ADMINISTRATIVE AGENCY AGREEMENT
Exhibit
10.6
EXECUTION
COPY
THIS ADMINISTRATIVE AGENCY AGREEMENT
(the “Agreement”)
is made as of February 7, 2008 by and among XXXXX BROTHERS XXXXXXXX &
CO., a limited partnership organized under the laws of the State of New
York (the “Administrator”), VICTORIA BAY ASSET MANAGEMENT,
LLC, a Delaware
limited liability company (the “General Partner”) and UNITED STATES GASOLINE FUND,
LP, a limited partnership organized under the laws of the State of
Delaware (the “Fund”).
WITNESSETH:
WHEREAS,
the Fund is a limited partnership that is registered as a commodity
pool;
WHEREAS,
the General Partner has exclusive responsibility for the management and control
of the business and affairs of the Fund; and
WHEREAS,
the Fund and the General Partner desire to retain the Administrator to render
certain services to the Fund and/or the General Partner, as the case may be, and
the Administrator is willing to render such services.
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto agree as follows:
1. Appointment of
Administrator. The Fund and the General Partner hereby employ
and appoint the Administrator to act as administrative agent on the terms set
forth in this Agreement, and the Administrator accepts such
appointment.
2. Delivery of
Documents. The Fund and the General Partner will on a
continuing basis provide the Administrator with:
2.1 properly
certified or authenticated copies of resolutions of the General Partner’s Board
of Directors (including Xx. Xxxxxxxx X. Xxxxxx) authorizing the appointment of
the Administrator as administrative agent of the Fund and approving this
Agreement;
2.2 a
copy of the Fund’s most recent registration statement under the Securities Act
of 1933, as amended;
2.3 copies
of all agreements between the Fund and its service providers, including without
limitation, advisory, distribution and administration agreements and
distribution and/or unitholder agreements;
2.4 a
copy of the Fund’s valuation procedures;
2.5 a
copy of the Fund’s Limited Partnership Agreement, as may be amended from time to
time;
2.6 a
copy of the General Partner’s First Amended and Restated Limited Liability
Company Agreement, as may be amended from time to time;
2.7 any
other documents or resolutions (including, but not limited to directions or
resolutions of the General Partner’s Board of Directors, Management Directors,
and/or Audit Committee) which relate to or affect the Administrator’s
performance of its duties hereunder or which the Administrator may at any time
reasonably request; and
2.8 copies
of any and all amendments or supplements to the foregoing.
3. Duties as
Administrator. Subject to the supervision and direction of the
General Partner’s Board of Directors, Management Directors and Audit Committee,
the Administrator will perform the administrative services described in Appendix
A hereto. Additional services may be provided by the Administrator
upon the request of the Fund as mutually agreed from time to time. In
performing its duties and obligations hereunder, the Administrator will act in
accordance with the General Partner’s instructions as defined in Section 5
(“Instructions”). It is agreed and understood that the Administrator
shall not be responsible for the Fund’s or the General Partner’s compliance with
any applicable documents, laws or regulations, or for losses, costs or expenses
arising out of the Fund’s or the General Partner’s failure to comply with said
documents, laws or regulations or the Fund’s or the General Partner’s failure or
inability to correct any non-compliance therewith. The Administrator
shall in no event be required to take any action, which is in contravention of
any applicable law, rule or regulation or any order or judgment of any court of
competent jurisdiction.
3.1 Records. The
Administrator will maintain and retain such records as required by the
Securities Exchange Act of 1934, as amended, the Rules of the American Stock
Exchange, 17 C.F.R 4.23 (specifically, the records specified in 17 C.F.R.
4.23(a)(1) through (8), (10) through (12) and (b)(1)), and other applicable
federal securities laws and created pursuant to the performance of the
Administrator’s obligations under this Agreement. The Administrator
will maintain such other records as requested by the Fund or the General Partner
and received by the Administrator. The Administrator shall not be
responsible for the accuracy and completeness of any records not created by the
Administrator. The Administrator acknowledges that the records
maintained and preserved by the Administrator pursuant to this Agreement are the
property of the Fund and will be, at the Fund’s expense, surrendered promptly
upon reasonable request. In performing its obligations under this
Section, the Administrator may utilize micrographic and electronic storage media
as well as independent third party storage facilities.
