Exhibit 10.7
SECOND AMENDED AND RESTATED
MARKETING AGREEMENT
(1) This Second Amended and Restated Marketing
Agreement (“ Agreement ”) amends and restates
the Amended and Restated Marketing Agreement among the parties
hereto, effective on or about September 18, 2006 (the “
Amended Agreement ”) and this Agreement addresses the
terms by which DB Commodity Services LLC (“
DBCS ”) retains the services of AIM Distributors,
Inc. (“ AIM ”) to assist in marketing
activities with respect to certain DBCS related products. DBCS
serves as the Managing Owner, commodity pool operator and commodity
trading advisor for those several Delaware statutory trusts and
each series of those that are organized in multiple issues (each a
statutory or series “ Trust ”) set forth on
Exhibit A attached hereto. The Trusts are exchange-traded
funds (each related master and feeder, collectively, a “
Fund ”) structured as commodity pools under the
Commodity Exchange Act. The list of all Funds currently covered by
this Agreement is set forth on Exhibit A . This Agreement is
effective as of the effective date of the Amended
Agreement.
(2) A registration statement either is effective
or has been filed with the SEC in respect of the shares of each of
the Funds. Each of the Funds issues and redeems its shares only in
large aggregations and only to or through certain qualified
financial institutions. Certain marketing-related services
currently are performed for the benefit of the Funds on a
non-exclusive basis by ALPS Distributors, Inc., as described in the
registration statement of each of the Funds.
(3) DBCS desires to retain AIM to provide
certain additional marketing services for DBCS in respect of the
Funds. AIM will provide various educational and marketing
activities regarding the Funds, primarily in the secondary trading
market, which activities will include, but not be limited to,
communicating each Fund’s name, characteristics, uses,
benefits, and risks, consistent with the relevant registration
statement.
(4) DBCS understands that AIM’s marketing
activities in connection with the Funds will include but not be
limited to: (a) engaging in public seminars, road shows,
conferences, media interviews; (b) fielding incoming telephone
“800” number calls; (c) distributing sales
literature and other communications (including electronic media)
regarding the Funds; and (d) other services reasonably
contemplated and agreed to by DBCS and AIM. All of the foregoing
activities are referred to herein as “ Marketing
”. AIM shall perform these services in a professional and
competent manner and shall provide such office space and equipment,
telephone facilities, and personnel as it determines may be
reasonably necessary or beneficial in order to provide such
services.
(5) While AIM is authorized by DBCS to solicit
purchases of the Funds’ shares, it is understood that AIM
will not open or maintain customer accounts or handle orders for
the Funds. AIM represents that it and its employees who engage in
Marketing the Funds at all times will be properly registered with
and licensed by the Securities and Exchange Commission (the “
SEC ”) and will be members in good standing of the
National Association of Securities Dealers, Inc. or any relevant
subsidiary thereof (the “ NASD ”), as
applicable. AIM further represents and covenants that such
employees will comply with all applicable laws, rules and
regulations in connection with the Marketing of the Funds, and its
employees’ oral and written disclosure concerning the Funds
will be substantially in accord with the form
and content of the Fund Sales Materials (as
defined in Section 8 below). AIM agrees that it will not use
written materials other than the Fund Sales Materials without the
prior written consent of DBCS.
(6) For Marketing the Funds, DBCS will pay to
AIM an annual fee (“ Annual Fee ”) calculated
based upon the average amount of the daily net assets of all of the
Funds during each calendar year in calculated U.S. dollars (the
“ Total Net Assets ”). The Annual Fee is
calculated as follows:
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a)
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Ten basis
points (0.10%) per annum (which is 0.025% per quarter) on the
first $3 billion of the Total Net Assets;
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b)
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twelve basis
points (0.12%) per annum (which is 0.03% per quarter) on the
next $2 billion of Total Net Assets ( i.e . the amount of
Total Nets Assets above $3 billion but below $5 billion);
and
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c)
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fifteen basis
points (0.15%) per annum (which is 0.375% per quarter) on the
Total Net Assets in excess of $5 billion.
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The Annual Fee is to be paid quarterly in
arrears and shall be calculated in the same manner and using the
same procedures and conventions used to calculate the management
fee paid to DBCS as described in each Fund’s prospectus, as
it may be amended or supplemented from time to time, and prorated
for partial quarters if this Agreement becomes effective on a date
that is not the first day of a calendar quarter or is terminated on
a day that is not the last day of a calendar quarter.
The payments to AIM under this Section 6
and any Break-Up Fee (as hereinafter defined in Exhibit B
attached hereto) will not, in the aggregate, exceed 8.75% of the
aggregate dollar amount of each offering (in a dollar amount equal
to the amount disclosed on Exhibit C of the aggregate
amount registered on the Registration Statement on Form S-1 in
respect of each Trust). Exhibit C will be amended from
time-to-time in the event that additional amounts of Shares are
registered. Each Trust, on behalf of each Fund, will advise AIM if
the payments described hereunder must be limited, when combined
with selling commissions charged by other NASD members, in order to
comply with the 10% limitation on total underwriters’
compensation pursuant to NASD Rule 2810.
(7) DBCS will furnish AIM, upon request and
without charge, each Fund’s current prospectus, and copies of
sales materials filed with the NASD by such Fund’s
distributor (“ Fund Sales Materials ”) in such
quantities as are reasonably requested by AIM.
(8) DBCS represents that it is a commodity pool
operator properly registered with the Commodity Futures Trading
Commission (“ CFTC ”) and a member in good
standing of the National Futures Association (“ NFA
”). DBCS further represents that Fund Sales Materials
provided to AIM by DBCS for use in AIM’s Marketing activities
for the Funds will comply with all applicable rules and regulations
and be filed by DBCS’s distributor with all applicable
regulatory agencies, including the NASD’s Advertising
Regulation Department. Further, DBCS agrees to indemnify AIM and
hold AIM harmless from any losses, cl