Attached files
| file | filename |
|---|---|
| S-1/A - United States Brent Oil Fund, LP | v179156_s1a.htm |
| EX-10.1 - United States Brent Oil Fund, LP | v179156_ex10-1.htm |
| EX-10.4 - United States Brent Oil Fund, LP | v179156_ex10-4.htm |
| EX-23.2B - United States Brent Oil Fund, LP | v179156_ex23-2b.htm |
| EX-23.2A - United States Brent Oil Fund, LP | v179156_ex23-2a.htm |
Exhibit
10.3
CUSTODIAN
AGREEMENT
THIS CUSTODIAN
AGREEMENT (this “Agreement”), dated as of
February 8, 2010 is entered into among UNITED STATES BRENT OIL FUND,
LP, a limited partnership organized under the laws of the State of
Delaware (the “Fund”),
UNITED STATES COMMODITY FUNDS
LLC, a Delaware limited liability company and General Partner of the Fund
(the “General Partner”),
and BROWN BROTHERS HARRIMAN
& CO., a limited partnership formed under the laws of the State of
New York (“BBH&Co.”
or the “Custodian”),
W
I T N E S S E T H:
WHEREAS,
the General Partner has exclusive responsibility for the management and control
of the business and affairs of the Fund; and
WHEREAS,
the General Partner wishes to employ BBH&Co. to act as custodian for the
Fund’s Investments (as defined in Section 13.15) and to provide related
services, all as provided herein, and BBH&Co. is willing to accept such
employment, subject to the terms and conditions herein set forth;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the Fund and BBH&Co. hereby agree, as follows:
1. Appointment of
Custodian. The Fund and the General Partner hereby
appoint BBH&Co. as the Fund’s custodian for its Investments, and BBH&Co.
hereby accepts such appointment. All Investments of the Fund
delivered to the Custodian or its agents or Subcustodians (as defined in Section
13) shall be dealt with as provided in this Agreement. The duties of
the Custodian with respect to the Fund’s Investments shall be only as set forth
expressly in this Agreement, which duties are generally comprised of safekeeping
and various administrative duties that will be performed in accordance with
Instructions and as reasonably required to effect Instructions.
2. Representations,
Warranties and Covenants of the Fund. The Fund and the
General Partner each hereby represents, warrants and covenants each of the
following:
2.1 This
Agreement has been, and at the time of delivery of each Instruction (as defined
in Section 4) such Instruction will have been, duly authorized, executed and
delivered by the Fund and the General Partner. This Agreement does
not violate any Applicable Law (as defined in Section 13) or conflict with or
constitute a default under the Fund’s prospectus or other organic document,
agreement, judgment, order or decree to which the Fund or the General Partner is
a party or by which it or its Investments is bound.
2.2 By
providing an Instruction with respect to the first acquisition of an Investment
in a jurisdiction other than the United States of America, the Fund and the
General Partner shall be deemed to have confirmed to the Custodian that the Fund
has (a) made all determinations required to be made by the Fund under Applicable
Law, and (b) appropriately and adequately disclosed to its unitholders and all
persons who have rights in or to such Investments, all material investment
risks, including those relating to the custody and settlement infrastructure or
the servicing of securities in such jurisdiction.
2.3 The
Fund and the General Partner shall safeguard and shall be solely responsible for
the safekeeping of any testkeys, identification codes, passwords, other security
devices or statements of account with which the Custodian provides
them. In furtherance and not limitation of the foregoing, in the
event the Fund and/or the General Partner utilizes any on-line service offered
by the Custodian, the Fund, the General Partner and the Custodian shall be fully
responsible for the security of each party’s respective connecting terminal,
access thereto and the proper and authorized use thereof and the initiation and
application of continuing effective safeguards in respect
thereof. Additionally, if the Fund and/or the General Partner uses
any on-line or similar communications service made available by the Custodian,
the Fund and the General Partner shall be solely responsible for ensuring the
security of their access to the service and for the use of the service, and
shall only attempt to access the service and the Custodian’s computer systems as
directed by the Custodian. If the Custodian provides any computer
software to the Fund and/or the General Partner relating to the services
described in this Agreement, the Fund and/or the General Partner will only use
the software for the purposes for which the Custodian provided the software to
the Fund and/or the General Partner, and will abide by the license agreement
accompanying the software and any other security policies which the Custodian
provides to the Fund and the General Partner.
2.4 By providing an
Instruction in respect of an Investment (which Instruction may relate to among
other things, the execution of trades), the Fund and the General Partner hereby
(i) authorize BBH&Co. to complete such documentation as may be required or
appropriate for the execution of the Instruction, and agree to be contractually
bound to the terms of such documentation “as is” (subject to Section 9 of this
Agreement) without recourse against BBH&Co.; (ii) represent, warrant and
covenant that the Fund and the General Partner have accepted and agreed to
comply with all Applicable Law, terms and conditions to which the Fund and/or
the General Partner’s Investment may be bound, including without limitation,
requirements imposed by the Investment prospectus or offering circular,
subscription agreement, any application or other documentation relating to an
Investment (e.g., compliance with suitability requirements and eligibility
restrictions); (iii) acknowledge and agree that BBH&Co. will not be
responsible for the accuracy of any information provided to the Fund and/or
General Partner by or on behalf of the Fund and/or the General Partner, or for
any underlying commitment or obligation inherent to an Investment; (iv)
represent, warrant and covenant that the Fund and/or General Partner will not
effect any sale, transfer or disposition of Investment(s) held in the
BBH&Co.’s name by any means other than the issuance of an Instruction by the
Fund and/or General Partner to BBH&Co.; (v) acknowledge that collective
investment schemes (and/or their agent(s)) in which the Fund and/or General
Partner invests may pay to BBH certain fees (including without limitation,
shareholder servicing and/or trailer fees) in respect of the Fund’s and/or
General Partner’s investments in such schemes; (vi) represent, warrant and
covenant that the Fund and/or General Partner will provide BBH&Co. with such
information as is necessary or appropriate to enable BBH&Co.’s performance
pursuant to an Instruction or under this Agreement; (vii) represent that the
Fund is not a “Plan” (which term includes (1) employee benefit plans that are
subject to the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), or plans, individual retirement accounts and other arrangements that
are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended
(the “Code”), (2) plans, individual retirement accounts and other arrangements
that are subject to the prohibited transaction provisions of Section 406 of
ERISA or Section 4975 of the Code, and (3) entities the underlying assets of
which are considered to include “plan assets” of such plans, accounts and
arrangements), or an entity purchasing shares on behalf of, or with the “plan
assets” of, a Plan; and (viii) undertakes to inform BBH&Co. and to keep the
same updated as to its status under ERISA or Section 4975 of the Code, each as
amended, of the beneficial investor to the Investment, and as to any tax
withholding or benefit to which an Investment may be subject.
2
3. Representations
and Warranties of BBH&Co. BBH&Co. hereby represents
and warrants that this Agreement has been duly authorized, executed and
delivered by BBH&Co. and does not violate any Applicable Law or conflict
with or constitute a default under BBH&Co.’s limited partnership agreement
or any agreement, instrument, judgment, order or decree to which BBH&Co. is
a party or by which it is bound.
4. Instructions. Unless
otherwise explicitly indicated herein, the Custodian shall perform its duties
pursuant to Instructions. As used herein, the term Instruction shall mean a
directive initiated by the Fund and/or the General Partner, acting directly or
through its board of directors, officers or other Authorized Persons, which
directive shall conform to the requirements of this Section 4.
4.1 Authorized
Persons. For purposes hereof, an Authorized Person shall be a
person or entity authorized to give Instructions for or on behalf of the Fund
and/or the General Partner by written notices to the Custodian or otherwise
in accordance with procedures delivered to and acknowledged by the
Custodian, including without limitation the Fund’s Investment Advisor (as
defined in Section 13). The Custodian may treat any Authorized Person
as having full authority of the Fund and/or the General Partner to issue
Instructions hereunder unless the notice of authorization contains explicit
limitations as to said authority. The Custodian shall be entitled to
rely upon the authority of Authorized Persons until it receives appropriate
written notice from the Fund to the contrary.
The Fund hereby designates the
Marketing Agent (as such term is defined under an Authorized Purchaser Agreement
entered into by the General Partner on behalf of the Fund, as approved by the
Custodian (the Authorized
Purchaser Agreement)) as an Authorized Person from whom the Custodian is
hereby authorized to receive Instructions to accept deposits of cash and
securities in connection with the purchase of Units (as such term is defined
under the Authorized Purchaser Agreement) and the distribution of cash and
securities in connection with the redemption of Units.
4.2 Form of
Instruction. Each Instruction shall be transmitted by such
secured or authenticated electro-mechanical means as the Custodian shall make
available to the Fund from time to time unless the Fund and/or the General
Partner shall elect to transmit such Instruction in accordance with Subsections
4.2.1 through 4.2.3 of this Section.
3
4.2.1
Fund
Designated Secured-Transmission Method. Instructions may be transmitted
through a secured or tested electro-mechanical means identified by the Fund, the
General Partner or by an Authorized Person entitled to give Instructions and
acknowledged and accepted by the Custodian; it being understood that such
acknowledgment shall authorize the Custodian to receive and process such means
of delivery but shall not represent a judgment by the Custodian as to the
reasonableness or security of the method determined by the Authorized
Person.
4.2.2
Written
Instructions. Instructions may be transmitted in a writing
that bears the manual signature of Authorized Persons.
