Attached files
| file | filename |
|---|---|
| S-1/A - United States Brent Oil Fund, LP | v179156_s1a.htm |
| EX-10.3 - United States Brent Oil Fund, LP | v179156_ex10-3.htm |
| EX-10.1 - United States Brent Oil Fund, LP | v179156_ex10-1.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
10.4
ADMINISTRATIVE
AGENCY AGREEMENT
THIS ADMINISTRATIVE AGENCY AGREEMENT
(the “Agreement”)
is made as of February 8, 2010, by and among BROWN BROTHERS HARRIMAN &
CO., a limited partnership organized under the laws of the State of New
York (the “Administrator”), UNITED STATES COMMODITY FUNDS
LLC, a Delaware limited liability company (the “General Partner”) and UNITED STATES BRENT
OIL FUND, LP, a
limited partnership organized under the laws of the State of Delaware (the
“Fund”).
WITNESSETH:
WHEREAS,
the Fund is a limited partnership that is registered as a commodity
pool;
WHEREAS,
the General Partner has exclusive responsibility for the management and control
of the business and affairs of the Fund; and
WHEREAS,
the Fund and the General Partner desire to retain the Administrator to render
certain services to the Fund and/or the General Partner, as the case may be, and
the Administrator is willing to render such services.
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto agree as follows:
1. Appointment of
Administrator. The Fund and the General Partner hereby employ
and appoint the Administrator to act as administrative agent on the terms set
forth in this Agreement, and the Administrator accepts such
appointment.
2. Delivery of
Documents. The Fund and the General Partner will on a
continuing basis provide the Administrator with:
2.1 properly
certified or authenticated copies of resolutions of the General Partner’s Board
of Directors (including Mr. Nicholas D. Gerber) authorizing the appointment of
the Administrator as administrative agent of the Fund and approving this
Agreement;
2.2 a copy of
the Fund’s most recent registration statement under the Securities Act of 1933,
as amended;
2.3 copies of
all agreements between the Fund and its service providers, including without
limitation, advisory, distribution and administration agreements and/or
unitholder agreements;
2.4 a copy of
the Fund’s valuation procedures;
2.5 a copy of
the Fund’s Limited Partnership Agreement, as may be amended from time to
time;
1
2.6 a copy of
the General Partner’s Fourth Amended and Restated Limited Liability Company
Agreement, as may be amended from time to time;
2.7 any other
documents or resolutions (including, but not limited to directions or
resolutions of the General Partner’s Board of Directors, Management Directors,
and/or Audit Committee) which relate to or affect the Administrator’s
performance of its duties hereunder or which the Administrator may at any time
reasonably request; and
2.8 copies of
any and all amendments or supplements to the foregoing.
3. Duties as
Administrator. Subject to the supervision and direction of the
General Partner’s Board of Directors, Management Directors and Audit Committee,
the Administrator will perform the administrative services described in Appendix
A hereto. Additional services may be provided by the Administrator
upon the request of the Fund as mutually agreed from time to time. In
performing its duties and obligations hereunder, the Administrator will act in
accordance with the General Partner’s instructions as defined in Section 5
(“Instructions”). It is agreed and understood that the Administrator
shall not be responsible for the Fund’s or the General Partner’s compliance with
any applicable documents, laws or regulations, or for losses, costs or expenses
arising out of the Fund’s or the General Partner’s failure to comply with said
documents, laws or regulations or the Fund’s or the General Partner’s failure or
inability to correct any non-compliance therewith. The Administrator
shall in no event be required to take any action, which is in contravention of
any applicable law, rule or regulation or any order or judgment of any court of
competent jurisdiction.
