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XXXXXX XXXXXX OIL FUND, LP
AUTHORIZED PURCHASER AGREEMENT
This United States Oil Fund, LP Authorized Purchaser Agreement (the
"Agreement"), dated as of [__________, 2005] is entered into by and between
Victoria Bay Asset Management, LLC, a Delaware limited liability company and
General Partner of United States Oil Fund, LP (the "General Partner"), on behalf
of itself and as General Partner of United States Oil Fund, LP, and [Bear Xxxxxx
Specialists LLC], [A _____________] company (the "Authorized Purchaser").
SUMMARY
The General Partner serves in its capacity as General Partner of United
States Oil Fund, LP (the "Fund") pursuant to the Limited Partnership Agreement
dated as of [________, 2005], between the General Partner and the Limited
Partners of the Fund (the "Partnership Agreement"). As provided in the
Partnership Agreement and described in the Fund's prospectus (the "Prospectus"),
units of fractional undivided beneficial interest in and ownership of the
limited partnership (the "Units") may be created or redeemed through the
Marketing Agent by the Authorized Purchaser in aggregations of one hundred
thousand (100,000) Units (each aggregation, a "Creation Basket" or "Redemption
Basket," respectively; collectively, "Baskets"). Creation Baskets are offered
only pursuant to the registration statement of the limited partnership on Form
S-1, as amended (Registration No.: 333-124950), as declared effective by the
Securities and Exchange Commission (the "SEC") and as the same may be amended
from time to time thereafter (collectively, the "Registration Statement").
Authorized Purchasers are the only persons that may place orders to create and
redeem Creation Baskets or Redemption Baskets.
Capitalized terms used but not defined in this Agreement shall have the
meanings assigned to such terms in the Prospectus. To the extent there is a
conflict between any provision of this Agreement and the provisions of the
Prospectus, the provisions of the Prospectus shall control.
To give effect to the foregoing premises and in consideration of the mutual
covenants and agreements set forth below, the parties hereto agree as follows:
SECTION 1. ORDER PLACEMENT.
To place orders for the creation or redemption of one or more Baskets,
Authorized Purchasers must follow the procedures for creation and redemption
referred to in Section 3 of this Agreement and attached to this Agreement as
Exhibit A.
SECTION 2. STATUS AND OBLIGATIONS OF AUTHORIZED PURCHASER.
The Authorized Purchaser represents and warrants and covenants the
following:
(a) The Authorized Purchaser is a participant of the Depository Trust
Company ("DTC") (as such a participant, a "DTC Participant"). If the Authorized
Purchaser ceases to be a DTC Participant, the Authorized Purchaser shall give
immediate notice to the General Partner of such event, and this Agreement shall
terminate immediately as of the date the Authorized Purchaser ceased to be a DTC
Participant.
(b) Unless Section 2(c) applies, the Authorized Purchaser either (i) is
registered as a broker-dealer under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and is a member in good standing of the National
Association of Securities Dealers, Inc. (the "NASD"), or (ii) is exempt from
being, or otherwise is not required to be, licensed as a broker-dealer or a
member of the NASD, 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. The Authorized Purchaser will maintain any such registrations,
qualifications and membership in good standing and in full force and effect
throughout the term of this Agreement. The Authorized Purchaser will comply with
all applicable federal law, the laws of the states or other jurisdictions
concerned, and the rules and regulations promulgated thereunder, including, but
not limited to those applicable to securities and commodities transactions, and
with the Constitution, By-Laws and Conduct Rules of the NASD (if it is a NASD
member), and is solely responsible for determining the application of any such
laws or regulations in all cases at its own expense. The Authorized Purchaser
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.
(c) If the Authorized Purchaser 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 the NASD as set forth in Section 2(b) above, the Authorized Purchaser
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
Securities Act of 1933, as amended (the "1933 Act") and the Commodities Exchange
Act (the "CEA"), and the rules and regulations promulgated thereunder, and (iii)
conduct its business in accordance with the spirit of the NASD Conduct Rules.
(d) The Authorized Purchaser 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 (USA PATRIOT ACT)
Act of 2001, and the regulations promulgated thereunder, if the Authorized
Purchaser is subject to the requirements of the USA PATRIOT ACT.
(e) The Authorized Purchaser has the capability to send and receive
communications via an authenticated telecommunication facility to and from the
General Partner, ALPS Mutual Funds Services, Inc. (the "Marketing Agent") and
Xxxxx Brothers Xxxxxxxx & Co., who shall act as both administrator (the
"Administrator") and custodian (the "Custodian"). The Authorized Purchaser shall
confirm such capability to the satisfaction of the General Partner and the
Marketing Agent by the end of the Business Day (as defined below) before placing
its first order with the Marketing Agent (whether such order is to create or to
redeem Baskets). If required by the Marketing Agent, the Administrator or the
Custodian with respect to authorized telecommunications by telephonic facsimile,
the Authorized Purchaser shall enter into a separate agreement with the
Marketing Agent, the Administrator or the Custodian, as the case may be,
indemnifying such party with respect to its communications by telephonic
facsimile.
(f) Because new Baskets can be created and Units therein issued on an
ongoing basis, at any point during the life of the partnership, a
"distribution," as such term is used in the 1933 Act,
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may be occurring with respect to resales of these Units. The Authorized
Purchaser is cautioned that some of its activities may result in its being
deemed a purchaser in a distribution in a manner which would render it a
statutory underwriter and subject it to the prospectus-delivery and liability
provisions of the 1933 Act. The Authorized Purchaser should review the "Plan of
Distribution" portion of the Prospectus and consult with its own counsel in
connection with entering into this Agreement and placing an Order (as defined
below). In addition to satisfying the prospectus delivery and disclosure
requirements of the 1933 Act, the Authorized Purchaser also has the obligation
to comply with the disclosure delivery requirements under the CEA, including,
with respect to the CEA, the requirement that it provide an acknowledgement of
receipt of the Prospectus (the "CEA Acknowledgement") as set forth in Section
11, to the [FUND, DIRECTLY OR THROUGH ITS AGENT, THE MARKETING AGENT, PRIOR TO
PAYMENT OF THE PURCHASE PRICE FOR ANY CREATION BASKET TO THE FUND]. The
Authorized Purchaser also covenants that it will require each distributor of the
Units to expressly agree to comply with the aforementioned SEC and CEA
requirements, including the requirement that it receive and retain on behalf of
the Fund the CEA Acknowledgement from each purchaser of the Units. The
Authorized Purchaser agrees and will require each distributor to maintain
records of the CEA Acknowledgement for a period of [__] years.
SECTION 3. ORDERS.
(a) All orders to create or redeem Baskets shall be made in accordance with
the terms of the Prospectus, this Agreement and the creation and redemption
procedures attached hereto as Exhibit A (the "Procedures"). Each party will
comply with such foregoing terms to the extent applicable to it. The General
Partner may issue additional or other procedures from time to time relating to
the manner of creating or redeeming Baskets and the Authorized Purchaser will
comply with such procedures. The Authorized Purchaser hereby consents to the use
of recorded telephone lines.
