CONFIDENTIAL PORTIONS HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION"). AMENDMENT TO THE LICENSE AGREEMENT DATED AS OF APRIL 10, 2006
Exhibit
10.5
CONFIDENTIAL
PORTIONS HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
AND
HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION (THE
"COMMISSION").
AMENDMENT
TO THE
DATED
AS OF APRIL 10, 2006
Amendment
(“Amendment”) dated as of December 4, 2007, by and among New York Mercantile Exchange,
Inc. (“NYMEX”); United
States Oil Fund, LP (“USOF”); United States Natural
Gas Fund,
LP (“USNG”); United
States Gasoline Fund, LP (“USGF”); United States Heating
Oil Fund,
LP (“USHO”); Victoria
Bay Asset Management, LLC (“Victoria Bay”) (NYMEX, USOF, USNG, USGF, USHO
and Victoria Bay, collectively, the “Original Parties”); United States 12 Month Oil
Fund,
LP (“US12OF”); and United States 12 Month
Natural Gas
Fund, LP (“US12NG”) (US12OF and US12NG, the “New Parties”).
WHEREAS,
the Original Parties are parties to that certain License Agreement entered
into
as of April 10, 2006 (the “Agreement”); and
WHEREAS,
the Original Parties hereby agree to amend the Agreement by this Amendment
and
to add the New Parties as parties to the Agreement as amended by this
Amendment;
WHEREAS,
the New Parties wish to become parties to the Agreement as amended by this
Amendment;
NOW,
THEREFORE, the Original Parties and the New Parties hereto agree as
follows:
1.
Amendment of the
Agreement.
(a)
The introductory paragraph of the Agreement is hereby amended to read as
follows:
This
License Agreement (“Agreement”) is entered into as of April 10, 2006 (“Effective
Date”), by and between New York
Mercantile Exchange, Inc., a Delaware corporation located at One North
End Avenue, World Financial Center, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (“Licensor”);
United States Oil Fund,
LP (“USOF”), a Delaware limited partnership located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; United States Natural Gas
Fund,
LP (“USNG”), a Delaware limited partnership located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; United States Gasoline Fund,
LP (“USGF”), a Delaware limited partnership located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; United States Heating Oil
Fund,
LP (“USHO”), a Delaware limited partnership located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; United States 12 Month Oil
Fund,
LP (“US12OF”), a Delaware limited partnership located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; United States 12 Month Natural
Gas
Fund, LP (“US12NG”), a Delaware limited partnership located at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and Victoria Bay Asset Management,
LLC ( “Victoria Bay”), a Delaware limited liability company located at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (USOF, USNG,
▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇ and US12NG and Victoria Bay, collectively, the “Licensees”)
(Licensees and Licensor, collectively, the “Parties”).
(b)
The second “Whereas” clause in the Agreement is hereby amended to read as
follows:
WHEREAS,
USOF, USNG, ▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, and Victoria Bay, the general partner of each of USOF,
USNG, ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ and US12NG, seek to enter into a license agreement
with
Licensor in connection with which USOF, USNG, ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ and US12NG
would obtain from Licensor a non-exclusive license to use certain of Licensor’s
settlement prices and service marks pursuant to the terms of such license
agreement and Licensor would provide USOF, USNG, ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ and US12NG
with a limited, worldwide, non-exclusive, non-transferable license to use such
settlement prices and service marks on the terms and conditions set forth in
such license agreement; and
(c)
The following definitions in “1. Definitions” in the Agreement is hereby amended
to read as follows:
1.2
“Face Amount”
shall mean,
as to each type of Securities (i.e., the Crude Oil Securities, the
Natural Gas Securities, the Gasoline Securities, the Heating Oil Securities,
the
12 Month Crude Oil Securities, and the 12 Month Natural Gas Securities, as
defined in Paragraph 1.13 herein), the multiplicative product of the factors
(x)
and (y) calculated as described below on each day that such type of Securities
was traded on the American Stock Exchange (or such other stock exchange on
which
the Securities are currently traded) during the Payment Quarter: (x)
the number of that type of Securities outstanding on each such day, multiplied
by (y) the net asset value of each of the Securities of that type, calculated
for such day as described in the Prospectus for that type of
Securities.
1.4
“Licensees”
shall mean
United States Oil Fund, LP, United States Natural Gas Fund, LP,
United States Gasoline Fund, LP, United States Heating Oil Fund, LP, United
States 12 Month Oil Fund, LP, United States 12 Month Natural Gas Fund, LP,
and
Victoria Bay Asset Management, LLC.
