registration Statement
and any post-effective amendment thereto has become effective, and
upon
receipt of request from the Marketing Agent therefore, to file a
post-effective amendment removing any reference to the Marketing
Agent
thereunder;
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(e)
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to
prepare, at the expense of the Fund, such amendments or supplements
to the
Registration Statement or the Prospectus and to file such amendments
or
supplements with the Commission, when and as required, by the 1933
Act,
the Exchange Act, and the rules and regulations of the Commission
thereunder, including if requested by the Marketing Agent; to advise
the
Marketing Agent promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and to provide the Marketing
Agent and the Marketing Agent’s counsel with copies of any such documents
for review and comment within a reasonable amount of time prior to
any
proposed filing and to file no such amendment or supplement to which
the
Marketing Agent or its counsel shall reasonably object in writing;
and to
advise the Marketing Agent promptly, confirming such advice in writing,
of
any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings
for, or
the entry of a stop order suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending
the
effectiveness of the Registration Statement, to use its best efforts
to
obtain the lifting or removal of such order as soon as
possible;
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(f)
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to
file promptly all reports and any information statement required
to be
filed by the Fund with the Commission in order to comply with the
Exchange
Act and the CEA subsequent to the date of the Prospectus and for
so long
as the term of this Agreement; and to provide the Marketing Agent
and the
Marketing Agent’s counsel with a copy of such reports and statements and
other documents to be filed by the Fund pursuant to Section 13, 14
or
15(d) of the Exchange Act (excluding filings under Rule 12b-25) and
under
17 C.F.R. §4.22 during such period for review and comment within a
reasonable amount of time prior to any proposed filing and to file
no such
amendment or supplement to which the Marketing Agent or its counsel
shall
reasonably object in writing;
|
11
(g)
|
if
necessary or appropriate, to file a registration statement pursuant
to
Rule 462(b) under the 1933 Act;
|
(h)
|
to
advise the Marketing Agent 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 such 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 furnish, at the expense of the Fund, to the
Marketing
Agent promptly such amendments or supplements to such Prospectus
as may be
necessary to reflect any such
change;
|
(i)
|
to
furnish to the holders of the Fund’s Units as soon as practicable after
the end of each fiscal year an annual report (including a balance
sheet
and statements of income and cash flow of the Fund for such fiscal
year,
accompanied by a copy of the certificate or report thereon of nationally
recognized independent certified public
accountants);
|
(j)
|
to
furnish to the Marketing Agent a copy of the Registration Statement,
as
initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto);
|
(k)
|
to
(1) furnish to the Marketing Agent promptly during the term of this
Agreement (i) copies of any reports, proxy statements, or other
communications which are sent to the holders of the Fund’s Units or shall
from time to time publish or publicly disseminate, (ii) copies of
all
annual, quarterly and current reports filed with the Commission on
Forms
10-K, 10-Q and 8-K, or such other similar forms as may be designated
by
the Commission, (iii) copies of documents or reports filed with the
AMEX,
(iv) copies of documents or reports filed with the NFA and with the
Commodity Futures Trading Commission, and (v) such other information
as
the Marketing Agent may reasonably request regarding the Fund; and
(2)
make available for inspection by the Marketing Agent, its attorneys,
accountants and other advisors or agents, all financial and other
records,
pertinent corporate documents and properties, and cause the officers,
directors and employees of the General Partner and independent accountants
to supply all information reasonably requested by the Marketing Agent,
its
attorneys, accountants and other advisors and
agents;
|
(l)
|
to
use its best efforts to cause the Units to be listed on the
AMEX;
|
(m)
|
to
furnish to the Marketing Agent (i) at the time of the purchase of
the
initial Creation Basket by the Initial Authorized Purchaser and (ii)
at
such other times as the Marketing Agent reasonably requests, which
