Exhibit 10.04
MANAGEMENT AGREEMENT
THIS AGREEMENT, made as of the 1st day of January, 2004 among XXXXXX XXXXXXX
SPECTRUM SELECT L.P., a Delaware limited partnership (the "Partnership"),
DEMETER MANAGEMENT CORPORATION, a Delaware corporation (the "General Partner"),
and XXXXXX CAPITAL MANAGEMENT, L.P., a Delaware limited partnership (the
"Trading Advisor").
W I T N E S S E T H:
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WHEREAS, the Partnership has been organized pursuant to the Amended
and Restated Limited Partnership Agreement dated as of February 28, 2000 (as may
be amended from time to time, the "Limited Partnership Agreement"), to trade,
buy, sell, spread, or otherwise acquire, hold, or dispose of commodities (which
may include foreign currencies, mortgage-backed securities, money market
instruments, financial instruments and any other securities or items which are
now, or may hereafter be, the subject of futures contract trading), domestic and
foreign commodity futures contracts, commodity forward contracts, foreign
exchange commitments, options on physical commodities and on futures contracts,
spot (cash) commodities and currencies, and any rights pertaining thereto
(hereinafter referred to collectively as "futures interests") and securities
(such as United States Treasury bills) approved by the Commodity Futures Trading
Commission (the "CFTC") for investment of customer funds;
WHEREAS, the Partnership is a member partnership of the Xxxxxx
Xxxxxxx Spectrum Series (the "Fund Group") pursuant to which units of limited
partnership interest ("Units") of such member partnerships are sold to investors
in a common prospectus. Units of the Partnership are being offered pursuant to a
Registration Statement on Form S-1 (as it may be amended from time to time, the
"Registration Statement") filed under the Securities Act of 1933, as amended
(the "Securities Act"), and a final Prospectus constituting a part thereof (as
it may be amended and supplemented from time to time) (the "Prospectus"). Such
Units can be exchanged by a limited partner of a member partnership of the Fund
Group for Units of other member partnerships of the Fund Group at 100% of the
respective Net Asset Value (as defined in Section 7(d)(2) of the Limited
Partnership Agreement) thereof;
WHEREAS, the principals of the Trading Advisor have extensive
experience trading in futures interests and the Trading Advisor is willing to
provide certain services and undertake certain obligations as set forth herein;
WHEREAS, the Partnership and the General Partner desire the Trading
Advisor to act as a trading advisor for the Partnership and to make investment
decisions with respect to futures interests for its allocated portion of the
Partnership's Net Assets (as defined in Section 7(d)(1) of the Limited
Partnership Agreement) and the Trading Advisor desires so to act; and
WHEREAS, the Partnership, the General Partner and the Trading
Advisor wish to enter into this Management Agreement which, among other things,
sets forth certain terms and conditions upon which the Trading Advisor will
conduct a portion of the Partnership's futures interests trading for the
Partnership;
NOW THEREFORE, the parties hereto hereby agree as follows:
Undertakings in Connection with the Continuing Offering of Units.
The Trading Advisor agrees with respect to the continuing offering
of Units: (i) to make all disclosures regarding itself, its principals and
affiliates, its trading performance, its trading programs, systems, methods, and
strategies (subject to the need, in the reasonable discretion of the Trading
Advisor, to preserve the confidentiality of proprietary information concerning
such programs, systems, methods, and strategies), any client accounts over which
it has discretionary trading authority (other than the names of any such
clients), and otherwise, as the General Partner may reasonably require (x) to be
made in the Partnership's Prospectus required by Section 4.21 of the CFTC's
Regulations, including any amendments or supplements thereto, or (y) to comply
with any applicable federal or state law or rule or regulation, including those
of the Securities and Exchange Commission (the "SEC"), the CFTC, the National
Futures Association (the "NFA"), the National Association of Securities Dealers,
Inc. (the "NASD") or any other regulatory body, exchange, or board; and (ii)
otherwise to cooperate with the Partnership, the General Partner, and Xxxxxx
Xxxxxxx XX Inc., an affiliate of the General Partner and the selling agent for
the Partnership ("Xxxxxx Xxxxxxx XX"), by providing information regarding the
Trading Advisor in connection with the preparation and filing of the
Registration Statement and Prospectus, including any pre-or post-effective
amendments or supplements thereto, with the SEC, CFTC, NFA, NASD, and with
appropriate governmental authorities as part of making application for
registration of the Units under the securities or Blue Sky laws of such
jurisdictions as the Partnership may deem appropriate. As used herein, the term
"principal" shall have the meaning as defined in Rule 3.1(a) of the CFTC's
Regulations and the term "affiliate" shall mean any individual or entity that
directly or indirectly controls, is controlled by, or is under common control
with the Trading Advisor.
The General Partner, in its sole discretion and at any time may (i)
withdraw the SEC registration of the Units, or (ii) discontinue the offering of
Units.