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4. Duties of the
Fund and the General Partner. The Fund and the General Partner
shall notify the Administrator promptly of any matter affecting the performance
by the Administrator of its services under this Agreement. Where the
Administrator is providing fund accounting services pursuant to this Agreement,
the Fund and the General Partner shall promptly notify the Administrator as to
the accrual of liabilities of the Fund and of liabilities of the Fund not
appearing on the books of account kept by the Administrator, as well as to the
existence, status and proper treatment of reserves, if any, authorized by the
Fund or the General Partner. The Fund and the General Partner agree
to provide such information to the Administrator as may be requested under the
banking and securities laws of the United States or other jurisdictions relating
to “Know Your Customer” and money laundering prevention rules and regulations
(collectively, the “KYC Requirements”). For purposes of this
subsection, and in connection with all applicable KYC Requirements, the
Fund is the “client” or “customer” of the Administrator. The Fund and the General
Partner further represent that each will perform all obligations required under
applicable KYC Requirements with respect to the Fund’s “customers” (as defined
in the KYC Requirements) and that, because these customers do not constitute
“customers” or “clients” of the Administrator under such applicable rules and
regulations, the Administrator is under no such similar
obligations.
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5.
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Instructions.
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5.1 The
Administrator shall not be liable for, and shall be indemnified by the Fund
against any and all losses, costs, damages or expenses arising from or as a
result of, any action taken or omitted in reliance upon Instructions or upon any
other written notice, request, direction, instruction, certificate or other
instrument believed by it to be genuine and signed or authorized by the proper
party or parties. A list of persons so authorized by the General
Partner (“Authorized Persons”) is attached hereto as Appendix B and upon which
the Administrator may rely until its receipt of notification to the contrary by
the General Partner.
5.2 Instructions
shall include a written request, direction, instruction or certification signed
or initialed on behalf of the Fund by one or more Authorized
Persons.
5.3 Telephonic
or other oral instructions or instructions given by telefax transmission may be
given by any one of the above Authorized Persons and will also be considered
Instructions if the Administrator believes them to have been given by a person
authorized to give such Instructions with respect to the transaction
involved.
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5.4 With
respect to telefax transmissions, the Fund and the General Partner hereby
acknowledge that (i) receipt of legible instructions cannot be assured, (ii) the
Administrator cannot verify that authorized signatures on telefax instructions
are original, and (iii) the Administrator shall not be responsible for losses or
expenses incurred through actions taken in reliance on such telefax
instructions. The Fund and the General Partner agree that such
telefax instructions shall be conclusive evidence of the Fund’s/General
Partner’s Instruction to the Administrator to act or to omit to
act.
5.5 Instructions
given orally will not be confirmed in writing and the lack of such confirmation
shall in no way affect any action taken by the Administrator in reliance upon
such oral Instructions. The Fund and the General Partner authorize
the Administrator to tape record any and all telephonic or other oral
Instructions given to the Administrator by or on behalf of the Fund (including
any of the Fund’s or the General Partner’s officers, directors, trustees,
employees or agents or any investment manager or adviser or person or entity
with similar responsibilities which is authorized to give Instructions on behalf
of the Fund to the Administrator.)
6. Expenses and
Compensation. For the services to be rendered and the
facilities to be furnished by the Administrator as provided for in this
Agreement, the Fund shall pay the Administrator rendered pursuant to this
Agreement a fee based on such fee schedule as may from time to time be agreed
upon in writing among the General Partner, Fund and the
Administrator. Additional services performed by the Administrator as
requested by the Fund shall be subject to additional fees as mutually agreed
from time to time. In addition to any such fees, the Administrator
shall xxxx the Fund separately for any out-of-pocket disbursements of the
Administrator based on an out-of-pocket disbursement schedule as may from time
to time be agreed upon in writing among the General Partner, the Fund and the
Administrator. The initial fee schedule and out of pocket
disbursement schedule are attached as Appendix D to this
Agreement. The foregoing fees and disbursements shall be billed to
the Fund by the Administrator and shall be paid promptly by wire transfer or
other appropriate means to the Administrator.
