EX-10.2
12
v190928_ex10-2.htm
Exhibit
10.2
MARKETING
AGENT AGREEMENT
This
MARKETING AGENT AGREEMENT (the “Agreement”) is made as of July 22, 2010 by and
among ALPS Distributors, Inc., a Colorado corporation (the “Marketing Agent”),
the United States Commodity Funds LLC, a Delaware limited liability company (the
“Sponsor”), and the United States Commodity Index Funds Trust, a Delaware
statutory trust (the “Trust”), on its own behalf and on behalf of the series
established and designated by the Trust and listed on Annex A, including the
United States Commodity Index Fund (the “Fund”).
This
Agreement shall constitute a separate agreement between the Marketing Agent, the
Sponsor, the Trust and each Fund, as if such Fund had executed a separate
Marketing Agent Agreement. The Marketing Agent hereby acknowledges that its
rights and obligations with respect to a Fund shall not create any right or
other obligations with respect to any other Fund listed on Annex A, as amended
from time to time, and acknowledges the additional limitation on liability of
the Sponsor, Trust and the Fund described in Section 4.2 of this
Agreement. Any Fund that becomes a party hereto by executing an
amendment to this Agreement substantially in the form of Annex B (each such
amendment together with the schedules attached thereto, an “Amendment”) shall
become a party to this Agreement and any references herein to the Fund shall be
treated as references to such Fund. The obligations of the Sponsor,
Trust, the Marketing Agent and any Fund other than United States Commodity Index
Fund, will be subject to the terms and conditions of the Amendment to this
Agreement to be entered into with that Fund.
WITNESSETH:
WHEREAS,
the Sponsor and the Trust wish to retain the Marketing Agent to provide certain
assistance with respect to the marketing of the Units and in connection with the
creation or redemption of the Baskets;
NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement,
the Sponsor, the Trust and the Marketing Agent hereby agree as
follows:
SECTION
1
DEFINITIONS
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 Trust Agreement.
“1933 Act” means the Securities Act of
1933, as amended from time to time.
“Authorized Purchaser” means the
broker-dealer who enters into an Authorized Purchaser Agreement with the
Sponsor, including the initial Authorized Purchaser, Xxxxxxx Xxxxx Professional
Clearing Corp.
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“Authorized Purchaser Agreement” means
any authorized purchaser agreement entered into by the Sponsor, the Trust and
certain broker dealers from time to time in the form attached hereto as Exhibit
A.
“Basket” means an aggregation of one
hundred thousand (100,000) Units.
“Business Day” means any day other than
a day when any the Futures Exchanges upon which a Benchmark Component Futures
Contract is traded is closed for regular trading. “Futures
Exchanges” shall include the
New York Mercantile Exchange (“NYMEX”), ICE Futures
(“ICE”), Chicago Board of Trade (“CBOT”), Chicago Mercantile Exchange (“CME”),
London Metal Exchange (“LME”), Commodity Exchange, Inc. (“COMEX”) or on other
foreign exchanges (such exchanges, collectively, the “Futures
Exchanges”). “Benchmark Component Futures Contract” shall mean the
Futures Contracts that at any given time make up the index of the
Fund.
“Commission” or “SEC” means the U.S.
Securities and Exchange Commission.
“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.
“Creation Basket” means a Basket
created by an Authorized Purchaser.
“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).
“Prospectus” means, except when
otherwise specified, the prospectus, in the form filed by the Sponsor 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 final prospectus and disclosure document of the
Trust, constituting a part of the Registration Statement filed with the SEC and
declared effective thereby.
“Redemption Basket,” means a
Basket redeemed by an Authorized Purchaser.
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“Representative” means officers,
directors, employees, agents, attorneys, accountants and financial advisors of a
Person, as the case may be.
“Trust Agreement” means the Amended and
Restated Declaration of Trust and Trust Agreement dated as of April 1, 2010, as
may be amended or supplemented from time to time, by and between the Sponsor, as
sponsor, and Wilmington Trust Company, as Delaware trustee.
“Units” means units of fractional
undivided beneficial interest in and ownership of the Fund.