4.2.3
Other Forms
of Instruction. Instructions may also be transmitted by
another means determined by the Fund, the General Partner or Authorized Persons
and acknowledged and accepted by the Custodian (subject to the same limits as to
acknowledgements as is contained in Subsection 4.2.1, above) including
Instructions given orally or by SWIFT, telex or telefax (whether tested or
untested).
When an
Instruction is given by means established under Subsections 4.2.1 through 4.2.3,
it shall be the responsibility of the Custodian to use reasonable care to adhere
to any security or other procedures established in writing between the Custodian
and the Authorized Person with respect to such means of Instruction, but such
Authorized Person shall be solely responsible for determining that the
particular means chosen is reasonable under the circumstances. Oral Instructions
shall be binding upon the Custodian only if and when the Custodian takes action
with respect thereto. With respect to telefax instructions, the
parties agree and acknowledge that receipt of legible instructions cannot be
assured, that the Custodian cannot verify that authorized signatures on telefax
instructions are original or properly affixed, and that the Custodian shall not
be liable for losses or expenses incurred through actions taken in reliance on
inaccurately stated, illegible or unauthorized telefax
instructions. The provisions of Section 4A of the Uniform Commercial
Code as currently in effect in the State of New York shall apply to the Fund’s
transfers performed in accordance with Instructions. The Funds
Transfer Services Schedule (as defined in Section 13) and the Electronic and
Online Services Schedule to this Agreement shall each comprise a designation of
form of a means of delivering Instructions for purposes of this Section
4.2.
4.3 Completeness and
Contents of Instructions. The Authorized Person shall be responsible for
assuring the adequacy and accuracy of Instructions. Particularly,
upon any acquisition or disposition or other dealing in the Fund’s Investments
and upon any delivery and transfer of any Investment or moneys, the person
initiating such Instruction shall give the Custodian an Instruction with
appropriate detail, including, without limitation:
4.3.1 The
transaction date and the date and location of settlement;
4.3.2 The
specification of the type of transaction;
4.3.3 A
description of the Investments or moneys in question, including, as appropriate,
quantity, price per unit, amount of money to be received or delivered and
currency information. Where an Instruction is communicated by
electronic means, or otherwise where an Instruction contains an identifying
number such as a CUSIP, SEDOL or ISIN number, the Custodian shall be entitled to
rely on such number as controlling notwithstanding any inconsistency contained
in such Instruction, particularly with respect to the Investment description;
and
4
4.3.4 The
name of the broker or similar entity concerned with execution of the
transaction.
If the Custodian shall determine that
an Instruction is either unclear or incomplete, the Custodian may give prompt
notice of such determination to the Fund and/or the General Partner, and the
Fund and/or the General Partner shall thereupon amend or otherwise reform such
Instruction. In such event, the Custodian shall have no obligation to
take any action in response to the Instruction initially delivered until the
redelivery of an amended or reformed Instruction.
4.4 Timeliness of
Instructions. In giving an Instruction, the Fund and/or the
General Partner shall take into consideration delays which may occur due to the
involvement of a Subcustodian or agent, differences in time zones, and other
factors particular to a given market, exchange or issuer. When the
Custodian has established specific timing requirements or deadlines with respect
to particular classes of Instruction, or when an Instruction is received by the
Custodian at such a time that it could not reasonably be expected to have acted
on such Instruction due to time zone differences or other factors beyond its
reasonable control, the execution of any Instruction received by the Custodian
after such deadline or at such time (including any modification or revocation of
a previous Instruction) shall be at the risk of the Fund.
5. Safekeeping of
Fund Assets. The Custodian shall hold Investments delivered to
it or Subcustodians for the Fund in accordance with the provisions of this
Section. The Custodian shall not be responsible for (a) the
safekeeping of Investments not delivered or that are not caused to be issued to
it or its Subcustodians; (b) pre-existing faults or defects in Investments that
are delivered to the Custodian or its Subcustodians; or (c) the safekeeping of
Brent Oil Interests and Brent Oil Forward Contracts (each as defined in the
Fund’s prospectus). The Custodian is hereby authorized to hold with
itself or a Subcustodian, and to record in one or more accounts, all Investments
delivered to and accepted by the Custodian, any Subcustodian or their respective
agents pursuant to an Instruction or in consequence of any corporate
action. The Custodian shall hold Investments for the account of the
Fund and shall segregate Investments from assets belonging to the Custodian and
shall cause its Subcustodians to segregate Investments from assets belonging to
the Subcustodian in an account held for the Fund or in an account maintained by
the Subcustodian generally for non-proprietary assets of the
Custodian.
5.1 Use of Securities
Depositories. The Custodian may deposit and maintain Investments in any
Securities Depository (as defined in Section 13), either directly or through one
or more Subcustodians appointed by the Custodian. Investments held in
a Securities Depository shall be held (a) subject to the agreement, rules,
statement of terms and conditions or other document or conditions effective
between the Securities Depository and the Custodian or the Subcustodian, as the
case may be, and (b) in an account for the Fund or in bulk segregation in an
account maintained for the non-proprietary assets of the entity holding such
Investments in the Securities Depository. If market practice or the
rules and regulations of the Securities Depository prevent the Custodian, the
Subcustodian or any agent of either from holding its client assets in such a
separate account, the Custodian, the Subcustodian or other agent shall as
appropriate segregate such Investments for benefit of the Fund or for the
benefit of clients of the Custodian generally on its own books.
5
5.2 Certificated
Assets. Investments which are certificated may be held in
registered or bearer form: (a) in the Custodian’s vault; (b) in the vault of a
Subcustodian or agent of the Custodian or a Subcustodian; or (c) in an account
maintained by the Custodian, Subcustodian or agent at a Securities Depository;
all in accordance with customary market practice in the jurisdiction in which
any Investments are held.
5.3 Registered
Assets. Investments which
are registered may be registered in the name of the Custodian, a Subcustodian,
or in the name of the Fund or a nominee for any of the foregoing, and may be
held in any manner set forth in Section 5.2 above with or without any
identification of fiduciary capacity in such registration.
5.4 Book Entry
Assets. Investments which are represented by book-entry may be
so held in an account maintained by the Book-entry Agent (as defined in Section
13) on behalf of the Custodian, a Subcustodian or another agent of the
Custodian, or a Securities Depository.
5.5 Replacement of
Lost Investments. In the event of a loss of Investments for
which the Custodian is responsible under the terms of this Agreement, the
Custodian shall replace such Investment, or in the event that such replacement
cannot be effected, the Custodian shall pay to the Fund the fair market value of
such Investment based on the last available price as of the close of business in
the relevant market on the date that a claim was first made to the Custodian
with respect to such loss, or, if less, such other amount as shall be agreed by
the parties as the date for settlement.
6. Administrative
Duties of the Custodian. The Custodian shall perform the following
administrative duties with respect to Investments of the Fund.
6.1 Purchase of
Investments. Pursuant to Instructions, Investments purchased for the
account of the Fund shall be paid for (a) against delivery thereof to the
Custodian or a Subcustodian, as the case may be, either directly or through a
Clearing Corporation (as defined in Section 13) or a Securities Depository (in
accordance with the rules of such Securities Depository or such Clearing
Corporation), or (b) otherwise in accordance with an Instruction, Applicable
Law, generally accepted trade practices, or the terms of the instrument
representing such Investment.
6.2 Sale of
Investments. Pursuant to Instructions, Investments sold for
the account of the Fund shall be delivered (a) against payment therefor in cash,
by check or by bank wire transfer, (b) by credit to the account of the Custodian
or the applicable Subcustodian, as the case may be, with a Clearing Corporation
or a Securities Depository (in accordance with the rules of such Securities
Depository or such Clearing Corporation), or (c) otherwise in accordance with an
Instruction, Applicable Law, generally accepted trade practices, or the terms of
the instrument representing such Investment.
6
6.3 Delivery and
Receipt in Connection with Borrowings of the Fund or other Collateral and Margin
Requirements. Pursuant to Instructions and subject to the last
sentence in Section 6.4 below, the Custodian may deliver or receive Investments
or cash of the Fund in connection with borrowings or loans by the Fund and other
collateral and margin requirements.
6.4 Futures and
Over-the-Counter (OTC) Contracts. If, pursuant to an
Instruction, the Custodian shall become a party to an agreement with the Fund
and a futures commission merchant regarding margin or a counterparty to an OTC
contract (Tri-Party
Agreement), the Custodian shall (a) receive and retain, to the extent the
same is provided to the Custodian, confirmations or other documents evidencing
the purchase or sale by the Fund of exchange-traded futures contracts or the
entering into of an option, forward or other derivatives transaction by the
Fund; (b) when required by such Tri-Party Agreement, deposit and maintain in an
account opened pursuant to such Agreement (Margin Account) segregated
either physically or by book-entry in a Securities Depository for the benefit of
any futures commission merchant, such Investments as the Fund shall have
designated as initial, maintenance or variation “margin” deposits or other
collateral intended to secure the Fund’s performance of its obligations under
the terms of any exchange-traded futures contracts and commodity options; and
(c) thereafter pay, release or transfer Investments into or out of the Margin
Account in accordance with the provisions of such Tri-Party Agreement.
Alternatively, the Custodian may deliver Investments, in accordance with an
Instruction, to a futures commission merchant for margin purposes or to the
counterparty or its custodian. The Custodian shall in no event be
responsible for the acts and omissions of any futures commission merchant or the
counterparty or its custodian, to whom Investments are delivered pursuant to
this Section; for the sufficiency of Investments held in any Margin Account; for
funding margin deposits or otherwise providing Advances (as defined in Section
13) for the purpose of margin or other collateral in any Margin Account; or, for
the performance of any terms of any exchange-traded futures contracts, commodity
options, forward contracts and other derivative transactions. In
addition, the Custodian shall not be required to transfer margin or any other
assets of the Fund to a Margin Account if at the time of such request, such
transfer would reduce the aggregate market value of all unencumbered securities,
cash, cash equivalents and other unencumbered liquid assets of the Fund in the
custody of the Custodian to less than ten (10) percent of the then current net
asset value of the Fund.