7. Standard of
Care. The Administrator
shall be held to the exercise of reasonable care and diligence in carrying out
the provisions of this Agreement, provided that the Administrator shall not
thereby be required to take any action which is in contravention of any
applicable law, rule or regulation or any order or judgment of any court of
competent jurisdiction.
8. General
Limitations on Liability. The Administrator shall incur no
liability with respect to any telecommunications, equipment or power failures,
or any failures to perform or delays in performance by postal or courier
services or third-party information providers (including, without limitation
those listed on Appendix C).
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8.1 The
Administrator shall also incur no liability under this Agreement if the
Administrator or any agent or entity utilized by the Administrator shall be
prevented, forbidden or delayed from performing, or omits to perform, any act or
thing which this Agreement provides shall be performed or omitted to be
performed, by reason of causes or events beyond its control, including but not
limited to:
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8.1.1
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any
Sovereign Event. A “Sovereign Event” shall mean any
nationalization; expropriation; devaluation; revaluation; confiscation;
seizure; cancellation; destruction; strike; act of war, terrorism,
insurrection or revolution; or any other act or event beyond the
Administrator’s control;
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8.1.2
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any
provision of any present or future law, regulation or order of the United
States or any state thereof, or of any foreign country or political
subdivision thereof, or of any securities depository or clearing agency;
and
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8.1.3
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any
provision of any order or judgment of any court of competent
jurisdiction.
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8.2
The Administrator shall not be held accountable or liable for any
losses, damages or expenses the General Partner, the Fund, the Fund’s
commodity broker, the Fund’s commodity trading advisor (if any), any
unitholder or former unitholder of the Fund or any other person may suffer
or incur arising from acts, omissions, errors or delays of the
Administrator in the performance of its obligations and duties as provided
in Section 3 hereof, including without limitation any error of judgment or
mistake of law, except a loss, damage or expense directly resulting from
the Administrator’s willful malfeasance, bad faith or negligence in the
performance of such Administrator’s obligations and
duties.
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9.
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Specific
Limitations on Liability. In addition to,
and without limiting the application of the general limitations on
liability contained in Section 8, above, the following specific
limitations on the Administrator’s liability shall apply to the particular
administrative services set forth on Appendix A
hereto.
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9.1 Liability for
Fund Accounting Services. Without limiting the provisions in
Section 8 hereof, the Administrator’s liability for acts, omissions, errors or
delays relating to its fund accounting obligations and duties shall be limited
to the amount of any expenses associated with a required recalculation of net
asset value per unit (“NAV”) or any direct damages suffered by unitholders in
connection with such recalculation. The Administrator’s liability or
accountability for such acts, omissions, errors or delays shall be further
subject to clauses 9.1.1 through 9.1.4 below.
9.1.1 The
parties hereto acknowledge that the Administrator’s causing an error or delay in
the determination of NAV may, but does not in and of itself, constitute
negligence or reckless or willful misconduct. The parties further
acknowledge that in accordance with industry practice the liability of the
Administrator for fund accounting services shall accrue and the recalculation of
NAV shall be performed in accordance with this Section 9.1 only with regard to
errors in the calculation of the NAV that are (i) greater than or equal to $.01
per unit of the Fund and (ii) greater than or equal to ½% of the total net
assets of the Fund.