SECTION
2
REPRESENTATIONS
AND WARRANTIES
OF THE
SPONSOR
2.1 Representations and Warranties of the
Sponsor. The Sponsor, on its own behalf and in its capacity as
sponsor of the Trust and the Fund, represents and warrants to, and agrees with,
the Marketing Agent that:
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(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 Sponsor’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 Sponsor 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 Sponsor expressly for use in the Registration Statement or
such Prospectus; and the Sponsor 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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(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 USCI”
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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the
Trust has been duly formed and is validly existing as a statutory trust
with separate series under the laws of the State of Delaware and the Fund
has been duly established and designated as a separate series of the
Trust, in each case as described in the Registration Statement and the
Prospectus;
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(d)
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the
Sponsor has been duly organized and is validly existing as a limited
liability company in good standing under the laws of the State of
Delaware, with full power and authority to conduct its business as
described in the Registration Statement and the Prospectus, and has all
requisite power and authority to execute and deliver this
Agreement;
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(e)
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the
Sponsor 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 Trust 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 Sponsor,
constitutes the valid and binding obligations of the Sponsor, enforceable
against the Sponsor in accordance with its
terms;
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(i)
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the
Sponsor is not in breach or violation of or in default under (nor has any
event occurred which with notice, lapse of time or both would result in
any breach or violation of, constitute a default under or give the holder
of any indebtedness (or a Person acting on such holder’s behalf) the right
to require the repurchase, redemption or repayment of all or a part of
such indebtedness) its 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 Sponsor is a party or by which any of
them or any of their properties may be bound or affected, and the
execution, delivery and performance of this Agreement, the 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 Sponsor, as the same may be amended from time to time, or any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Sponsor is a party or by which,
respectively, the Sponsor or any of its properties may be bound or
affected, or any federal, state, local or foreign law, regulation or rule
or any decree, judgment or order applicable to the
Sponsor;
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(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 Sponsor 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 NYSE Arca, Inc. (“NYSE
Arca”);
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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 Sponsor on behalf of the Fund or
the Fund to register under the 1933 Act any other equity interests of the
Fund, or to include any such units or 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
Sponsor has all necessary licenses, authorizations, consents and approvals
and has made all necessary filings required under any federal, state,
local or foreign law, regulation or rule, and has obtained all necessary
authorizations, consents and approvals from other Persons, in order to
conduct its respective business; the Sponsor is not in violation of, or in
default under, or has not received notice of any proceedings relating to
revocation or modification of, any such license, authorization, consent or
approval or any federal, state, local or foreign law, regulation or rule
or any decree, order or judgment applicable to the
Sponsor;
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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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(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 Sponsor’s knowledge after due inquiry, contemplated
to which the Sponsor, 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 Sponsor’s directors or officers, is or would be a
party or of which any of their respective properties are or would be
subject at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or
agency;
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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, except as
otherwise disclosed (i) any material adverse change, (ii) any transaction
which is material to the Sponsor or the Fund taken as a whole, (iii) any
obligation, direct or contingent (including any off-balance sheet
obligations), incurred by the Sponsor, which is material to the Fund, (iv)
any change in the outstanding indebtedness of the Sponsor 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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(s)
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except
as set forth in the Registration Statement and the Prospectus, the Sponsor
and the Trust own, or have obtained valid and enforceable licenses for, or
other rights to use, the inventions, patent applications, patents,
trademarks (both registered and unregistered), tradenames, copyrights,
trade secrets and other proprietary information applicable to the Fund and
described in the Registration Statement and the Prospectus as being owner
or licensed by the Sponsor or the Trust for use by the Fund (collectively,
“Intellectual Property”); (i) except as set forth in the Registration
Statement and the Prospectus, to the knowledge of the Sponsor, there are
no third parties who have or will be able to establish rights to any
Intellectual Property, except for the ownership rights of the owners of
the Intellectual Property which is licensed to the Sponsor or the Trust;
(ii) to the knowledge of the Sponsor, there is no infringement by third
parties of any Intellectual Property; (iii) there is no pending or, to the
knowledge of the Sponsor, threatened action, suit, proceeding or claim by
others challenging the Sponsor’s or the Fund’s rights in or to any
Intellectual Property, and the Sponsor is not aware of any facts which
could form a reasonable basis for any such claim; (iv) there is no pending
or, to the knowledge of the Sponsor, threatened action, suit, proceeding
or claim by others challenging the validity or scope of any Intellectual
Property; (v) there is no pending or, to the knowledge of the Sponsor,
threatened action, suit, proceeding or claim by others that the Sponsor or
the Fund infringes or otherwise violates any patent, trademark, copyright,
trade secret or other proprietary rights of others, and the Sponsor is not
aware of any facts which could form a reasonable basis for any such claim;
and (vi) to the knowledge of the Sponsor, there is no patent or patent
application that contains claims that interfere with the issued or pending
claims of any of the Intellectual
Property;
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(t)
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all
tax returns required to be filed by the Sponsor have been filed, and all
taxes and other assessments of a similar nature (whether imposed directly
or through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due from such entities
have been paid; and no tax returns or tax payments are due with respect to
the Trust as of the date of this
Agreement;
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(u)
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the
Sponsor has not sent or received any communication regarding termination
of, or intent not to renew, any of the contracts or agreements referred to
or described in, or filed as an exhibit to, the Registration Statement,
and no such termination or non-renewal has been threatened by the Sponsor
or any other party to any such contract or
agreement;
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(v)
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on
behalf of the Fund, the Sponsor has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-14 and 15d-14
under the Exchange Act 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 Sponsor, and such disclosure controls and procedures are effective to
perform the functions for which they were established; on behalf of the
Fund, the Sponsor has been advised of: (i) any significant deficiencies in
the design or operation of internal controls which could adversely affect
the Fund’s ability to record, process, summarize, and report financial
data; and (ii) any fraud, whether or not material, that involves
management or other employees who have a role in the Fund’s internal
controls; 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 Sponsor
believes to be reliable and accurate, and the Sponsor has obtained the
written consent to the use of such data from such sources to the extent
required; and
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(x)
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neither
the Sponsor, nor any of the Sponsor’s directors, members, officers,
affiliates or controlling Persons has taken, directly or indirectly, any
action designed, or which has constituted or might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security or asset of the
Fund to facilitate the sale or resale of the Units; and to the Sponsor’s
knowledge after due inquiry, there are no affiliations or associations
between any member of the NYSE Arca and any of the Sponsor’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 Sponsor 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
Sponsor as to matters covered thereby, to the Marketing Agent.