(b) The Authorized Purchaser acknowledges and agrees it is acting solely as
principal and not on behalf of any party for which it is acting (whether such
party is a customer or otherwise) that each order to create a Basket (a
"Purchase Order") and each order to redeem a Basket (a "Redemption Order", and
each Purchase Order and Redemption Order, an "Order") may not be revoked by the
Authorized Purchaser upon its delivery to the Marketing Agent. A form of
Purchase/Redemption Order is attached hereto as Exhibit B.
(c) The General Partner acting by itself or through the Marketing Agent
shall have the absolute right, but shall have no obligation, to reject any
Purchase Order or Creation Basket Deposit (i) determined by the General Partner
not to be in proper form; (ii) that the General Partner has determined would
have adverse tax consequences to the Limited Partnership or the Fund; (iii) the
acceptance or receipt of which would, in the opinion of counsel to the General
Partner, be unlawful; or (iv) if circumstances outside the control of the
General Partner or the Marketing Agent make it for all practical purposes not
feasible to process creations of Creation Baskets. Neither the General Partner
nor the Marketing Agent shall be liable to any person by reason of the rejection
of any Purchase Order or Creation Basket Deposit.
(d) The General Partner acting by itself or through the Marketing Agent
shall reject any Redemption Order (i) determined by the General Partner not to
be in proper form or (ii) the
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fulfillment of which its counsel advises may be illegal under applicable laws
and regulations, and neither the General Partner nor the Marketing Agent shall
have liability to any person for rejecting a Redemption Order in such
circumstances.
SECTION 4. FEES.
In connection with each Order by an Authorized Purchaser to create or
redeem one or more Baskets, the General Partner shall charge, and the Authorized
Purchaser shall pay to the General Partner, the Transaction Fee prescribed in
the Prospectus applicable to such creation or redemption. The initial
Transaction Fee shall be one thousand dollars ($1,000). The Transaction Fee may
be adjusted from time to time as set forth in the Prospectus.
SECTION 5. AUTHORIZED PERSONS.
Concurrently with the execution of this Agreement and from time to time
thereafter, the Authorized Purchaser shall deliver to the General Partner and
the Marketing Agent, notarized and duly certified as appropriate by its
secretary or other duly authorized official, a certificate in the form of
Exhibit C setting forth the names and signatures of all persons authorized to
give instructions relating to activity contemplated hereby or by any other
notice, request or instruction given on behalf of the Authorized Purchaser
(each, an "Authorized Person"). The General Partner or the Marketing Agent may
accept and rely upon such certificate as conclusive evidence of the facts set
forth therein and shall consider such certificate to be in full force and effect
until the General Partner receives a superseding certificate bearing a
subsequent date. Upon the termination or revocation of authority of any
Authorized Person by the Authorized Purchaser, the Authorized Purchaser shall
give immediate written notice of such fact to the General Partner and the
Marketing Agent, and such notice shall be effective upon receipt by the General
Partner.
SECTION 6. CREATION PROCEDURES.
On any Business Day, an Authorized Purchaser may place an order with the
Marketing Agent to create one or more Creation Baskets in accordance with this
Section 6 and the Procedures. For purposes of processing purchase and redemption
orders, a "Business Day" means any day other than a day when any of the American
Stock Exchange is closed for regular trading, the New York Mercantile Exchange
or the New York Stock Exchange is closed for regular trading. Purchase orders
must be placed by 4:00 PM New York time or the close of regular trading on the
American Stock Exchange, whichever is earlier. The day on which the Marketing
Agent receives a valid purchase order is the purchase order date. By placing a
purchase order, an Authorized Purchaser agrees to deposit Treasuries with the
Fund, or a combination of Treasuries and cash. Prior to the delivery of Baskets
for a purchase order, the Authorized Purchaser must also have wired to the
Custodian the non-refundable transaction fee due for the purchase order.
"Treasuries" shall be any U.S. treasury security less than two years to maturity
with an aggregate market value, as determined in the sole discretion of the
Administrator [USING THE VALUATION PROCEDURES SET FORTH IN EXHIBIT __,] that
together with any cash amount, will equal the purchase price of the Creation
Basket being purchased.
The total deposit required to create each Basket ("Creation Basket
Deposit") is an amount of Treasuries and cash with a value that is in the same
proportion to the total assets of the Fund (net of estimated accrued but unpaid
fees, expenses and other liabilities) on the date the order to purchase is
properly received as the number of Units to be created under the purchase order
is in
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proportion to the total number of Units outstanding on the date the order is
received. The General Partner determines, directly in its sole discretion, or
through the Administrator, the requirements for Treasuries and the amount of
cash, including the maximum permitted remaining maturity of a Treasury and the
proportions of Treasury and cash, that may be included in deposits to create
Baskets. The [MARKETING AGENT] will publish such requirements [AT THE BEGINNING
OF EACH BUSINESS DAY]. Unless otherwise determined by the General Partner, the
amount of cash deposit required will be the difference between (i) the aggregate
market value of the Treasuries required to be included in a Creation Basket
Deposit as of 4:00 PM New York time on the purchase order date and (ii) the
total required deposit.
An Authorized Purchaser who places a purchase order is responsible for
transferring to the Fund's account with the Custodian the required amount of
Treasuries and cash by the end of the third Business Day following the purchase
order date. Upon receipt of the deposit amount, the Administrator will direct
DTC to credit the number of Baskets ordered to the Authorized Purchaser's DTC
account on the third Business Day following the purchase order date. The expense
and risk of delivery and ownership of Treasuries until such Treasuries have been
received by the Custodian on behalf of the Fund shall be borne solely by the
Authorized Purchaser.
SECTION 7. REDEMPTION PROCEDURES.
On any Business Day, an Authorized Purchaser may place an order with the
Marketing Agent to redeem one or more Redemption Baskets in accordance with this
Section 7 and the Procedures. Redemption orders must be placed by 4:00 PM New
York time or the close of regular trading on the American Stock Exchange,
whichever is earlier. A redemption order so received is effective on the date it
is received in satisfactory form by the Marketing Agent. The day on which the
Marketing Agent receives a valid redemption order is the redemption order date.
By placing a redemption order, an Authorized Purchaser agrees to deliver the
Redemption Baskets to be redeemed through DTC's book-entry system to the Fund
not later than the third Business Day following the effective date of the
redemption order. Prior to the delivery of the redemption distribution for a
redemption order, the Authorized Purchaser must also have wired to the Fund's
account at the Custodian the non-refundable Transaction Fee due for the
redemption order.
The redemption distribution from the Fund consists of a transfer to the
redeeming Authorized Purchaser of an amount of Treasuries and cash with a value
that is in the same proportion to the total assets of the Fund (net of estimated
accrued but unpaid fees, expenses and other liabilities) on the date the order
to redeem is properly received as the number of Units to be redeemed under the
redemption order is in proportion to the total number of Units outstanding on
the date the order is received. The General Partner, directly or through the
Administrator, will determine the requirements for Treasuries and the amount of
cash, including the maximum permitted remaining maturity of a Treasury, and the
proportions of Treasuries and cash, that may be included in distributions to
redeem Baskets. The Marketing Agent will publish such requirements as of 4:00 PM
New York time on the redemption order date.
