AMENDED
AND RESTATED ADVISORY AGREEMENT
This
Amended and Restated Advisory Agreement (“Agreement”) is made and entered into as of May 1, 2018 (“Effective
Date”), by and between SummerHaven Investment Management, LLC (“SHIM”), a Delaware limited
liability company with its principal place of business at 0000 Xxxx Xxxx Xxxxxx, Xxxxxxxxx Plaza, Fourth Floor, Stamford, CT 06902,
and United States Commodity Funds LLC (“USCF”), a Delaware limited liability company with its principal
place of business at 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000.
WHEREAS,
pursuant to the advisory agreement between USCF and SHIM dated December 11, 2009, as subsequently amended as of October 18, 2010,
November 8, 2010, and July 1, 2011 (the “Prior Agreement”), USCF has retained SHIM to provide certain
advisory services in connection with the operation of certain exchange-traded funds created as separate series of the United States
Commodity Index Funds Trust (the “Trust”) and set forth on Exhibit A (as such Exhibit may be amended
from time to time to incorporate new funds by mutual consent) (together, the “Funds”); and
WHEREAS,
this Agreement amends and restates the Prior Agreement in its entirety; and
WHEREAS,
SHIM is willing to continue to provide such advisory services under the terms of this Agreement; and
WHEREAS,
USCF has under an amended and restated licensing agreement with SummerHaven Index Management, LLC (“SHIX”),
dated the same date as this Agreement (“Licensing Agreement”), continued to license from SHIX the use
of certain names and marks (“Service Marks”), including those of certain indices owned, calculated,
maintained and published by SHIX (“Indexes”), and the use of the Indexes in connection with the Funds
as set forth in Exhibit B (as such Exhibit may be amended from time to time to incorporate new or additional Service Marks or
Indexes);
NOW,
THEREFORE, in consideration of the foregoing, and in reliance upon the mutual promises contained in this Agreement, the parties,
intending to be legally bound, agree as follows:
| (a) | During
the term of this Agreement, SHIM, as adviser to the Funds, will have discretionary authority
with respect to the purchase, sale or holding of commodity interests by the Funds and
will provide advice regarding whether specific commodity interests should be purchased
by the Funds in accordance with the procedures agreed to between SHIM and USCF. SHIM
shall further provide to USCF and the Funds, as applicable: (a) general consultation
regarding the markets for and trading in commodity interests, and (b) such information
and data as may reasonably be requested by USCF regarding the principals of SHIM and
the Index for inclusion in regulatory filings and marketing materials for the Funds (all
such advice and services, the “Services”). |
| (b) | USCF
acknowledges and agrees that SHIM and its principals are required to devote only such
time as may be reasonably required with respect to the Services. Other than as set forth
below, SHIM and its affiliates, including their respective partners, directors, members,
stockholders, officers and employees (together, “Affiliates”)
will not be precluded from engaging directly or indirectly in any other business or activity,
including, but not limited to, exercising investment advisory and management responsibility
and buying, selling or otherwise dealing with securities, commodities or other investments
for their own accounts, for the accounts of family members, for the accounts of other
funds and for the accounts of individual and institutional clients. SHIM and its affiliates
may also serve as the general partner or investment manager of other funds, client accounts
and proprietary accounts (collectively, its “Clients”). Other than set forth
below, SHIM and its affiliates will perform, among other things, investment advisory
and management services for Clients other than the Funds and in that connection to give
advice and take action in the performance of their duties to those Clients which may
differ from the timing and nature of action taken with respect to any Fund. The Investment
Manager will make all investment decisions relating to the Funds and its other Clients
in a manner consistent with its fiduciary obligations to act in good faith in what it
considers to be the Funds’ and its Clients’ best interests. |
| (c) | Notwithstanding
the foregoing, SHIM and SHIM’s Affiliates shall not engage in management, investment,
or commodity trading activities, as the general partner, managing member, investment
adviser, commodity trading advisor or otherwise for a commodity exchange-traded fund
(as defined below) that bases its return by reference to any Index or another Substantially
Similar Commodity Index (as defined below), for as long as they are parties to this Agreement,
and for three (3) months following the termination of this Agreement but only if a termination
has occurred by SHIM under Section 3(a) or 3(e)(ii) hereto or by USCF under Section 3(a)
hereto. “Substantially Similar Commodity Index” shall mean an index with
all of the following criteria: (i) it is created by SHIX or any of its affiliates; (ii)