6.5 Contractual
Obligations and Similar Investments. From time to time, the
Fund’s Investments may include Investments that are not ownership interests as
may be represented by certificate (whether registered or bearer), by entry in a
Securities Depository or by book entry agent, registrar or similar agent for
recording ownership interests in the relevant Investment. If the Fund
shall at any time acquire such Investments, including without limitation deposit
obligations, loan participations, repurchase agreements and derivative
arrangements, the Custodian shall (a) receive and retain, to the extent the same
are provided to the Custodian, confirmations or other documents evidencing the
arrangement; and (b) perform on the Fund’s account in accordance with the terms
of the applicable arrangement, but only to the extent directed to do so by an
Instruction. The Custodian shall have no responsibility for
agreements running to the Fund as to which it is not a party other than to
retain, to the extent the same are provided to the Custodian, documents or
copies of documents evidencing the arrangement and, in accordance with an
Instruction, to include such arrangements in reports made to the
Fund.
7
6.6 Exchange of
Securities. Unless otherwise directed by an Instruction, the
Custodian shall: (a) exchange securities held for the account of the
Fund for other securities in connection with any reorganization,
recapitalization, conversion, split-up, change of par value of shares or similar
event, and (b) deposit any such securities in accordance with the terms of any
reorganization or protective plan.
6.7 Surrender of
Securities. Unless otherwise directed by an Instruction, the
Custodian may surrender securities: (a) in temporary form for definitive
securities; (b) for transfer into the name of an entity allowable under Section
5.3; and (c) for a different number of certificates or instruments representing
the same number of shares or the same principal amount of
indebtedness.
6.8 Rights, Warrants,
Etc. Pursuant to an Instruction, the Custodian shall (a)
deliver warrants, puts, calls, rights or similar securities to the issuer or
trustee thereof, or to any agent of such issuer or trustee, for purposes of
exercising such rights or selling such securities, and (b) deposit securities in
response to any invitation for the tender thereof.
6.9 Mandatory
Corporate Actions. Unless otherwise directed by an
Instruction, the Custodian shall: (a) comply with the terms of all mandatory or
compulsory exchanges, calls, tenders, redemptions or similar rights of
securities ownership affecting securities held on the Fund’s account and
promptly notify the Fund of such action, and (b) collect all stock dividends,
rights and other items of like nature with respect to such
securities.
6.10 Income
Collection. Unless otherwise directed by an Instruction, the
Custodian shall collect any amount due and payable to the Fund with respect to
Investments and promptly credit the amount collected to a Principal Account or
an Agency Account (each defined in Section 13); provided, however, that the
Custodian shall not be responsible for: (a) the collection of amounts due and
payable with respect to Investments that are in default, or (b) the collection
of cash or share entitlements with respect to Investments that are
not registered in the name of the Custodian or its
Subcustodians. The Custodian is hereby authorized to endorse and
deliver any instrument required to be so endorsed and delivered to effect
collection of any amount due and payable to the Fund with respect to
Investments.
6.11 Ownership
Certificates and Disclosure of the Fund’s Interest. The Custodian is
hereby authorized to execute on behalf of the Fund ownership certificates,
affidavits or other disclosure required under Applicable Law or established
market practice in connection with the receipt of income, capital gains or other
payments by the Fund with respect to Investments, or in connection with the
sale, purchase or ownership of Investments.
With
respect to securities issued in the United States of America, the Custodian
[ ] may [ X ] may not release the identity of the
Fund to an issuer which requests such information pursuant to the Shareholder
Communications Act of 1985 for the specific purpose of direct communications
between such issuer and the Fund. IF NO BOX IS CHECKED, THE CUSTODIAN
SHALL RELEASE
SUCH INFORMATION UNTIL IT RECEIVES CONTRARY INSTRUCTIONS FROM THE
FUND. With respect to securities issued outside of the United States
of America, information shall be released in accordance with law or custom of
the particular country in which such security is located.
8
6.12 Proxy Materials.
The Custodian shall deliver, or cause to be delivered, to the Fund proxy
forms, notices of meeting, and any other notices or announcements materially
affecting or relating to Investments received by the Custodian or any
nominee.
6.13 Taxes. The
Custodian shall, where applicable, assist the Fund in the reclamation of taxes
withheld on dividends and interest payments received by the Fund. In
the performance of its duties with respect to tax withholding and reclamation,
the Custodian shall be entitled to rely on the advice of counsel and upon
information and advice regarding the Fund’s tax status that is received from or
on behalf of the Fund without duty of separate inquiry.
6.14 Other
Dealings. The Custodian shall otherwise act as directed by
Instructions, including without limitation effecting the free payments of moneys
or the free delivery of securities, provided that such Instruction shall
indicate the purpose of such payment or delivery and that the Custodian shall
record the party to whom such payment or delivery is made.
The Custodian shall attend to all
nondiscretionary details in connection with the sale or purchase or other
administration of Investments, except as otherwise directed by an Instruction,
and may make payments to itself or others for minor expenses of administering
Investments under this Agreement; provided that the Fund shall have the right to
request an accounting with respect to such expenses.
In fulfilling the duties set forth in
Sections 6.6 through 6.10 above, the Custodian shall provide to the Fund all
material information pertaining to a corporate action which the Custodian
actually receives; provided that the Custodian shall not be responsible for the
completeness or accuracy of such information. Information relative to any
pending corporate action made available to the Fund via any of the services
described in the Electronic and Online Services Schedule shall constitute the
delivery of such information by the Custodian hereunder. Any advance
credit of cash or shares expected to be received as a result of any corporate
action shall be subject to actual collection and may, when the Custodian deems
collection unlikely, be reversed by the Custodian.
The Custodian may at any time or times
in its discretion appoint (and may at any time remove) agents (other than
Subcustodians) to carry out some or all of the administrative provisions of this
Agreement (Agents),
provided, however, that the appointment of such agent shall not relieve the
Custodian of its administrative obligations under this Agreement.
7. Cash Accounts,
Deposits and Money Movements. Subject to the terms and
conditions set forth in this Section 7, the Fund and the General Partner each
hereby authorizes the Custodian to open and maintain, with itself or with
Subcustodians, cash accounts in United States Dollars, in such other currencies
as are the currencies of the countries in which the Fund maintains Investments
or in such other currencies as the Fund shall from time to time request by
Instruction.
9
7.1 Types of Cash
Accounts. Cash accounts
opened on the books of the Custodian (Principal Accounts) shall be
opened in the name of the Fund. Such accounts collectively shall be a
deposit obligation of the Custodian and shall be subject to the terms of this
Section 7 and the general liability provisions contained in Section
9. Cash accounts opened on the books of a Subcustodian may be opened
in the name of the Fund or the Custodian or in the name of the Custodian for its
customers generally (Agency
Accounts). Such deposits shall be obligations of the Subcustodian and
shall be treated as an Investment of the Fund. Accordingly, the
Custodian shall be responsible for exercising reasonable care in the
administration of such accounts but shall not be liable for their repayment in
the event such Subcustodian, by reason of its bankruptcy, insolvency or
otherwise, fails to make repayment.
7.1.1. Administrative
Accounts. In connection with the services provided hereunder,
the Custodian is hereby directed to open cash accounts on its books and records
from time to time for the purposes of receiving subscriptions and/or processing
redemptions on behalf of the Fund and/or the General Partner and/or for the
purposes of aggregating, netting and/or clearing transactions (including,
without limitation foreign exchange, repurchase agreements, capital stock
activity, expense payment) or other administrative purposes, each on behalf of
the Fund and/or the General Partner (each an “Account”). Each such
Account shall be subject to the terms and conditions of this Agreement and the
Fund and/or the General Partner shall be liable for the satisfaction of its
obligations in connection with each Account.
7.2 Payments and
Credits with Respect to the Cash Accounts. The Custodian
shall make payments from or deposits to any of said accounts in the course of
carrying out its administrative duties, including but not limited to income
collection with respect to the Fund’s Investments, and otherwise in accordance
with Instructions. The Custodian and its Subcustodians shall be
required to credit amounts to the cash accounts only when moneys are actually
received in cleared funds in accordance with banking practice in the country and
currency of deposit. Any credit made to any Principal or Agency
Account before actual receipt of cleared funds shall be provisional and may be
reversed by the Custodian in the event such payment is not actually collected.
Unless otherwise specifically agreed in writing by the Custodian or any
Subcustodian, all deposits shall be payable only at the branch of the Custodian
or Subcustodian where the deposit is made or carried.
7.3 Currency and
Related Risks. The Fund and the General Partner each bears
risks of holding or transacting in any currency, including any mark to market
exposure associated with a foreign exchange transaction undertaken with the
Custodian. The Custodian shall not be liable for any loss or
damage arising from the applicability of any law or regulation now or hereafter
in effect, or from the occurrence of any event, which may delay or affect the
transferability, convertibility or availability of any currency in the country
(a) in which such Principal or Agency Accounts are maintained or (b) in which
such currency is issued, and in no event shall the Custodian be obligated to
make payment of a deposit denominated in a currency during the period during
which its transferability, convertibility or availability has been affected by
any such law, regulation or event. Without limiting the generality of
the foregoing, neither the Custodian nor any Subcustodian shall be required to
repay any deposit made at a foreign branch of either the Custodian or
Subcustodian if such branch cannot repay the deposit due to a cause for which
the Custodian would not be responsible in accordance with the terms of Section 9
of this Agreement unless the Custodian or such Subcustodian expressly agrees in
writing to repay the deposit under such circumstances. All currency
transactions in any account opened pursuant to this Agreement are subject to
exchange control regulations of the United States and of the country where such
currency is the lawful currency or where the account is maintained. Any taxes,
costs, charges or fees imposed on the convertibility of a currency held by the
Fund shall be for the account of the Fund.