3.1 Records. The
Administrator will maintain and retain such records as required by the
Securities Exchange Act of 1934, as amended, the NYSE Arca Equities Rules, 17
C.F.R 4.23 (specifically, the records specified in 17 C.F.R. 4.23(a)(1) through
(8), (10) through (12) and (b)(1)), and other applicable federal securities laws
and created pursuant to the performance of the Administrator’s obligations under
this Agreement. The Administrator will maintain such other records as
requested by the Fund or the General Partner and received by the
Administrator. The Administrator shall not be responsible for the
accuracy and completeness of any records not created by the
Administrator. The Administrator acknowledges that the records
maintained and preserved by the Administrator pursuant to this Agreement are the
property of the Fund and will be, at the Fund’s expense, surrendered promptly
upon reasonable request. In performing its obligations under this
Section, the Administrator may utilize micrographic and electronic storage media
as well as independent third party storage facilities.
2
4. Duties of the
Fund and the General Partner. The Fund and the General Partner
shall notify the Administrator promptly of any matter affecting the performance
by the Administrator of its services under this Agreement. Where the
Administrator is providing fund accounting services pursuant to this Agreement,
the Fund and the General Partner shall promptly notify the Administrator as to
the accrual of liabilities of the Fund and of liabilities of the Fund not
appearing on the books of account kept by the Administrator, as well as to the
existence, status and proper treatment of reserves, if any, authorized by the
Fund or the General Partner. The Fund and the General Partner agree
to provide such information to the Administrator as may be requested under the
banking and securities laws of the United States or other jurisdictions relating
to “Know Your Customer” and money laundering prevention rules and regulations
(collectively, the “KYC Requirements”). For purposes of this
subsection, and in connection with all applicable KYC Requirements, the
Fund is the “client” or “customer” of the Administrator. The Fund and the General
Partner further represent that each will perform all obligations required under
applicable KYC Requirements with respect to the Fund’s “customers” (as defined
in the KYC Requirements) and that, because these customers do not constitute
“customers” or “clients” of the Administrator under such applicable rules and
regulations, the Administrator is under no such similar
obligations.
|
5.
|
Instructions.
|
5.1 The
Administrator shall not be liable for, and shall be indemnified by the Fund
against any and all losses, costs, damages or expenses arising from or as a
result of, any action taken or omitted in reliance upon Instructions or upon any
other written notice, request, direction, instruction, certificate or other
instrument believed by it to be genuine and signed or authorized by the proper
party or parties. A list of persons so authorized by the General
Partner (“Authorized Persons”) is attached hereto as Appendix B and upon which
the Administrator may rely until its receipt of notification to the contrary by
the General Partner.
5.2 Instructions
shall include a written request, direction, instruction or certification signed
or initialed on behalf of the Fund by one or more Authorized
Persons.
5.3 Telephonic
or other oral instructions or instructions given by e-mail or telefax
transmission may be given by any one of the above Authorized Persons and will
also be considered Instructions if the Administrator believes them to have been
given by a person authorized to give such Instructions with respect to the
transaction involved.
5.4 With
respect to telefax transmissions, the Fund and the General Partner hereby
acknowledge that (i) receipt of legible instructions cannot be assured, (ii) the
Administrator cannot verify that authorized signatures on telefax instructions
are original, and (iii) the Administrator shall not be responsible for losses or
expenses incurred through actions taken in reliance on such telefax
instructions. The Fund and the General Partner agree that such
telefax instructions shall be conclusive evidence of the Fund’s/General
Partner’s Instruction to the Administrator to act or to omit to
act.
3
5.5 Instructions
given orally will not be confirmed in writing and the lack of such confirmation
shall in no way affect any action taken by the Administrator in reliance upon
such oral Instructions. The Fund and the General Partner authorize
the Administrator to tape record any and all telephonic or other oral
Instructions given to the Administrator by or on behalf of the Fund (including
any of the Fund’s or the General Partner’s officers, directors, trustees,
employees or agents or any investment manager or adviser or person or entity
with similar responsibilities which is authorized to give Instructions on behalf
of the Fund to the Administrator.)