it is broadly diversified; (iii) it is long only; (iv) the index components are selected
from a group of at least 22 commodities; and (v) the components of the index at all times
consist of at least 10 commodities. “Commodity exchange-traded fund” shall
mean a fund open to the public and traded on a U.S. or foreign securities exchange whose
net asset value is calculated daily and which trades throughout the trading day, and
which does not invest in securities. |
| (d) | The
services furnished by SHIM hereunder are deemed not to be exclusive, and nothing in this
Agreement shall (i) prevent SHIM or any affiliated person of SHIM or any employee, agent,
manager or affiliated person of such person from acting as an investment adviser or CTA
for any other person or persons, or (ii) limit or restrict SHIM or any such employee,
agent, manager or affiliated person from buying, selling or trading any securities, commodity
interests or other investments for its or their own accounts or for the accounts of others
for whom it or they may be acting. The Funds and other accounts advised or managed by
SHIM may invest in the same securities or commodity interests. When SHIM seeks to purchase
or sell the same securities or commodity interests at substantially the same time on
behalf of a Fund and/or another account, SHIM shall, to the extent permitted by law and
to the extent reasonably practicable, aggregate such orders or otherwise effect such
transaction on either an average price basis or high to high/low to low price basis,
and available investments will be allocated as to amount in a manner which SHIM believes
to be equitable to the Fund and such other account. In some instances, this investment
procedure may adversely affect the price paid or received by the Fund or the size of
the position obtained or sold by the Fund. In that connection, however, SHIM agrees that
in rendering consulting, advisory and management services to other commodity interest
trading accounts and entities, it will seek to achieve an equitable treatment of all
accounts and will use a fair and reasonable system of order entry for all accounts. |
| (a) | For
the Services provided hereunder, USCF and/or the Funds will pay SHIM advisory fees as
set forth in the fee schedule attached as Exhibit C to this Agreement. |
| (a) | With
respect to each Fund, this Agreement shall remain in effect until December 1, 2019(“Initial
Period”), unless earlier terminated by either USCF or SHIM in accordance
with this Section 3. After the Initial Period, this Agreement shall continue for successive
three-year periods (“Successive Three-Year Period”) unless
terminated by either party as of the end of the Initial Period or each Successive Three-Year
Period by providing at least ninety (90) days’ written notice of such termination
prior to the end of the Initial Period or such Successive Three-Year Period, except as
otherwise provided in this Section 3. Upon termination of this Agreement USCF shall cease
to use the Indexes and the Service Marks. |
| (b) | If
a party (the “Breaching Party”) is in material breach of any
terms of this Agreement, either USCF or SHIM, as the case may be, may so notify the Breaching
Party in writing, specifying the nature of the breach in reasonable detail. The Breaching
Party shall have thirty (30) calendar days from delivery of that notice to correct the
breach; provided that, if the breach is not cured within the identified time period,
the other party may terminate this Agreement at any time after the thirty (30) days’
written notice to the Breaching Party with another ninety (90) days’ written notice. |
| (c) | Either
USCF or SHIM may terminate this Agreement upon thirty (30) days’ written notice
to such other party if SHIM or USCF, as the case may be, is dissolved or its existence
is terminated; becomes insolvent or bankrupt or admits in writing its inability to pay
its debts as they mature, or makes an assignment for the benefit of creditors; has a
custodian, trustee, or receiver appointed for it, or for all or substantially all of
its property; has bankruptcy, reorganization, insolvency or liquidation proceedings or
other proceedings for relief under any bankruptcy or similar law for the relief of debtors,
instituted by or against it, and, if instituted against it, any of the foregoing is allowed
or consented by the other party or is not dismissed within sixty (60) days after such
institution. |
| (d) | Either
USCF or SHIM may terminate this Agreement upon ninety (90) days’ written notice
to the other party if any adverse finding is made in respect of, or official sanction
imposed on, any party by any relevant regulatory authority which would be likely to have
a material adverse effect on such party’s ability to perform its obligations under
this Agreement. |
| (e) | In
the event that SHIX ceases calculation and publication of any Index, SHIM shall give
USCF at least one hundred and eighty (180) days’ written notice prior to such discontinuance,
which notice shall specify whether a replacement or substitute index will be available.