9.1.2
In
no event shall the Administrator be liable or responsible to the General
Partner, the Fund, the Fund’s commodity broker, the Fund’s commodity trading
advisor (if any), any present or former unitholder of the Fund, or any other
person for any error or delay that continued or was undetected after the date of
an audit performed by the certified public accountants employed by or on behalf
of the Fund if, in the exercise of reasonable care in accordance with generally
accepted accounting standards, such accountants should have become aware of such
error or delay in the course of performing such audit.
9.1.3
The
Administrator shall not be held accountable or liable to the General Partner,
the Fund, the Fund’s commodity broker, the Fund’s commodity trading advisor (if
any), any unitholder or former unitholder of the Fund or any other person for
any delays or losses, damages or expenses any of them may suffer or incur
resulting from (i) the Administrator’s usage of a third party service provider
for the purpose of storing records delivered to the Administrator by or on
behalf of the Fund and which the Administrator did not create in the performance
of its obligations hereunder; (ii) the Administrator’s failure to receive timely
and suitable notification concerning quotations or corporate actions relating to
or affecting portfolio securities of the Fund; or (iii) any errors in the
computation of NAV based upon or arising out of quotations or information as to
corporate actions if received by the Administrator either (a) from a source
which the Administrator was authorized to rely upon (including those sources
listed on Appendix C), or (b) from a source which in the Administrator’s
reasonable judgment was as reliable a source for such quotations or information
as such authorized sources; or (iv) any errors in the computation of NAV as a
result of relevant information known to the General Partner, the Fund, a futures
commission merchant, securities brokers or dealers, or any of the Fund’s other
service providers including futures commission merchants in contract with the
Fund, which would impact the calculation of NAV, but was not communicated to the
Administrator. To the extent that Fund assets are not in the custody
of the Administrator, the Administrator may conclusively rely on any reporting
in connection with such assets provided to the Administrator by a third party on
behalf of the Fund, including, without limitation any futures commission
merchant.
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9.1.4
In
the event of any error or delay in the determination of such NAV for which the
Administrator may be liable, the General Partner, the Fund and the Administrator
will consult and make good faith efforts to reach agreement on what actions
should be taken in order to mitigate any loss suffered by the Fund or its
present or former unitholders, in order that the Administrator’s exposure to
liability shall be reduced to the extent possible after taking into account all
relevant factors and alternatives. It is understood that in
attempting to reach agreement on the actions to be taken or the amount of the
loss which should appropriately be borne by the Administrator, the General
Partner, the Fund and the Administrator will consider such relevant factors as
the amount of the loss involved, the Fund’s/General Partner’s desire to avoid
loss of unitholder goodwill, the fact that other
persons or entities could have been reasonably expected to have detected the
error sooner than the time it was actually discovered, the appropriateness of
limiting or eliminating the benefit which unitholders or former unitholders
might have obtained by reason of the error, and the possibility that other
parties providing services to the Fund might be induced to absorb a portion of
the loss incurred.
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10.
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Indemnification.
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10.1 The
General Partner and the Fund hereby agree to indemnify and hold harmless the
Administrator, its partners, stockholders, members, directors, officers and
employees and any subsidiary or affiliate of the foregoing (“Affiliate”), and
the successors and assigns of all of the foregoing persons, against any and all
losses, claims, damages, liabilities or expenses (including reasonable counsel
fees and expenses) resulting from any act, omission, error or delay or any
claim, demand, action or suit, in connection with or arising out of performance
of its obligations and duties under this Agreement, not resulting from the
willful malfeasance, bad faith or negligence of the Administrator in the
performance of such obligations and duties. The provisions of this
Section 10 shall survive the termination of this Agreement.
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10.1.1 If any action,
suit or proceeding (each, a “Proceeding”) is brought against the Administrator
or any such person in respect of which indemnity may be sought against the
General Partner pursuant to the foregoing subsection, the Administrator or such
person shall promptly notify the General Partner in writing of the institution
of such Proceeding and the General Partner shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided, however, that
the omission to so notify the General Partner shall not release the General
Partner from any liability which it may have to the Administrator or any such
person except to the extent that it has been materially prejudiced by such
failure and has not otherwise learned of such Proceeding. The Administrator or
such person shall have the right to employ its own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of the
Administrator or of such person unless the employment of such counsel shall have
been authorized in writing by the General Partner in connection with the defense
of such Proceeding or the General Partner shall not have, within a reasonable
period of time in light of the circumstances, employed counsel to have charge of
the defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from, additional to or in conflict with those available to the
General Partner (in which case the General Partner shall not have the right to
direct the defense of such Proceeding on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
General Partner and paid as incurred (it being understood, however, that the
General Partner shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding).