If, while Units continue to be offered and sold, the Trading Advisor
becomes aware of any materially untrue or misleading statement or omission
regarding itself or any of its principals or affiliates in the Registration
Statement or Prospectus, or of the occurrence of any event or change in
circumstances which would result in there being any materially untrue or
misleading statement or omission in the Registration Statement or Prospectus
regarding itself or any of its principals or affiliates, the Trading Advisor
shall promptly notify the General Partner and shall cooperate with it in the
preparation of any necessary amendments or supplements to the Registration
Statement or Prospectus. Neither the Trading Advisor nor any of its principals
or affiliates or any stockholders, officers, directors, or employees shall
distribute the Prospectus or selling literature or shall engage in any selling
activities whatsoever in connection with the continuing offering of Units except
as may be specifically requested by the General Partner.
Duties of the Trading Advisor.
The Trading Advisor hereby agrees to act as Trading Advisor for the
Partnership and, as such, shall have sole authority and responsibility for
directing the investment and reinvestment of its allocable share of the Net
Assets of the Partnership which shall initially be traded equally among its
Global Diversified Program at 150% leverage and its Xxxxxx Selective Trading
program at 150% leverage (the "Trading Programs") on the terms and conditions
and in accordance with the prohibitions and trading policies set forth in
Exhibit A hereto, the Prospectus, and as otherwise provided in writing to the
Trading Advisor; provided, however, that the General Partner may override the
instructions of the Trading Advisor to the extent necessary (i) to comply with
the trading policies of the Partnership, as described in the Prospectus and the
Limited Partnership Agreement, and with applicable speculative position limits,
(ii) to fund any distributions, redemptions or reappointments among other
trading advisors to the Partnership, (iii) to pay the Partnership's expenses,
(iv) to the extent the General Partner believes doing so is necessary for the
protection of the Partnership, (v) to terminate the futures interests trading of
the Partnership, or (vi) to comply with any applicable law or regulation. The
General Partner agrees not to override any such instructions for the reasons
specified in clause (iii) of the preceding sentence unless the Trading Advisor
fails to comply with a request of the General Partner to make the necessary
amount of funds available to the Partnership within five calendar days of such
request. Except as otherwise provided herein, the Trading Advisor shall not be
liable for the consequences of any decision by the General Partner to override
instructions of the Trading Advisor. In performing services for the Partnership,
the Trading Advisor may not materially alter or change the trading programs used
by the Trading Advisor in investing and reinvesting its allocable share of the
Partnership's Net Assets in futures interests as described in the Prospectus
without the prior written consent of the General Partner, it being understood
that changes in the futures interests traded shall not be deemed an alteration
in the Trading Advisor's trading programs.
The Trading Advisor shall:
Exercise good faith and due care in trading futures interests
for the account of the Partnership in accordance with the prohibitions and
trading policies of the Partnership described in Exhibit A hereto, the
Prospectus and as otherwise provided in writing to the Trading Advisor.
The Trading Advisor shall trade its allocated portion of the Partnership's
Net Assets pursuant to the specified trading programs described in the
Prospectus (with such changes and additions to such trading programs as
the Trading Advisor, from time to time, incorporates into its trading
program(s) for accounts the size of the Partnership), unless the Trading
Advisor is instructed by the General Partner to trade its allocated
portion of the Partnership's Net Assets pursuant to any one or more of the
Trading Advisor's other trading programs described in the Prospectus.
Subject to reasonable assurances of confidentiality by the
General Partner and the Partnership, provide the General Partner, within
30 calendar days of a request therefor by the General Partner, with
information comparing the performance of the Partnership's account and the
performance of all other client accounts directed by the Trading Advisor
using the trading programs used by the Trading Advisor for the Partnership
over a specified period of time. In providing such information, the
Trading Advisor may take such steps as are necessary to assure the
confidentiality of the Trading Advisor's clients' identities. The Trading
Advisor shall, upon the General Partner's request, consult with the
General Partner concerning any discrepancies between the performance of
such other accounts and the Partnership's account. The Trading Advisor
shall promptly inform the General Partner of any material discrepancies of
which the Trading Advisor becomes aware. The General Partner acknowledges
that different trading programs, strategies or implementation methods may
be utilized for different accounts, accounts with different trading
policies, accounts experiencing differing inflows or outflows of equity,
accounts that commence trading at different times, accounts which have
different portfolios or different fiscal years and that such differences
may cause divergent trading results.
Upon request of the General Partner and subject to reasonable
assurances of confidentiality by the General Partner and the Partnership,
provide the General Partner with all material information concerning the
Trading Advisor other than proprietary information (including, without
limitation, information relating to changes in control, personnel, trading
approach, or financial condition). The General Partner acknowledges that
all trading instructions made by the Trading Advisor will be held in
confidence by the General Partner, except to the extent necessary to
conduct the business of the Partnership or as required by law.