6. Expenses and
Compensation. For the services to be rendered and the
facilities to be furnished by the Administrator as provided for in this
Agreement, the Fund shall pay the Administrator rendered pursuant to this
Agreement a fee based on such fee schedule as may from time to time be agreed
upon in writing among the General Partner, Fund and the
Administrator. Additional services performed by the Administrator as
requested by the Fund shall be subject to additional fees as mutually agreed
from time to time. In addition to any such fees, the Administrator
shall bill the Fund separately for any out-of-pocket disbursements of the
Administrator based on an out-of-pocket disbursement schedule as may from time
to time be agreed upon in writing among the General Partner, the Fund and the
Administrator. The foregoing fees and disbursements shall be billed
to the Fund by the Administrator and shall be paid promptly by wire transfer or
other appropriate means to the Administrator.
7. Standard of
Care. The Administrator
shall be held to the exercise of reasonable care and diligence in carrying out
the provisions of this Agreement, provided that the Administrator shall not
thereby be required to take any action which is in contravention of any
applicable law, rule or regulation or any order or judgment of any court of
competent jurisdiction.
8. General
Limitations on Liability. The Administrator shall incur no
liability with respect to any telecommunications, equipment or power failures,
or any failures to perform or delays in performance by postal or courier
services or third-party information providers (including, without limitation
those listed on Appendix C).
4
|
8.1
|
The
Administrator shall also incur no liability under this Agreement if the
Administrator or any agent or entity utilized by the Administrator shall
be prevented, forbidden or delayed from performing, or omits to perform,
any act or thing which this Agreement provides shall be performed or
omitted to be performed, by reason of causes or events beyond its control,
including but not limited to:
|
|
|
8.1.1
|
any
Sovereign Event. A “Sovereign Event” shall mean any
nationalization; expropriation; devaluation; revaluation; confiscation;
seizure; cancellation; destruction; strike; act of war, terrorism,
insurrection or revolution; or any other act or event beyond the
Administrator’s control;
|
|
|
8.1.2
|
any
provision of any present or future law, regulation or order of the United
States or any state thereof, or of any foreign country or political
subdivision thereof, or of any securities depository or clearing agency;
and
|
|
|
8.1.3
|
any
provision of any order or judgment of any court of competent
jurisdiction.
|
|
|
8.2 The Administrator
shall not be held accountable or liable for any losses, damages or
expenses the General Partner, the Fund, the Fund’s commodity broker, the
Fund’s commodity trading advisor (if any), any unitholder or former
unitholder of the Fund or any other person may suffer or incur arising
from acts, omissions, errors or delays of the Administrator in the
performance of its obligations and duties as provided in Section 3 hereof,
including without limitation any error of judgment or mistake of law,
except a loss, damage or expense directly resulting from the
Administrator’s willful malfeasance, bad faith or negligence in the
performance of such Administrator’s obligations and
duties.
|
|
9.
|
Specific
Limitations on Liability. In addition to,
and without limiting the application of the general limitations on
liability contained in Section 8, above, the following specific
limitations on the Administrator’s liability shall apply to the particular
administrative services set forth on Appendix A
hereto.
|
9.1 Liability for
Fund Accounting Services. Without limiting the provisions in
Section 8 hereof, the Administrator’s liability for acts, omissions, errors or
delays relating to its fund accounting obligations and duties shall be limited
to the amount of any expenses associated with a required recalculation of net
asset value per unit (“NAV”) or any direct damages suffered by unitholders in
connection with such recalculation. The Administrator’s liability or
accountability for such acts, omissions, errors or delays shall be further
subject to clauses 9.1.1 through 9.1.4 below.
5
|
|
9.1.1
|
The
parties hereto acknowledge that the Administrator’s causing an error or
delay in the determination of NAV may, but does not in and of itself,
constitute negligence or reckless or willful misconduct. The
parties further acknowledge that in accordance with industry practice the
liability of the Administrator for fund accounting services shall accrue
and the recalculation of NAV shall be performed in accordance with this
Section 9.1 only with regard to errors in the calculation of the NAV that
are (i) greater than or equal to $.01 per unit of the Fund and (ii)
greater than or equal to ½% of the total net assets of the Fund. 9.1.2In
no event shall the Administrator be liable or responsible to the General
Partner, the Fund, the Fund’s commodity broker, the Fund’s commodity
trading advisor (if any), any present or former unitholder of the Fund, or
any other person for any error or delay that continued or was undetected
after the date of an audit performed by the certified public accountants
employed by or on behalf of the Fund if, in the exercise of reasonable
care in accordance with generally accepted accounting standards, such
accountants should have become aware of such error or delay in the course
of performing such audit.