SECTION
3
REPRESENTATIONS
OF THE MARKETING AGENT
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;
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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.
SECTION
4
EXCLUSIVE
MARKETING AGENT AND STRUCTURE OF THE FUND
4.1 Appointment. The
Sponsor and the Trust hereby appoint 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; Liability of the
Fund. For the term of this Agreement, the Sponsor shall cause
the name of the Fund to be as defined in the relevant Schedule to the Fund
attached hereto. The Marketing Agent agrees to look solely to the
assets of the Fund and to the Sponsor and its assets in respect of any claim
against or obligation of the Fund. The Marketing Agent acknowledges
and agrees that liability of the Fund, as a series of the Trust, is limited
pursuant to Section 3804(a) of the Delaware Statutory Trust Act, such that (a)
the debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to the Fund shall be enforceable against the
assets of the Fund only, and not against the assets of the Trust generally or
the assets of any other series of the Trust, and (b) none of the debts,
liabilities, obligations and expenses incurred, contracted for, or otherwise
existing with respect to the Trust generally and any other series of the Trust
shall be enforceable against the assets of the Fund.
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4.3 Marketing Agent
Fee. The Marketing Agent shall be paid by the Sponsor for the
services of the Marketing Agent as marketing agent to the Trust and each Fund
hereunder, a fee for its services per Fund hereunder, calculated daily and
payable monthly, as follows (the “Fee”):
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.06%
on each Fund’s assets up to
$3,000,000,000
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.04%
on each 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
per Fund for purposes of marketing the Units. The above fees do not
include the following expenses, which will be billed back to the Sponsor: 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
COVENANTS
OF THE SPONSOR
5.1 Certain Covenants of the
Sponsor. The Sponsor, on its own behalf and in its capacity as
sponsor of the Trust and the Fund,, covenant and agree:
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(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 Trust shall not be required to qualify to do business in
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 Sponsor, the Trust 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 on behalf of 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 on behalf of 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;
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11
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(g)
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if
necessary or appropriate, to file a registration statement pursuant to
Rule 462(b) under the 1933 Act;
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(h)
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to
advise the Marketing Agent promptly of the happening of any event with
respect to the Fund 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;
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(i)
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to
furnish to the holders of the 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);
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(j)
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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);
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(k)
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to
(1) furnish with respect to the Fund 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
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 NYSE Arca, (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 Sponsor and independent
accountants to supply all information reasonably requested by the
Marketing Agent, its attorneys, accountants and other advisors and
agents;
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(l)
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to
use its best efforts to cause the Units to be listed on the NYSE
Arca;
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(m)
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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 Sponsor, addressed to the Marketing
Agent and substantially in the form attached hereto as Exhibit
B;
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12
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(n)
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to
cause Xxxxxx Xxxxxxxx LLP to deliver to the Marketing Agent with respect
to the Fund (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;
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(o)
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to
deliver to the Marketing Agent with respect to the Fund (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;
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(p)
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to
furnish to the Marketing Agent with respect to the Fund (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 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) is filed on
behalf of the Fund, 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
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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.
SECTION
6
MARKETING
PLAN DEVELOPMENT
AND
MARKETING AGENT COVENANTS
6.1 Pre-Launch
Development.
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(a)
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The
Sponsor 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.
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13
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(b)
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The
Sponsor and the Marketing Agent will use commercially reasonable efforts
to commit sufficient resources to finalize the Registration Statement and
the agreements with the service providers of the Trust and the Fund,
communicate with the Commission to obtain approval of the Registration
Statement and communicate with the NYSE Arca to obtain approval of the
listing of the Units on the NYSE
Arca.
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6.2 Post-Launch
Activities.
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(a)
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The
Sponsor 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 NYSE Arca in accordance with the
provisions of this Section 6.2.
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(b)
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Subject
to necessary regulatory approvals and compliance with all applicable legal
and regulatory requirements, the Marketing Agent
shall:
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(i)
|
in
good faith, and subject to existing market conditions, use
commercially-reasonable efforts to market the Fund;
and
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(ii)
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include
the Index (as defined in the Fund’s prospectus) in strategic and tactical
research of the Marketing Agent.
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(c)
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The
Marketing Agent shall provide the Sponsor with copies of all written
marketing materials distributed by it connected with the
Fund.