Inform the General Partner when the Trading Advisor's open
positions maintained by the Trading Advisor exceed the Trading Advisor's
applicable speculative position limits.
In performing services to the Partnership, the Trading Advisor
shall utilize the Trading Programs as described in the Prospectus and as
modified from time to time. The Trading Advisor shall give the General
Partner prior written notice of any change in the Trading Programs that
the Trading Advisor deems to be material (and shall not effect such change
on behalf of the Partnership without the General Partner's consent), it
being understood that changes in the futures interests traded, provided
that such futures interests are listed in Exhibit B hereto, shall not be
deemed an alteration in the Trading Programs.
All purchases and sales of futures interests pursuant to this
Agreement shall be for the account, and at the risk, of the Partnership and not
for the account, or at the risk, of the Trading Advisor or any of its
stockholders, directors, officers, or employees, or any other person, if any,
who controls the Trading Advisor within the meaning of the Securities Act. All
brokerage fee, including give-up fees at rates approved by Xxxxxx Xxxxxxx XX
arising from trading by the Trading Advisor shall be for the account of the
Partnership. The Trading Advisor makes no representations as to whether its
trading will produce profits or avoid losses.
Notwithstanding anything this Agreement to the contrary, the Trading
Advisor shall assume financial responsibility for any errors committed or caused
by it in transmitting orders for the purchase or sale of futures interests for
the Partnership's account, including, but not limited to, payment of the
commissions, exchange and NFA fees, and other transaction charges and give-up
charges incurred on such trades. The Trading Advisor's errors shall include, but
not be limited to, inputting improper trading signals or communicating incorrect
orders for execution. The Trading Advisor shall not be responsible for errors
committed or caused by Xxxxxx Xxxxxxx XX, Xxxxxx Xxxxxxx & Co., Incorporated
("MS&Co.") or any other floor broker or futures commission merchant executing
trades. The Trading Advisor shall have an affirmative obligation to promptly
notify the General Partner of its own errors, and the Trading Advisor shall use
its best efforts to identify and promptly notify the General Partner of any
order or trade which the Trading Advisor reasonably believes was not executed in
accordance with its instructions.
Prior to the commencement of trading, the General Partner on behalf
of the Partnership shall deliver to the Trading Advisor a trading authorization
in the form attached hereto as Exhibit C hereto, appointing the Trading Advisor
the Partnership's attorney-in-fact for such purpose.
Designation of Additional Trading Advisors and Reallocation of Net
Assets.
If the General Partner at any time deems it to be in the best
interests of the Partnership, the General Partner may designate an additional
trading advisor or advisors for the Partnership and may apportion to such
additional trading advisor(s) the management of such amounts of Net Assets as
the General Partner shall determine in its absolute discretion. The designation
of an additional trading advisor or advisors or replacement of any trading
advisor for the Partnership by the General Partner shall not require any
approval of any existing trading advisor (including the Trading Advisor). The
designation and retention of an additional trading advisor or replacement
trading advisor or advisors and the apportionment of Net Assets to any such
trading advisor(s) pursuant to this Section 3 shall neither terminate this
Agreement nor modify in any regard the respective rights and obligations of the
Partnership, the General Partner and the Trading Advisor hereunder with respect
to the assets that remain under the management of the Trading Advisor. In the
event that an additional trading advisor is so designated, the Trading Advisor
shall thereafter receive management and incentive fees based, respectively, on
that portion of the Net Assets managed by the Trading Advisor and that portion
of the Trading Profits (as defined in Section 6(c) hereof) properly attributable
to the trading done by the Trading Advisor.
The General Partner may at any time and from time to time upon two
business days' prior notice reallocate Net Assets allocated to the Trading
Advisor to any other trading advisor or advisors of the Partnership or allocate
additional Net Assets upon two business days' prior notice to the Trading
Advisor from such other trading advisor or advisors; provided that any such
addition to or withdrawal from Net Assets allocated to the Trading Advisor of
the Net Assets will only take place on the last day of a month unless the
General Partner determines that the best interest of the Partnership require
otherwise.
Trading Advisor Independent.
For all purposes of this Agreement, the Trading Advisor shall be deemed to be an
independent contractor and shall, unless otherwise expressly provided herein or
authorized, have no authority to act for or represent the Partnership in any way
or otherwise be deemed an agent of the Partnership or General Partner. Nothing
contained herein shall be deemed to require the Partnership or General Partner
to take any action contrary to the Limited Partnership Agreement, the
Certificate of Limited Partnership of the Partnership as from time to time in
effect (the "Certificate of Limited Partnership"), or any applicable law or rule
or regulation of any regulatory body, exchange, or board. Nothing herein
contained shall constitute the Trading Advisor and any other trading advisor or
advisors for the Partnership, the General Partner, or other member partnership
of the Fund Group or their trading advisors as a member of any partnership,
joint venture, association, syndicate or other entity with the Partnership or
the General Partner, or, except as otherwise specifically provided in this
Agreement, be deemed to confer on any of them any express, implied, or apparent
authority to incur any obligation or liability on behalf of any other. It is
expressly agreed that the Trading Advisor is neither a promoter, sponsor, nor
issuer with respect to the Partnership.