may
include when the Registration Statement or the Prospectus is amended
or
supplemented, and an opinion of Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP,
counsel for the General Partner, addressed to the Marketing Agent
and
substantially in the form attached hereto as Exhibit
B;
|
12
(n)
|
to
cause Xxxxxx Xxxxxxxx LLP to deliver to the Marketing Agent (i) at
the
time of the effectiveness of the purchase of the Baskets by the Authorized
Purchaser and (ii) at each time (A) the Registration Statement or
the
Prospectus is amended or supplemented by the filing of a post-effective
amendment, (B) a new Registration Statement is filed to register
additional Units in reliance on Rule 429, and there is financial
information incorporated by reference into the Registration Statement
or
the Prospectus, letters dated such dates and addressed to the Marketing
Agent, 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 Statement and the
Prospectus;
|
(o)
|
to
deliver to the Marketing Agent (i) at the time of the effectiveness
of the
purchase of a Creation Basket by an Authorized Purchaser, (ii) at
each
time the Registration Statement or the Prospectus is amended or
supplemented, (iii) at each time the Registration Statement or the
Prospectus files any report, statement or other document pursuant
to
Section 13, 14 or 15(d) of the Exchange Act (excluding filings required
by
Rule 12b-25), and (iv) at such other times as the Marketing Agent
reasonably requests, an officer’s certificate in the form attached as
Exhibit D hereto;
|
(p)
|
to
furnish to the Marketing Agent (i) at the time of the effectiveness
of the
purchase of a Creation Basket by an Authorized Purchaser and (ii)
at each
time (A) the Registration Statement or the Prospectus is amended
or
supplemented, (iii) at each time the Fund files any report, statement
or
other document pursuant to Section 13, 14 or 15(d) of the Exchange
Act
(excluding filings required by Rule 12b-25), and (iv) at such other
times
as the Marketing Agent reasonably requests, such other documents
and
certificates as of such dates as the Marketing Agent may reasonably
request; and
|
(q)
|
to
cause the Fund to file a post-effective amendment to the Registration
Statement no less frequently than once per calendar quarter on or
about
the same time that the Fund files a quarterly or annual report pursuant
to
Section 13 or 15(d) of the Exchange Act (including the information
contained in such report), until such time as the Fund’s reports filed
pursuant to Section 13 or 15(d) of the Exchange Act are incorporated
by
reference in the Registration
Statement.
|
For
the
purposes of this Section 5.1, the term “Registration Statement” shall mean the
Registration Statement as amended or supplemented from time to time to and
including the date as of which the relevant representation is made, and the
term
“Prospectus” shall mean the Prospectus as amended or supplemented from time to
time to and including the date as of which the relevant covenant is
made.
13
SECTION
6
MARKETING
PLAN DEVELOPMENT
AND
MARKETING AGENT COVENANTS
6.1 Pre-Launch
Development.
(a)
|
The
General Partner and the Marketing Agent will develop the Fund and
its
marketing plan prior to the effective date of the Registration Statement
in accordance with the provisions of this Section 6.1 and the marketing
strategy as described in Exhibit C.
|
(b) |
The
General Partner and the Marketing Agent will use commercially reasonable
efforts to commit sufficient resources to finalize the Registration
Statement and the governing documents of the Fund and the Fund’s service
providers, communicate with the Commission to obtain approval of
the
Registration Statement and communicate with the AMEX to obtain approval
of
the listing of the Units on the AMEX.
|
6.2 Post-Launch
Activities.
(a)
|
The
General Partner and the Marketing Agent will market the Fund and
the Units
on an ongoing basis after the Registration Statement is declared
effective
and the Units have been listed on the AMEX in accordance with the
provisions of this Section 6.2.
|
(b)
|
Subject
to necessary regulatory approvals and compliance with all applicable
legal
and regulatory requirements, the Marketing Agent
shall:
|
(i)
|
in
good faith, and subject to existing market conditions, use
commercially-reasonable efforts to market the Fund;
and
|
(ii)
|
include
heating oil in strategic and tactical research of the Marketing
Agent.
|
(c)
|
The
Marketing Agent shall provide the General Partner with copies of
all
written marketing materials distributed by it connected with the
Fund.
|
(d)
|
The
Marketing Agent shall process orders for Baskets as set forth in
the
Authorized Purchaser Agreement.
|
6.3 Joint
Reviews.