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(d)
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The
Marketing Agent shall process orders for Baskets as set forth in the
Authorized Purchaser Agreement.
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6.3 Joint
Reviews.
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(a)
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In
order to oversee the pre-launch development and post-launch performance of
the Fund on a regular basis, the parties
shall:
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(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 Sponsor 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
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(ii)
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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 Sponsor and
senior management of the Marketing Agent and to cover such topics as
strategic direction and new business
initiatives.
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14
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(b)
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Prior
to each of the quarterly and annual reviews which will take place pursuant
to this Section 6.3, the Sponsor 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.
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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 Sponsor 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 Sponsor, the Trust 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 Sponsor 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 any report, statement or other document pursuant
to Section 13, 14 or 15(d) of the Exchange Act (excluding filings under Rule
12b-25) is filed on behalf of the Fund, (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 Sponsor 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 Sponsor 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 Sponsor 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 Sponsor, or any officer or director or any
controlling Person thereof, and shall survive the execution, delivery,
performance and termination of this Agreement.
SECTION
7
INDEMNIFICATION
7.1 Indemnification of Marketing
Agent. The Sponsor 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:
15
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(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 Sponsor expressly for use in such Registration Statement or
such Prospectus;
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(b)
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any
untrue statement or alleged untrue statement of a material fact or breach
by the Sponsor of any representation or warranty contained in Section 2
hereof or in any certificate delivered by the Sponsor pursuant to
paragraph (o) of Section 5.1
hereof;
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(c)
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the
failure by the Sponsor to perform when and as required any agreement or
covenant contained herein;
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(d)
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any
untrue statement of any material fact contained in any audio or visual
materials provided by the Sponsor or based upon written information
furnished by or on behalf of the Sponsor including, without limitation,
slides, videos, films or tape recordings used in connection with the
marketing of the Units;
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(e)
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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 Sponsor 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 Sponsor with paragraph (c) of Section 5.1
hereof.
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In no
case is the indemnity of the Sponsor 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 Sponsor, the Trust
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.
16
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 Sponsor pursuant to the foregoing paragraph, the Marketing Agent or
such Person shall promptly notify the Sponsor in writing of the institution of
such Proceeding and the Sponsor 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 Sponsor shall not relieve the Sponsor 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 Sponsor in connection with the defense of such Proceeding or the Sponsor
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 Sponsor (in which case the Sponsor
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 Sponsor and paid as incurred (it being understood,
however, that the Sponsor 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
Sponsor shall not be liable for any settlement of any Proceeding effected
without the Sponsor’s written consent but if settled with the Sponsor’s written
consent, the Sponsor 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.
17
7.2 The
Marketing Agent agrees to indemnify, defend and hold harmless each of the Fund,
the Sponsor and its partners, holders of Units, members, directors, officers,
employees and any Person who controls the Sponsor within the meaning of Section
15 of the 1933 Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing Persons, from and against any loss, damage,
expense, liability or claim (including the reasonable cost of investigation)
which the Sponsor 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
Sponsor expressly for use in the Registration Statement (or in the Registration
Statement as amended or supplemented by any post-effective amendment thereof) or
in a Prospectus, or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information required
to be stated in such Registration Statement or such Prospectus or necessary to
make such information not misleading.
The
Marketing Agent will also indemnify the Sponsor 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 Sponsor. In no case is the
indemnity of the Marketing Agent in favor of the Sponsor to be deemed to protect
the Sponsor and such Persons against any liability to the Marketing Agent to
which the Sponsor would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in the performance of its duties or by reason of
its reckless disregard of its obligations and duties under this
Agreement.
If any
Proceeding is brought against the Sponsor 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 Sponsor 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 Sponsor 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 Sponsor 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 Sponsor 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).
18
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 Sponsor 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.
7.3 The
indemnity agreements contained in this Section 7 and the covenants, warranties
and representations of the Sponsor contained in this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
the 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 Sponsor, the Trust, the Fund, their
partners, stockholders, members, trustees, directors, officers, employees or any
Person who controls the Sponsor, the Trust 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 Sponsor and the Marketing Agent agree promptly to notify each other
of the commencement of any Proceeding against it and, in the case of the
Sponsor, against any of the Sponsor’s officers or directors in connection with
the issuance and sale of the Units, or in connection with the Registration
Statement or the Prospectus.
19
SECTION
8
DURATION
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 Sponsor, on the other hand, elects to terminate this Agreement by
delivering written notice thereof to the other party. Upon the
completion of the initial term, either the Marketing Agent, on the one hand, or
the Sponsor, on the other hand, may elect to terminate this Agreement by
delivering 90 days 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 Sponsor may not terminate this Agreement pursuant to
this provision if the event relates to the Sponsor, the Trust 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. Termination of this Agreement with respect to any Fund shall
not result in the termination of this Agreement with respect to any other Fund
listed on Annex A.
SECTION
9
CONFIDENTIALITY
9.1 Confidentiality.
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(a)
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The
Sponsor 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.