10.1.2 The
General Partner shall not be liable for any settlement of any Proceeding
effected without the General Partner’s written consent but if settled with the
General Partner’s written consent, the General Partner agrees to indemnify and
hold harmless the Administrator and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this subsection, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 Business Days (defined as any day other than a day on
which the American Stock Exchange (“AMEX”), the New York Mercantile Exchange
(“NYMEX”) or the New York Stock Exchange (“NYSE”) is closed for regular trading
(each a “Business Day”)), after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall not have fully reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 Business Days’ prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such Proceeding and does not include an
admission of fault, culpability or a failure to act, by or on behalf of such
indemnified party.
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10.2 Subject
to Sections 7, 8 and 9 of this Agreement, the Administrator agrees to indemnify
and hold harmless the General Partner and the Fund, its partners, stockholders,
members, directors, officers and employees and any Affiliate of the foregoing,
and the successors and assigns of all of the foregoing persons, against any and
all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any act, omission, error or delay or
any claim, demand, action or suit, in connection with or arising out of
performance of its obligations and duties under this Agreement, resulting from
the willful malfeasance, bad faith or negligence of the Administrator in the
performance of such obligations and duties. The provisions of this
Section 10 shall survive the termination of this Agreement.
10.2.1 If any
Proceeding is brought against the General Partner or any such person in respect
of which indemnity may be sought against the Administrator pursuant to the
foregoing subsection, the General Partner or such person shall promptly notify
the Administrator in writing of the institution of such Proceeding and the
Administrator shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify the Administrator shall not relieve the Administrator from any liability
which it may have to the General Partner or any such person except to the extent
that it has been materially prejudiced by such failure and has not otherwise
learned of such Proceeding. The General Partner or such person shall have the
right to employ its own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of the General Partner or of such person
unless the employment of such counsel shall have been authorized in writing by
the Administrator in connection with the defense of such Proceeding or the
Administrator shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from, additional to
or in conflict with those available to the Administrator (in which case the
General Partner shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by the Administrator and paid as
incurred (it being understood, however, that the Administrator shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding).
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10.2.2 The
Administrator shall not be liable for any settlement of any Proceeding effected
without the Administrator’s written consent but if settled with the
Administrator’s written consent, the Administrator agrees to indemnify and hold
harmless the General Partner and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this subsection, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 Business Days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 Business Days’ prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such Proceeding and does
not include an admission of fault, culpability or a failure to act, by or on
behalf of such indemnified party.
11. Reliance by the
Administrator on Opinions of Counsel and Opinions of Certified Public
Accountants.
The Administrator may consult with its
counsel or the Fund/General Partner’s counsel in any case where so doing appears
to the Administrator to be necessary or desirable. The Administrator
shall not be considered to have engaged in any misconduct or to have acted
negligently and shall be without liability in acting upon the advice of its
counsel or of the Fund’s/General Partner’s counsel.
The Administrator may consult with a
certified public accountant or the Fund’s Treasurer (or persons performing such
function) in any case where so doing appears to the Administrator to be
necessary or desirable. The Administrator shall not be considered to
have engaged in any misconduct or to have acted negligently and shall be without
liability in acting upon the advice of such certified public accountant or of
the Fund’s Treasurer or persons performing such function.
12. Termination of
Agreement. This Agreement may be
terminated by any of the parties in accordance with the provisions of this
Section 12.