USCF shall have the option hereunder to use any such replacement index under the terms
of this Agreement by notifying SHIM within ninety (90) days of receiving written notice
from SHIM regarding the replacement index, on the same terms and conditions (including
payment of fees as set forth in Section 2 of this Agreement) as USCF or the Fund previously
used the discontinued Index. |
| (f) | USCF
may terminate this Agreement with respect to a Fund immediately upon written notice to
SHIM if: |
| (i) | USCF
is informed of the final adoption of any legislation or regulation that materially impairs
USCF’s ability to market, promote, or issue, redeem or list on an exchange, shares
of such Fund; |
| (ii) | USCF
determines in its sole discretion that its compliance with any new legislation or regulatory
guidance in respect of the provision of its services hereunder with respect to such Fund
will result in material hardship or material expense to USCF, or |
| (iii) | Any
material litigation or regulatory proceeding regarding a Fund is commenced which requires
such Fund to cease existence, and no successor Fund is commenced with similar investment
objectives; |
| (iv) | Any
material litigation or regulatory proceeding regarding SHIM or SHIX is commenced and
USCF, in its sole discretion, expects such litigation or proceeding to have a material
adverse effect on USCF. |
| (v) | USCF
elects to terminate the public offering or other distribution of such Fund; or |
| (vi) | The
Licensing Agreement is terminated pursuant to Section 3 thereof. |
| (g) | USCF
may terminate this Agreement in the event of a Change of Control of SHIM upon one hundred
and twenty (120) days’ prior written notice to SHIM, with such notice to be given
within thirty (30) days after the expiration of a ninety (90) day period which begins
immediately upon the occurrence of such Change of Control (notice of which shall be given
by SHIM to USCF prior to or immediately upon the occurrence of such event); provided,
however, that if USCF does not so give notice to terminate this Agreement, this Agreement
shall automatically extend for three (3) years from the date of such Change of Control. |
| (h) | SHIM
may terminate this Agreement with respect to a Fund upon ninety (90) days’ written
notice to USCF if: |
| | (i) | SHIM
is informed of the final adoption of any legislation or regulation that materially impairs
SHIM’s ability to perform Services with respect to such Fund under this Agreement; |
| | | |
| (ii) | In
connection with any legislation or regulation, or any advice, statement, ruling, or other
communication by the CFTC or any exchange or self-regulatory organization, and/or due
to any increase in size of any Fund or any other client of SHIM or its affiliates, SHIM
determines in its sole reasonable discretion that it and/or its affiliates could imminently
become subject to position limits, in connection with positions relating to one or more
commodities, which position limits could reasonably be expected to impair its or their
ability to perform advisory, management or other services to any of SHIM’s or any
affiliate’s clients; |
| (iii) | The
Licensing Agreement is terminated by SHIX pursuant to Section 3 thereof; |
| (iv) | SHIM
determines in its sole discretion that its compliance with any new legislation or regulatory
guidance in respect of the provision of its services hereunder with respect to such Fund
will result in material hardship or material expense to SHIM, or |
| (v) | Any
material litigation or regulatory proceeding regarding USCF or any Fund is commenced
and SHIM, in its sole discretion, expects such litigation or proceeding to have a material
adverse effect on SHIM. |
| (i) | SHIM
may terminate this Agreement in the event of a Change of Control of USCF upon one hundred
and eighty (120) days’ prior written notice to USCF, with such notice to be given
within thirty (30) days after the expiration of a ninety (90) day period which begins
immediately upon the occurrence of such Change of Control (notice of which shall be given
by USCF to SHIM prior to or immediately upon the occurrence of such event); provided,
however, that if SHIM does not so give notice to terminate this Agreement, this Agreement
shall automatically extend for three (3) years from the date of such Change of Control. |
| (j) | For
purposes of this Agreement, “Change of Control” of SHIM or USCF means the
occurrence of any of the following: (1) the sale, lease, transfer, conveyance or other
disposition, in one or a series of related transactions, of all or substantially all
the assets, or (2) the sale, lease, transfer, conveyance or other disposition by a party