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“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.
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20
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(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:
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(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;
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(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;
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(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
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(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.
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(c)
|
The
parties recognize and acknowledge that a breach or threatened breach by a
party of the provisions of this Section 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.
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(d)
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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.
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(e)
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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.
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21
SECTION
10
MISCELLANEOUS
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.
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):
22
United
States Commodity Funds LLC
0000
Xxxxxx Xxx Xxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxxxxxx X. Xxxxxx
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(b)
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if
to the Marketing Agent, to:
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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.
10.8 Governing
Law; Jurisdiction.
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(a)
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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.
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(b)
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Each
party irrevocably consents and agrees, for the benefit of the other
parties, that any legal action, suit or proceeding against it with respect
to its obligations, liabilities or any other matter arising out of or in
connection with this Agreement 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.
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The
provisions of this Section 10.8 shall survive any termination of this Agreement,
in whole or in part.
23
10.9 No
Partnership. Nothing in this Agreement is intended to, or will
be construed to constitute the Sponsor or the Trust, 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
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the
day and year first written above.
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UNITED
STATES COMMODITY FUNDS LLC
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By:
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Name:
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Title:
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Date:
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UNITED
STATES COMMODITY INDEX FUNDS TRUST, on its own behalf and on behalf of the
United States Commodity Index Fund
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By:
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United
States Commodity Funds LLC, as Sponsor
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By:
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Name:
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Title:
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Date:
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ALPS
DISTRIBUTORS, INC.
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By:
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Name:
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Title:
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25
EXHIBIT
A
FORM
OF
AUTHORIZED
PURCHASER AGREEMENT
1
EXHIBIT
B
FORM
OF XXXXXXXXXX XXXXXX & XXXXXXX LLP OPINION
2
EXHIBIT
C
MARKETING
STRATEGY OF
ALPS
DISTRIBUTORS, INC. (“ALPS”)
ALPS
agrees to carry out the following duties.
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(a)
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ALPS
senior management will:
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·
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Develop
an overall strategic sales and marketing plan with the National Accounts
Manager of ALPS, the Fund and the
Sponsor.
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·
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Supervise
sales related activities.
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·
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Participate
in field sales activities.
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(b)
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ALPS
will provide a dedicated National Accounts Manager on a full-time basis
who will:
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·
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Implement
a tactical sales strategy.
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·
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Establish
home office contacts with targeted
broker/dealers.
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·
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Develop
product education presentations.
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·
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Conduct
product education presentations with fee based financial
advisors.
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·
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Attend
major fee based advisor
conferences.
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(a)
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ALPS
will provide two shared External Wholesalers who
will:
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·
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Assist
the National Accounts Manager in implementing the tactical sales
strategy.
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·
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Establish
regional relationships with wire houses and fee based
advisors.
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·
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Deliver
product education presentations.
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·
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Conduct
product education presentations with wire house brokers and fee based
financial advisors.
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·
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Attend
major fee based advisor
conferences.
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(b)
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ALPS
will provide one shared Internal Wholesaler who
will:
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·
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Support
the National Accounts Manager’s and Wholesaler’s field
activities.
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·
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Telemarket
to independent financial planners.
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·
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Coordinate
conference participation.
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·
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Attend
various conferences.
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(e)
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ALPS
will provide resources from its call center
to:
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·
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Place
outbound follow-up calls on 100% of phone and internet requests for
information.
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1
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·
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Receive
creation/redemption calls and communicate with authorized purchasers,
advisors and the custodian.
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·
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Transfer
“hot” advisor leads to Internal
Wholesaler.
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·
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Support
a dedicated Fund toll-free line for
advisors.
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(f)
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ALPS
will provide marketing staff to:
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·
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Write,
design and produce FINRA approved sales and marketing
materials.
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·
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Create
FINRA approved seminars and product
presentations.
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·
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Coordinate
advisor specific advertising with the advertising
agency.
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Manage
marketing budget.
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·
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Create
and maintain website.