(a)
|
In
order to oversee the pre-launch development and post-launch performance
of
the Fund on a regular basis, the parties
shall:
|
(i) |
conduct
at least once each calendar quarter in which the annual review described
in clause (ii) below is not conducted, a review of the performance
of the
Fund, with such review to include the senior management of the General
Partner and the senior management of the Marketing Agent and to cover
such
topics as asset growth/decline, sales strategy, new business efforts,
new
product initiatives and stock exchange trading activity;
and
|
14
(ii) |
conduct
at least once each calendar year, a review of the overall performance
of
the Fund, which will include a review of the most recent quarterly
period,
with such review to include the chief executive officer of the General
Partner and senior management of the Marketing Agent and to cover
such
topics as strategic direction and new business
initiatives.
|
(b)
|
Prior
to each of the quarterly and annual reviews which will take place
pursuant
to this Section 6.3, the General Partner and the Marketing Agent
will
jointly prepare and circulate among the parties, a report covering
the
quarterly or annual period which is the subject of each review, with
such
report to cover such topics described
above.
|
6.4 Information
Provided to Marketing Agent.
In
performing its duties hereunder, the Marketing Agent shall be entitled to rely
on and shall not be responsible in any way for information provided to it by
the
General Partner and its service providers and shall not be liable or responsible
for the errors and omissions of such service providers, provided that the
foregoing shall not be construed to protect the Marketing Agent against any
liability to the General Partner or the Fund to which the Marketing Agent 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.
6.5 Conditions
to Marketing Agent’s Obligations.
The
obligations of the Marketing Agent hereunder are subject in the Marketing
Agent’s discretion, to the condition that (i) all representations and warranties
and other statements of the General Partner herein or delivered pursuant hereto
be true and correct (a) at and as of the date made, (b) at the time of the
purchase of the Baskets by the Authorized Purchaser, (c) at each time the
Registration Statement or the Prospectus is amended or supplemented, (d) at
each
time the Fund files any report, statement or other document pursuant to Section
13, 14 or 15(d) of the Exchange Act (excluding filings under Rule 12b-25),
(e)
at each time the Fund issues any Baskets and (f) at such other times the
Marketing Agent reasonably requests, in each case as though made at and as
of
such dates, and the General Partner agrees that all such representations,
warranties and other statements are expressly made on and as of such dates
(except, in all cases, that such representations, warranties and statements
relating to the Registration Statement and the Prospectus shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date) and (ii) the General Partner shall have performed
all
of its covenants, agreements and obligations hereunder theretofore to be
performed in all respects. The respective indemnities, agreements,
representations, warranties and other statements by the General Partner set
forth in or made pursuant to this Agreement shall remain in full force and
effect regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of the Marketing Agent or any controlling Person
of the Marketing Agent, or the General Partner, or any officer or director
or
any controlling Person thereof, and shall survive the execution, delivery,
performance and termination of this Agreement.
15
SECTION
7
7.1 Indemnification
of Marketing Agent.
The
General Partner agrees to indemnify, defend and hold harmless the Marketing
Agent, its partners, stockholders, members, directors, officers and employees
of
the foregoing, and the successors and assigns of all of the foregoing Persons,
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which the Marketing Agent or any such Person
may incur under the 1933 Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or
is
based upon:
(a)
|
any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or in the Registration Statement as
amended
or supplement) or in a Prospectus (the term Prospectus for the purpose
of
this Section 7 being deemed to include the Prospectus and the Prospectus
as amended or supplemented), or arises out of or is based upon 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 Marketing Agent furnished in writing by or on behalf of the Marketing
Agent to the General Partner expressly for use in such Registration
Statement or such Prospectus;
|
(b)
|
any
untrue statement or alleged untrue statement of a material fact or
breach
by the General Partner of any representation or warranty contained
in
Section 2 hereof or in any certificate delivered by the General Partner
pursuant to paragraph (o) of Section 5.1
hereof;
|
(c)
|
the
failure by the General Partner to perform when and as required any
agreement or covenant contained
herein;
|
(d)
|
any
untrue statement of any material fact contained in any audio or visual
materials provided by the General Partner or based upon written
information furnished by or on behalf of the General Partner including,
without limitation, slides, videos, films or tape recordings used
in
connection with the marketing of the
Units;
|
(e)
|
the
Marketing Agent’s performance of its duties under this Agreement except in
the case of this clause (e), for any loss, damage, expense, liability
or
claim resulting from the gross negligence or willful misconduct of
the
Marketing Agent; provided, however, that the indemnity agreement
contained
in clause (a) above with respect to any amended Preliminary Prospectus
shall not inure to the benefit of the Marketing Agent (or to the
benefit
of any Person controlling the Marketing Agent) from whom the Person
asserting any such loss, damage, expense, liability or claim purchased
the
Units which is the subject thereof if the Prospectus corrected any
such
alleged untrue statement or omission in any case where the Marketing
Agent
was required to send or give a copy of the Prospectus to such Person
by
the 1933 Act, the General Partner had notified the Marketing Agent
of the
amendment or supplement prior to the sending of the written confirmation
of sale and the Marketing Agent failed to send or give a copy of
the
Prospectus to such Person, unless the failure is the result of
noncompliance by the General Partner with paragraph (c) of Section
5.1
hereof.