|
|
|
9.1.3
|
The
Administrator shall not be held accountable or liable to the General
Partner, the Fund, the Fund’s commodity broker, the Fund’s commodity
trading advisor (if any), any unitholder or former unitholder of the Fund
or any other person for any delays or losses, damages or expenses any of
them may suffer or incur resulting from (i) the Administrator’s usage of a
third party service provider for the purpose of storing records delivered
to the Administrator by or on behalf of the Fund and which the
Administrator did not create in the performance of its obligations
hereunder; (ii) the Administrator’s failure to receive timely and suitable
notification concerning quotations or corporate actions relating to or
affecting portfolio securities of the Fund; or (iii) any errors in the
computation of NAV based upon or arising out of quotations or information
as to corporate actions if received by the Administrator either (a) from a
source which the Administrator was authorized to rely upon (including
those sources listed on Appendix C), or (b) from a source which in the
Administrator’s reasonable judgment was as reliable a source for such
quotations or information as such authorized sources; or (iv) any errors
in the computation of NAV as a result of relevant information known to the
General Partner, the Fund, a futures commission merchant, securities
brokers or dealers, or any of the Fund’s other service providers including
futures commission merchants in contract with the Fund, which would impact
the calculation of NAV, but was not communicated to the
Administrator. To the extent that Fund assets are not in the
custody of the Administrator, the Administrator may conclusively rely on
any reporting in connection with such assets provided to the Administrator
by a third party on behalf of the Fund, including, without limitation any
futures commission merchant.
|
| 9.1.4 |
In
the event of any error or delay in the determination of such NAV for which
the Administrator may be liable, the General Partner, the Fund and the
Administrator will consult and make good faith efforts to reach agreement
on what actions should be taken in order to mitigate any loss suffered by
the Fund or its present or former unitholders, in order that the
Administrator’s exposure to liability shall be reduced to the extent
possible after taking into account all relevant factors and
alternatives. It is understood that in attempting to reach
agreement on the actions to be taken or the amount of the loss which
should appropriately be borne by the Administrator, the General Partner,
the Fund and the Administrator will consider such relevant factors as the
amount of the loss involved, the Fund’s/General Partner’s desire to avoid
loss of unitholder goodwill, the fact that
other persons or entities could have been reasonably expected to have
detected the error sooner than the time it was actually discovered, the
appropriateness of limiting or eliminating the benefit which unitholders
or former unitholders might have obtained by reason of the error, and the
possibility that other parties providing services to the Fund might be
induced to absorb a portion of the loss
incurred. |
|
10.
|
Indemnification.
|
10.1 The
General Partner and the Fund hereby agree to indemnify and hold harmless the
Administrator, its partners, stockholders, members, directors, officers and
employees and any subsidiary or affiliate of the foregoing (“Affiliate”), and
the successors and assigns of all of the foregoing persons, against any and all
losses, claims, damages, liabilities or expenses (including reasonable counsel
fees and expenses) resulting from any act, omission, error or delay or any
claim, demand, action or suit, in connection with or arising out of performance
of its obligations and duties under this Agreement, not resulting from the
willful malfeasance, bad faith or negligence of the Administrator in the
performance of such obligations and duties. The provisions of this
Section 10 shall survive the termination of this Agreement.