1.6
“Market Data”
shall mean,
with respect to:
(1)
USOF, USNG, USGF, and USHO, the
settlement prices (on a rolling basis) for the front (or spot) month, and the
three months immediately thereafter for each of the futures contracts listed
on
Exhibit A;
(2)
US12OF,
the settlement prices (on
a rolling basis) for the front (or spot) month, and the thirteen months
immediately thereafter for the Light Sweet Crude Oil futures contract listed
on
Exhibit A; and
(3)
US12NG,
the settlement prices (on
a rolling basis) for the front (or spot) month, and the thirteen months
immediately thereafter for the Natural Gas futures contract listed on Exhibit
A.
1.12
“Prospectus”
shall
mean (a) the prospectuses, and
any amendments thereto, contained in the Registration Statement filed with
the
Securities and Exchange Commission on May 16, 2005, File Number 333-124950,
by
USOF and used in connection with the offering and sale of the Crude Oil
Securities (as defined in Paragraph 1.13 herein), (b) the prospectuses, and
any
amendments thereto, contained in the Registration Statement filed with the
Securities and Exchange Commission on October 6, 2006, File Number 333-137871,
by USNG and used in connection with the offering and sale of the Natural Gas
Securities (as defined in Paragraph 1.13 herein), (c) the prospectuses, and
any
amendments thereto, contained in the Registration Statement filed with the
Securities and Exchange Commission on April 18, 2007, File Number 333-142206,
by
USGF and used in connection with the offering and sale of the Gasoline
Securities (as defined in Paragraph 1.13 herein), (d) the prospectuses, and
any
amendments thereto, contained in the Registration Statement filed with the
Securities and Exchange Commission on April 19, 2007, File Number 333-142211,
by
USHO and used in connection with the offering and sale of the Heating Oil
Securities (as defined in Paragraph 1.13 herein), (e) the prospectuses, and
any
amendments thereto, contained in the Registration Statement filed with the
Securities and Exchange Commission on November 16, 2007, File Number 333-144348,
by US12OF and used in connection with the offering and sale of the 12 Month
Crude Oil Securities (as defined in Paragraph 1.13 herein), and (f) the
prospectuses, and any amendments thereto, contained in the Registration
Statement filed with the Securities and Exchange Commission on July 6, 2007,
File Number 333-144409, by US12NG and used in connection with the offering
and
sale of the 12 Month Natural Gas Securities (as defined in Paragraph 1.13
herein), and the definition of “Prospectus” shall include the final version of
each such prospectus, and/or each prospectus supplement, on and after its
date. Licensees represent that the description of the Market Data in
each final prospectus, and/or prospectus supplement, will not deviate from
the
descriptions of the Market Data in the relevant Registration Statement described
in this Agreement.
1.13
“Securities”
shall mean
the units of partnership interest, issued by one or more of Licensees
as described in the Prospectus. There are or will be six types of
Securities: (i) that type of Securities, whose investment objective is to have
changes in percentage terms of the unit’s net asset value reflect the changes in
percentage terms of the settlement price for the near month’s or the next
month’s futures contract for light, sweet crude oil (for delivery in Cushing,
Oklahoma), as traded on NYMEX’s exchange (the “Crude Oil Securities”), (ii) that
type of Securities, whose investment objective is to have changes in percentage
terms of the unit’s net asset value reflect the changes in percentage terms of
the settlement price for the near month’s or next month’s futures contract for
natural gas (for delivery in the ▇▇▇▇▇ Hub in Louisiana), as traded on NYMEX’s
exchange (the “Natural Gas Securities”), (iii) that type of Securities, whose
investment objective is to have changes in percentage terms of the unit’s net
asset value reflect the changes in percentage terms of the settlement
price for the near month’s or next month’s futures contract for Reformulated
Gasoline Blendstock for Oxygen Blending (RBOB) (for delivery in New York
harbor), as traded on NYMEX’s exchange (the “Gasoline Securities”), (iv) that
type of Securities, whose investment objective is to have changes in percentage
terms of the unit’s net asset value reflect the changes in percentage terms of
the settlement price for the near month’s or the next month’s futures contract
for heating oil (for delivery in New York harbor), as traded on NYMEX’s exchange
(the “Heating Oil Securities”), (v) that type of Securities, whose investment
objective is to have changes in percentage terms of the unit’s net asset value
reflect the average of the changes in percentage terms of the settlement price
for the near month’s or the next month’s futures contracts and the following
eleven months’ futures contracts for light, sweet crude oil (for delivery in
Cushing, Oklahoma), as traded on NYMEX’s exchange (the “12 Month Crude Oil
Securities”) and (vi) that type of Securities, whose investment
objective is to have changes in percentage terms of the unit’s net asset value
reflect the average of the changes in percentage terms of the settlement price
for the near month’s or the next months’ futures contracts and the following
eleven months’ futures contract for natural gas (for delivery in the ▇▇▇▇▇ Hub
in Louisiana), as traded on NYMEX’s exchange (the “12 Month Natural Gas
Securities”).