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7.4 Foreign Exchange
Transactions. The
Custodian shall, subject to the terms of this Section, settle foreign exchange
transactions (including contracts, futures, options and options on futures) on
behalf and for the account of the Fund with such currency brokers or banking
institutions, including Subcustodians, as the Fund may direct pursuant to
Instructions. The Custodian may act as principal in any
foreign exchange transaction with the Fund in accordance with Section 7.4.2 of
this Agreement. The obligations of the Custodian in respect of
all foreign exchange transactions (whether or not the Custodian shall act as
principal in such transaction) shall be contingent on the free, unencumbered
transferability of the currency transacted on the actual settlement date of the
transaction.
7.4.1 Third Party
Foreign Exchange Transactions. The Custodian
shall process foreign exchange transactions (including without limitation
contracts, futures, options, and options on futures), where any third party acts
as principal counterparty to the Fund on the same basis it performs duties as
agent for the Fund with respect to any other of the Fund’s Investments.
Accordingly, the Custodian shall only be responsible for delivering or receiving
currency on behalf of the Fund in respect of such contracts pursuant to
Instructions. The Custodian shall not be responsible for the failure of any
counterparty (including any Subcustodian) in such agency transaction to perform
its obligations thereunder. The Custodian (a) shall transmit cash and
Instructions to and from the currency broker or banking institution with which a
foreign exchange contract or option has been executed pursuant hereto, (b) may
make free outgoing payments of cash in the form of United States Dollars or
foreign currency without receiving confirmation of a foreign exchange contract
or option or confirmation that the countervalue currency completing the foreign
exchange contract has been delivered or received or that the option has been
delivered or received, and (c) shall hold all confirmations, certificates and
other documents and agreements received by the Custodian and evidencing or
relating to such foreign exchange transactions in safekeeping. The
Fund accepts full responsibility for its use of third-party foreign exchange
dealers and for execution of said foreign exchange contracts and options and
understands that the Fund shall be responsible for any and all costs and
interest charges which may be incurred by the Fund or the Custodian as a result
of the failure or delay of third parties to deliver foreign
exchange.
11
7.4.2 Foreign Exchange
with the Custodian as Principal. The Custodian may as
principal undertake foreign exchange transactions with the Fund as the Custodian
and the Fund may agree from time to time. In such event, the foreign
exchange transaction will be performed in accordance with the particular
agreement of the parties, or in the event a principal foreign exchange
transaction is initiated by an Instruction in the absence of specific agreement,
such transaction will be performed in accordance with the usual commercial terms
of the Custodian. In the event that the Fund defaults on the settlement of
any such foreign exchange transaction with the Custodian, the Fund shall be
liable for contracted currency of the transaction together with any mark to
market exposure associated with the replacement purchase of the contracted
currency undertaken with the Custodian.
7.5 Delays. If no event of
Force Majeure shall have occurred and be continuing and in the event that a
delay shall have been caused by the negligence or willful misconduct of the
Custodian in carrying out an Instruction to credit or transfer cash, the
Custodian shall be liable to the Fund: (a) with respect to Principal
Accounts, for interest to be calculated at the rate customarily paid on such
deposit and currency by the Custodian on overnight deposits at the time the
delay occurs for the period from the day when the transfer should have been
effected until the day it is in fact effected; and, (b) with respect to Agency
Accounts, for interest to be calculated at the rate customarily paid on such
deposit and currency by the Subcustodian on overnight deposits at the time the
delay occurs for the period from the day when the transfer should have been
effected until the day it is in fact effected. The Custodian shall not be liable
for delays in carrying out such Instructions to transfer cash which are not due
to the Custodian’s own negligence or willful misconduct.
7.6 Advances.
If, for any reason in connection with this Agreement the Custodian or any
Subcustodian makes an Advance to facilitate settlement or otherwise for the
benefit of the Fund (whether or not any Principal or Agency Account shall be
overdrawn either during, or at the end of, any Business Day (defined as any day
other than a day on which the NYSE Arca, Inc., the ICE Futures Exchange or the
New York Stock Exchange is closed for regular trading)), the Fund and the
General Partner each hereby does:
7.6.1 acknowledge
that the Fund shall have no right, title or interest in or to any Investments
purchased with such Advance or proceeds of such Investments, and that any credit
to an account of Fund shall be provisional, until: (a) the debit of the
Principal or Agency Account by Custodian for an amount equal to Advance Costs;
and/or (b) if such debit produces an overdraft in such account, reimbursement to
the Custodian or Subcustodian for the amount of such
overdraft;
7.6.2 acknowledge
that the Custodian has an automatically perfected statutory security interest in
Investments purchased with any such Advance (as defined in Section 13) pursuant
to Section 9-206 of the Uniform Commercial Code as in effect in the State
of New York from time to time;
12
7.6.3 in
addition, in order to secure the obligations of the Fund to pay or perform any
and all obligations of the Fund pursuant to this Agreement, including without
limitation to repay any Advance made pursuant to this Agreement, grant to the
Custodian a security interest in all Investments and proceeds thereof (as
defined in the Uniform Commercial Code as currently in effect in the State of
New York); and agree to take, and agree that the Custodian may take, in respect
of the security interest referenced above, any further actions that the
Custodian may reasonably require.
7.7 Custodian’s
Rights Neither the Custodian nor any Subcustodian shall be
obligated to make any Advance or to allow an Advance to occur to the Fund, and
in the event that the Custodian or any Subcustodian does make or allow an
Advance, any such Advance and any transaction giving rise to such Advance shall
be for the account and risk of the Fund and shall not be deemed to be a
transaction undertaken by the Custodian for its own account and
risk. If such Advance shall have been made or allowed by a
Subcustodian or any other person, the Custodian may assign all or part of its
security interest referenced above and any other rights granted to the Custodian
hereunder to such Subcustodian or other person. If the Fund shall
fail to repay the Advance Costs when due, the Custodian or its assignee, as the
case may be, shall be entitled to a portion of the available cash balance in any
Agency or Principal Account equal to such Advance Costs, and the Fund authorizes
the Custodian, on behalf of the Fund, to pay an amount equal to such Advance
Costs irrevocably to such Subcustodian or other person, and to dispose of any
property in such Account to the extent necessary to make such
payment. Any Investments and funds credited to accounts subject to
this Agreement created pursuant hereto shall be treated as financial assets
credited to securities accounts under Articles 8 and 9 of the Uniform Commercial
Code as in effect in the State of New York from time to
time. Accordingly, the Custodian and any Subcustodian shall have the
rights and benefits of a secured creditor that is a securities intermediary
under such Articles 8 and 9.
7.8 Integrated
Account. For purposes
hereof, deposits maintained in all Principal Accounts (whether or not
denominated in United States Dollars) shall collectively constitute a single and
indivisible current account with respect to the Fund’s obligations to the
Custodian or its assignee, and balances in the Principal Accounts shall be
available for satisfaction of the Fund’s obligations under this Section
7. The Custodian shall further have a right of offset against the
balances in any Agency Account maintained hereunder to the extent that the
aggregate of all Principal Accounts is overdrawn.
8. Subcustodians and
Securities Depositories. Subject to the provisions hereinafter
set forth in this Section 8, the Fund and the General Partner each hereby
authorizes the Custodian to utilize Securities Depositories to act on behalf of
the Fund and to appoint from time to time and to utilize Subcustodians. With
respect to securities and funds held by a Subcustodian, either directly or
indirectly (including by a Securities Depository or Clearing Corporation),
notwithstanding any provisions of this Agreement to the contrary, payment for
securities purchased and delivery of securities sold may be made prior to
receipt of securities or payment, respectively, and securities or payment may be
received in a form, in accordance with (a) governmental regulations, (b) rules
of Securities Depositories and the Clearing Corporations, (c) generally accepted
trade practice in the applicable local market, (d) the terms and characteristics
of the particular Investment, or (e) the terms of the Instructions.
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8.1 Domestic
Subcustodians and Securities Depositories. The Custodian may
deposit and/or maintain, either directly or through one or more agents appointed
by the Custodian, Investments of the Fund in any Securities Depository in the
United States of America, including The Depository Trust Company, provided such
Securities Depository meets applicable requirements of the Federal Reserve Bank
or of the Securities and Exchange Commission. The Custodian may, at any time and
from time to time, appoint any bank meeting the requirements of a custodian and
the rules and regulations thereunder, to act on behalf of the Fund as a
Subcustodian for purposes of holding Investments of the Fund in the United
States.
8.2 Responsibility
for Subcustodians. The Custodian
shall be liable to the Fund for any loss or damage to the Fund caused by or
resulting from the acts or omissions of any domestic Subcustodian to the extent
that such acts or omissions would be deemed to be negligence, gross negligence
or willful misconduct in accordance with the terms of the relevant subcustodian
agreement under the laws, circumstances and practices prevailing in the place
where the act or omission occurred.