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2
EXHIBIT
D
OFFICER’S
CERTIFICATE
The
undersigned, a duly authorized officer of the United States Commodity Funds LLC,
a Delaware limited liability company (the “Sponsor”), and pursuant to Section
13(d) of the
Marketing Agent Agreement (the “Agreement”), dated as of
___________ by and between the Sponsor, the Trust and ALPS Distributors, Inc.
(“Marketing Agent”) hereby certifies that:
1. Each
of the following representations and warranties of the Sponsor is true and
correct in all material respects as of the date hereof:
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(a)
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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 Sponsor makes no warranty or representation with respect
to any statement contained in the Registration Statement or any Prospectus
in reliance upon and in conformity with information concerning the
Authorized Purchaser and furnished in writing by or on behalf of the
Authorized Purchaser to the Sponsor expressly for use in the Registration
Statement or such Prospectus; and neither the Sponsor nor any Person known
to the Sponsor acting on behalf of the Fund has distributed nor will
distribute any offering material other than the Registration Statement or
the Prospectus;
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(b)
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the
Trust has been duly formed and is validly existing as a statutory trust
with separate series under the laws of the State of Delaware, as described
in the Registration Statement and the Prospectus, and as described in the
Prospectus, the Marketing Agent is authorized to issue and deliver the
Baskets to the Authorized
Purchaser;
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(c)
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the
Sponsor has been duly organized and is validly existing as a limited
liability company in good standing under the laws of the State of
Delaware, with full power and authority to conduct its business as
described in the Registration Statement and the Prospectus, and has all
requisite power and authority to execute and deliver this
Agreement;
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3
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(d)
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the
Sponsor is duly qualified and is in good standing in each jurisdiction
where the conduct of its business requires such
qualification;
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(e)
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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;
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(f)
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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;
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(g)
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the
Agreement has been duly authorized, executed and delivered by the Sponsor
and constitutes the valid and binding obligations of the Sponsor,
enforceable against the Sponsor in accordance with its
terms;
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(h)
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the
Sponsor is not in breach or violation of or in default under (nor has any
event occurred which with notice, lapse of time or both would result in
any breach or violation of, constitute a default under or give the holder
of any indebtedness (or a Person acting on such holder’s behalf) the right
to require the repurchase, redemption or repayment of all or a part of
such indebtedness) its constitutive documents, or any indenture, mortgage,
deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the Sponsor is a party or by which any of them or any
of their properties may be bound or affected, and the execution, delivery
and performance of the Agreement, the issuance and sale of Units to the
Authorized Purchaser hereunder and the consummation of the transactions
contemplated hereby does not conflict with, result in any breach or
violation of or constitute a default under (nor constitute any event which
with notice, lapse of time or both would result in any breach or violation
of or constitute a default under), respectively, the amended and restated
limited liability company agreement of the Sponsor, as the same may be
amended from time to time, or any indenture, mortgage, deed of trust, bank
loan or credit agreement or other evidence of indebtedness, or any
license, lease, contract or other agreement or instrument to which the
Sponsor is a party or by which, respectively, the Sponsor or any of its
properties may be bound or affected, or any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order
applicable to the Sponsor;
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(i)
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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 Sponsor as a Commodity Pool Operator with the
NFA under 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 NYSE Arca;
|
4
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(j)
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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 Sponsor on behalf of the Fund or
the Fund to register under the 1933 Act any other equity interests of the
Fund, or to include any such units or 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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(k)
|
each
of the Sponsor and the Fund has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under
any federal, state, local or foreign law, regulation or rule, and has
obtained all necessary authorizations, consents and approvals from other
Persons, in order to conduct its respective business; the Sponsor is not
in violation of, or in default under, or has not received notice of any
proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or foreign
law, regulation or rule or any decree, order or judgment applicable to the
Sponsor;
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(l)
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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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(m)
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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 Sponsor’s knowledge after due inquiry, contemplated
to which the Sponsor or the Fund, or (to the extent that such
action, suit, claim, investigation or proceeding is or could be material
in the context of the offering and sale of the Units) any of the Sponsor’s
directors or officers, is or would be a party or of which any of their
respective properties are or would be subject at law or in equity, before
or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or
agency;
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(n)
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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;
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5
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(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;
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(p)
|
subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been (i) any
material adverse change, (ii) any transaction which is material to the
Sponsor or the Fund taken as a whole, (iii) any obligation, direct or
contingent (including any off-balance sheet obligations), incurred by the
Sponsor or the Fund, which is material to the Fund, (iv) any change in the
Units purchased by the Authorized Purchaser or outstanding indebtedness of
the Sponsor or the Fund or (v) any dividend or distribution of any kind
declared, paid or made on such
Units;
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(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;
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(r)
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except
as set forth in the Registration Statement and the Prospectus, the Sponsor
and the Trust own, or have obtained valid and enforceable licenses for, or
other rights to use, the inventions, patent applications, patents,
trademarks (both registered and unregistered), tradenames, copyrights,
trade secrets and other proprietary information applicable to the Fund and
described in the Registration Statement and the Prospectus as being owned
or licensed by the Sponsor or the Trust for use by the Fund (collectively,
“Intellectual Property”);
|
(i)
except as set forth in the Registration Statement and the Prospectus, to the
knowledge of the Sponsor, there are no third parties who have or will be able to
establish rights to any Intellectual Property, except for the ownership rights
of the owners of the Intellectual Property which is licensed to the Sponsor or
the Trust;
(ii) to
the knowledge of the Sponsor, there is no infringement by third parties of any
Intellectual Property;
(iii)
there is no pending or, to the knowledge of the Sponsor, threatened action,
suit, proceeding or claim by others challenging the Sponsor’s or the Fund’s
rights in or to any Intellectual Property, and the Sponsor is not aware of any
facts which could form a reasonable basis for any such claim;
(iv)
there is no pending or, to the knowledge of the Sponsor, threatened action,
suit, proceeding or claim by others challenging the validity or scope of any
Intellectual Property;
6
(v) there
is no pending or, to the knowledge of the Sponsor, threatened action, suit,
proceeding or claim by others that the Sponsor or the Fund infringes or
otherwise violates any patent, trademark, copyright, trade secret or other
proprietary rights of others, and the Sponsor is not aware of any facts which
could form a reasonable basis for any such claim; and
(vi) to
the knowledge of the Sponsor, there is no patent or patent application that
contains claims that interfere with the issued or pending claims of any of the
Intellectual Property.