Commodity Brokers.
The Trading Advisor shall effect all transactions in futures interests for the
Partnership through, and shall maintain a separate account with, such commodity
broker or brokers as the General Partner shall direct. At the present time,
Xxxxxx Xxxxxxx XX, shall act as the non-clearing commodity broker and MS&Co., an
affiliate of the General Partner shall act as the clearing commodity broker for
the Partnership with the exception of trades on the London Metal Exchange which
will be cleared by Xxxxxx Xxxxxxx & Co. International Limited ("MSIL"), all of
which are affiliates of the General Partner. In addition, MS&Co. will act as the
counterparty on all of the foreign currency forward trades for the clearing
commodity broker with respect to the London Metal Exchange). The General Partner
shall provide the Trading Advisor with copies of brokerage statements.
Notwithstanding that MS&Co. and MSIL shall act as the counterparty on all of the
foreign currency forward trades for the clearing commodity broker for the
Partnership, the Trading Advisor may execute trades through floor brokers other
than those employed by MS&Co. and MSIL so long as arrangements are made for such
floor brokers to "give-up" or transfer the positions to MS&Co. and MSIL and
provided that the rates charged by such floor brokers have been approved in
writing by Xxxxxx Xxxxxxx XX.
Fees.
For the services to be rendered to the Partnership by the Trading
Advisor under this Agreement, the Partnership shall pay the Trading Advisor the
following fees:
A monthly management fee, without regard to the profitability
of the Trading Advisor's trading for the Partnership's account, equal to
1/12 of 2% (a 2% annual rate) of the Partnership's "Net Assets" allocated
to the Trading Advisor (as defined in Section 7(d)(1) of the Limited
Partnership Agreement) as of the opening of business on the first day of
each calendar month, commencing with the month in which the Partnership
begins to receive trading advice from the Trading Advisor pursuant to this
Agreement.
A monthly incentive fee equal to 20% of the "Trading Profits"
(as defined in Section 6(c)) experienced by the Partnership as of the end
of each calendar month, payable on a non-netted basis vis a vis other
trading advisor(s) or the Partnership.
If this Agreement is terminated on a date other than the last day of
a month, the incentive fee described above shall be determined as if such date
were the end of a month. If this Agreement is terminated on a date other than
the end of a month, the management fee described above shall be prorated based
on the ratio of the number of trading days in the month through the date of
termination to the total number of trading days in the month. If, during any
month after the Partnership commences trading operations, the Partnership does
not conduct business operations, or suspends trading for the account of the
Partnership managed by the Trading Advisor, or, as a result of an act or
material failure to act by the Trading Advisor, is otherwise unable to utilize
the trading advice of the Trading Advisor on any of the trading days of that
period for any reason, the management fee described above shall be prorated
based on the ratio of the number of trading days in the month that the
Partnership account managed by the Trading Advisor engaged in trading operations
or utilized the trading advice of the Trading Advisor to the total number of
trading days in the month.
As used herein, the term "Trading Profits" shall mean net futures
interests trading profits (realized and unrealized) earned on the Partnership's
Net Assets allocated to the Trading Advisor, decreased by the Trading Advisor's
monthly management fees, and a pro rata portion of brokerage fees and any
transaction fees and costs relating to the Trading Advisor's allocated Net
Assets, if any, not included in the brokerage fees; with such trading profits
and items of decrease determined from the end of the last calendar month in
which an incentive fee was earned by the Trading Advisor or, if no incentive fee
has been earned previously by the Trading Advisor, from the date that the
Partnership commenced trading to the end of the month as of which such incentive
fee calculation is being made. Extraordinary expenses of the Partnership, if
any, will not be deducted in determining Trading Profits. No incentive fee will
be paid on interest income earned by the Partnership.