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12.1 This
Agreement shall have an initial term of two (2) years from the date
hereof. Thereafter, this Agreement shall automatically renew for
successive one (1) year periods unless any party terminates this Agreement by
written notice effective no sooner than seventy-five (75) days following the
date that notice to such effect shall be delivered to the other parties at their
address set forth herein. Notwithstanding the foregoing provisions,
any party may terminate this Agreement at any time (a) for cause, which is a
material breach of the Agreement not cured within sixty (60) days of written
notice of such breach, in which case termination shall be effective upon receipt
of written notice by the non-terminating parties, or (b) upon thirty (30)
days’ written notice to the other parties in the event that a party is adjudged
bankrupt or insolvent, or there shall be commenced against such party a case
under any applicable bankruptcy, insolvency, or other similar law now or
hereafter in effect. In the event a termination notice is given by a party
hereto, all expenses associated with the movement of records and materials and
the conversion thereof shall be paid by the Fund for which services shall cease
to be performed hereunder. The Administrator shall be responsible for
completing all actions in progress when such termination notice is given unless
otherwise agreed.
12.2.
Upon termination of this Agreement in accordance with this Section 12, the Fund
may request the Administrator to promptly deliver to the Fund or to any
designated third party all records created and maintained by the Administrator
pursuant to Section 3.1 of this Agreement, as well as any Fund records
maintained but not created by the Administrator. If such request is
provided in writing by the Fund to the Administrator within seventy-five (75)
days of the date of termination of the Agreement, the Administrator shall
provide to the Fund a certification that all records created by the
Administrator pursuant to its obligations under Section 3.1 of this Agreement
are accurate and complete. After seventy-five (75) days of the date
of termination of this Agreement, no such certification will be provided to the
Fund by the Administrator and the Administrator is under no further obligation
to ensure that records created by the Administrator pursuant to Section 3.1 of
this Agreement are maintained in a form that is accurate or
complete.
13. Confidentiality
and Privacy.
13.1 The
parties hereto agree that each shall treat confidentially the terms and
conditions of this Agreement and all information provided by each party to the
other regarding its business and operations. All confidential
information provided by a party hereto shall be used by any other party hereto
solely for the purpose of rendering or obtaining services pursuant to this
Agreement and, except as may be required in carrying out this Agreement, shall
not be disclosed to any third party without the prior consent of such providing
party. The foregoing shall not be applicable to any information that
is publicly available when provided or thereafter becomes publicly available
other than through a breach of this Agreement, or that is required to be
disclosed by or to any regulatory authority, any auditor of the parties hereto,
or by judicial or administrative process or otherwise by applicable
law.
13.2
In the course of carrying out its obligations under
this Agreement, Administrator shall maintain physical, procedural and electronic
safeguards to protect information regarding the Fund and its investors that
Administrator has obtained or to which the Administrator has gained
access.
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14. Tape-recording. The parties
consent to recording of any and all telephonic or other oral
instructions. This authorization will remain in effect until and
unless revoked by the Fund, the General Partner or the Administrator in
writing. Each party further agrees to solicit valid written or other
consent from any of its employees, officers, directors or agents with respect to
telephone communications to the extent such consent is required by applicable
law.
15. Procedures. Procedures
applicable to the Administrator’s services to be performed hereunder may be
established from time to time by agreement among the Fund, the General Partner
and the Administrator. The Administrator shall have the right to
utilize any unitholder accounting and recordkeeping systems that, in its
opinion, enables it to perform any services to be performed
hereunder.
16. Entire
Agreement; Amendment. This
Agreement constitutes the entire understanding and agreement of the parties
hereto and supersedes any other oral or written agreements heretofore in effect
between the parties with respect to the subject matter hereof. No
provision of this Agreement may be amended or terminated except by a statement
in writing signed by the party against which enforcement of the amendment or
termination is sought.
17. Severability. In
the event any provision of this Agreement is determined to be void or
unenforceable, such determination shall not affect the remainder of this
Agreement, which shall continue to be in force.