1.16
“Total Face
Amount” shall mean the total of the Face Amounts of all types of
Securities (i.e., the Crude Oil Securities, Natural Gas Securities, Gasoline
Securities, Heating Oil Securities, 12 Month Crude Oil Securities, and 12 Month
Natural Gas Securities) for the Payment Quarter.
(d)
Exhibit B to the Agreement is hereby amended so as to be in the form of
Attachment A hereto.
(e)
Exhibit C to the Agreement
is hereby amended
so as to
be in the form of Attachment B hereto.
|
|
2.
|
Representations. Each
party represents to the other party that:-
|
(a)
Status. It
is duly organized and validly existing under the laws of the jurisdiction of
its
organization or incorporation and, if relevant under such laws, in good
standing;
(b)
Powers. It
has the power to execute and deliver this Amendment and to perform its
obligations under this Amendment and has taken all necessary action to authorize
such execution, delivery and performance;
(c)
No Violation or
Conflict. Such execution, delivery and performance do not
violate or conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgment of any court or other agency
of
government applicable to it or any of its assets or any contractual restriction
binding on or affecting it or any of its assets;
(d)
Consents. All
governmental and other consents that are required to have been obtained by
it
with respect to this Amendment have been obtained and are in full force and
effect and all conditions of any such consents have been complied with;
and
(e)
Obligations
Binding. Its obligations under this Amendment constitute its
legal, valid and binding obligations, enforceable in accordance with its
respective terms (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors’ rights generally and subject, as
to enforceability, to equitable principles of general application (regardless
of
whether enforcement is sought in a proceeding in equity or at
law)).
3.
Rights and Obligations of
the
New Parties, USOF, USNG, USGF and USHO.
The
New Parties have all rights, and
undertake and have all obligations, of the Licensees (as defined in the
Agreement, as amended by this Amendment) under the Agreement as amended by
this
Amendment. USOF, USNG, USGF, and USHO have all rights, and undertake and have
all obligations, of the Licensees (as defined in the Agreement, as amended
by
this Amendment) under the Agreement as amended by this Amendment.
4.
Miscellaneous.
(a)
Except as specifically modified herein, the Agreement remains unchanged and
is,
and shall remain, in full force and effect. If any provision of this Amendment
conflicts with any provision of the Agreement, the applicable provision of
this
Amendment shall prevail.
(b)
Entire
Agreement. This Amendment constitutes the entire agreement and
understanding of the parties with respect to this Amendment’s subject matter and
supersedes all oral communication and prior writings (except as otherwise
provided herein) with respect thereto.
(c)
Counterparts. This
Amendment may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if signatures thereto and hereto were upon
the
same instrument.
(d)
Headings. The
headings used in this Amendment are for convenience of reference only and are
not to affect the construction of or to be taken into consideration in
interpreting this Amendment.
(e)
Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York (without reference to choice
of law doctrine).
IN
WITNESS WHEREOF, the
Parties hereto have caused this Amendment to be duly executed and delivered
by
their respective authorized officers as of the date set forth
above.
|
NEW
YORK MERCANTILE EXCHANGE, INC.