If any payment of incentive fees is made to the Trading Advisor on
account of Trading Profits earned by the Partnership on Net Assets allocated to
the Trading Advisor and the Partnership thereafter fails to earn Trading Profits
or experiences losses for any subsequent incentive period with respect to such
amounts so allocated, the Trading Advisor shall be entitled to retain such
amounts of incentive fees previously paid to the Trading Advisor in respect of
such Trading Profits. However, no subsequent incentive fees shall be payable to
the Trading Advisor until the Partnership has again earned Trading Profits on
the Trading Advisor's allocated Net Assets; provided, however, that if the
Trading Advisor's allocated Net Assets are reduced or increased because of
redemptions or additions or reallocations that occur at the end of, or
subsequent to, an incentive period in which the Partnership experiences a
futures interests trading loss with respect to Net Assets allocated to the
Trading Advisor, the trading loss for that incentive period which must be
recovered before the Trading Advisor's allocated Net Assets will be deemed to
experience Trading Profits will be equal to the amount determined by (x)
dividing the Trading Advisor's allocated Net Assets after such increase or
decrease by the Trading Advisor's allocated Net Assets immediately before such
increase or decrease and (y) multiplying that fraction by the amount of the
unrecovered futures interests trading loss experienced in the month prior to
such increase or decrease. In the event that the Partnership experiences a
futures interests trading loss in more than one month with respect to the
Trading Advisor's allocated Net Assets without the payment of an intervening
incentive fee and Trading Advisor's allocated Net Assets are increased or
reduced in more than one such month because of redemptions or additions or
reallocations, then the trading loss for each such month shall be adjusted in
accordance with the formula described above and such increased or reduced amount
of futures interests trading loss shall be carried forward and used to offset
subsequent Trading Profits. The portion of redemptions to be allocated to the
Net Assets of the Partnership managed by each of the trading advisors to the
Partnership shall be in sole discretion of the General Partner.
Term.
This Agreement shall continue in effect until December 31, 2006 (the
"Initial Termination Date"). If this Agreement is not terminated on the Initial
Termination Date, as provided for herein, then, this Agreement shall
automatically renew for an additional one-year period and shall continue to
renew for additional one-year periods until this Agreement is otherwise
terminated, as provided for herein. At least 30 calendar days prior to the
expiration of the Initial Termination Date or any subsequent one-year period, as
the case may be, the Trading Advisor may terminate this Agreement at the end of
the current period by providing written notice to the Partnership indicating
that the Trading Advisor desires to terminate this Agreement at the end of such
period. This Agreement shall also terminate if the Partnership terminates. The
Partnership shall have the right to terminate this Agreement at its discretion
(a) at any month-end upon 5 calendar days' prior written notice to the Trading
Advisor or (b) at any time upon written notice to the Trading Advisor upon the
occurrence of any of the following events: (i) if Xxxxxxx X. Xxxxxx ceases for
any reason to be an active executive officer of the Trading Advisor; (ii) if the
Trading Advisor becomes bankrupt or insolvent; (iii) if the Trading Advisor is
unable to use its trading programs, systems or methods as in effect on the date
hereof and as refined and modified in the future for the benefit of the
Partnership; (iv) if the registration, as a commodity trading advisor, of the
Trading Advisor with the CFTC or its membership in the NFA is revoked,
suspended, terminated, or not renewed, or limited or qualified in any respect;
(v) except as provided in Section 12 hereof, if the Trading Advisor merges or
consolidates with, or sells or otherwise transfers its advisory business, or all
or a substantial portion of its assets, any portion of its futures interests
trading programs, systems or methods, or its goodwill, to any individual or
entity; (vi) if the Trading Advisor's initially allocated Net Assets, after
adjusting for distributions, additions, redemptions, or reallocations, if any,
shall decline by 50% or more as a result of trading losses or if Net Assets
allocated to the Trading Advisor fall below $5,000,000.00 at any time; (vii) if,
at any time, the Trading Advisor materially violates any trading or
administrative policy described in the Prospectus or the Limited Partnership
Agreement or otherwise provided in writing to the Trading Advisor by the General
Partner, except with the prior express written consent of the General Partner;
or (viii) if the Trading Advisor fails in a material manner to perform any of
its obligations under this Agreement.
The Trading Advisor may terminate this Agreement at any time, upon
written notice to the Partnership, in the event: (i) that the General Partner
imposes additional trading limitation(s) (not in effect on the date hereof) in
the form of one or more trading policies or administrative policies that the
Trading Advisor does not agree to follow in its management of its allocable
share of the Partnership's Net Assets; (ii) the General Partner objects to the
Trading Advisor implementing a proposed material change in the Trading Advisor's
trading program(s) used by the Partnership and the Trading Advisor certifies to
the General Partner in writing that it believes such change is in the best
interests of the Partnership; (iii) the General Partner overrides a trading
instruction of the Trading Advisor for reasons unrelated to a determination by
the General Partner that the Trading Advisor has violated the Partnership's
trading policies and the Trading Advisor certifies to the General Partner in
writing that as a result the Trading Advisor believes the performance results of
the Trading Advisor relating to the Partnership will be materially adversely
affected; (iv) the Partnership materially breaches this Agreement and does not
correct the breach within 10 business days of receipt of a written notice of
such breach from the Trading Advisor; or (v) the Trading Advisor has amended its
trading program to include a foreign futures or option contract which may
lawfully be traded by the Partnership under CFTC regulations and counsel,
mutually acceptable to the parties, has not opined that such inclusion would
cause adverse tax consequences to Limited Partners and the General Partner does
not consent to the Trading Advisor's trading such contract for the Partnership
within 5 business days of a written request by the Trading Advisor to do so, or,
if such consent is given, does not make arrangements to facilitate such trading
within 90 calendar days of such notice; or (vi) the Partnership's Net Assets
fall below $1,000,000 at any time.