9. Responsibility of
the Custodian. In performing its duties and obligations
hereunder, the Custodian shall use reasonable care under the facts and
circumstances prevailing in the market where performance is
effected. Subject to the specific provisions of this Section, the
Custodian shall be liable for any direct damage incurred by the Fund in
consequence of the Custodian’s negligence, bad faith or willful
misconduct. In no event shall the Custodian be liable hereunder for
any special, indirect, punitive or consequential damages arising out of,
pursuant to or in connection with this Agreement even if the Custodian has been
advised of the possibility of such damages. It is agreed that the
Custodian shall have no duty to assess the risks inherent in the Fund’s
Investments or to provide investment advice with respect to such Investments and
that the Fund as principal shall bear any risks attendant to particular
Investments such as failure of a counterparty or issuer.
9.1 Limitations of
Performance. The Custodian
shall not be responsible under this Agreement for any failure to perform its
duties, and shall not be liable hereunder for any loss or damage in association
with such failure to perform, for or in consequence of the following
causes:
9.1.1 Force
Majeure. Force
Majeure shall mean any circumstance or event which is beyond the
reasonable control of the Custodian, a Subcustodian or any agent of the
Custodian or a Subcustodian and which adversely affects the performance by the
Custodian of its obligations hereunder, by the Subcustodian of its obligations
under its Subcustody Agreement or by any other agent of the Custodian or the
Subcustodian, including any event caused by, arising out of or involving (a) an
act of God, (b) accident, fire, water damage or explosion, (c) any computer,
system or other equipment failure or malfunction caused by any computer virus or
the malfunction or failure of any communications medium, (d) any interruption of
the power supply or other utility service, (e) any strike or other work
stoppage, whether partial or total, (f) any delay or disruption resulting from
or reflecting the occurrence of any Sovereign Risk, (g) any disruption of, or
suspension of trading in, the securities, commodities or foreign exchange
markets, whether or not resulting from or reflecting the occurrence of any
Sovereign Risk, (h) any encumbrance on the transferability of a currency or a
currency position on the actual settlement date of a foreign exchange
transaction, whether or not resulting from or reflecting the occurrence of any
Sovereign Risk, or (i) any other cause similarly beyond the reasonable control
of the Custodian.
14
9.1.2 Sovereign
Risk. Sovereign
Risk shall mean, in respect of any jurisdiction, including the United
States of America, where Investments are acquired or held hereunder or under a
subcustody agreement, (a) any act of war, terrorism, riot, insurrection or civil
commotion, (b) the imposition of any investment, repatriation or exchange
control restrictions by any Governmental Authority, (c) the confiscation,
expropriation or nationalization of any Investments by any Governmental
Authority, whether de facto or de jure, (d) any devaluation or revaluation of
the currency, (e) the imposition of taxes, levies or other charges affecting
Investments, (f) any change in the Applicable Law, or (g) any other economic or
political risk incurred or experienced.
9.2 Limitations on
Liability. The Custodian shall not be liable for any loss,
claim, damage or other liability arising from the following causes:
9.2.1 Failure of Third
Parties. The failure of any third party
including: (a) the General Partner; (b) any futures commission
merchant(s); (c) any issuer of Investments or book-entry or other agent of and
issuer; (d) any counterparty with respect to any Investment, including any
issuer of exchange-traded or other futures, option, derivative or commodities
contract; (e) failure of an Investment Advisor or other agent of the Fund; or
(f) failure of other third parties similarly beyond the control or choice of the
Custodian.
9.2.2 Information
Sources. The Custodian may rely upon information received from
issuers of Investments or agents of such issuers, information received from
Subcustodians and from other commercially reasonable sources such as commercial
data bases and the like, but shall not be responsible for specific inaccuracies
in such information, provided that the Custodian has relied upon such
information in good faith, or for the failure of any commercially reasonable
information provider.
9.2.3 Reliance on
Instruction. Action by the
Custodian or the Subcustodian in accordance with an Instruction, even when such
action conflicts with, or is contrary to any provision of, the Fund’s or the
General Partner’s limited partnership agreement, certificate of incorporation or
by-laws, Applicable Law, or actions by the directors or unitholders of the Fund
or the General Partner.
9.2.4 Restricted
Securities. The limitations inherent in the rights,
transferability or similar investment characteristics of a given Investment of
the Fund.
15
10. Indemnification.
10.1 The
Fund and the General Partner each hereby indemnifies the Custodian and each
Subcustodian, and their respective agents, nominees and the partners, employees,
officers and directors, and agrees to hold each of them harmless from and
against all claims and liabilities, including counsel fees and taxes, reasonably
incurred or assessed against any of them in connection with the performance of
this Agreement and any Instruction.
10.2 The
Custodian hereby indemnifies the Fund and the General Partner, and their
respective agents, nominees and the partners, employees, officers and directors,
and agrees to hold each of them harmless from and against all claims and
liabilities, including counsel fees and taxes, reasonably incurred or assessed
against any of them as a direct result of the Custodian’s negligence, willful
misconduct or bad faith in its performance of this Agreement and any
Instruction.
11. Reports and
Records. The Custodian shall:
11.1 create
and maintain records relating to the performance of its obligations under this
Agreement;
11.2 make
available to the Fund and/or the General Partner, its auditors, agents and
employees, upon reasonable request and during normal business hours of the
Custodian, all records maintained by the Custodian pursuant to Section 11.1
above, subject, however, to all reasonable security requirements of the
Custodian then applicable to the records of its custody customers generally;
and
11.3 make
available to the Fund all Electronic Reports (as defined in Section 13); it
being understood that the Custodian shall not be liable hereunder for the
inaccuracy or incompleteness thereof or for errors in any information included
therein.
The Fund and the General Partner shall
examine all records, howsoever produced or transmitted, promptly upon receipt
thereof and notify the Custodian promptly of any discrepancy or error
therein. Unless the Fund or the General Partner delivers written
notice of any such discrepancy or error within a reasonable time after its
receipt thereof, such records shall be deemed to be true and
accurate. It is understood that the Custodian now obtains and
will in the future obtain information on the value of assets from outside
sources which may be utilized in certain reports made available to the Fund and
the General Partner. The Custodian deems such sources to be reliable but it is
acknowledged and agreed that the Custodian does not verify nor represent nor
warrant as to the accuracy or completeness of such information and accordingly
shall be without liability in selecting and using such sources and furnishing
such information.
16
12. Miscellaneous.
12.1 Proxies,
etc. The Fund and/or the General Partner will promptly execute
and deliver, upon request, such proxies, powers of attorney or other instruments
as may be necessary or desirable for the Custodian to provide, or to cause any
Subcustodian to provide, custody services.
12.2 Entire
Agreement. This Agreement (including any schedules and exhibits
attached hereto and thereto) contains all of the agreements among the parties
hereto and thereto with respect to the transactions contemplated hereby and
thereby and supersedes all prior agreements or understandings, whether written
or oral, among the parties with respect thereto.
12.3 Amendment and
Modification. This Agreement may be amended, modified or supplemented
only by a written instrument executed by all parties hereto.
12.4 Successors and
Assigns; Assignment. All the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns. This Agreement shall not be assigned by any
party without the prior written consent of the other parties and any assignment
without such consent shall be null and void.
12.5 Waiver of
Compliance. Except as otherwise provided in this Agreement, any failure
of any of the parties to comply with any obligation, covenant, agreement or
condition herein may be waived by the party entitled to the benefits thereof
only by a written instrument signed by the party granting such waiver, but any
such waiver, or the failure to insist upon strict compliance with any
obligation, covenant, agreement or condition herein, shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other failure or
breach.
12.6 Severability.
The parties hereto desire that the provisions of this Agreement be enforced to
the fullest extent permissible under the law and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, in the event that any
provision of this Agreement would be held in any jurisdiction to be invalid,
prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. Notwithstanding the foregoing, if such
provision could be more narrowly drawn so as not to be invalid, prohibited or
unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so
narrowly drawn, without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
12.7 Notices.
All notices, waivers, or other communications pursuant to this Agreement shall
be in writing and shall be deemed to be sufficient if delivered personally, by
facsimile (and, if sent by facsimile, followed by delivery by
nationally-recognized express courier), sent by nationally-recognized express
courier or mailed by registered or certified mail (return receipt requested),
postage prepaid, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(1) if
to General Partner, to:
United States Commodity Funds
LLC
1320
Harbor Bay Parkway, Suite 145
Alameda,
California 94502
Attention:
Nicholas D. Gerber
17
(2) if
to the Custodian, to:
Brown Brothers Harriman &
Co.
40 Water Street
Boston, Massachusetts
02109
Attn: Manager, Securities
Department
Telephone: (617)
772-1818
Facsimile: (617)
772-2263,
or such
other address as the Fund or the Custodian may have designated in writing to the
other.
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 a
nationally-recognized express courier, on the date of such delivery if delivered
during business hours on a Business Day or, if not delivered during business
hours on a Business Day, the first Business Day thereafter, and (ii) in the case
of mailing or delivery by facsimile, upon receipt by the intended
party.
12.8 Governing Law;
Jurisdiction.
12.8.1 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.
12.8.2 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 12.8 shall survive any termination of this Agreement,
in whole or in part.
12.9 No
Partnership. The Custodian acts as an independent contractor
with respect to the services provided under this Agreement. The terms
and conditions of this Agreement do not create a partnership relationship
between the Custodian and the General Partner or between the Custodian and the
Fund. Each of the General Partner and the Fund acknowledges that the
Custodian may enter into similar agreements with others without the consent of
the General Partner or the Fund.
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12.10 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.
12.11 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.
12.12 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.
12.13 Other
Usages. The following usages shall apply in interpreting this Agreement:
(i) references to a governmental or quasi-governmental 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.”