|
16
In
no
case is the indemnity of the General Partner in favor of the Marketing Agent
and
such other Persons as are specified in this Section 7.1 to be deemed to protect
the Marketing Agent and such Persons against any liability to the General
Partner or the Fund to which the Marketing Agent 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 the
Marketing Agent or any such Person in respect of which indemnity may be sought
against the General Partner pursuant to the foregoing paragraph, the Marketing
Agent or such Person shall promptly notify the General Partner in writing of
the
institution of such Proceeding and the General Partner shall assume the defense
of such Proceeding, including the employment of counsel reasonably satisfactory
to such indemnified party and payment of all fees and expenses; provided,
however, that the omission to so notify the General Partner shall not relieve
the General Partner from any liability which it may have to the Marketing Agent
or any such Person except to the extent that it has been materially prejudiced
by such failure and has not otherwise learned of such Proceeding. The Marketing
Agent or such Person shall have the right to employ its or their own counsel
in
any such case, but the fees and expenses of such counsel shall be at the expense
of the Marketing Agent or of such Person unless the employment of such counsel
shall have been authorized in writing by the General Partner in connection
with
the defense of such Proceeding or the General Partner shall not have, within
a
reasonable period of time in light of the circumstances, employed counsel to
have charge of the defense of such Proceeding or such indemnified party or
parties shall have reasonably concluded that there may be defenses available
to
it or them which are different from, additional to or in conflict with those
available to the General Partner (in which case the General Partner shall not
have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the General Partner and paid as incurred (it being understood,
however, that the General Partner shall not be liable for the expenses of more
than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding).
17
The
General Partner shall not be liable for any settlement of any Proceeding
effected without the General Partner’s written consent but if settled with the
General Partner’s written consent, the General Partner agrees to indemnify and
hold harmless the Marketing Agent and any such Person from and against any
loss
or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 Business Days after receipt by such indemnifying
party
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 Business Days’ prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from
all liability on claims that are the subject matter of such Proceeding and
does
not include an admission of fault, culpability or a failure to act, by or on
behalf of such indemnified party.
7.2 The
Marketing Agent agrees to indemnify, defend and hold harmless each of the Fund,
the General Partner and its partners, holders of Units, members, directors,
officers, employees and any Person who controls the General Partner 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, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which the General Partner any such Person may incur under the
1933 Act, the Exchange Act, the common law or otherwise, insofar as 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 furnished in writing by or on behalf of the
Marketing Agent to the General Partner 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
Marketing Agent will also indemnify the General Partner as stated above insofar
as such loss, damage, expense, liability or claim arises out of or is based
upon
the Marketing Agent’s performance of its duties under this Agreement, except in
the case of any loss, damage, expense, liability or claim resulting from the
gross negligence or willful misconduct of the General Partner. In no case is
the
indemnity of the Marketing Agent in favor of the General Partner to be deemed
to
protect the General Partner and such Persons against any liability to the
Marketing Agent to which the General Partner 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.