The indemnities set forth in Section 8 hereof shall survive any termination of
this Agreement.
Standard of Liability; Indemnifications.
Limitation of Trading Advisor Liability. In respect of the Trading
Advisor's role in the futures interests trading of its allocated portion of the
Partnership's assets, none of the Trading Advisor, or its controlling persons,
its affiliates, and their respective directors, officers, shareholders,
employees or controlling persons shall be liable to the Partnership or the
General Partner or their partners, officers, shareholders, directors or
controlling persons except that the Trading Advisor shall be liable for acts or
omissions of any such person provided that such act or omission constitutes a
breach of this Agreement or a representation, warranty or covenant herein,
misconduct or negligence or is the result of any such person not having acted in
good faith and in the reasonable belief that such actions or omissions were in,
or not opposed to, the best interests of the Partnership.
Trading Advisor Indemnity in Respect of Management Activities. The
Trading Advisor shall indemnify, defend and hold harmless the Partnership and
the General Partner, their controlling persons, their affiliates and their
respective directors, officers, shareholders, employees, and controlling persons
from and against any and all losses, claims, damages, liabilities (joint and
several), costs, and expenses (including any reasonable investigatory, legal,
and other expenses incurred in connection with, and any amounts paid in, any
settlement; provided that the Trading Advisor shall have approved such
settlement) incurred as a result of any action or omission involving the
Partnership's futures interests trading by the Trading Advisor, or any of its
controlling persons or affiliates or their respective directors, officers,
partners, shareholders, or employees; provided that such liability arises from
an act or omission of the Trading Advisor, or any of its controlling persons or
affiliates or their respective directors, officers, partners, shareholders, or
employees which is found by a court of competent jurisdiction upon entry of a
final judgment (or, if no final judgment is entered, by an opinion rendered by
counsel who is approved by the Partnership and the Trading Advisor, such
approval not to be unreasonably withheld) to be a breach of this Agreement or a
representation, warranty or covenant herein, or the result of misconduct or
negligence or conduct not done in good faith in the reasonable belief that it
was in, or not opposed to, the best interests of the Partnership.
Partnership and General Partner Indemnity in Respect of Management
Activities. The Partnership and the General Partner shall, jointly and
severally, indemnify, defend, and hold harmless the Trading Advisor, its
controlling persons, their affiliates and their respective directors, officers,
shareholders, partners, employees, and controlling persons, from and against any
and all losses, claims, damages, liabilities (joint and several), costs, and
expenses (including any reasonable investigatory, legal, and other expenses
incurred in connection with, and any amounts paid in, any settlement; provided
that the Partnership and the General Partner shall have approved such
settlement) resulting from a demand, claim, lawsuit, action, or proceeding
(other than those incurred as a result of claims brought by or in the right of
an indemnified party) relating to the futures interests trading activities of
the Partnership undertaken by the Trading Advisor, a breach of this Agreement by
the General Partner or the Partnership that relates to futures interests trading
activities or a breach of a representation, warranty or covenant herein by the
General Partner or the Partnership that relates to the futures interests trading
activities of the Partnership; provided that a court of competent jurisdiction
upon entry of a final judgment finds (or, if no final judgment is entered, an
opinion is rendered to the Partnership by independent counsel reasonably
acceptable to both parties) to the effect that the action or inaction of such
indemnified party that was the subject of the demand, claim, lawsuit, action, or
proceeding did not constitute negligence, misconduct, or a breach of this
Agreement by the Trading Advisor or such indemnified party or a representation,
warranty or covenant of the Trading Advisor herein and was done in good faith
and in a manner such indemnified party reasonably believed to be in, or not
opposed to, the best interests of the Partnership. Notwithstanding the
foregoing, the General Partner shall not have any liability with respect to any
action brought by or on behalf of the Partnership against the Trading Advisor.