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|||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇
|
||
|
Title:
|
President
|
||
|
UNITED
STATES OIL FUND, LP
|
|||
|
By:
|
Victoria
Bay Asset Management, LLC, General Partner
|
||
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title:
|
Managing
Member of Victoria Bay Asset Management,
LLC
|
||
|
UNITED
STATES NATURAL GAS FUND, LP
|
|||
|
By:
|
Victoria
Bay Asset Management, LLC, General Partner
|
||
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title:
|
Managing
Member of Victoria Bay Asset Management,
LLC
|
||
|
VICTORIA
BAY ASSET MANAGEMENT, LLC
|
|||
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title:
|
Managing
Member
|
||
|
UNITED
STATES GASOLINE FUND, LP
|
|||
|
By:
|
Victoria
Bay Asset Management, LLC, General Partner
|
||
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title:
|
Managing
Member of Victoria Bay Asset Management,
LLC
|
||
|
UNITED
STATES HEATING OIL FUND, LP
|
|||
|
By:
|
Victoria
Bay Asset Management, LLC, General Partner
|
||
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title:
|
Managing
Member of Victoria Bay Asset Management,
LLC
|
||
|
By:
|
Victoria
Bay Asset Management, LLC, General Partner
|
||
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title:
|
Managing
Member of Victoria Bay Asset Management,
LLC
|
||
|
UNITED
STATES 12 MONTH NATURAL GAS FUND, LP
|
|||
|
By:
|
Victoria
Bay Asset Management, LLC, General Partner
|
||
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title:
|
Managing
Member of Victoria Bay Asset Management,
LLC
|
||
Attachment
A
EXHIBIT
B
SAMPLE
COVER PAGE TO PAYMENT
REPORT
[Date]
|
Re:
|
License
Fee from Victoria Bay Asset Management, LLC, United States Oil Fund,
LP,
United States Natural Gas Fund, LP, United States Gasoline Fund,
LP,
United States Heating Oil Fund, LP, United States ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 12 Month Natural Gas Fund, LP covering the quarter
beginning _______________ to ______________.
|
The
daily
Face Amount for each type of Securities (i.e., Crude Oil Securities, Natural
Gas
Securities, Gasoline Securities, Heating Oil Securities, 12 Month Crude Oil
Securities, and 12 Month Natural Gas Securities) was calculated for each day
as
follows: the number of that type of Securities outstanding on that day X the
net
asset value of each of that type of Securities.
The
License Fee for this quarter was calculated as the sum of daily calculated
License Fees according to the following formula: daily License Fee =
[(Total Face Amount up to and including $1 billion X [** THE CONFIDENTIAL PORTION HAS BEEN OMITTED
PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH
THE
COMMISSION.**]) ÷ 365] + [(Total
Face Amount over $1 billion X [** THE CONFIDENTIAL PORTION
HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED
SEPARATELY WITH THE COMMISSION.**]) ÷ 365]. On days that the
Securities were not traded, the Total Face Amounts for the respective License
Fees were those determined on the previous day on which the Securities were
traded. In the event that either (x) the Effective Date was not the
first day of a Payment Quarter or (y) the Termination Date was not the last
day
of a Payment Quarter, then the payment for the relevant Payment Quarter was
calculated based on the actual days in the Payment Quarter.
The
License Fee due to NYMEX from Victoria Bay Asset Management, LLC, United States
Oil Fund, LP, United States Natural Gas Fund, LP, United States Gasoline Fund,
LP, United States Heating Oil Fund, LP, United States ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇,
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ 12 Month Natural Gas Fund, LP for this quarter is $ [numerical
amount]. [Please invoice the Victoria Bay Asset Management, LLC
Finance Department for this amount.]
EXHIBIT
C
Sample
Securities
Report
|
A
Date
|
B
Number
of Crude Oil Securities
Outstanding
|
C
Net
Asset Value of Each
Security
|
D
Product
of B
Multiplied
by
C
|
|
A
Date
|
B
Number
of Natural Gas Securities
Outstanding
|
C
Net
Asset Value of Each
Security
|
D
Product
of B
Multiplied
by
C
|
|
A
Date
|
B
Number
of Gasoline Securities
Outstanding
|
C
Net
Asset Value of Each
Security
|
D
Product
of B
Multiplied
by
C
|
|
A
Date
|
B
Number
of Heating Oil Securities
Outstanding
|
C
Net
Asset Value of Each
Security
|
D
Product
of B
Multiplied
by
C
|
|
A
Date
|
B
Number
of 12 Month Crude Oil
Securities Outstanding
|
C
Net
Asset Value of Each
Security
|
D
Product
of B
Multiplied
by
C
|
|
A
Date
|
B
Number
of 12 Month Natural Gas
Securities Outstanding
|
C
Net
Asset Value of Each
Security
|
D
Product
of B
Multiplied
by
C
|