18
If
any
Proceeding is brought against the General Partner or any Person referred to
in
the preceding paragraph in respect of which indemnity may be sought against
the
Marketing Agent pursuant to the foregoing paragraph, the General Partner or
such
Person shall promptly notify the Marketing Agent in writing of the institution
of such Proceeding and the Marketing Agent shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to
such
indemnified party and payment of all fees and expenses; provided, however,
that
the omission to so notify the Marketing Agent shall not relieve the Marketing
Agent from any liability which it may have to the General Partner or any such
Person except to the extent that it has been materially prejudiced by such
failure and has not otherwise learned of such Proceeding. The General Partner
or
such Person shall have the right to employ their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of the General
Partner or such Person unless the employment of such counsel shall have been
authorized in writing by the Marketing Agent in connection with the defense
of
such Proceeding or the Marketing Agent shall not have, within a reasonable
period of time in light of the circumstances, employed counsel to defend such
Proceeding or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from
or
additional to or in conflict with those available to the Marketing Agent (in
which case the Marketing Agent shall not have the right to direct the defense
of
such Proceeding on behalf of the indemnified party or parties, but the Marketing
Agent may employ counsel and participate in the defense thereof but the fees
and
expenses of such counsel shall be at the expense of the Marketing Agent), in
any
of which events such fees and expenses shall be borne by the Marketing Agent
and
paid as incurred (it being understood, however, that the Marketing Agent shall
not be liable for the expenses of more than one separate counsel (in addition
to
any local counsel) in any one Proceeding or series of related Proceedings in
the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding).
The
Marketing Agent shall not be liable for any settlement of any such Proceeding
effected without the written consent of the Marketing Agent but if settled
with
the written consent of the Marketing Agent, the Marketing Agent agrees to
indemnify and hold harmless the General Partner and any such Person from and
against any loss or liability by reason of such settlement. Notwithstanding
the
foregoing sentence, if at any time an indemnified party shall have requested
an
indemnifying party to reimburse the indemnified party for fees and expenses
of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 Business Days after receipt by such indemnifying
party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 Business Days’ prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such Proceeding.
19
7.3 The
indemnity agreements contained in this Section 7 and the covenants, warranties
and representations of the General Partner contained in this Agreement shall
remain in full force and effect regardless of any investigation made by or
on
behalf of the Marketing Agent, 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 Marketing
Agent 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 General Partner, the Fund,
their
partners, stockholders, members, directors, officers, employees or any Person
who controls the General Partner or the Fund within the meaning 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 General Partner and the Marketing Agent agree promptly to notify each other
of the commencement of any Proceeding against it and, in the case of the General
Partner, against any of the General Partner’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
8
This
Agreement shall become effective on the date hereof and continue for an initial
term of one (1) year from the date of this Agreement and will include any
renewal term of this Agreement and will last until the expiration of this
Agreement or the earlier termination of this Agreement in accordance with its
terms (the “Term”). This Agreement will automatically be renewed for successive
one (1) year periods unless, no later than thirty (30) calendar days prior
to
the end of the then-current Term, either the Marketing Agent, on the one hand,
or the General Partner, on the other hand, elects to terminate this Agreement
by
delivering written notice thereof to the other party. Notwithstanding the
foregoing, this Agreement may be terminated by any party upon written notice
to
the other parties if (a) the Fund is terminated, (b) any other party becomes
insolvent or bankrupt or files a voluntary petition, or is subject to an
involuntary petition, in bankruptcy or attempts to or makes an assignment for
the benefit of its creditors or consents to the appointment of a trustee or
receiver, provided that the General Partner may not terminate this Agreement
pursuant to this provision if the event relates to the General Partner or the
Fund or (c) any other party willfully and materially breaches its obligations
under this Agreement and such breach has not been cured to the reasonable
satisfaction of the non-breaching party prior to the expiration of ninety (90)
days after notice by the non-breaching party to the breaching party of such
breach.