of more than 50% of the outstanding voting equity or beneficial ownership as of the Effective
Date (whether at the time of such disposition or in increments). |
| (k) | No
fees under Section 2 of this Agreement will be payable to SHIM by USCF after termination
of this Agreement as set forth in this Section 3 except any outstanding fees. The fee
for the month in which this Agreement is terminated will be pro-rated based on the number
of days in the month during which the Agreement was in effect. |
| 4. | INDEMNIFICATION;
LIMITATION OF LIABILITY |
| (a) | Neither
SHIM and its affiliates nor any of their officers, directors, shareholders, members,
partners, employees and any person who controls SHIM (collectively, Advisory Affiliates”)
shall be liable to USCF or any Fund under the terms of this Agreement, except for acts
or omissions of SHIM or an Advisory Affiliate which constitute willful misconduct, gross
negligence, bad faith, or material breach of this Agreement or applicable law. USCF shall
indemnify, defend and hold SHIM and its Advisory Affiliates, representatives, agents,
attorneys, service providers, successors and assigns (collectively, the “SHIM
Indemnified Parties”) harmless
from and against any and all claims, liabilities, obligations, judgments, causes of action,
costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”)
in connection with or arising out of this Agreement, including but not limited to any
material breach of this Agreement by USCF or any disclosure in the Registration Statement
of any Fund (except disclosure about SHIM or the Index that has been specifically approved
by SHIM), provided such expenses were not the result of any action or inaction of such
SHIM Indemnified Party that constituted willful misconduct, gross negligence or bad faith
of such party, or a material breach by such party of this Agreement or applicable law. |
| (b) | SHIM
shall indemnify, defend and hold USCF and its affiliates, members, directors, officers,
shareholders, employees, representatives, agents, attorneys, successors and assigns (collectively,
the “USCF Indemnified Parties”,
and together with the SHIM Indemnified Parties, the “Indemnified Parties”
or an “Indemnified Party”) harmless from and against any and
all Losses arising out of (i) any material breach of this Agreement by SHIM, (ii) any
disclosure in the Registration Statement of the Fund about SHIM or the Index that has
been specifically approved by SHIM, or (iii) the gross negligence, recklessness or willful
misconduct of SHIM in providing Services under this Agreement. |
| (c) | Except
as otherwise expressly provided herein, in no event shall either USCF or SHIM be liable
to each other, nor shall SHIM be liable to the Funds, for any indirect, incidental, special
or consequential damages, even if the party or an authorized representative thereof has
been advised of the possibility of such damages. Nothing in this Agreement shall in any
way constitute a waiver or limitation on any rights which a party may have under the
federal securities laws. |
| (d) | Promptly
after receipt by any Indemnified Party of notice of the commencement of any action, the
Indemnified Party shall, if indemnification is to be sought against the other party (the
“Indemnifying Party”) under this Section 4, notify the Indemnifying
Party in writing of the commencement thereof, but the omission to notify the Indemnifying
Party shall relieve the Indemnifying Party from liability hereunder only to the extent
that such omission results in the forfeiture by the Indemnifying Party of rights or defenses
with respect to such action. In any action or proceeding, following provision of proper
notice by the Indemnified Party of the existence of such action, the Indemnified Party
shall be entitled to participate in any such action and to assume the defense thereof,
with counsel of its choice, and after notice from the Indemnifying Party to such Indemnified
Party of its election to assume the defense of the action, the Indemnifying Party shall
not be liable to such Indemnified Party hereunder for any attorneys’ fees subsequently
incurred by the Indemnified Party. The Indemnified Party shall cooperate in the defense
of settlement of claims so assumed. The Indemnifying Party shall not be liable hereunder
for the settlement by the Indemnified Party for any claim or demand unless it has previously
approved the settlement or it has been notified of such claim or demand and has failed
to provide a defense in accordance with the provisions hereof. In the event that the
Indemnifying Party assumes the defense of the action, in negotiating any settlement the
Indemnifying Party shall use commercially reasonable efforts to avoid any negative reputational