The redemption distribution due from the Fund is delivered to the
Authorized Purchaser on the third Business Day following the redemption order
date if, by 9:00 AM New York time on such third Business Day, the Fund's DTC
account has been credited with the Baskets to be redeemed. If the Fund's DTC
account has not been credited with all of the Baskets to be redeemed by such
time,
5
the redemption distribution is delivered to the extent of whole Baskets
received. Any remainder of the redemption distribution is delivered on the next
Business Day to the extent of remaining whole Baskets received if the Fund
receives the fee applicable to the extension of the redemption distribution date
which the General Partner may, from time to time, determine and the remaining
Baskets to be redeemed are credited to the Fund's DTC account by 9:00 AM New
York time on such next Business Day. Any further outstanding amount of the
redemption order shall be cancelled. The Custodian is also authorized to deliver
the redemption distribution notwithstanding that the Baskets to be redeemed are
not credited to the Fund's DTC account by 9:00 AM New York time on the third
Business Day following the redemption order date if the Authorized Purchaser has
collateralized its obligation to deliver the Baskets through DTC's book entry
system on such terms as the General Partner may from time to time determine.
The General Partner may, in its discretion, suspend the right of
redemption, or postpone the redemption settlement date, (1) for any period
during which the American Stock Exchange or the New York Mercantile Exchange is
closed other than customary weekend or holiday closings, or trading on the
American Stock Exchange or the New York Mercantile Exchange is suspended or
restricted, (2) for any period during which an emergency exists as a result of
which delivery, disposal or evaluation of Treasuries or other assets of the Fund
is not reasonably practicable, or (3) for such other period as the General
Partner determines to be necessary for the protection of the holders of Units.
None of the General Partner, the Marketing Agent, the Administrator or the
Custodian will be liable to any person or in any way for any loss or damages
that may result from any such suspension or postponement.
SECTION 8. ROLE OF AUTHORIZED PURCHASER.
(a) The Authorized Purchaser acknowledges that, for all purposes of this
Agreement, the Authorized Purchaser is and shall be deemed to be an independent
contractor and has and shall have no authority to act as agent for the Fund, the
Marketing Agent, the Administrator the Custodian or the General Partner in any
matter or in any respect, except as set forth in Section 2(f).
(b) The Authorized Purchaser will make itself and its employees available,
upon request, during normal business hours to consult with the General Partner
and the Marketing Agent concerning the performance of the Authorized Purchaser's
responsibilities under this Agreement.
(c) The Authorized Purchaser will maintain records of all sales of Creation
Baskets made by or through it and will furnish copies of such records to the
General Partner upon the reasonable request of the General Partner.
SECTION 9. INDEMNIFICATION.
(a) Indemnification of Authorized Purchaser. The General Partner agrees to
indemnify, defend and hold harmless the Authorized Purchaser, 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,
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which the Authorized Purchaser or any such
person may incur under the 1933 Act, the Exchange Act, the CEA, the common law
or otherwise, insofar as such loss, damage, expense, liability or claim arises
out of or is based upon:
6
(1) 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 6 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 Authorized Purchaser furnished in writing by or on behalf of the
Authorized Purchaser to the General Partner expressly for use in such
Registration Statement;
(2) any untrue statement or alleged untrue statement of a material fact or
breach by the General Partner of any representation or warranty contained
this Agreement;
(3) the failure by the General Partner to perform when and as required, any
agreement or covenant contained herein;
(4) the Authorized Purchaser's performance of its duties under this
Agreement except in the case of this clause (4), for any loss, damage,
expense, liability or claim resulting from the gross negligence or willful
misconduct of the Authorized Purchaser.
In no case is the indemnity of the General Partner in favor of the
Authorized Purchaser and such other persons as are specified in this
Section 9(a) to be deemed to protect the Authorized Purchaser and such
persons against any liability to the General Partner or the Fund to which
the Authorized Purchaser would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties
or by reason of its reckless disregard of its obligations and duties under
this Agreement.
If any action, suit or proceeding (each, a "Proceeding") is brought against
the Authorized Purchaser or any such person in respect of which indemnity
may be sought against the General Partner pursuant to the foregoing
paragraph, the Authorized Purchaser or such person shall promptly notify
the General Partner in writing of the institution of such Proceeding and
the General Partner shall assume the defense of such Proceeding, including
the employment of counsel reasonably satisfactory to such indemnified party
and payment of all fees and expenses; provided, however, that the omission
to so notify the General Partner shall not relieve the General Partner from
any liability which it may have to the Authorized Purchaser 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 Authorized
Purchaser 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 Authorized Purchaser 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,
7
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).
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 Authorized Purchaser 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.
(b) The Authorized Purchaser agrees to indemnify, defend and hold harmless
each of the Fund, the General Partner and its partners, stockholders, members,
directors, officers, employees and any person who controls the General Partner
within the meaning of Section 15 of the 1933 Act or Section 20 of the Exchange
Act, and the successors and assigns of all of the foregoing persons, from and
against any loss, damage, expense, liability or claim (including the reasonable
cost of investigation) which the General Partner any such person may incur under
the 1933 Act, the Exchange Act, the CEA, 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
Authorized Purchaser to the General Partner expressly for use in the
Registration Statement (or in the Registration Statement as amended or
supplemented by any post-effective amendment thereof) or in a Prospectus, or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in
8
such Registration Statement or such Prospectus or necessary to make such
information not misleading.
The Authorized Purchaser will also indemnify the General Partner as stated
above insofar as such loss, damage, expense, liability or claim arises out of or
is based upon the Authorized Purchaser's performance of its duties under this
Agreement, except in the case of any loss, damage, expense, liability or claim
resulting from the gross negligence or willful misconduct of the General
Partner. In no case is the indemnity of the Authorized Purchaser in favor of the
General Partner to be deemed to protect the General Partner and such persons
against any liability to the Authorized Purchaser to which the General Partner
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement.
If any Proceeding is brought against the General Partner or any person
referred to in the preceding paragraph in respect of which indemnity may be
sought against the Authorized Purchaser pursuant to the foregoing paragraph, the
General Partner or such person shall promptly notify the Authorized Purchaser in
writing of the institution of such Proceeding and the Authorized Purchaser 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 Authorized
Purchaser shall not relieve the Authorized Purchaser from any liability which it
may have to the General Partner or any such person except to the extent that it
has been materially prejudiced by such failure and has not otherwise learned of
such Proceeding. The General Partner or such person shall have the right to
employ their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the General Partner or such person unless the
employment of such counsel shall have been authorized in writing by the
Authorized Purchaser in connection with the defense of such Proceeding or the
Authorized Purchaser 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 Authorized Purchaser (in which case the
Authorized Purchaser shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties, but the Authorized
Purchaser may employ counsel and participate in the defense thereof but the fees
and expenses of such counsel shall be at the expense of the Authorized
Purchaser), in any of which events such fees and expenses shall be borne by the
Authorized Purchaser and paid as incurred (it being understood, however, that
the Authorized Purchaser 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 Authorized Purchaser shall not be liable for any settlement of any such
Proceeding effected without the written consent of the Authorized Purchaser but
if settled with the written consent of the Authorized Purchaser, the Authorized
Purchaser 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 the
preceding paragraph, then the
9
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.