10.1.1 If
any action, suit or proceeding (each, a “Proceeding”) is brought against the
Administrator or any such person in respect of which indemnity may be sought
against the General Partner pursuant to the foregoing subsection, the
Administrator or such person shall promptly notify the General Partner in
writing of the institution of such Proceeding and the General Partner shall
assume the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees and
expenses; provided, however, that the omission to so notify the General Partner
shall not release the General Partner from any liability which it may have to
the Administrator or any such person except to the extent that it has been
materially prejudiced by such failure and has not otherwise learned of such
Proceeding. The Administrator or such person shall have the right to employ its
own counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of the Administrator or of such person unless the employment of
such counsel shall have been authorized in writing by the General Partner in
connection with the defense of such Proceeding or the General Partner shall not
have, within a reasonable period of time in light of the circumstances, employed
counsel to have charge of the defense of such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from, additional to or in conflict
with those available to the General Partner (in which case the General Partner
shall not have the right to direct the defense of such Proceeding on behalf of
the indemnified party or parties), in any of which events such fees and expenses
shall be borne by the General Partner and paid as incurred (it being understood,
however, that the General Partner shall not be liable for the expenses of more
than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such
Proceeding).
6
10.1.2 The
General Partner shall not be liable for any settlement of any Proceeding
effected without the General Partner’s written consent but if settled with the
General Partner’s written consent, the General Partner agrees to indemnify and
hold harmless the Administrator and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this subsection, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 Business Days (defined as any day other than a day on
which the New York Stock Exchange, NYSE Arca, Inc. (“NYSE Arca”), or the ICE
Futures Exchange is closed for regular trading (each a “Business Day”)), after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have fully reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 Business
Days’ prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault, culpability or a failure to act, by or on behalf of such indemnified
party.
7
10.2 Subject
to Sections 7, 8 and 9 of this Agreement, the Administrator agrees to indemnify
and hold harmless the General Partner and the Fund, its partners, stockholders,
members, directors, officers and employees and any Affiliate of the foregoing,
and the successors and assigns of all of the foregoing persons, against any and
all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any act, omission, error or delay or
any claim, demand, action or suit, in connection with or arising out of
performance of its obligations and duties under this Agreement, resulting from
the willful malfeasance, bad faith or negligence of the Administrator in the
performance of such obligations and duties. The provisions of this
Section 10 shall survive the termination of this Agreement.
10.2.1 If
any Proceeding is brought against the General Partner or any such person in
respect of which indemnity may be sought against the Administrator pursuant to
the foregoing subsection, the General Partner or such person shall promptly
notify the Administrator in writing of the institution of such Proceeding and
the Administrator shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify the Administrator shall not relieve the Administrator from any liability
which it may have to the General Partner or any such person except to the extent
that it has been materially prejudiced by such failure and has not otherwise
learned of such Proceeding. The General Partner or such person shall have the
right to employ its own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of the General Partner or of such person
unless the employment of such counsel shall have been authorized in writing by
the Administrator in connection with the defense of such Proceeding or the
Administrator shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from, additional to
or in conflict with those available to the Administrator (in which case the
General Partner shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by the Administrator and paid as
incurred (it being understood, however, that the Administrator shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding).
10.2.2 The
Administrator shall not be liable for any settlement of any Proceeding effected
without the Administrator’s written consent but if settled with the
Administrator’s written consent, the Administrator agrees to indemnify and hold
harmless the General Partner and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this subsection, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 Business Days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 Business Days’ prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such Proceeding and does
not include an admission of fault, culpability or a failure to act, by or on
behalf of such indemnified party.
8
11. Reliance by the
Administrator on Opinions of Counsel and Opinions of Certified Public
Accountants.
The Administrator may consult with its
counsel or the Fund/General Partner’s counsel in any case where so doing appears
to the Administrator to be necessary or desirable. The Administrator
shall not be considered to have engaged in any misconduct or to have acted
negligently and shall be without liability in acting upon the advice of its
counsel or of the Fund’s/General Partner’s counsel.
The Administrator may consult with a
certified public accountant or the Fund’s Treasurer (or persons performing such
function) in any case where so doing appears to the Administrator to be
necessary or desirable. The Administrator shall not be considered to
have engaged in any misconduct or to have acted negligently and shall be without
liability in acting upon the advice of such certified public accountant or of
the Fund’s Treasurer or persons performing such function.