or legal consequences to the Indemnified Party, and the Indemnified Party shall have
the right to approve the terms of any settlement as to any such reputational or legal
consequences in its reasonable discretion. Without limiting the foregoing, in no event
may either party make any admission of liability by or on behalf of the other party without
such other party’s express prior written consent. |
| 5. | COVENANTS,
REPRESENTATIONS AND WARRANTIES. |
| (a) | Representations
and Warranties of SHIM. SHIM represents and warrants that: |
| (i) | SHIM
has the full power and authority to enter into this Agreement and to perform its obligations
under this Agreement. |
| (ii) | SHIM
is a limited liability company duly organized and validly existing under the laws of
the state of Delaware with the power to own and possess its assets and carry on its business
as it is now being conducted. |
| (iii) | The
execution, delivery and performance by SHIM of this Agreement are within SHIM’s
powers and have been duly authorized by all necessary action and no further action is
required on its part to authorize this Agreement. |
| (iv) | The
execution, delivery and performance by SHIM of this Agreement do not violate or result
in a default under (i) any provision of applicable law, rule or regulation, (ii) SHIM’s
governing instruments, or (iii) any agreement, judgment, injunction, order, decree or
other instrument binding upon SHIM. |
| (v) | SHIM
is (a) registered as a commodity trading advisor (“CTA”) with
the U.S. Commodity Futures Trading Commission (the “CFTC”),
and is a member of the National Futures Association and (b) will continue to be so registered
and remain such a member, in each case, if required, so long as this Agreement remains
in effect. |
| (vi) | This
Agreement and each other agreement, instrument or document to be executed and delivered
by SHIM pursuant to this Agreement constitutes the legal, valid and binding obligation
of SHIM, enforceable in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency and other laws and equitable principles affecting
creditors’ rights generally and the discretion of the courts in granting equitable
remedies. |
| (vii) | SHIM
represents that its other engagements or activities are as of the date of this Agreement
not of a nature or magnitude so as to have a material adverse effect on its ability to
fulfill its obligations under this Agreement. |
| (b) | Representations
And Warranties of USCF. USCF represents and warrants that: |
| (i) | USCF
has the full power and authority to enter into this Agreement, to serve as the investment
adviser to the Fund and the Subsidiary and to perform the services and its obligations
described under this Agreement. |
| (ii) | USCF
is a limited liability company duly organized and validly existing under the laws of
the state of Delaware with the power to own and possess its assets and carry on its business
as it is now being conducted. |
| (iii) | The
execution, delivery and performance by USCF of this Agreement are within USCF’s
powers and have been duly authorized by all necessary action and no further action is
required on its part to authorize this Agreement. |
| (iv) | The
execution, delivery and performance by USCF of this Agreement do not violate or result
in a default under (i) any provision of applicable law, rule or regulation, (ii) USCF’s
governing instruments, or (iii) any agreement, judgment, injunction, order, decree or
other instrument binding upon USCF. |
| (v) | USCF
is registered with applicable regulators in each capacity in which it is required to
register to perform its duties with respect to the Trust and the Funds and will continue
to be so registered, if required, so long as this Agreement remains in effect. |
| (vi) | This
Agreement and each other agreement, instrument or document to be executed and delivered
by USCF pursuant to this Agreement constitutes the legal, valid and binding obligation
of USCF, enforceable in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency and other laws and equitable principles affecting
creditors’ rights generally and the discretion of the courts in granting equitable
remedies. |
| (vii) | USCF
serves as the commodity pool operator of the Funds. |
| (viii) | Each
of USCF and the Funds are “qualified eligible persons” as defined in the
Commodity Exchange Act. |
| (i) | SHIM
will promptly notify USCF of the occurrence of any event that would substantially impair
SHIM’s ability to fulfill its commitments under this Agreement. |
| | | |
| | (ii) | SHIM
will promptly notify USCF if it is served or otherwise receives notice of any action,
suit, proceeding, inquiry or investigation, at law or in equity, before or by any court,