(c) The indemnity agreements contained in this Section 9 and the covenants,
warranties and representations of the General Partner contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the Authorized Purchaser, 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 Authorized Purchaser within the meaning of Section 15 of the 1933
Act or Section 20 of the Exchange Act, or by or on behalf of each of the General
Partner, the Fund, their partners, stockholders, members, directors, officers,
employees or any person who controls the General Partner or the Fund within the
meaning of Section 15 of the 1933 Act or Section 20 of the Exchange Act, and
shall survive any termination of this Agreement or the initial issuance and
delivery of the Units. The General Partner and the Authorized Purchaser agree
promptly to notify each other of the commencement of any Proceeding against it
and, in the case of the General Partner, against any of the General Partner's
officers or directors in connection with the issuance and sale of the Units, or
in connection with the Registration Statement or the Prospectus.
SECTION 10.
(a) Limitation of Liability.
None of the General Partner, the Authorized Purchaser, the Marketing Agent,
the Administrator, or the Custodian, shall be liable to each other or to any
other person, including any party claiming by, through or on behalf of the
Authorized Purchaser, for any losses, liabilities, damages, costs or expenses
arising out of any mistake or error in data or other information provided to any
of them by each other or any other person or out of any interruption or delay in
the electronic means of communications used by them.
(b) Tax Liability.
The Authorized Purchaser shall be responsible for the payment of any
transfer tax, sales or use tax, stamp tax, recording tax, value added tax and
any other similar tax or government charge applicable to the creation or
redemption of any Basket made pursuant to this Agreement, regardless of whether
or not such tax or charge is imposed directly on the Authorized Purchaser. To
the extent the General Partner or the Fund is required by law to pay any such
tax or charge, the Authorized Purchaser agrees to promptly indemnify such party
for any such payment, together with any applicable penalties, additions to tax
or interest thereon.
10
SECTION 11. ACKNOWLEDGMENT.
The Authorized Purchaser acknowledges receipt of a copy of the Prospectus and
represents that it has reviewed and understands such document.
SECTION 12. EFFECTIVENESS AND TERMINATION.
Upon the execution of this Agreement by the parties hereto, this Agreement shall
become effective in this form as of the date first set forth above, and may be
terminated at any time by any party upon thirty (30) days' prior written notice
to the other parties unless earlier terminated: (i) in accordance with Section
2(a); (ii) upon notice to the Authorized Purchaser by the General Partner in the
event of a breach by the Authorized Purchaser of this Agreement or the
procedures described or incorporated herein; or (iii) at such time as the Fund
is terminated.
SECTION 13. MARKETING MATERIALS; REPRESENTATIONS REGARDING BASKETS;
IDENTIFICATION IN REGISTRATION STATEMENT.
(a) The Authorized Purchaser represents, warrants and covenants that (i),
without the written consent of the General Partner, the Authorized Purchaser
will not make, or permit any of its representatives to make, any representations
concerning the Baskets or the General Partner, the Fund or any person
indemnified by the Authorized Purchaser (the "AP Indemnified Person") other than
representations contained (A) in the then-current Prospectus of the Fund, (B) in
printed information approved by the General Partner as information supplemental
to such Prospectus or (C) in any promotional materials or sales literature
furnished to the Authorized Purchaser by the General Partner, and (ii) the
Authorized Purchaser will not furnish or cause to be furnished to any person or
display or publish any information or material relating to the Baskets, any AP
Indemnified Person or the Fund that is not consistent with the Fund's then
current Prospectus. Copies of the then-current Prospectus of the Fund and any
such printed supplemental information will be supplied by the General Partner to
the Authorized Purchaser in reasonable quantities upon request.
(b) The Authorized Purchaser agrees to provide each prospective purchaser
with a copy of the Fund's Prospectus and obtain the acknowledgment of receipt of
the Prospectus from such investor prior to receipt of payment from the investor.
The Authorized Purchaser is required to maintain each acknowledgement of receipt
until the termination of this Agreement, and provide a copy to the General
Partner upon reasonable request.
(c) The Authorized Purchaser hereby agrees that for the term of this
Agreement the General Partner or its agent, the Marketing Agent, may deliver the
then-current Prospectus, and any supplements or amendments thereto or
recirculation thereof, to the Authorized Purchaser in Portable Document Format
("PDF") via electronic mail or facsimile in lieu of delivering the Prospectus in
paper form. The Authorized Purchaser may revoke the foregoing agreement at any
time by delivering written notice to the General Partner and, whether or not
such agreement is in effect, the Authorized Purchaser may, at any time, request
reasonable quantities of the Prospectus, and any supplements or amendments
thereto or recirculation thereof, in paper form from the General Partner or its
agent, the Marketing Agent. The Authorized Purchaser acknowledges that it has
the capability to access, view, save and print material provided to it in PDF
and that it will incur no appreciable extra costs by receiving the Prospectus in
PDF instead of in paper form. The General Partner will when requested by the
Authorized Purchaser make available at no cost the
11
software and technical assistance necessary to allow the Authorized Purchaser to
access, view and print the PDF version of the Prospectus.
(d) For as long as this Agreement is effective, the Authorized Purchaser
agrees to be identified as an authorized purchaser of the Fund (i) in the
section of the Prospectus included within the Registration Statement entitled
"Creation and Redemption" and in any other section as may be required by the SEC
and (ii) on the Fund's website. Upon the termination of this Agreement, (i)
during the period prior to when the General Partner qualifies and elects to file
on Form S-3, the General Partner will remove such identification from the
Prospectus in the amendment of the Registration Statement next occurring after
the date of the termination of this Agreement and, during the period after when
the General Partner qualifies and elects to file on Form S-3, the General
Partner will promptly file a current report on Form 8-K indicating the
withdrawal of the Authorized Purchaser as an authorized purchaser of the Fund
and (ii) the General Partner will promptly update the Fund's website to remove
any identification of the Authorized Purchaser as an authorized purchaser of the
Fund.
SECTION 14. CERTAIN COVENANTS OF THE GENERAL PARTNER.
The General Partner, on its own behalf and on behalf of the Fund, covenants
and agrees:
(a) to advise the Authorized Purchaser promptly of the happening of any
event during the term of this Agreement which could require the making of any
change in the Prospectus then being used so that the 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 Authorized Purchaser promptly such
amendments or supplements to such Prospectus as may be necessary to reflect any
such change;
(b) to furnish to the Authorized Purchaser, at each time (i) the
Registration Statement or the Prospectus is amended or supplemented by the
filing of a post-effective amendment, (ii) a new Registration Statement is filed
to register additional Baskets in reliance on Rule 429, and (iii) there is
financial information incorporated by reference into the Registration Statement
or the Prospectus, an opinion of Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel for
the General Partner, addressed to the Authorized Purchaser and as attached
hereto as Exhibit D.