12. Termination of
Agreement. This Agreement may be
terminated by any of the parties in accordance with the provisions of this
Section 12.
12.1 This
Agreement shall have an initial term of two (2) years from the date hereof.
Thereafter, this Agreement shall automatically renew for successive one (1) year
periods unless any party terminates this Agreement by 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 Administrator, on the one hand, or
the General Partner, on the other hand, may elect to terminate this Agreement at
any time by delivering ninety (90) days notice thereof to the other party.
Notwithstanding the foregoing provisions, any party may terminate this Agreement
at any time (a) for cause, which is a material breach of the Agreement not cured
within sixty (60) days of written notice of such breach, in which case
termination shall be effective upon receipt of written notice by the
non-terminating parties, or (b) upon thirty (30) days’ written notice to
the other parties in the event that a party is adjudged bankrupt or insolvent,
or there shall be commenced against such party a case under any applicable
bankruptcy, insolvency, or other similar law now or hereafter in effect. In the
event a termination notice is given by a party hereto, all expenses associated
with the movement of records and materials and the conversion thereof shall be
paid by the Fund for which services shall cease to be performed
hereunder. The Administrator shall be responsible for completing all
actions in progress when such termination notice is given unless otherwise
agreed.
9
12.2. Upon
termination of this Agreement in accordance with this Section 12, the Fund may
request the Administrator to promptly deliver to the Fund or to any designated
third party all records created and maintained by the Administrator pursuant to
Section 3.1 of this Agreement, as well as any Fund records maintained but not
created by the Administrator. If such request is provided in writing
by the Fund to the Administrator within seventy-five (75) days of the date of
termination of the Agreement, the Administrator shall provide to the Fund a
certification that all records created by the Administrator pursuant to its
obligations under Section 3.1 of this Agreement are accurate and
complete. After seventy-five (75) days of the date of termination of
this Agreement, no such certification will be provided to the Fund by the
Administrator and the Administrator is under no further obligation to ensure
that records created by the Administrator pursuant to Section 3.1 of this
Agreement are maintained in a form that is accurate or complete.
13. Confidentiality
and Privacy.
13.1 The
parties hereto agree that each shall treat confidentially the terms and
conditions of this Agreement and all information provided by each party to the
other regarding its business and operations. All confidential
information provided by a party hereto shall be used by any other party hereto
solely for the purpose of rendering or obtaining services pursuant to this
Agreement and, except as may be required in carrying out this Agreement, shall
not be disclosed to any third party without the prior consent of such providing
party. The foregoing shall not be applicable to any information that
is publicly available when provided or thereafter becomes publicly available
other than through a breach of this Agreement, or that is required to be
disclosed by or to any regulatory authority, any auditor of the parties hereto,
or by judicial or administrative process or otherwise by applicable
law.
10
13.2 In
the course of carrying out its obligations under this Agreement, Administrator
shall maintain physical, procedural and electronic safeguards to protect
information regarding the Fund and its investors that Administrator has obtained
or to which the Administrator has gained access.
14. Tape-recording. The parties
consent to recording of any and all telephonic or other oral
instructions. This authorization will remain in effect until and
unless revoked by the Fund, the General Partner or the Administrator in
writing. Each party further agrees to solicit valid written or other
consent from any of its employees, officers, directors or agents with respect to
telephone communications to the extent such consent is required by applicable
law.
15. Procedures. Procedures
applicable to the Administrator’s services to be performed hereunder may be
established from time to time by agreement among the Fund, the General Partner
and the Administrator. The Administrator shall have the right to
utilize any unitholder accounting and recordkeeping systems that, in its
opinion, enables it to perform any services to be performed
hereunder.
16. Entire
Agreement; Amendment. This
Agreement constitutes the entire understanding and agreement of the parties
hereto and supersedes any other oral or written agreements heretofore in effect
between the parties with respect to the subject matter hereof. No
provision of this Agreement may be amended or terminated except by a statement
in writing signed by the party against which enforcement of the amendment or
termination is sought.