18. Headings. The
section headings in this Agreement are for the convenience of reference only and
shall not modify, define, expand or limit any of the terms or provisions
thereof.
19. Governing
Law. This Agreement
shall be governed by and construed according to the laws of the State of New
York without giving effect to conflicts of law provisions thereof and each of
the parties hereto irrevocably consents to the exclusive jurisdiction of the
United States District Court for the Southern District of New York or if that
court lacks or declines to exercise subject matter jurisdiction, the Supreme
Court of the State of New York, New York County. The General Partner
and the Fund irrevocably waive any objection each may now or hereafter have to
the laying of venue of any action or proceeding in any of the aforesaid courts
and any claim that any such action or proceeding has been brought in an
inconvenient forum. Furthermore, each party hereto irrevocably waives
any right that it may have to trial by jury in any action, proceeding or
counterclaim arising out of or related to this Agreement or the services
contemplated hereby.
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20. Notices. Notices
and other writings delivered or mailed postage prepaid to the General Partner
and Fund shall be addressed to the Fund/General Partner at Victoria Bay Asset
Management, LLC, x/x Xxxxxxxx X. Xxxxxx, X.X. Xxx 0000, Xxxxxx,
CA 94570, or such other address as the General Partner or the Fund
may have designated to the Administrator in writing, or to the Administrator at
00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Manager, Fund
Administration Department, or to such other address as the Administrator may
have designated to the General Partner and the Fund in writing, shall be deemed
to have been properly delivered or given hereunder to the respective
addressee.
21. Binding
Effect; Assignment. This
Agreement shall be binding upon and inure to the benefit of the General Partner,
the Fund and the Administrator and their respective successors and assigns,
provided that no party hereto may assign this Agreement or any of its rights or
obligations hereunder without the written consent of the other
parties. Each party agrees that only the parties to this Agreement
and/or their successors in interest shall have a right to enforce the terms of
this Agreement. Accordingly, no client of the General Partner,
unitholder of the Fund or other third party shall have any rights under this
Agreement and such rights are explicitly disclaimed by the parties.
22. Counterparts. This Agreement
may be executed in any number of counterparts each of which shall be deemed to
be an original. This Agreement shall become effective when one or more
counterparts have been signed and delivered by each of the parties. A
photocopy or telefax of this Agreement shall be acceptable evidence of the
existence of this Agreement and the Administrator shall be protected in relying
on the photocopy or telefax until the Administrator has received the original of
this Agreement.
23. Exclusivity. The services
furnished by the Administrator hereunder are not to be deemed exclusive, and the
Administrator shall be free to furnish similar services to others.
24. Authorization. The
General Partner hereby represents and warrants that the Management Directors of
its Board of Directors including Xx. Xxxxxxxx X. Xxxxxx have authorized the
execution and delivery of this Agreement and that Authorized Persons of the
General Partner and the Fund have signed this Agreement, Appendices A, B and C
and the fee schedule hereto.
13
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed and delivered by their duly
authorized officers as of the date first written above.
The
undersigned acknowledges that (I/we) have received a copy of this
document.
|
XXXXX
BROTHERS XXXXXXXX & CO.
|
|
|
By:
|
/s/ Xxxxx X. Xxxx
|
|
Name: Xxxxx
X. Xxxx
|
|
|
Title: Managing
Director
|
|
|
Date:
February 11, 0000
|
|
XXXXXX
XXXXXX GASOLINE FUND, LP
By: Victoria
Bay Asset Management, LLC, as General Partner
|
By:
|
/s/ Xxxxxx Xxx
|
|
|
Name:
Xxxxxx Xxx
|
|
Title:
Management Director
|
|
|
Date:
February 7,
2008
|
|
VICTORIA
BAY ASSET MANAGEMENT, LLC
|
|
|
By:
|
/s/ Xxxxxx Xxx
|
|
Name:
Xxxxxx Xxx
|
|
|
Title:
Management Director
|
|
|
Date:
February 11, 2008
|
|
14