(c) to cause Xxxxxx LLP to deliver, at each time (i) the Registration
Statement or the Prospectus is amended or supplemented by the filing of a
post-effective amendment, (ii) a new Registration Statement is filed to register
additional Baskets in reliance on Rule 429, and (iii) there is financial
information incorporated by reference into the Registration Statement or the
Prospectus, letters dated such dates and addressed to the Authorized Purchaser,
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;
(d) to deliver to the Authorized Purchaser, at each time (i) the
Registration Statement or the Prospectus is amended or supplemented by the
filing of a post-effective amendment, (ii) a new Registration Statement is filed
to register additional Baskets in reliance on Rule 429, and (iii) there
12
is financial information incorporated by reference into the Registration
Statement or the Prospectus, a certification by a duly authorized officer of the
General Partner in the form attached hereto as Exhibit E. In addition, any
certificate signed by any officer of the General Partner and delivered to the
Authorized Purchaser or counsel for the Authorized Purchaser pursuant hereto
shall be deemed to be a representation and warranty by the General Partner as to
matters covered thereby to the Authorized Purchaser;
(e) to furnish directly or through the Marketing Agent to the Authorized
Purchaser, at each time (i) the Registration Statement or the Prospectus is
amended or supplemented by the filing of a post-effective amendment, (ii) a new
Registration Statement is filed to register additional Baskets in reliance on
Rule 429, and (iii) there is financial information incorporated by reference
into the Registration Statement or the Prospectus, such documents and
certificates in the form as reasonably requested by the Marketing Agent; and
(f) to cause the Fund to file a post-effective amendment to the
Registration Statement no less frequently than once per calendar quarter on or
about the same time that the Fund files a quarterly or annual report pursuant to
Section 13 or 15(d) of the Exchange Act (including the information contained in
such report), until such time as the Fund's reports filed pursuant to Section 13
or 15(d) of the Exchange Act are incorporated by reference in the Registration
Statement.
SECTION 15. THIRD PARTY BENEFICIARIES.
Each AP Indemnified Person, to the extent it is not a party to this
Agreement, is a third-party beneficiary of this Agreement (each, a "Third Party
Beneficiary") and may proceed directly against the Authorized Purchaser
(including by bringing proceedings against the Authorized Purchaser in its own
name) to enforce any obligation of the Authorized Purchaser under this Agreement
which directly or indirectly benefits such Third Party Beneficiary.
SECTION 16. FORCE MAJEURE.
No party to this Agreement shall incur any liability for any delay in
performance, or for the non-performance, of any of its obligations under this
Agreement by reason of any cause beyond its reasonable control. This includes
any act of God or war or terrorism, any breakdown, malfunction or failure of
transmission in connection with or other unavailability of any wire,
communication or computer facilities, any transport, port, or airport
disruption, industrial action, acts and regulations and rules of any
governmental or supra national bodies or authorities or regulatory or
self-regulatory organization or failure of any such body, authority or
organization for any reason, to perform its obligations.
SECTION 17. MISCELLANEOUS.
(a) Entire Agreement. This Agreement (including any schedules and exhibits
attached hereto and thereto) contain all of the agreements among the parties
hereto and thereto with respect to the transactions contemplated hereby and
thereby and supersede all prior agreements or understandings, whether written or
oral, among the parties with respect thereto.
(b) Amendment and Modification. This Agreement may be amended, modified or
supplemented only by a written instrument executed by all the parties.
13
(c) 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.
(d) 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.
(e) 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.
(f) 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):
(1) if to General Partner, to:
Victoria Bay Asset Management, LLC
x/x Xxxxxxxx X. Xxxxxx
X.X. Xxx 0000
Xxxxxx, CA 94570
(2) if to the Authorized Purchaser, to:
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
14
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.
(g) Governing Law; Jurisdiction.
(1) 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.
(2) 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 or any related
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 any related agreement or the transactions
contemplated hereby or thereby which is instituted in any court of the
State of New York.
The provisions of this Section 17(g) shall survive any termination of
this Agreement, in whole or in part.
(h) No Partnership. Nothing in this Agreement is intended to, or will be
construed to constitute the General Partner or the Fund, on the one hand, and
the Authorized Purchaser or any of its Affiliates, 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.
(i) 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.
(j) 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.
15
(k) 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.
(l) Other Usages. The following usages shall apply in interpreting this
Agreement: (i) references to a governmental or quasigovernmental agency,
authority or instrumentality shall also refer to a regulatory body that succeeds
to the functions of such agency, authority or instrumentality; and (ii)
"including" means "including, but not limited to."
16
IN WITNESS WHEREOF, the Authorized Purchaser and the General Partner have caused
this Agreement to be executed by their duly authorized representatives as of the
date first set forth above.
VICTORIA BAY ASSET MANAGEMENT, LLC
By: _____________________________
Name: Xxxxxxxx X. Xxxxxx
Title:
Address:
Telephone:
Facsimile:
[BEAR XXXXXX SPECIALISTS LLC]
By: _____________________________
Name:
Title:
Address:
Telephone:
Facsimile:
00
XXXXXXX X
XXXXXX XXXXXX OIL FUND, LP
CREATION AND REDEMPTION PROCEDURES
Scope of Procedures and Overview
These procedures (the "Procedures") describe the processes by which one or more
Baskets of United States Oil Fund, LP Units (the "Shares") may be purchased by
an Authorized Purchaser, or, once Shares have been issued, redeemed by an
Authorized Purchaser. Shares may be created or redeemed only in blocks of
100,000 Shares (each such block, a "Basket").
For purposes of these Procedures, a "Business Day" is defined as any day other
than a day on which the American Stock Exchange ("AMEX") or the New York
Mercantile Exchange ("NYMEX") is closed for regular trading.
Baskets are issued pursuant to the Prospectus, which will be delivered by the
Marketing Agent to each Authorized Purchaser prior to its execution of the
Authorized Purchaser Agreement, and are issued and redeemed in accordance with
the Authorized Purchaser Agreement. Baskets may be issued and redeemed on any
Business Day by the Marketing Agent in exchange for cash and/or Treasuries,
which the Custodian receives from Authorized Purchasers or transfers to
Authorized Purchasers, in each case on behalf of the Fund.
Upon acceptance of the Authorized Purchaser Agreement, the Marketing Agent will
assign a personal identification number (a "PIN number") to each Authorized
Person authorized to act for the an Authorized Purchaser. This will allow the
Authorized Purchaser through its Authorized Person(s) to place Purchase Order(s)
or Redemption Order(s) for Baskets.
Important Notes:
- Any Order is subject to rejection by the General Partner or the Marketing
Agent, as agent of the General Partner, for the reasons set forth in the
Authorized Purchaser Agreement.
- All Orders are subject to the provisions of the Partnership Agreement,
the Prospectus and the Authorized Purchaser Agreement relating to unclear or
ambiguous instructions.
- The Authorized Purchaser, and each distributor offering and selling Units
as part of the distribution of such Units, shall comply with the prospectus
delivery and disclosure requirements of the 1933 Act as well as the analogous
requirements under the CEA, including, the requirement that prospective
investors provide an acknowledgement of receipt of such disclosure materials
prior to the payment for any Units.
CREATION PROCESS
An order to purchase one or more Baskets placed by an Authorized Purchaser with
the Marketing Agent by 4:00 PM New York time on a Business Day (such day,
"CREATION T") results in the
transfer to the Authorized Purchaser's account at The Depository Trust Company
("DTC") of Baskets the Authorized Purchaser has purchased, in most instances, by
9:00 AM New York time on CREATION T+3:
CREATION PROCEDURES
1. By the Order Cut-Off Time (the earlier of the close of regular trading on the
AMEX or 4:00 PM New York time), an Authorized Person of the Authorized Purchaser
calls the Marketing Agent to notify such agent that the Authorized Purchaser
wishes to place a Purchase Order to create an identified number of Baskets and
to request that it be provided with an order number (an "Order Number"). The
Authorized Person provides a PIN number as identification. The Marketing Agent
provides the Authorized Purchaser with an Order Number for the Authorized
Purchaser's Purchase Order Form. The Authorized Purchaser then completes and
faxes to the Marketing Agent the Purchase Order Form included as Exhibit B to
the Authorized Purchaser Agreement. The Purchase Order Form must include the
Authorized Person's signature, the number of Baskets being purchased, and the
Order Number.