17. Severability. In
the event any provision of this Agreement is determined to be void or
unenforceable, such determination shall not affect the remainder of this
Agreement, which shall continue to be in force.
18. Headings. The
section headings in this Agreement are for the convenience of reference only and
shall not modify, define, expand or limit any of the terms or provisions
thereof.
19. Governing
Law. This Agreement
shall be governed by and construed according to the laws of the State of New
York without giving effect to conflicts of law provisions thereof and each of
the parties hereto irrevocably consents to the exclusive jurisdiction of the
United States District Court for the Southern District of New York or if that
court lacks or declines to exercise subject matter jurisdiction, the Supreme
Court of the State of New York, New York County. The General Partner
and the Fund irrevocably waive any objection each may now or hereafter have to
the laying of venue of any action or proceeding in any of the aforesaid courts
and any claim that any such action or proceeding has been brought in an
inconvenient forum. Furthermore, each party hereto irrevocably waives
any right that it may have to trial by jury in any action, proceeding or
counterclaim arising out of or related to this Agreement or the services
contemplated hereby.
11
20. Notices. Notices
and other writings delivered or mailed postage prepaid to the General Partner
and Fund shall be addressed to the Fund/General Partner at United States
Commodity Funds LLC,United States Commodity Funds LLC, 1320 Harbor Bay Parkway,
Suite 145, Alameda, California 94502, Attention: Nicholas D. Gerber, or such
other address as the General Partner or the Fund may have designated to the
Administrator in writing, or to the Administrator at 40 Water Street, Boston,
MA 02109, Attention: Manager, Fund Administration Department, or to
such other address as the Administrator may have designated to the General
Partner and the Fund in writing, shall be deemed to have been properly delivered
or given hereunder to the respective addressee.
21. Binding
Effect; Assignment. This
Agreement shall be binding upon and inure to the benefit of the General Partner,
the Fund and the Administrator and their respective successors and assigns,
provided that no party hereto may assign this Agreement or any of its rights or
obligations hereunder without the written consent of the other
parties. Each party agrees that only the parties to this Agreement
and/or their successors in interest shall have a right to enforce the terms of
this Agreement. Accordingly, no client of the General Partner,
unitholder of the Fund or other third party shall have any rights under this
Agreement and such rights are explicitly disclaimed by the parties.
22. Counterparts. This Agreement
may be executed in any number of counterparts each of which shall be deemed to
be an original. This Agreement shall become effective when one or more
counterparts have been signed and delivered by each of the parties. A
photocopy or telefax of this Agreement shall be acceptable evidence of the
existence of this Agreement and the Administrator shall be protected in relying
on the photocopy or telefax until the Administrator has received the original of
this Agreement.
23. Exclusivity. The services
furnished by the Administrator hereunder are not to be deemed exclusive, and the
Administrator shall be free to furnish similar services to others.
24. Authorization. The
General Partner hereby represents and warrants that the Management Directors of
its Board of Directors including Mr. Nicholas D. Gerber have authorized the
execution and delivery of this Agreement and that Authorized Persons of the
General Partner and the Fund have signed this Agreement, Appendices A, B and C
and the fee schedule hereto.
12
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed and delivered by their duly
authorized officers as of the date first written above.
The
undersigned acknowledges that (I/we) have received a copy of this
document.
BROWN
BROTHERS HARRIMAN & CO.
By: /s/ Hugh
Bolton
Name:
Hugh Bolton
Title:
SLR
Date:
2/8/10
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
UNITED
STATES COMMODITY FUNDS LLC
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
13
APPENDIX
A
TO
ADMINISTRATIVE AGENCY AGREEMENT
ADMINISTRATIVE
SERVICES OF THE ADMINISTRATIVE AGENT
14
APPENDIX
B TO THE
ADMINISTRATIVE
AGENCY AGREEMENT
List
of Authorized Persons
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
UNITED
STATES COMMODITY FUNDS LLC
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
15
APPENDIX
C TO THE
ADMINISTRATIVE
AGENCY AGREEMENT
AUTHORIZED
SOURCES
The General Partner a The General Partner and the Fund hereby
acknowledge that the Administrator is authorized to use the following authorized
sources for financial reporting, pricing (including corporate actions,
dividends and rights offering), and foreign exchange quotations, to assist it in
fulfilling its obligations under the aforementioned Agreement.