Trading Advisor Indemnity in Respect of Sale of Units. The Trading
Advisor shall indemnify, defend and hold harmless Xxxxxx Xxxxxxx XX, Xxxxxx
Xxxxxxx & Co., Inc. ("MS& Co."), MSIL, the Partnership, the General Partner, any
additional seller, and their affiliates and each of their officers, directors,
principals, shareholders, and controlling persons from and against any and all
losses, claims, damages, liabilities, costs and expenses, joint and several, to
which any indemnified person may become subject under the Securities Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Commodity
Exchange Act, as amended, and rules promulgated thereunder (the "CEAct"), the
securities or Blue Sky law of any jurisdiction, or otherwise (including any
reasonable investigatory, legal, and other expenses incurred in connection with,
and any amounts paid in, any settlement, provided that the Trading Advisor shall
have approved such settlement, and in connection with any administrative
proceedings), in respect of the offer or sale of Units, insofar as such loss,
claim, damage, liability, cost, or expense (or action in respect thereof) arises
out of, or is based upon: (i) a breach by the Trading Advisor of any
representation, warranty, or agreement in this Agreement or any certificate
delivered pursuant to this Agreement or the failure by the Trading Advisor to
perform any covenant made by the Trading Advisor herein; (ii) a breach of the
disclosure requirements under the CEAct or NFA Rules that relate to the Trading
Advisor and the Trading Advisor Principals (as defined below); or (iii) a
misleading or untrue statement or alleged misleading or untrue statement of a
material fact made in the Registration Statement, the Prospectus, or any related
selling material or an omission or alleged omission to state a material fact
therein which is required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus and any selling material, in
light of the circumstances under which they were made) not misleading, and such
statement or omission relates specifically to the Trading Advisor, or its
Trading Advisor Principals (including the historical performance capsules, but
excluding the pro forma performance information except to the extent the pro
forma performance information was based on information furnished by the Trading
Advisor) or was made in reliance upon, and in conformity with, written
information or instructions furnished by the Trading Advisor (provided, however,
that with respect to any related selling material only such related selling
material as shall have been approved in writing by the Trading Advisor).
Partnership and General Partner Indemnity in Respect of Sale of
Units. The Partnership and the General Partner agree, jointly and severally, to
indemnify, defend and hold harmless the Trading Advisor and each of its
officers, directors, principals, partners, shareholders, and controlling persons
from and against any loss, claim, damage, liability, cost, and expense, joint
and several, to which any indemnified person may become subject under the
Securities Act, the Exchange Act, the CEAct, the securities or Blue Sky law of
any jurisdiction, or otherwise (including any reasonable investigatory, legal,
and other expenses incurred in connection with, and any amounts paid in, any
settlement, provided that the Partnership and the General Partner shall have
approved such settlement, and in connection with any administrative
proceedings), in respect of the offer or sale of Units, insofar as such loss,
claim, damage, liability, cost, or expense (or action in respect thereof) arises
out of, or is based upon: (i) a breach by the Partnership or the General Partner
of any representation, warranty, or agreement in this Agreement or the failure
by the Partnership or the General Partner to perform any covenant made by them
herein; or (ii) a misleading or untrue statement or alleged misleading or untrue
statement of a material fact made in the Registration Statement, the Prospectus,
or any related selling material or an omission or alleged omission to state a
material fact therein which is required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus or the selling
material, in light of the circumstances under which they were made) not
misleading, provided that such materially misleading or untrue statement or
alleged materially misleading or untrue statement or omission or alleged
omission does not specifically relate to the Trading Advisor or its Trading
Advisor Principals (including the historical performance capsules, but excluding
the pro forma performance information except to the extent the pro forma
performance information was based on information furnished by the Trading
Advisor) or was not made in reliance upon, and in conformity with, written
information or instructions furnished by the Trading Advisor (provided, however,
that with respect to any related selling material, only such related selling
material as shall have been approved in writing by the Trading Advisor), or does
not result from a breach by the Trading Advisor of any representation, warranty,
or agreement in this Agreement or any certificate delivered pursuant to this
Agreement or the failure by the Trading Advisor to materially perform any
covenant made in this Agreement. This indemnity shall not relate to any matter
for which the Partnership would be indemnified under Section 8(d).
The foregoing agreements of indemnity shall be in addition to, and
shall in no respect limit or restrict, any other remedies which may be available
to an indemnified person.
Promptly after receipt by an indemnified person of notice of the
commencement of any action, claim, or proceeding to which any of the indemnities
may apply, the indemnified person will notify the indemnifying party in writing
of the commencement thereof if a claim in respect thereof is to be made against
the indemnifying party hereunder; but the omission so to notify the indemnifying
party will not relieve the indemnifying party from any liability which the
indemnifying party may have to the indemnified person hereunder, except where
such omission has materially prejudiced the indemnifying party. In case any
action, claim, or proceeding is brought against an indemnified person and the
indemnified person notifies the indemnifying party of the commencement thereof
as provided above, the indemnifying party will be entitled to participate
therein and, to the extent that the indemnifying party desires, to assume the
defense thereof with counsel selected by the indemnifying party and not
unreasonably disapproved by the indemnified person. After notice from the
indemnifying party to the indemnified person of the indemnifying party's
election so to assume the defense thereof as provided above, the indemnifying
party will not be liable to the indemnified person under the indemnity
provisions hereof for any legal and other expenses subsequently incurred by the
indemnified person in connection with the defense thereof, other than reasonable
costs of investigation.