2. If the Marketing Agent has not received the Purchase Order Form from the
Authorized Purchaser within 15 minutes after the Marketing Agent receives the
phone call from the Authorized Purchaser referenced in item (1) above, the
Marketing Agent places a phone call to the Authorized Purchaser to enquire about
the status of the Order. If the Authorized Purchaser does not fax the Purchase
Order Form to the Marketing Agent within 15 minutes after the Marketing Agent's
phone call, the Authorized Purchaser's Order is cancelled. The Marketing Agent
will then notify the Authorized Purchaser that the Order has been cancelled via
telephone call.
3. If the Marketing Agent has received the Authorized Purchaser's Purchase Order
Form on time in accordance with the preceding timing rules, then by 5:00 PM New
York time the Marketing Agent returns to the Authorized Purchaser a copy of the
Purchase Order Form submitted, marking it "Affirmed."
4. Based on the Purchase Orders placed with it on CREATION T, the Marketing
Agent sends an authenticated electronic message (Swift MT699) to the Custodian
indicating the total amount of cash and/or Treasuries for which the Marketing
Agent will require an allocation into the [CUSTODIAL ACCOUNT] on CREATION T+3.
If the Marketing Agent rejects a Purchase Order pursuant to the Authorized
Purchaser Agreement after the foregoing messages are given to the Custodian, the
Marketing Agent will notify the Custodian of such rejection, identifying the
Authorized Purchaser whose Purchase Order was rejected and the amount of cash
and/or Treasuries contained in the rejected Purchase Order.
REDEMPTION PROCESS
An order to redeem one or more Baskets placed by an Authorized Purchaser with
the Marketing Agent by 4:00 PM New York time on a Business Day (such day,
"REDEMPTION T") results in the following taking place by 11:00 AM New York time
on REDEMPTION T+3:
2
- Transfer to the account at DTC and the subsequent cancellation of the relevant
number of the Authorized Purchaser's Baskets; and
- Transfer to the Authorized Purchaser by credit to the Authorized Purchaser's
account of cash and Treasuries, if any, in the relevant amount(s) corresponding
to the Baskets delivered for redemption (the "Redemption Distribution").
REDEMPTION PROCEDURES
REDEMPTION T (REDEMPTION ORDER TRADE DATE)
1. By the Order Cut-off Time (the earlier of the close of regular trading on the
AMEX or 4:00 PM. New York time), an Authorized Person of the Authorized
Purchaser calls the Marketing Agent at [PHONE NUMBER] to notify the Marketing
Agent that the Authorized Purchaser wishes to place a Redemption Order with the
Marketing Agent to redeem an identified number of Baskets and to request that
the Marketing Agent provide an Order Number. The Authorized Person provides a
PIN number as identification to the Marketing Agent. The Marketing Agent
provides the Authorized Purchaser with an Order Number for the Authorized
Purchaser's Redemption Order Form. The Authorized Purchaser then completes and
faxes to the Marketing Agent the Redemption Order Form included as Exhibit B to
the Authorized Purchaser Agreement. The Redemption Order Form must include the
Authorized Person's signature, the number of Baskets redeemed, and the Order
Number previously provided by the Marketing Agent.
2. If the Marketing Agent has not received the Redemption Order Form from the
Authorized Purchaser within 15 minutes after the Marketing Agent receives the
phone call from the Authorized Purchaser referenced in item (1) above, the
Marketing Agent places a phone call to the Authorized Purchaser to enquire about
the status of the Order. If the Authorized Purchaser does not fax the Redemption
Order Form to the Marketing Agent within 15 minutes after the Marketing Agent's
phone call, the Authorized Purchaser's Order is cancelled. The Marketing Agent
will then notify the Authorized Purchaser that the Order has been cancelled via
telephone call.
3. If the Marketing Agent has received the Authorized Purchaser's Redemption
Order Form on time in accordance with the preceding timing rules, then by 5:00
PM New York. time the Marketing Agent returns to the Authorized Purchaser a copy
of the Redemption Order Form submitted, marking it "Affirmed." The Marketing
Agent also indicates on the Redemption Order Form the amount of Treasuries and
cash, if any, to be delivered in the Redemption Distribution, and provides
details of [THE METHOD OF PAYMENT TO BE USED FOR THE TRANSACTION FEE] and the
method of delivery of the Treasuries and cash portion, if any, of the Redemption
Distribution.
4. By the close of business (usually 5:00 PM New York time), the Marketing Agent
sends an authenticated electronic message (SWIFT MT699) containing instructions
to the Custodian to transfer on REDEMPTION T+3 from the [CUSTODIAL ACCOUNT]
("deallocate") the total amount of cash and Treasuries required to settle the
Redemption Orders received by the Marketing Agent on REDEMPTION T. If the
Marketing Agent rejects a Redemption Order pursuant to the Authorized Purchaser
Agreement after the foregoing message is sent, the Marketing Agent will notify
the
3
Custodian of such rejection, identifying the Authorized Purchaser whose
Redemption Order was rejected and the amount of cash and Treasuries contained in
the rejected Redemption Order.
REDEMPTION T+3
1. By 9:00 AM New York time, the Authorized Purchaser delivers free to the
relevant account at DTC the Baskets to be redeemed.
2. If the Marketing Agent does not receive from a redeeming Authorized Purchaser
all Shares comprising the Baskets being redeemed by 9:00 AM New York time, the
Marketing Agent will (i) settle the Redemption Order to the extent of whole
Baskets received from the Authorized Purchaser and (ii) keep the redeeming an
Authorized Purchaser's Redemption Order open until 9:00 AM New York time on the
following Business Day (REDEMPTION T+4) as to the balance of the Redemption
Order (such balance, the "Suspended Redemption Order"). For each day (whether or
not a Business Day) the Redemption Order is held open, the Authorized Purchaser
will be charged by the Marketing Agent the greater of $300 or $30 times the
number of Baskets included in the Suspended Redemption Order.
3. By 10:00 AM New York time, the Marketing Agent sends an authenticated
electronic message (Swift MT699) to the Custodian directing the Custodian to
transfer cash and Treasuries in the relevant amount from the [CUSTODIAL ACCOUNT]
to the Authorized Purchaser.
4. By the close of business in New York (usually 5:00 PM New York time), each
Authorized Purchaser redeeming Baskets on REDEMPTION T+4 with respect to a
Suspended Redemption Order sends an authenticated electronic message (Swift
MT699) to [CUSTODIAN], identifying that Authorized Purchaser's account into
which cash and Treasuries, in the relevant amount(s), is to be received on
REDEMPTION T+4.