BLOOMBERG
RUSSELL/MELLON
FUND
MANAGERS / CLIENT DIRECTED
INTERACTIVE
DATA CORPORATION
REPUTABLE
BROKERS
THOMSON
REUTERS
SUBCUSTODIAN
BANKS
SIX
TELEKURS
REPUTABLE
FINANCIAL PUBLICATIONS
STOCK
EXCHANGES
STAT
PRO
MORGAN
STANLEY CAPITAL INTERNATIONAL
WALL
STREET OFFICE
PRICING
DIRECT
MARKIT
SUPER
DERIVATIVES
S&P
DOW
JONES
JP MORGAN
– contract pending
SQX
(SECURITIES QUOTE EXCHANGE) – contract pending
BARCLAYS
– contract pending
MONIS-JEFFRIES
FITCH
SOLUTIONS
MOODYS
FORD
EQUITY RESEARCH
FTSE
GROUP
INVESTMENT
TECHNOLOGY GROUP (ITG)
16
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
UNITED
STATES COMMODITY FUNDS LLC
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
17
APPENDIX
D
BBH
Pricing Policies
Futures,
Forwards, Swaps, Options and Treasuries
The
pricing policies stated below are used for all BBH clients, including Mutual
Fund Registered Investment Companies. These policies have been
audited by numerous accounting firms during annual fund audits.
Futures
Futures traded on exchanges are valued
using the closing settlement prices quoted on the relevant exchange and obtained
from pricing sources, typically Bloomberg or Reuters.
Forward
Currency Contracts
BBH obtains the WM Reuters London Close
closing spot rates and the WM Reuters London Close forward point rates on a
daily basis. The currency forward contract pricing model derives the
differential in point rates to the expiration date of the forward and calculates
its present value. The forward is valued at the net of the present
value and the spot rate.
Swaps
Swaps and other similar derivative or
contractual type instruments are valued at a price provided by a single broker
or dealer, typically the counterparty. If no such price is available, the
contract is valued at a price at which the counterparty to such contract would
repurchase the instrument or terminate the contract.
Options
Option
contracts on securities, currencies, indices, futures contracts, commodities and
other instruments shall be valued at the last sale price on the exchange or
market that is the Primary Market. If a contract did not trade on the
Primary Market, it shall be valued at the last sale price on another exchange or
market where it did trade. If there is no such sale price, the
value shall be the most recent bid quotation.
Sale
prices and bid quotations indicated above shall be supplied by a Pricing Service
(Reuters, Bloomberg, IDC, etc.). If a Pricing Service is not able to provide
such sale prices or bid quotations, the value shall be determined by taking the
mean between the bid and the asked quotations provided by a single broker or
dealer, unless the broker or dealer can only provide a bid quotation, in which
case the value shall be such bid quotation.
Except as
provided below, OTC currency options are valued by uploading the applicable
implied volatility rates from Reuters or Bloomberg. Other inputs are
either uploaded (interest rates, spots) or are specified when the ticker symbols
are set up (expiration date, strike). OTC currency options are then
priced by using the Garman-Kohlhagen modified Black-Scholes formula, which
adjusts for a constant yield versus a fixed dividend.
Except as
provided below, OTC equity/index options are priced according to the contract
specifications (days to expiration, current spot index level, interest rates,
dividends, strike price) using the Black-Scholes pricing model, modified for
dividends. The volatility input assumption is interpolated from the
previous day’s price.
US
Treasuries
BBH uses
an evaluated bid supplied by IDC for treasury prices.
18