SECTION
9
9.1 Confidentiality.
(a)
|
The
General Partner and the Marketing Agent shall during the Term and
for one
(1) year thereafter maintain in confidence, use only for the purposes
provided for in this Agreement, and not disclose to any third party,
without first obtaining the other party’s consent in writing, any and all
Confidential Information (as defined below) such party receives from
the
other party; provided, however, that either party may disclose
Confidential Information received from the other party to those of
its
Representatives as may be necessary for such party to carry out its
obligations under this Agreement.
|
20
“Confidential
Information” shall mean all information or data of a party that is
disclosed to or received by the other party, whether orally, visually
or
in writing, in any form, including, without limitation, information
or
data which relates to such party’s business or operations, research and
development, marketing plans or activities, or actual or potential
products.
|
(b)
|
Notwithstanding
the provisions of this Agreement to the contrary, a party shall have
no
liability to the other party for the disclosure or use of any Confidential
Information of the other party if the Confidential
Information:
|
(i)
|
is
known to such party at the time of disclosure other than as the result
of
a breach of this Section 9 by such
party;
|
(ii)
|
has
been or becomes publicly known, other than as the result of a breach
of
this Section 9 by such party, or has been or is publicly disclosed
by the
other party;
|
(iii)
|
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 the
other party); or
|
(iv)
|
is
required to be disclosed by Law or similar compulsion or in connection
with any legal proceeding, provided that such party shall promptly
inform
the other party in writing of such requirement and that such disclosure
shall be limited to the extent so required and, except to the extent
prohibited by Law, such party shall reasonably cooperate with the
other
party (at the expense of the other party) in seeking a protective
order or
other suitable confidentiality
protections.
|
(c)
|
The
parties recognize and acknowledge that a breach or threatened breach
by a
party of the provisions of this Section 9 may cause irreparable and
material loss and damage to the other party 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
9.
|
(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 party as it uses for its own Confidential Information of
a
similar nature. Each party shall promptly notify the other party
in
writing of any misuse, misappropriation or unauthorized disclosure
of the
Confidential Information of the other party which may come to such
party’s
attention.
|
(e)
|
Upon
the termination of this Agreement, if requested in writing by a party,
the
other party shall, at such party’s option, promptly destroy or return to
the party all Confidential Information received from the other party,
all
copies and extracts of such Confidential Information and all documents
or
other media containing any such Confidential
Information.
|
21
SECTION
10
10.1 No
Third Party Beneficiaries.
This
Agreement shall not confer any rights or remedies upon any Person other than
the
parties hereto, the indemnities referred to in this Agreement and their
respective successors and assigns.
10.2 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.
10.3 Amendment
and Modification.
This
Agreement may be amended, modified or supplemented only by a written instrument
executed by all the parties.
10.4 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.
10.5 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.
10.6 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 jurisdiction, 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.
22
10.7 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):
(a) |
if
to General Partner, to:
Victoria
Bay Asset Management, LLC
x/x
Xxxxxxxx X. Xxxxxx
X.X.
Xxx 0000
Xxxxxx,
XX 00000
|
(b) |
if
to the Marketing Agent, to:
ALPS
Distributors, Inc.
0000
Xxxxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
Attention:
General Counsel
|
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.
(a)
|
All
questions concerning the construction, interpretation and validity
of this
Agreement 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.
|
(b)
|
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 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
the
transactions contemplated hereby or thereby which is instituted in
any
court of the State of New York.
|
23
The
provisions of this Section 10.8 shall survive any termination of this Agreement,
in whole or in part.
10.9 No
Partnership. Nothing
in this Agreement is intended to, or will be construed to constitute the General
Partner or the Fund, on the one hand, and the Marketing Agent, 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.
10.10 Force
Majeure.
Neither
party will be liable to any other party for any delay or failure to perform
its
obligations under this Agreement (except for the payment of money) if such
delay
or failure arises from or is due to any cause or causes beyond the reasonable
control of the party affected which impedes, delays or aggravates any obligation
under this Agreement, including, without limitation, acts of God, acts of any
Governmental Entity, labor disturbances, act of terrorism or act of public
enemy
due to war, the outbreak or escalation of hostilities, riot, fire, flood, civil
commotion, insurrection, severe or adverse weather conditions, power failure
or
computer or communications line failure.
10.11 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.
10.12 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.
10.13 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.