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(s)
|
all
tax returns required to be filed by the Sponsor have been filed, and all
taxes and other assessments of a similar nature (whether imposed directly
or through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due from such entities
have been paid; and no tax returns or tax payments are due with respect to
the Trust as of the date of this
Certificate;
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(t)
|
the
Sponsor has not sent or received any communication regarding termination
of, or intent not to renew, any of the contracts or agreements referred to
or described in, or filed as an exhibit to, the Registration Statement,
and no such termination or non-renewal has been threatened by the Sponsor
or any other party to any such contract or
agreement;
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(u)
|
on
behalf of the Fund, the Sponsor has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-14 and 15d-14
under the Exchange Act, giving effect to the rules and regulations, and
SEC staff interpretations, thereunder)); such disclosure controls and
procedures are designed to ensure that material information relating to
the Fund, is made known to the Sponsor, and such disclosure controls and
procedures are effective to perform the functions for which they were
established; on behalf of the Fund, the Sponsor has been advised of: (i)
any significant deficiencies in the design or operation of internal
controls which could adversely affect the Fund’s ability to record,
process, summarize, and report financial data; and (ii) any fraud, whether
or not material, that involves management or other employees who have a
role in the Fund’s internal controls; any material weaknesses in internal
controls have been identified for the Fund’s
auditors;
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(v)
|
any
statistical and market-related data included in the Registration Statement
and the Prospectus are based on or derived from sources that the Sponsor
believes to be reliable and accurate, and the Sponsor has obtained the
written consent to the use of such data from such sources to the extent
required; and
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(w)
|
neither
the Sponsor, nor any of the Sponsor’s directors, members, officers,
affiliates or controlling Persons has taken, directly or indirectly, any
action designed, or which has constituted or might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security or asset of the
Fund to facilitate the sale or resale of the
Units.
|
7
For
purposes hereof, the term “Registration Statement” means the Registration
Statement as amended or supplemented from time to time through and including the
date hereof; the term “Preliminary Prospectus” means the preliminary prospectus
dated September 18, 2009, relating to the Units and any other prospectus dated
prior to effectiveness of the Registration Statement relating to the Units; and
the term “Prospectus” means the final prospectus and disclosure document of the
Trust, constituting a part of the Registration Statement filed with the SEC and
declared effective thereby as amended or supplemented from time to time through
and including the date hereof.
2. Each
of the obligations of the Sponsor to be performed by it on or before the date
hereof pursuant to the terms of the Agreement, and each of the provisions
thereof to be complied with by the Sponsor on or before the date hereof, has
been duly performed and complied with in all material
respects. Capitalized terms used, but not defined herein shall have
the meanings assigned to such terms in the Agreement.
8
IN
WITNESS WHEREOF, I have hereunto, on behalf of the Sponsor, subscribed my name
this ___ day of _________________.
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United
States Commodity Funds LLC
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By:
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Name:
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Title:
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I,
_______________, in my capacity as [title], hereby certify that _______________
is the duly elected [title] of the Sponsor, and that the signature set forth
immediately above is his genuine signature.
IN
WITNESS WHEREOF, I have hereunto set my hand as of the date first set forth
above.
9
ANNEX
A
LIST
OF SERIES TRUST(S) ESTABLISHED
BY
THE UNITED STATES COMMODITY INDEX FUNDS TRUST
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Fund
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Relevant Schedule
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1.
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United
States Commodity Index Fund
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Schedule
1 to this Agreement
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10
SCHEDULE
1
TO
THE
MARKETING AGENT AGREEMENT
DATED
_________________________
DEFINED
TERMS RELATING TO
UNITED
STATES COMMODITY INDEX FUND
Benchmark
Component Futures Contract shall mean the Futures Contracts (as defined
in the Prospectus) that at any given time make up the index of the
Fund.
The Fund
shall mean United States Commodity Index Fund.
Preliminary
Prospectus means the preliminary prospectus dated September 18, 2009,
relating to the Units and any other prospectus dated prior to effectiveness of
the Registration Statement relating to the Units.
Registration
Statement means, except when otherwise specified, the Fund’s registration
statement on Form S-1 (File No. 333-162015) filed by the Sponsor with the
Commission as amended when it becomes effective under the 1933 Act, including
all documents filed as a part thereof.