REDEMPTION T+4
1. By 9:00 AM. New York time, the redeeming Authorized Purchaser must deliver
free to the account at DTC the Basket(s) comprising the Suspended Redemption
Order. The Marketing Agent will settle the Suspended Redemption Order to the
extent of whole Baskets received. Any balance of the Suspended Redemption Order
will be cancelled.
2. The sequence of instructions and events related to the settlement of the
Suspended Redemption Order on REDEMPTION T+4 will be made in the manner provided
for a Redemption Order under REDEMPTION T+3.
* * * *
0
XXXXXXX X
XXXXXX XXXXXX OIL FUND, LP
--------------------------------------------------------------------------------
PURCHASE/ REDEMPTION ORDER FORM
--------------------------------------------------------------------------------
CONTACT INFORMATION FOR ORDER EXECUTION:
Telephone order number: Telex Number
Facsimile number: Business Number
--------------------------------------------------------------------------------
ALL ITEMS IN PART I MUST BE COMPLETED BY AN AUTHORIZED PURCHASER. THE
DISTRIBUTOR AND/OR THE TRUSTEE, IN THEIR DISCRETION, MAY REJECT ANY ORDER NOT
SUBMITTED IN COMPLETE FORM.
1. TO BE COMPLETED BY AUTHORIZED PURCHASER:
----------------------------------------
Date: Time:
Broker Name: Firm Name:
NSCC Participant Number: DTC Participant Number:
Telephone Number: Telex Number:
Fax Number:
Type of Order (Check One)
Amount Created Units (100,000 Shares) ___________
Amount Written Out ___________
Amount Redeemed Units (100,000 Shares) ___________
Amount Written Out: ___________
Order #: ____________________
Authorized Person's Signature ________________________________
II. TO BE COMPLETED BY ALPS MUTUAL FUNDS SERVICES, INC.:
This certifies that the above order has been:
___________ Accepted by the Marketing Agent (for purchase or redemption)
___________ Declined - Reason: ________________________________________________
___________ ____________ ___________________________________________
Date Time Authorized Signature
EXHIBIT C
UNITED STATES OIL FUND, LP
FORM OF CERTIFIED AUTHORIZED PERSONS
OF AUTHORIZED PURCHASER
The following are the names, titles and signatures of all persons (each an
"Authorized Person") authorized to give instructions relating to any activity
contemplated by the United States Oil Fund, LP Authorized Purchaser Agreement or
any other notice, request or instruction on behalf of the Authorized Purchaser
pursuant to the aforementioned agreement.
Authorized Purchaser: _______________________
Name: _________________________
Title: _________________________
Signature: _________________________
Name: _________________________
Title: _________________________
Signature: _________________________
Name: _________________________
Title: _________________________
Signature: _________________________
The undersigned, [name], [title] of [company], does hereby certify that the
persons listed above have been duly elected to the offices set forth beneath
their names, that they presently hold such offices, that they have been duly
authorized to act as Authorized Persons pursuant to the United States Oil Fund,
LP Authorized Purchaser Agreement by and between [broker-dealer] and the General
Partner of United States Oil Fund, LP, dated ___________2005, and that their
signatures set forth above are their own true and genuine signatures.
IN WITNESS WHEREOF, the undersigned has hereby set his/her hand and the seal of
[company] on the date set forth below.
Subscribed and sworn to before me
this ___ day of ___________, 2005
By:
Name: _________________________
Signature: _________________________
Notary Public
0
XXXXXXX X
XXXXXX XXXXXX OIL FUND, LP
OFFICER'S CERTIFICATE
The undersigned, a duly authorized officer of Victoria Bay Asset Management,
LLC, a Delaware limited liability company (the "General Partner"), and pursuant
to Section 13(d) of the United States Oil Fund, LP Authorized Purchaser
Agreement (the "Agreement"), dated as of ___________, 2005, by and between the
General Partner and [broker dealer], ("the Authorized Purchaser"), hereby
certifies that:
1. Each of the following representations and warranties of the General Partner
is true and correct in all material respects as of the date hereof:
(a) the Prospectus does not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading; the Registration Statement complies in all material
respects with the requirements of the 1933 Act and the Prospectus complies in
all material respects with the requirements of the 1933 Act and any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement have been so described or filed; the conditions to the
use of Form S-1 or S-3, if applicable, have been satisfied; the Registration
Statement does not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus does not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the General Partner makes no warranty or representation with respect to any
statement contained in the Registration Statement or any Prospectus in reliance
upon and in conformity with information concerning the Authorized Purchaser and
furnished in writing by or on behalf of the Authorized Purchaser to the General
Partner expressly for use in the Registration Statement or such Prospectus; and
neither the General Partner nor any person known to the General Partner acting
on behalf of the Fund has distributed nor will distribute any offering material
other than the Registration Statement or the Prospectus;
(b) the Fund has been duly formed and is validly existing as an investment
fund under the laws of the State of Delaware, as described in the Registration
Statement and the Prospectus, and as described in the Prospectus, the Marketing
Agent is authorized to issue and deliver the Baskets to the Authorized
Purchaser;
(c) the General Partner has been duly organized and is validly existing as
a limited liability company in good standing under the laws of the State of
Delaware, with full power and authority to conduct its business as described in
the Registration Statement and the Prospectus, and has all requisite power and
authority to execute and deliver this Agreement;
(d) the General Partner is duly qualified and is in good standing in each
jurisdiction where the conduct of its business requires such qualification; and
the Fund is not required to so qualify in any jurisdiction;
(e) the outstanding Units have been duly and validly issued and are fully
paid and non-assessable and free of statutory and contractual preemptive rights,
rights of first refusal and similar rights;
(f) the Units conform in all material respects to the description thereof
contained in the Registration Statement and the Prospectus and the holders of
the Units will not be subject to personal liability by reason of being such
holders;
(g) this Agreement has been duly authorized, executed and delivered by the
General Partner and constitutes the valid and binding obligations of the General
Partner, enforceable against the General Partner in accordance with its terms;
(h) the General Partner is not in breach or violation of or in default
under (nor has any event occurred which with notice, lapse of time or both would
result in any breach or violation of, constitute a default under or give the
holder of any indebtedness (or a person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a part of
such indebtedness under) its constitutive documents, or any indenture, mortgage,
deed of trust, bank loan or credit agreement or other evidence of indebtedness,
or any license, lease, contract or other agreement or instrument to which the
General Partner is a party or by which any of them or any of their properties
may be bound or affected, and the execution, delivery and performance of this
Agreement, the issuance and sale of Shares 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 General Partner,
or any indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the General Partner is a party or by which,
respectively, the General Partner or any of its properties may be bound or
affected, or any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the General Partner or the Fund;
(i) no approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and sale
of Creation Baskets to the Authorized Purchaser hereunder or the consummation by
the General Partner or the Fund of the transactions contemplated hereunder other
than registration of the Units under the 1933 Act and the filing of the
Prospectus with the National Futures Association, which has been effected, and
any necessary qualification under the securities or blue sky laws of the various
jurisdictions in which the Units are being offered or under the rules and
regulations of the American Stock Exchange;
(j) except as set forth in the Registration Statement and the Prospectus
(i) no person has the right, contractual or otherwise, to cause the Fund to
issue or sell to it any Units or other equity
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interests of the Fund, and (ii) no person has the right to act as an underwriter
or as a financial advisor to the Fund in connection with the offer and sale of
the Units, in the case of each of the foregoing clauses (i), and (ii), whether
as a result of the filing or effectiveness of the Registration Statement or the
sale of the Units as contemplated thereby or otherwise; no person has the right,