government agency, self-regulatory organization, public board or body, involving the
affairs of USCF or any Fund, or, in the case of SHIM, that would impact its ability to
perform under this Agreement, in each case, unless SHIM is prohibited from doing so. |
| (i) | USCF
will promptly notify SHIM of the occurrence of any event that would substantially impair
the ability of USCF to fulfill its commitment under this Agreement. |
| (ii) | USCF
will promptly notify SHIM if it is served or otherwise receives notice of any action,
suit, proceeding, inquiry or investigation, at law or in equity, before or by any court,
government agency, self-regulatory organization, public board or body, involving the
affairs of any Fund, or, in the case of USCF, that would impact the ability of USCF to
perform under this Agreement, in each case, unless USCF is prohibited from doing so. |
| 6. | CONFIDENTIAL
INFORMATION |
| (a) | By
virtue of this Agreement, either USCF or SHIM may have access to information that is
confidential to the other party including, without limitation, all business, technical,
financial, customer and/or any other proprietary information of a party or its affiliates,
products, processes, tools, services, technical knowledge and any other information and/or
materials clearly marked as confidential or information identified as confidential at
the time of disclosure or summarized as confidential in a written memorandum delivered
to the recipient within thirty (30) calendar days of disclosure, including, without limitation,
all information concerning the Index, whether or not so marked (collectively, “Confidential
Information”). Notwithstanding the foregoing, a party’s Confidential
Information shall not include information which: (i) is or becomes a part of the public
domain through no act or omission of the other party; (ii) was in the other party’s
lawful possession prior to the disclosure and had not been obtained by the other party
either directly or indirectly from the disclosing party; (iii) is lawfully disclosed
to the other party by a third party without restriction on disclosure; or (iv) is independently
developed by the other party without reference to any Confidential Information. In addition,
the obligations of this Section 6 do not apply to confidential information that is required
to be disclosed pursuant to a duly authorized subpoena, court order, or government authority,
provided that to the extent permitted by law the party subject to same shall provide
immediate written notice to the other party upon receipt of subpoena, order, or other
disclosure requirement prior to such disclosure and allow such other party the opportunity
to intervene in the action in order to attempt to enjoin such subpoena, order, or other
disclosure requirement. Such Confidential Information shall remain confidential for all
other purposes. |
| (b) | USCF
and SHIM agree to maintain the confidentiality of the Confidential Information, except
that the Confidential Information may be disclosed (i) to their respective affiliates
and their respective affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the persons to
whom such disclosure is made will be informed of the confidential nature of such Confidential
Information and instructed to keep such Confidential Information confidential), (ii)
to the extent requested by any governmental authority, taxing authority or self-regulatory
authority, (iii) to the extent required by applicable law or by any subpoena or similar
legal process (provided that to the extent permitted by law the party subject to same
shall provide immediate written notice to the other party upon receipt of subpoena, order,
or other disclosure requirement prior to such disclosure and allow such other party the
opportunity to intervene in the action in order to attempt to enjoin such subpoena, order,
or other disclosure requirement), (iv) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement or the rights
granted hereunder, (v) in the regulatory filings of USCF, the Trust and the Funds, in
a manner determined to be appropriate or required by USCF by or on behalf of USCF, the
Trust or the Funds and (vi) with the consent of the other party. Such Confidential Information
shall remain confidential for all other purposes. |
| (c) | The
Fund Parties and SHIM agree to secure and protect the Confidential Information of each
other in a manner consistent with the maintenance of the other party’s rights therein,
using at least as great a degree of care as each party uses to maintain the confidentiality
of its own confidential information of a similar nature, but in no event using less than