12.14 Confidentiality. The
parties hereto agree that each shall treat confidentially the terms and
conditions of this Agreement and all information provided by each party to the
other regarding its business and operations. All confidential
information provided by a party hereto shall be used by the other party hereto
solely for the purpose of rendering or obtaining services pursuant to this
Agreement and, except as may be required in carrying out this Agreement, shall
not be disclosed to any third party without the prior consent of such providing
party. The foregoing shall not apply to any information that is
publicly available when provided or thereafter becomes publicly available other
than through a breach of this Agreement, or that is required to be disclosed by
or to any bank examiner of the Custodian or any Subcustodian, any Regulatory
Authority, any auditor of the parties hereto, or by judicial or administrative
process or otherwise by Applicable Law.
12.15 Counsel. In
fulfilling its duties hereunder, the Custodian shall be entitled to receive and
act upon the advice of (i) counsel regularly retained by the Custodian in
respect of such matters, (ii) counsel for the Fund or (iii) such counsel as the
Fund, the General Partner and the Custodian may agree upon, with respect to all
matters. The Custodian shall not be considered to have engaged in any
misconduct or to have acted negligently when soliciting and following such
advice.
12.16 Conflict. Nothing
contained in this Agreement shall prevent the Custodian and its associates from
(i) dealing as a principal or an intermediary in the sale, purchase or loan of
the Fund’s Investments to, or from the Custodian or its associates; (ii) acting
as a custodian, a subcustodian, a trustee, an agent, securities dealer, an
investment manager or in any other capacity for any other client; or (iii)
buying, holding, lending, and dealing in any way in any assets for the benefit
of its own account, for the account of any other client, or for the account of
the Fund.
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12.17 Privacy. In
the course of carrying out its obligations under this Agreement, each party
shall maintain physical, procedural and/or electronic safeguards reasonably
designed to protect information regarding the Fund and its investors that such
party has obtained or to which such party has gained access.
13. Definitions. The
following defined terms will have the respective meanings set forth
below.
13.1 Advance(s)
shall mean any extension of credit by or through the Custodian or by or through
any Subcustodian and shall include, without limitation, amounts due to the
Custodian as the principal counterparty to any foreign exchange transaction with
the Fund as described in Section 7.4.2 hereof, or paid to third parties for
account of the Fund or in discharge of any expense, tax or other item payable by
the Fund.
13.2 Advance Costs
shall mean any Advance, interest on the Advance and any related expenses,
including without limitation any mark to market loss of the Custodian or
Subcustodian on any Investment to which Section 7.6.1 applies.
13.3 Agency
Account(s) shall mean any deposit account opened on the books of a
Subcustodian or other banking institution in accordance with Section
7.1.
13.4 Agent(s)
shall have the meaning set forth in the last sentence of Section 6.
13.5 Applicable
Law shall mean with respect to each jurisdiction, all (a) laws, statutes,
treaties, regulations, guidelines (or their equivalents); (b) orders,
interpretations, licenses and permits; and (c) judgments, decrees, injunctions,
writs, orders and similar actions by a court of competent jurisdiction;
compliance with which is required or customarily observed in such
jurisdiction.
13.6 Authorized
Person(s) shall mean any person or entity authorized to give Instructions
on behalf of the Fund and/or the General Partner in accordance with Section
4.1.
13.7 Book-entry
Agent shall mean an entity acting as agent for the issuer of Investments
for purposes of recording ownership or similar entitlement to Investments,
including without limitation a transfer agent or registrar.
13.8 Business
Day shall have the meaning set forth in Section 7.6 hereof.
20
13.9 Clearing
Corporation shall mean any entity or system established for purposes of
providing securities settlement and movement and associated functions
for a given market.
13.10 Electronic and
Online Services Schedule shall mean any separate agreement entered into
among the Custodian, the General Partner and the Fund or its authorized
representative with respect to certain matters concerning certain electronic and
online services as described therein and as may be made available from time to
time by the Custodian to the Fund.
13.11 Electronic
Reports shall mean any reports prepared by the Custodian and remitted to
the Fund, the General Partner or its authorized representative via the internet
or electronic mail.
13.12 Funds Transfer
Services Schedule shall mean any separate agreement entered into among
the Custodian, the General Partner and the Fund or its authorized representative
with respect to certain matters concerning the processing of payment orders from
Principal Accounts of the Fund.
13.13 Instruction(s)
shall have the meaning assigned in Section 4.
13.14 Investment
Advisor shall mean any person or entity who is an Authorized Person to
give Instructions with respect to the investment and reinvestment of the Fund’s
Investments.
13.15 Investment(s)
shall mean any investment asset of the Fund issued in the United States of
America, including without limitation: securities, bonds, notes, and debentures
as well as receivables, derivatives, contractual rights or entitlements and
other intangible assets, but excluding Brent Oil Forward Contracts and Brent Oil
Interests (each as defined in the Fund’s prospectus).
13.16 Margin Account
shall have the meaning set forth in Section 6.4 hereof.
13.17 Principal
Account(s) shall mean deposit accounts of the Fund carried on the books
of BBH&Co. as principal in accordance with Section 7.
13.18 Safekeeping
Account shall mean an account established on the books of the Custodian
or any Subcustodian for purposes of segregating the interests of the Fund (or
clients of the Custodian or Subcustodian) from the assets of the Custodian or
any Subcustodian.
13.19 Securities
Depository shall mean a central or book entry system or agency
established under Applicable Law for purposes of recording the ownership and/or
entitlement to investment securities for a given market.
13.20 Subcustodian(s)
shall mean each bank appointed by the Custodian pursuant to Section 8 hereof,
but shall not include Securities Depositories.
13.21 Tri-Party
Agreement shall have the meaning set forth in Section 6.4
hereof.
14. Compensation. The
Fund and the General Partner agree to pay to the Custodian (a) a fee in an
amount set forth in the fee letter among the Fund, the General Partner and the
Custodian in effect on the date hereof or as amended from time to time, and (b)
all reasonable out-of-pocket expenses incurred by the Custodian, including the
fees and expenses of all Subcustodians, and payable from time to
time. Amounts payable by the Fund under and pursuant to this Section
14 shall be payable by wire transfer to the Custodian at BBH&Co. in New
York, New York.
21
15. Termination. This
Agreement may be terminated by either party in accordance with the provisions of
this Section. The provisions of this Agreement and any other rights
or obligations incurred or accrued by any party hereto prior to termination of
this Agreement shall survive any termination of this Agreement.
15.1 Term, Notice and
Effect. This Agreement shall have an initial term of two (2)
years from the date hereof. Thereafter, this Agreement shall automatically renew
for successive one (1) year periods unless any party terminates this Agreement
by providing written notice no later than seventy-five (75) days prior to the
expiration of the applicable term to the other parties at their address set
forth herein. Upon the completion of the initial term, either the
Custodian, on the one hand, or the General Partner, on the other hand, may elect
to terminate this Agreement at any time by delivering 90 days notice thereof to
the other party.
15.2 Successor
Custodian. In the event of
the appointment of a successor custodian, it is agreed that the Investments of
the Fund held by the Custodian or any Subcustodian shall be delivered to the
successor Custodian in accordance with reasonable Instructions. The
Custodian agrees to cooperate with the Fund in the execution of documents and
performance of other actions necessary or desirable in order to facilitate the
succession of the new custodian. If no successor custodian shall be
appointed, the Custodian shall in like manner transfer the Fund’s Investments in
accordance with Instructions.
15.3 Delayed
Succession. If no Instruction has been given as of the
effective date of termination, the Custodian may at any time on or after such
termination date and upon ten (10) consecutive calendar days written notice to
the Fund and the General Partner either (a) deliver the Investments of the Fund
held hereunder to the Fund at the address designated for receipt of notices
hereunder; or (b) deliver any Investments held hereunder to a bank or trust
company having a capitalization of $50,000,000 equivalent and operating under
the Applicable Law of the jurisdiction where such Investments are located, such
delivery to be at the risk of the Fund. In the event that Investments
or moneys of the Fund remain in the custody of the Custodian or its
Subcustodians after the date of termination owing to the failure of the Fund to
issue Instructions with respect to their disposition or owing to the fact that
such disposition could not be accomplished in accordance with such Instructions
despite diligent efforts of the Custodian, the Custodian shall be entitled to
compensation for its services with respect to such Investments and moneys during
such period as the Custodian or its Subcustodians retain possession of such
items and the provisions of this Agreement shall remain in full force
and effect until disposition in accordance with this Section is
accomplished.
22
The
undersigned acknowledges that (I/we) have received a copy of this
document.
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly
executed as of the date first above written.
BROWN
BROTHERS HARRIMAN & CO.
By: /s/ Hugh
Bolton
Name: Hugh
Bolton
Title:
Senior Vice President
Date:
2/8/10
UNITED
STATES BRENT OIL FUND, LP
By: United
States Commodity Funds LLC, as General Partner
By: /s/ Howard
Mah
Name:
Howard Mah
Title:
Management Director
Date:
2/22/10
UNITED
STATES COMMODITY FUNDS LLC
By: United
States Commodity Funds LLC, as General Partner
By: /s/ Howard
Mah
Name:
Howard Mah
Title:
Management Director
Date:
2/22/10
23
FUNDS
TRANSFER SERVICES SCHEDULE
(“FTSS”)
In
accordance with Section 4.2 of the Custodian Agreement, the Fund and the General
Partner acknowledge the following terms and conditions in respect of all funds
transfers effected by the Custodian. Terms not otherwise defined
herein shall have the meanings accorded to them in the Custodian
Agreement.