contractual or otherwise, to cause the General Partner on behalf of the Fund or
the Fund to register under the 1933 Act any other equity interests of the Fund,
or to include any such shares or interests in the Registration Statement or the
offering contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the Units as
contemplated thereby or otherwise;
(k) each of the General Partner and the Fund has all necessary licenses,
authorizations, consents and approvals and has made all necessary filings
required under any federal, state, local or foreign law, regulation or rule, and
has obtained all necessary authorizations, consents and approvals from other
persons, in order to conduct its respective business; the General Partner is not
in violation of, or in default under, or has not received notice of any
proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the General
Partner;
(l) all legal or governmental proceedings, affiliate transactions,
off-balance sheet transactions, contracts, licenses, agreements, leases or
documents of a character required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement have
been so described or filed as required;
(m) except as set forth in the Registration Statement and the Prospectus,
there are no actions, suits, claims, investigations or proceedings pending or
threatened or contemplated to which the General Partner or the Fund, or any of
the General Partner's directors or officers, is or would be a party or of which
any of their respective properties are or would be subject at law or in equity,
before or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency;
(n) [Accounting Firm] whose report on the audited financial statements of
the Fund is filed with the SEC as part of the Registration Statement and the
Prospectus, are independent public accountants as required by the 1933 Act;
(o) the audited financial statement(s) included in the Prospectus, together
with the related notes and schedules, presents fairly the financial position of
the Fund as of the date indicated and has been prepared in compliance with the
requirements of the 1933 Act and in conformity with generally accepted
accounting principles; there are no financial statements (historical or pro
forma) that are required to be included in the Registration Statement and the
Prospectus that are not included as required; and the Fund does not have any
material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not disclosed in the Registration Statement and
the Prospectus;
(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)
3
any transaction which is material to the General Partner or the Fund taken as a
whole, (iii) any obligation, direct or contingent (including any off-balance
sheet obligations), incurred by the General Partner or the Fund, which is
material to the Fund, (iv) any change in the Units purchased by the Authorized
Purchaser or outstanding indebtedness of the General Partner or the Fund or (v)
any dividend or distribution of any kind declared, paid or made on such Units;
(q) the Fund is not and, after giving effect to the offering and sale of
the Units, will not be an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the Investment Company Act;
(r) except as set forth in the Registration Statement and the Prospectus,
the General Partner and the Fund own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), tradenames, copyrights,
trade secrets and other proprietary information described in the Registration
Statement and the Prospectus as being owned or licensed by them or which are
necessary for the conduct of their respective businesses, (collectively,
"Intellectual Property");
(i) to the knowledge of the General Partner or the Fund, there are no third
parties who have or will be able to establish rights to any Intellectual
Property, except for the ownership rights of the owners of the Intellectual
Property which is licensed to the General Partner or the Fund;
(ii) to the knowledge of the General Partner or the Fund, there is no
infringement by third parties of any Intellectual Property;
(iii) there is no pending or, to the knowledge of the General Partner or
the Fund, threatened action, suit, proceeding or claim by others
challenging the General Partner or the Fund's rights in or to any
Intellectual Property, and the General Partner and the Fund are unaware of
any facts which could form a reasonable basis for any such claim;
(iv) there is no pending or, to the knowledge of the General Partner or the
Fund, threatened action, suit, proceeding or claim by others challenging
the validity or scope of any Intellectual Property as to which the General
Partner and the Fund have no knowledge of any such pending or threatened
claims, and the General Partner and the Fund are unaware of any facts which
could form a reasonable basis for any such claim;
(v) there is no pending or, to the knowledge of the General Partner or the
Fund, threatened action, suit, proceeding or claim by others that the
General Partner or the Fund infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of others,
and the General Partner and the Fund are unaware of any facts which could
form a reasonable basis for any such claim; and
4
(vi) to the knowledge of the General Partner or the Fund, there is no
patent or patent application that contains claims that interfere with the
issued or pending claims of any of the Intellectual Property; and
(s) all tax returns required to be filed by the General Partner have been
filed, and all taxes and other assessments of a similar nature (whether imposed
directly or through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due from such entities have
been paid; and no tax returns or tax payments are due with respect to the Fund
as of the date of this Agreement;
(t) the General Partner has not sent or received any communication
regarding termination of, or intent not to renew, any of the contracts or
agreements referred to or described in, or filed as an exhibit to, the
Registration Statement, and no such termination or non-renewal has been
threatened by the General Partner or any other party to any such contract or
agreement;
(u) on behalf of the Fund, the General Partner has established and
maintains disclosure controls and procedures (as such term is defined in Rule
13a-14 and 15d-14 under the Exchange Act, giving effect to the rules and
regulations, and SEC staff interpretations (whether or not public),
thereunder)); such disclosure controls and procedures are designed to ensure
that material information relating to the Fund, is made known to the General
Partner, and such disclosure controls and procedures are effective to perform
the functions for which they were established; on behalf of the Fund, the
General Partner has been advised of: (i) any significant deficiencies in the
design or operation of internal controls which could adversely affect the Fund's
ability to record, process, summarize, and report financial data; and (ii) any
fraud, whether or not material, that involves management or other employees who
have a role in the Fund's internal controls; any material weaknesses in internal
controls have been identified for the Fund's auditors;
(w) any statistical and market-related data included in the Registration
Statement and the Prospectus are based on or derived from sources that the
General Partner believes to be reliable and accurate, and the General Partner
has obtained the written consent to the use of such data from such sources to
the extent required; and
(x) neither the General Partner, nor any of the General Partner's
directors, members, officers, affiliates or controlling persons has taken,
directly or indirectly, any action designed, or which has constituted or might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any security or
asset of the Fund to facilitate the sale or resale of the Units.
For purposes hereof, the term "Registration Statement" shall mean the
Registration Statement as amended or supplemented from time to time to the date
hereof, the term "Preliminary Prospectus" shall mean the preliminary prospectus
dated [______], 2005 relating to the Units and any other prospectus dated prior
to effectiveness of the Registration Statement relating to the Units, and the
term "Prospectus" shall mean the Prospectus as amended or supplemented from time
to time to the date hereof.
5
2. Each of the obligations of the General Partner to be performed by it on or
before the date hereof pursuant to the terms of the Agreement, and each of the
provisions thereof to be complied with by the General Partner on or before the
date hereof, has been duly performed and complied with in all material respects.
Capitalized terms used, but not defined herein shall have the meanings assigned
to such terms in the Agreement.
IN WITNESS WHEREOF, I have hereunto, on behalf of the General Partner,
subscribed my name this ___ day of ________, 2005.
By: __________________________________
Name:
Title:
I, ___________________________, in my capacity as [title], hereby certify that
_______________ is the duly elected [title] of the General Partner, and that the
signature set forth immediately above is [his/her] genuine signature.
IN WITNESS WHEREOF, I have hereunto set my hand as of the date first set forth
above.
By: __________________________________
Name:
Title:
6