its reasonable efforts. None of the Fund Parties nor SHIM shall sell, transfer, publish,
disclose, or otherwise make available any portion of the Confidential Information of
the other party to third parties, except as necessary to perform its obligations under
this Agreement or as expressly authorized in this Agreement. Each party represents that
it has, and agrees to maintain, an appropriate agreement with each third party who may
have access to Confidential Information sufficient to enable such party to comply with
all of the terms of this Agreement. |
| (d) | USCF
and SHIM agree that the unauthorized use by any party of the other party’s Confidential
Information will diminish the value of such Confidential Information and will cause substantial
and irreparable damage to the party whose Confidential Information was improperly disclosed,
and that the remedies generally available at law may be inadequate. Accordingly, USCF
and SHIM agree that a breach of this Section 6 shall entitle SHIM (in the case of a breach
by USCF) or USCF (in the case of a breach by SHIM) to seek equitable relief to protect
its interest herein, including injunctive relief, as well as money damages. The parties
agree that the obligations under this Section shall survive termination or expiration
of this Agreement. |
| (e) | Each
party shall be free to use for itself and for others in any manner the general knowledge,
skill or experience acquired by it in connection with this Agreement. |
| (a) | Interpretation.
Titles and paragraph headings herein are for convenient
reference only and are not part of this Agreement. Any reference to any federal, state,
local or foreign statute or law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall
be deemed to be followed by the words “without limitation.” |
| (b) | Independent
Contractors. USCF and SHIM are independent contractors to one another. Nothing
in this Agreement shall be construed to create a partnership, joint venture or agency
relationship between USCF, on the one hand, and SHIM, on the other hand. |
| (c) | Force
Majeure. No party shall be in default or otherwise liable for any delay in
or failure of its performance under this Agreement where such delay or failure arises
by reason of any act of God, or any government or any governmental body, any act of war
or terrorism, the elements, strikes or labor disputes, or other similar or dissimilar
cause beyond the control of such party. |
| (d) | Notice.
All notices, including notices of address changes, required to be sent hereunder shall
be in writing and shall be deemed to have been given when mailed by registered or certified
mail, postage prepaid to the appropriate address below: |
To USCF at:
United States Commodity
Funds LLC
0000 Xxxxxxxx Xxxxxx, Xxxxx
0000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxx, President
and Chief Executive Officer
Tel: (000) 000-0000
Email: xxxxx@xxxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxx Xx, General Counsel
Tel: (000) 000-0000
Email: xxx@xxxxxxxxxxxxxxx.xxx
To SHIM at:
SummerHaven Investment
Management, LLC
Soundview Plaza
Fourth Floor
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Email: xxxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxx Xxxxxxx, Esq.
Xxxxxx & Xxxxxx LLP
0 Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Email: xxxxxxx@xxxxxx.xxx
| (e) | Severability.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other
term or provision of this Agreement or invalidate or render unenforceable such term or
provision in any other jurisdiction. Upon such determination that any term or other provision
is invalid, illegal or unenforceable, such provision shall be deemed to be restated to
be enforceable, in a manner which reflects, as nearly as possible, the intent and economic
effect of the invalid provision in accordance with applicable law. If necessary or appropriate,
the parties hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually acceptable manner
in order that the transactions contemplated hereby be consummated as originally contemplated
to the greatest extent possible. The remainder of this Agreement shall remain in full
force and effect. |
| (f) | Waiver.
The waiver by any party of any default or breach of this Agreement shall not constitute
a waiver of any other or subsequent default or breach. |
| (g) | Modification.
No representation or promise hereafter made, nor any modification or amendment of this
Agreement, shall be binding unless in writing and executed by duly authorized agents
of all parties affected by the modification or amendment. |
| (h) | Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed
an original, but which together shall constitute one and the same document. |
| (i) | Assignment.