24
VICTORIA BAY ASSET MANAGEMENT, LLC | ||
|
|
|
By: | ||
Name:
Title:
|
UNITED
STATES HEATING
OIL
FUND, LP
|
||
|
By: Victoria
Bay Asset Management, LLC, as General Partner |
|
By: | ||
Name:
Title:
|
ALPS DISTRIBUTORS, INC. | ||
|
|
|
By: | ||
Name:
Title:
|
00
XXXXXXX
X
XXXX
XX
XXXXXX
XXXXXX HEATING OIL FUND, LP
AUTHORIZED
PURCHASER AGREEMENT
1
EXHIBIT
B
FORM
OF XXXXXXXXXX XXXXXX & XXXXXXX LLP OPINION
[TO
BE
PROVIDED]
1
EXHIBIT
C
MARKETING
STRATEGY OF
ALPS
DISTRIBUTORS, INC. (“ALPS”)
ALPS
agrees to carry out the following duties.
(a) |
ALPS
senior management will:
|
· |
Develop
an overall strategic sales and marketing plan with the National Accounts
Manager of ALPS, the Fund and the General Partner.
|
· |
Supervise
sales related activities.
|
· |
Participate
in field sales activities.
|
(b) |
ALPS
will provide a dedicated National Accounts Manager on a full-time
basis
who will:
|
· |
Implement
a tactical sales strategy.
|
· |
Establish
home office contacts with targeted
broker/dealers.
|
· |
Develop
product education presentations.
|
· |
Conduct
product education presentations with fee based financial
advisors.
|
· |
Attend
major fee based advisor conferences.
|
(c) ALPS
will
provide two shared External Wholesalers who will:
· |
Assist
the National Accounts Manager in implementing the tactical sales
strategy.
|
· |
Establish
regional relationships with wire houses and fee based
advisors.
|
· |
Deliver
product education presentations.
|
· |
Conduct
product education presentations with wire house brokers and fee based
financial advisors.
|
· |
Attend
major fee based advisor conferences.
|
(d) ALPS
will
provide one shared Internal Wholesaler who will:
· |
Support
the National Accounts Manager’s and Wholesaler’s field
activities.
|
· |
Telemarket
to independent financial planners.
|
· |
Coordinate
conference participation.
|
· |
Attend
various conferences.
|
1
(e) |
ALPS
will provide resources from its call center
to:
|
· |
Place
outbound follow-up calls on 100% of phone and internet requests for
information.
|
· |
Receive
creation/redemption calls and communicate with authorized purchasers,
advisors and the custodian.
|
· |
Transfer
“hot” advisor leads to Internal
Wholesaler.
|
· |
Support
a dedicated Fund toll-free line for advisors.
|
(f) |
ALPS
will provide marketing staff to:
|
· |
Write,
design and produce FINRA approved sales and marketing materials.
|
· |
Create
FINRA approved seminars and product
presentations.
|
· |
Coordinate
advisor specific advertising with the advertising
agency.
|
· |
Manage
marketing budget.
|
· |
Create
and maintain website.
|
0
XXXXXXX
X
XXXXXX
XXXXXX HEATING OIL FUND, LP
OFFICER’S
CERTIFICATE
The
undersigned, a duly authorized officer of Victoria Bay Asset Management, LLC,
a
Delaware limited liability company (the “General Partner”), and pursuant to
Section 13(d) of the United States Heating Oil Fund, LP Marketing Agent
Agreement (the “Agreement”), dated as of _______________ by and between the
General Partner and ALPS Distributors, Inc. (“Marketing Agent”) hereby certifies
that:
1.