1. Transmission of Payment
Orders. Each FT Instruction shall be transmitted by such
secured or authenticated means and subject to such security procedures as the
Custodian shall make available to the Fund and the General Partner from time to
time (such transmission method and security procedures, a Custodian Designated Security
Procedure), unless the Fund and the General Partner shall elect to
transmit such FT Instruction in accordance with a Fund and the General Partner
Designated Security Procedure (as defined in Section 4 below). The
Fund and the General Partner acknowledges and agrees that the Custodian will use
the security procedures referenced in Sections 3 and 4 below solely to
authenticate a FT Instruction, as set forth herein, and not to detect any errors
or omissions therein.
2. Custodian Designated
Security Procedure. The Custodian will make the following
Custodian Designated Security Procedures available to the Fund and the General
Partner for use in communicating FT Instructions to the Custodian:
§ BBH Worldview® Payment
Products. The Custodian offers to the Fund and the General
Partner use of its BBH Worldview Payment Products (“BBH Worldview”), which are
Custodian proprietary on-line payment order authorization facilities with
built-in authentication procedures. The Custodian and the Fund and
the General Partner shall each be responsible for maintaining the
confidentiality of passwords or other codes used by them in connection with BBH
Worldview. The Custodian will act on FT Instructions received through BBH
Worldview without duty of further confirmation unless the Fund and the General
Partner notifies the Custodian that its password is not secure. The
Fund and the General Partner agrees that access to, and use of, BBH Worldview
shall be governed by an Electronic and On-line Services Schedule, which the Fund
and the General Partner will execute prior to access to BBH
Worldview.
§ SWIFT Transmission.
The Custodian and the Fund and the General Partner shall comply with SWIFT’s
authentication procedures. The Custodian will act on FT Instructions received
via SWIFT provided the instruction is authenticated by the SWIFT
system.
§ Written
Instructions. Instructions may be transmitted in an original
writing that bears the manual signature of an Authorized Person(s).
3. Fund and the General Partner
Designated Security Procedure. FT Instructions may be
transmitted through such other means, and subject to such additional security
procedures, as may be elected by the Fund and the General Partner (or by an
Authorized Person entitled to give Instructions) and acknowledged and accepted
by the Custodian (the transmission methods and security procedures referenced
below, as may be supplemented by such additional security procedures, each a
Fund Designated Security
Procedure); it being understood that the Custodian’s acknowledgment shall
authorize it to accept such means of delivery but shall not represent a judgment
by the Custodian as to the reasonableness or security of the means utilized by
the Fund and the General Partner.
24
§ Computer
Transmission. The Custodian is able to accept transmissions
sent from the Fund and the General Partner’s computer facilities to the
Custodian’s computer facilities. If the Fund and the General Partner
determines to use its proprietary transmission or other electronic transmission
method, it must provide Custodian sufficient notice and information to allow
testing or other confirmation that FT Instructions received via the Fund
Designated Security Procedure can be processed in good time and
order. The Custodian may require the Fund and the General Partner to
execute additional documentation prior to the use of such transmission
method.
§ Facsimile
Transmission.
A FT
Instruction transmitted to the Custodian by facsimile transmission must be
transmitted by the Fund and the General Partner to a telephone number specified
from time to time by the Custodian for such purposes. The Custodian
will then follow one of the procedures below:
1. If the
facsimile requests a non-repetitive order, the Custodian will call the Fund and
the General Partner and request to speak to a person authorized to validate
orders on behalf of the Fund and the General Partner, and confirm the
authorization and details of the payment order (a Callback);
2. If the
facsimile FT Instruction pertains to a repetitive payment order (see Section 7
below), the Custodian may (at its sole discretion) perform a
Callback. The Fund and the General Partner acknowledges that prior to
its issuance of any repetitive payment order, it must (a) request that the
appropriate repetitive payment order process be approved and set up at the
Custodian, and (b) complete such documentation as may be required by the
Custodian, including a PPO (as defined in Section 7).
The
Custodian shall rely on the purported identity of the originator but due to the
lack of reliability of a facsimile signature, it will not perform signature
verification on facsimiles.
§ Telephonic. The Fund
and the General Partner may call a telephonic payment order into the Custodian
at the telephone number designated from time-to-time by the Custodian for that
purpose. The caller shall identify herself/himself as an Authorized
Person. The Custodian shall obtain the FT Instruction details from
the caller. The Custodian shall then follow one of the procedures
below:
25
i. If the
telephonic FT Instruction pertains to a non-repetitive payment order, the
Custodian will perform a Callback; or
ii. If the
telephonic FT Instruction pertains to a repetitive payment order (see Section 7
below), the Custodian
may (at its sole discretion) perform a Callback. The Fund and the
General Partner acknowledges that prior to its issuance of any repetitive
payment order, it must (a) request that the appropriate repetitive payment order
process be approved and set up at the Custodian, and (b) complete such
documentation as may be required by the Custodian, including a PPO.
In
electing to transmit a FT Instruction via a Fund Designated Security Procedure,
the Fund and the General Partner (i) agrees to be bound by the transaction(s) or
payment order(s) specified on said FT Instruction, whether or not authorized,
and accepted by the Custodian in compliance with such Fund Designated Security
Procedure, and (ii) accepts the risk associated with such Fund Designated
Security Procedure and confirms it is commercially reasonable for the
transmission and authentication of the FT Instruction.
The
parties agree that the Fund and the General Partner’s transmission of a FT
Instruction by means of any of the above Fund Designated Security Procedures and
the Custodian’s acceptance and execution of such FT Instruction shall constitute
a FT Instruction sent via a Fund Designated Security Procedure and governed by
the terms of this FTSA.
4. Rejection of Payment Orders;
Rescission of Designated Security Procedure. The Custodian
shall give the Fund and the General Partner timely notice of the Custodian’s
rejection of a FT Instruction. Such notice may be given in writing, via a
Custodian Designated Security Procedure or any Fund Designated Security
Procedure used by the Fund and the General Partner, or orally by telephone, each
of which is hereby deemed commercially reasonable. In the event the
Custodian fails to execute a properly executable FT Instruction and fails to
give the Fund and the General Partner notice of the Custodian’s non-execution,
the Custodian shall be liable only for the Fund and the General Partner’s actual
damages and only to the extent that such damages are recoverable under UCC 4A
(as defined in Section 13 below). The Custodian, after providing
prior written notice, may decide to no longer accept a particular Fund or
Custodian Designated Security Procedure, or to do so only on revised terms, in
the event that it determines that such agreed or established method of
transmission represents a security risk or is attendant to any general change in
the Custodian’s policy regarding FT Instructions. Notwithstanding
anything in this FTSA and the Agreement to the contrary, the Custodian shall in
no event be liable for any consequential, indirect, special or punitive damages
under this FTSA, whether or not such damages relate to services covered by UCC
4A, even if the Custodian was advised of the possibility of such
damages.
5. Cancellation of Payment
Orders. The Fund and the General Partner may cancel a FT
Instruction but the Custodian shall have no liability for the Custodian’s
failure to act on a cancellation FT Instruction unless the Custodian has
received such cancellation FT Instruction at a time and in a manner affording
the Custodian reasonable opportunity to act prior to the Custodian’s execution
of the original FT Instruction. Any cancellation FT Instruction shall
be sent and confirmed by such means as is set forth in Section 3 or 4
above.
26
6. Preauthorized Repetitive
Payment Orders. The Fund and the General Partner may establish
with the Custodian a process to preauthorize certain repetitive payments or
transfers. The Fund and the General Partner will execute all
documentation required by the Custodian, including a separate Preauthorized
Repetitive Payment Order (PPO) form. The PPO
shall be delivered to the Custodian in writing or by another Custodian
Designated Security Procedure or Fund Designated Security Procedure, and will
become effective after the Custodian shall have had a reasonable opportunity to
act thereon (or if later, two (2) banking days after receipt by the
Custodian). The PPO may take the form of either:
|
(i)
|
A
standing
instruction in which the Fund and the General Partner provides in
the PPO all required information for a FT Instruction (except for the
transfer date and amount) on a “standing instructions”
basis. The Fund and the General Partner may from
time-to-time instruct the Custodian to make a payment under the PPO, in
writing or another Custodian Designated Security Procedure or Fund
Designated Security Procedure, which instruction shall reference the
repetitive line number (a number assigned to it by the Custodian after
execution of the PPO), details of the payment, the transfer date and the
amount of the transfer; or
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|
(ii)
|
A
recurring
instruction in which the Fund and the General Partner supplies all
required information for a FT Instruction with an instruction to process
such payments with a specific
frequency.
|
7. Responsibility for the
Detection of Errors in Payment Orders; Liability of the
Parties. The purpose of any Fund Designated Security
Procedure or Custodian Designated Security Procedure is to confirm the
authenticity of any FT Instruction and is not designed to detect errors or
omissions in such FT Instructions. Therefore, the Custodian is not
responsible for detecting any Fund and the General Partner error or omission
contained in any FT Instruction received by the Custodian. In the
event that the FT Instruction either (i) identifies the beneficiary by both a
name and an identifying or Fund and the General Partner account number and the
name and number identify different persons or entities, or (ii) identifies any
Fund and the General Partner by both a name and an identifying number and the
number identifies a person or entity different from the Fund and the General
Partner identified by name, execution of the relevant payment order, payment to
the beneficiary, cancellation of the payment order or actions taken by the
Custodian or any Fund and the General Partner in respect of such payment order
may be made solely on the basis of the number.