ANNEX
B
FORM
OF AMENDMENT AGREEMENT TO ADD SERIES TRUST(S) TO
TO
THE
MARKETING AGENT AGREEMENT
This Amendment to the
Marketing Agent
Agreement dated ____________ (this “Amendment”), is made and entered into by and
among UNITED STATES COMMODITY
FUNDS LLC, a Delaware limited liability company (the “Sponsor”), the UNITED STATES COMMODITY INDEX FUNDS
TRUST, a Delaware statutory trust (the “Trust”), on its own behalf and
on behalf of the UNITED STATES
COMMODITY INDEX FUND and [INSERT FUND NAME] (each, a
“Fund”), and ALPS DISTRIBUTORS INC. (the
“
Marketing Agent
Agreement”) (each, a “Party” and collectively,
“the
Parties”).
WHEREAS, the Parties have entered into
a certain
Marketing Agent Agreement dated ______________ (the “Agreement”);
and
WHEREAS, the parties hereto desire to
amend the Agreement as provided herein by amending Annex A of this Agreement and
supplementing this Agreement with the attached Schedule 1 and 2 to this
Amendment.
NOW
THEREFORE, for and in consideration of the agreements herein made and other good
and valuable consideration, the parties hereto agree as follows:
I. AMENDMENTS
The
Agreement is hereby amended by making the following change to Annex A
thereto:
LIST
OF SERIES TRUST(S) ESTABLISHED
BY
THE UNITED STATES COMMODITY INDEX FUNDS TRUST
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Fund
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Relevant Schedule
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1.
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United
States Commodity Index Fund
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Schedule
1 to this Agreement
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2.
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[INSERT
FUND NAME]
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Schedule
1-A to the Amendment
Agreement
dated _____________
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3.
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[INSERT
FUND NAME]
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Schedule
1-B to the Amendment
Agreement
dated _____________
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4.
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5.
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The
Parties acknowledge that Schedule 1 of this Amendment shall supplement and not
supersede Schedule 1 of the Agreement.
2
II. REPRESENTATIONS
Each
Party represents to the other Parties that:-
(a) Status. It is duly
organized and validly existing under the laws of the jurisdiction of its
organization or incorporation and, if relevant under such laws, in good
standing;
(b) Powers. It has the
power to execute and deliver this Amendment and to perform its obligations
hereunder, and has taken all necessary action to authorize such execution,
delivery and performance;
(c) No Violation or
Conflict. Such execution, delivery and performance do not
violate or conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgment of any court or other agency of
government applicable to it or any of its assets or any contractual restriction
binding on or affecting it or any of its assets;
(d) Consents. All
governmental and other consents that are required to have been obtained by it
with respect to this Amendment have been obtained and are in full force and
effect and all conditions of any such consents have been complied with;
and
(e) Obligations
Binding. Its obligations under this Amendment constitute its
legal, valid and binding obligations, enforceable in accordance with its
respective terms (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors’ rights generally and subject, as
to enforceability, to equitable principles of general application (regardless of
whether enforcement is sought in a proceeding in equity or at
law)).
III. MISCELLANEOUS
(a) Entire
Agreement. The Amendment constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings (except as other wise provided herein)
with respect thereto.
(b) Counterparts. This
Amendment may be executed in multiple counterparts, each of which when executed
and delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument.
(c) Headings. The
headings used in this Amendment are for convenience of reference only and are
not to affect the construction of or to be taken into consideration in
interpreting this Amendment.
(d) Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of
New York.
(e) Terms. Terms used
in this Amendment, unless otherwise defined herein, shall have the meanings
ascribed to them in the Agreement.
3
(f) Agreement. Any
and all references to the Agreement shall hereafter refer to the Agreement as
amended by this Amendment and as the same may be amended, supplemented or
modified from time to time. Unless otherwise defined herein,
capitalized terms not defined herein shall have the same meanings assigned to
such terms in the Agreement as amended by this Amendment.
Except as
amended hereby, all other terms and conditions of the Agreement shall remain the
same and in full force and effect.
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment effective as of
the date first written above.
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UNITED
STATES COMMODITY FUNDS LLC
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By:
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Name:
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Title:
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UNITED
STATES COMMODITY INDEX FUNDS TRUST, on its own behalf and on behalf of the
United States Commodity Index Fund
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By:
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United
States Commodity Funds LLC, as Sponsor
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By:
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Name:
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Title:
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UNITED
STATES COMMODITY INDEX FUNDS TRUST, on behalf of [INSERT
FUND NAME]
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By:
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United
States Commodity Funds LLC, as Sponsor
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| | | By: | | |
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Name:
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Title:
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ALPS
DISTRIBUTORS INC.
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By:
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Name:
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Title:
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Address:
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Telephone:
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Facsimile:
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4
SCHEDULE
1
TO
THE AMENDMENT AGREEMENT DATED ____________________
DEFINED
TERMS RELATING TO
[INSERT
NAME OF FUND]
Benchmark
Component Futures Contract shall mean _____________________.
The Fund
shall mean _____________________.
Preliminary
Prospectus means _____________________.
Registration
Statement means _____________________.
5