Each
of the following representations and warranties of the General Partner 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
Statement 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 General Partner 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 General
Partner expressly for use in the Registration Statement or such Prospectus;
and
neither the General Partner nor any Person known to the General Partner acting
on behalf of the Fund has distributed nor will distribute any offering material
other than the Registration Statement or the Prospectus;
(b)
the
Fund has been duly formed and is validly existing as a commodity pool 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 to the Authorized
Purchaser;
(c)
the
General Partner 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;
1
(d)
the
General Partner is duly qualified and is in good standing in each jurisdiction
where the conduct of its business requires such qualification; and the Fund
is
not required to so qualify in any jurisdiction;
(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)
the
Agreement has been duly authorized, executed and delivered by the General
Partner and constitutes the valid and binding obligations of the General
Partner, enforceable against the General Partner in accordance with its
terms;
(h)
the
General Partner 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 General Partner 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 the Agreement, the
issuance and sale of Units to the Authorized Purchaser hereunder and the
consummation of the transactions contemplated hereby do 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 General Partner,
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 General Partner is a party or by which,
respectively, the General Partner 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 General Partner;
(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 Baskets to
the
Authorized Purchaser hereunder or the consummation by the General Partner or
the
Fund of the transactions contemplated hereunder other than registration of
the
Units under the 1933 Act, which has been effected, and any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Units are being offered;
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 General Partner 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 shares or interests 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 General Partner 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 General Partner 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 General Partner;
(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 contemplated to which the General Partner or the Fund, or any of the General
Partner’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)
Xxxxxx Xxxxxxxx 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, or any development involving a prospective material adverse
change affecting the General Partner or the Fund, (ii) any transaction which
is
material to the General Partner or the Fund taken as a whole, (iii) any
obligation, direct or contingent (including any off-balance sheet obligations),
incurred by the General Partner 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 General Partner 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
General Partner and the Fund 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 described in the Registration
Statement and the Prospectus as being owned or licensed by them or which are
necessary for the conduct of their respective businesses, (collectively,
“Intellectual Property”);
(i)
to
the knowledge of the General Partner or the Fund, 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 General Partner or the Fund;
(ii)
to
the knowledge of the General Partner or the Fund, there is no infringement
by
third parties of any Intellectual Property;
(iii)
there is no pending or, to the knowledge of the General Partner, threatened
action, suit, proceeding or claim by others challenging the General Partner
or
the Fund’s rights in or to any Intellectual Property, and the General Partner
and the Fund are unaware of any facts which could form a reasonable basis for
any such claim;
(iv)
there is no pending or, to the knowledge of the General Partner or the Fund,
threatened action, suit, proceeding or claim by others challenging the validity
or scope of any Intellectual Property as to which the General Partner and the
Fund have no knowledge of any such pending or threatened claims, and the General
Partner and the Fund are unaware of any facts which could form a reasonable
basis for any such claim;
4
(v)
there
is no pending or, to the knowledge of the General Partner or the Fund,
threatened action, suit, proceeding or claim by others that the General Partner
or the Fund infringes or otherwise violates any patent, trademark, copyright,
trade secret or other proprietary rights of others, and the General Partner
and
the Fund are unaware of any facts which could form a reasonable basis for any
such claim;
(vi)
to
the knowledge of the General Partner or the Fund, there is no patent or patent
application that contains claims that interfere with the issued or pending
claims of any of the Intellectual Property; and
(vii)
to
the knowledge of the General Partner or the Fund, there is no prior art that
may
render any patent application licensed to the General Partner
unpatentable.
(s)
all
tax returns required to be filed by the General Partner 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 Fund as of the
date of this Certificate;
(t)
the
General Partner 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 General Partner or any
other party to any such contract or agreement;
(u)
on
behalf of the Fund, the General Partner 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 (whether or not public), thereunder)); such disclosure controls
and procedures are designed to ensure that material information relating to
the
Fund, is made known to the General Partner, and such disclosure controls and
procedures are effective to perform the functions for which they were
established; on behalf of the Fund, the General Partner 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 General Partner
believes to be reliable and accurate, and the General Partner has obtained
the
written consent to the use of such data from such sources to the extent
required; and
(w)
neither the General Partner, nor any of the General Partner’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.
5
For
purposes hereof, the term “Registration Statement” shall mean the Registration
Statement as amended or supplemented from time to time to the date hereof,
the
term “Preliminary Prospectus” shall mean 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” shall mean the Prospectus as amended or supplemented from time to
time to the date hereof.
2.
Each
of the obligations of the General Partner 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 General Partner 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.
|
|
|
By: | ||
Name:
Title:
|
I,
_______________, in my capacity as [title], hereby certify that _______________
is the duly elected [title] of the General Partner, and that the signature
set
forth immediately above is [his/her] genuine signature.
|
|
|
By: | ||
Name:
Title:
|
6