The
Custodian shall not be liable for interest on the amount of any FT Instruction
that was not authorized or was erroneously executed unless the Fund and the
General Partner so notifies the Custodian within thirty (30) days following the
Fund and the General Partner’s receipt of notice that such FT Instruction was
processed. Any compensation payable in the form of interest shall be
payable in accordance with UCC 4A. If a FT Instruction in the name of
the Fund and the General Partner and accepted by the Custodian was not
authorized by the Fund and the General Partner, the liability of the parties
will be governed by the applicable provisions of UCC 4A.
27
ELECTRONIC
AND ON-LINE SERVICES SCHEDULE
This
Electronic and On-Line Services Schedule (this Schedule) to a Custodian
Agreement dated as of February 8, 2010 (as amended from time to time hereafter,
the Agreement) by and
among Brown Brothers Harriman & Co. (we, us our), United States
Commodity Funds LLC (the General
Partner) and United States Brent Oil Fund, LP (the Fund) (the General Partner and
the Fund collectively, you,
your), provides general provisions governing your use of and access to
the Services (as hereinafter defined) provided to you by us via the Internet (at
www.bbhco.com
or such other
URL as we may instruct you to use to access our products) and via a
direct dial-up connection between your computer and our computers, as of
February 8, 2010 (the Effective
Date). Use of the Services constitutes acceptance of the terms and
conditions of this Schedule, any Appendices hereto, the Terms and Conditions
posted on our web site, and any terms and conditions specifically governing a
particular Service or our other products, which may be set forth in the
Agreement or in a separate related agreement (collectively, the Related
Agreements).
|
1.
|
General
Terms.
|
You will
be granted access to our suite of online products, which may include, but shall
not be limited to the following services via the Internet or dial-up connection
(each separate service is a Service; collectively referred
to as the Services):
|
1.1.
|
BBH
WorldView®, a system
for effectuating securities and fund trade instruction and execution,
processing and handling instructions, and for the input and retrieval of
other information;
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1.2.
|
F/X
WorldView, a system for executing foreign exchange
trades;
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|
1.3.
|
Fund
WorldView, a system for receiving fund and prospectus
information;
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1.4.
|
BBHCOnnect,
a system for placing securities trade instructions and following the
status and detail of trades;
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|
1.5.
|
ActionViewSM,
a system for receiving certain corporate action
information;
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|
1.6.
|
Risk
View, an interactive portfolio risk analysis tool;
and
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|
1.7.
|
Such
other services as we shall from time to time
offer.
|
|
2.
|
Security /
Passwords.
|
|
2.1.
|
A
digital certificate and/or an encryption key may be required to access
certain Services. You may apply for a digital certificate
and/or an encryption key by following the procedures set forth at http://www.bbh.com/certs/. You also will need
an identification code (ID) and password(s)
(Password) to
access the Services.
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|
2.2.
|
You
agree to safeguard your digital certificate and/or encryption key, ID, and
Password and not to give or make available, intentionally or otherwise,
your digital certificate, ID, and/or Password to any unauthorized
person. You must immediately notify us in writing if you
believe that your digital certificate and/or encryption key, Password, or
ID has been compromised or if you suspect unauthorized access to your
account by means of the Services or otherwise, or when a person to whom a
digital certificate and/or an encryption key, Password, or ID has been
assigned leaves or is no longer permitted to access the
Services.
|
28
|
2.3.
|
We
will not be responsible for any breach of security, or for any
unauthorized trading or theft by any third party, caused by your failure
(be it intentional, unintentional, or negligent) to maintain the
confidentiality of your ID and/or Password and/or the security of your
digital certificate and/or encryption
key.
|
|
3.
|
Instructions.
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|
3.1.
|
Proper
instructions under this Schedule shall be provided as designated in the
Related Agreements (Instructions).
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|
3.2.
|
The
following additional provisions apply to Instructions provided via the
Services:
|
|
a.
|
Instructions
sent by electronic mail will not be accepted or acted
upon.
|
|
b.
|
You
authorize us to act upon Instructions received through the Services
utilizing your digital certificate, ID, and/or Password as though they
were duly authorized written instructions, without any duty of
verification or inquiry on our part, and agree to hold us harmless for any
losses you experience as a result.
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|
c.
|
From
time to time, the temporary unavailability of third party
telecommunications or computer systems required by the Services may result
in a delay in processing Instructions. In such an event, we
shall not be liable to you or any third party for any liabilities, losses,
claims, costs, damages, penalties, fines, obligations, or expenses of any
kind (including without limitation, reasonable attorneys', accountants',
consultants', or experts' fees and disbursements) that you experience due
to such a delay.
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|
4.
|
Electronic
Documents.
|
We may
make periodic statements, disclosures, notices, and other documents available to
you electronically, and, subject to any delivery and receipt verification
procedures required by law, you agree to receive such documents electronically
and to check the statements for accuracy. If you believe any such
statement contains incorrect information, you must follow the procedures set
forth in the Related Agreement(s).
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5.
|
Malicious
Code.
|
You
understand and agree that you will be responsible for the introduction (by you,
your employees, agents, or representatives) into the Services, whether
intentional or unintentional, of (i) any virus or other code, program, or
sub-program that damages or interferes with the operation of the computer system
containing the code, program or sub-program, or halts, disables, or interferes
with the operation of the Services themselves; or (ii) any device, method, or
token whose knowing or intended purpose is to permit any person to circumvent
the normal security of the Services or the system containing the software code
for the Services (Malicious
Code). You agree to take all necessary actions and
precautions to prevent the introduction and proliferation of any Malicious Code
into those systems that interact with the Services.
29
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6.
|
Indemnification.
|
For
avoidance of doubt, you hereby agree that the provisions in the Related
Agreement(s) related to your indemnification of us and any limitations on our
liability and responsibilities to you shall be applicable to this Agreement, and
are hereby expressly incorporated herein. You agree that the Services are
comprised of telecommunications and computer systems, and that it is possible
that Instructions, information, transactions, or account reports might be added
to, changed, or omitted by electronic or programming malfunction, unauthorized
access, or other failure of the systems which comprise the Services, despite the
security features that have been designed into the Services. You agree that we
will not be liable for any action taken or not taken in complying with the terms
of this Schedule, except for our willful misconduct or gross
negligence. The provisions of this paragraph shall survive the
termination of this Schedule and the Related Agreements.
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7.
|
Payment.
|
You may
be charged for services hereunder as set forth in a fee schedule from time to
time agreed by us.
|
8.
|
Term/Termination.
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|
8.1.
|
This
Schedule is effective as of the date you sign it or first use the
Services, whichever is first, and continues in effect until such time as
either you or we terminate the Schedule in accordance with this Section 8
and/or until your off-line use of the Services is
terminated.
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|
8.2.
|
We
may terminate your access to the Services at any time, for any reason,
with five (5) business days prior notice; provided that we may terminate
your access to the Services with no prior notice (i) if your account with
us is closed, (ii) if you fail to comply with any of the terms of this
Agreement, (iii) if we believe that your continued access to the Services
poses a security risk, or (iv) if we believe that you are violating or
have violated applicable laws, and we will not be liable for any loss you
may experience as a result of such termination. You may
terminate your access to the Services at any time by giving us ten (10)
business days notice. Upon termination, we will cancel all your
Passwords and IDs and any in-process or pending Instructions will be
carried out or cancelled, at our sole
discretion.
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9.
|
Miscellaneous.
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|
9.1.
|
Notices. All
notices, requests, and demands (other than routine operational
communications, such as Instructions) shall be in such form and effect as
provided in the Related
Agreement(s).
|
30
|
9.2.
|
Inconsistent
Provisions. Each Service may be governed by separate
terms and conditions in addition to this Schedule and the Related
Agreement(s). Except where specifically provided to the
contrary in this Schedule, in the event that such separate terms and
conditions conflict with this Schedule and the Related Agreement(s), the
provisions of this Schedule shall prevail to the extent this Schedule
applies to the transaction in
question.
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|
9.3.
|
Binding Effect; Assignment;
Severability. This Schedule shall be binding on you,
your employees, officers and agents. We may assign or delegate
our rights and duties under this Schedule at any time without notice to
you. Your rights under this Schedule may not be assigned
without our prior written consent. In the event that any provision of this
Schedule conflicts with the law under which this Schedule is to be
construed or if any such provision is held invalid or unenforceable by a
court with jurisdiction over you and us, such provision shall be deemed to
be restated to effectuate as nearly as possible the purposes of the
Schedule in accordance with applicable law. The remaining
provisions of this Schedule and the application of the challenged
provision to persons or circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby, and each such
provision shall be valid and enforceable to the full extent permitted by
law.
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9.4.
|
Choice of Law; Jury
Trial. This Schedule shall be governed by and construed, and the
legal relations between the parties shall be determined, in accordance
with the laws of the State of New York, without giving effect to the
principles of conflicts of laws. Each party agrees to waive its right to
trial by jury in any action or proceeding based upon or related to this
Agreement. The parties agree that all actions and proceedings
based upon or relating to this Schedule shall be litigated exclusively in
the federal and state courts located within New York City, New
York.
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The
undersigned acknowledges that (I/we) have received a copy of this
document.
BROWN
BROTHERS HARRIMAN & CO.
By: /s/ Patricia
Fallon
Name:
Patricia Fallon
Title:
Managing Director
Date:
2/24/10
UNITED
STATES BRENT OIL FUND, LP
By: United
States Commodity Funds LLC, as General Partner
By: /s/ Nicholas D.
Gerber
Name:
Nicholas D. Gerber
Title:
President and Management Director
Date:
2/22/10
31
UNITED
STATES COMMODITY FUNDS LLC
By: /s/ Nicholas D.
Gerber
Name:
Nicholas D. Gerber
Title:
President and Management Director
Date:
2/22/10
32