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and permitted assigns. USCF may not assign this Agreement
or any of the rights or obligations granted hereunder without SHIM’s prior written
consent, and SHIM may not assign this Agreement or any of the rights or obligations granted
hereunder (except to an affiliate under common control) without USCF’s prior written
consent. |
| (j) | No
Strict Construction. The parties to this Agreement have participated jointly
in the negotiation and drafting of this Agreement. In the event an ambiguity or question
of intent or interpretation arises, this Agreement will be construed as if drafted jointly
by the parties, and no presumption or burden of proof will arise favoring or disfavoring
any party by virtue of the authorship of any of the provisions of this Agreement. |
| (k) | No
Third Party Beneficiaries. This Agreement is not intended, and shall not be deemed,
to confer any rights or remedies upon any person other than the parties hereto and their
respective successors and permitted assigns, to create any agreement of employment with
any person or to otherwise create any third-party beneficiary hereto. |
| (l) | Governing
Law. This Agreement shall be governed by and construed solely and exclusively
in accordance with the laws of the State of New York, without reference to its conflicts
of law principles. |
| (m) | Survival.
The terms of Sections 2, 3(k), 4, 6 and 7 shall survive the expiration or termination
of this Agreement. |
| (n) | Authority.
The person signing this Agreement on behalf of each party has been properly authorized
and empowered to execute agreements such as this Agreement on behalf of such party. |
| (o) | Entire
Agreement. This Agreement and any Exhibits constitute the complete agreement between
the parties and supersede all previous or contemporaneous agreements, proposals, understandings,
and representations, written or oral, with respect to the subject matter addressed herein. |
| (p) | PURSUANT
TO AN EXEMPTION FROM THE COMMODITY FUTURES TRADING COMMISSION IN CONNECTION WITH ACCOUNTS
OF QUALIFIED ELIGIBLE PERSONS, THIS BROCHURE OR ACCOUNT DOCUMENT IS NOT REQUIRED TO BE,
AND HAS NOT BEEN, FILED WITH THE COMMISSION. THE COMMODITY FUTURES TRADING COMMISSION
DOES NOT PASS UPON THE MERITS OF PARTICIPATING IN A TRADING PROGRAM OR UPON THE ADEQUACY
OR ACCURACY OF COMMODITY TRADING ADVISOR DISCLOSURE. CONSEQUENTLY, THE COMMODITY FUTURES
TRADING COMMISSION HAS NOT REVIEWED OR APPROVED THIS TRADING PROGRAM OR THIS BROCHURE
OR ACCOUNT DOCUMENT. |
IN
WITNESS WHEREOF, the parties have entered into this Advisory Agreement as of the
Effective Date.
| |
|
SUMMERHAVEN
INVESTMENT MANAGEMENT, LLC |
| |
|
|
| |
By: |
/s/ Xxxxxx X. Xxxxx |
Partner |
| |
|
|
[title] |
| |
|
|
| |
|
|
| |
|
UNITED
STATES COMMODITY FUNDS LLC |
| |
|
|
| |
By: |
/s/ Xxxx X. Love |
President & CEO |
| |
|
|
[title] |
XXXXXXX
X
Xxxxxx
Xxxxxx Commodity Index Fund
United
States Agricultural Index Fund
United
States Copper Index Fund
EXHIBIT
B
Indices:
| 1. | SummerHaven
Dynamic Commodity Index |
| 2. | SummerHaven
Dynamic Agricultural Index |
| 3. | SummerHaven
Copper Index |
| 4. | SummerHaven
Dynamic Metals Index |
Service
Marks:
EXHIBIT
C
FEE SCHEDULE
The base fee
for advisory services under this Agreement shall be 0.06% of the applicable Fund’s average daily net assets1
and shall be paid to SHIM by USCF and/or the applicable Fund within 30 days after the last business day of each month.
In the event
that SHIM is no longer conducting the trading of one or more commodity interests on behalf of any of the Funds, the fee shall
be 0.06% - ((number of commodity interests no longer traded by SHIM/14)*0.06% of the applicable Fund’s average daily net
assets).
1 The “average
daily net assets” shall be determined on the basis set forth in the Fund’s registration statement.