Notwithstanding the preceding paragraph, if, in any action,
claim, or proceeding as to which indemnification is or may be available
hereunder, an indemnified person reasonably determines that its interests are or
may be adverse, in whole or in part, to the indemnifying party's interests or
that there may be legal defenses available to the indemnified person which are
different from, in addition to, or inconsistent with the defenses available to
the indemnifying party, the indemnified person may retain its own counsel in
connection with such action, claim, or proceeding and will be indemnified by the
indemnifying party for any legal and other expenses reasonably incurred in
connection with investigating or defending such action, claim, or proceeding.
In no event will the indemnifying party be liable for the fees
and expenses of more than one counsel for all indemnified persons in connection
with any one action, claim, or proceeding or in connection with separate but
similar or related actions, claims, or proceedings in the same jurisdiction
arising out of the same general allegations. The indemnifying party will not be
liable for any settlement of any action, claim, or proceeding effected without
the indemnifying party's express written consent, but if any action, claim, or
proceeding is settled with the indemnifying party's express written consent, the
indemnifying party will indemnify, defend, and hold harmless an indemnified
person as provided in this Section 8.
Right to Advise Others and Uniformity of Acts and Practices.
The Trading Advisor is engaged in the business of advising investors
as to the purchase and sale of futures interests. During the term of this
Agreement, the Trading Advisor, its principals and affiliates, will be advising
other investors (including affiliates and stockholders, officers, directors, and
employees of the Trading Advisor and its affiliates and their families) and
trading for their own accounts. However, under no circumstances shall the
Trading Advisor or any of its principals or affiliates by any act or omission
favor any account advised or managed by the Trading Advisor or any of its
principals or affiliates over the account of the Partnership in any way or
manner (other than by charging different management and/or incentive fees). The
Trading Advisor and its principals and affiliates agrees to treat the
Partnership in a fiduciary capacity to the extent recognized by applicable law,
but, subject to that standard, the Trading Advisor or any of its principals or
affiliates shall be free to advise and manage accounts for other investors and
shall be free to trade on the basis of the same trading programs, systems,
methods, or strategies employed by the Trading Advisor for the account of the
Partnership, or trading programs, systems, methods, or strategies which are
entirely independent of, or materially different from, those employed for the
account of the Partnership, and shall be free to compete for the same futures
interests as the Partnership or to take positions opposite to the Partnership,
where such actions do not knowingly or deliberately prefer any of such accounts
over the account of the Partnership.
The Trading Advisor and its principals and affiliates shall not be
restricted as to the number or nature of its clients, except that: (i) so long
as the Trading Advisor acts as a trading advisor for the Partnership, neither
the Trading Advisor nor any of its principals or affiliates shall hold knowingly
any position or control any other account that would cause the Partnership, the
Trading Advisor, or the principals or affiliates of the Trading Advisor to be in
violation of the CEAct or any regulations promulgated thereunder, any applicable
rule or regulation of the CFTC or any other regulatory body, exchange, or board;
and (ii) neither the Trading Advisor nor any of its principals or affiliates
shall render futures interests trading advice to any other individual or entity
or otherwise engage in activity which shall knowingly cause positions in futures
interests to be attributed to the Trading Advisor under the rules or regulations
of the CFTC or any other regulatory body, exchange, or board so as to require
the significant modification of positions taken or intended for the account of
the Partnership; provided that the Trading Advisor may modify its trading
programs, systems, methods or strategies to accommodate the trading of
additional funds or accounts. If applicable speculative position limits are
exceeded by the Trading Advisor in the opinion of (i) independent counsel (who
shall be other than counsel to the Partnership), (ii) the CFTC, or (iii) any
other regulatory body, exchange, or board, the Trading Advisor and its
principals and affiliates shall promptly liquidate positions in all of their
accounts, including the Partnership's account, as to which positions are
attributed to the Trading Advisor as nearly as possible in proportion to the
accounts' respective amounts available for trading (taking into account
different degrees of leverage and "notional" equity) to the extent necessary to
comply with the applicable position limits.
Representations, Warranties, and Covenants of the Trading Advisor.
Representations, Warranties, and Agreements of the Trading Advisor.
The Trading Advisor with respect to itself and each of its principals represents
and warrants to and agrees with the General Partner and the Partnership as
follows:
It will exercise good faith and due care in using the trading
programs on behalf of the Partnership that are described in the Prospectus
(as modified and provided from time to time by the Trading Advisor) or any
other trading programs agreed to by the General Partner.
The Trading Advisor shall follow, at all times, the trading
policies of the Partnership (as described in the Prospectus and as set
forth in Exhibit A hereto) and as amended in writing and furnished to the
Trading Advisor from time to time.
The Trading Advisor shall trade: (A) its allocated portion of
the Partnership's Net Assets pursuant to the specified trading programs
described in the Prospectus unless the Trading Advisor is instructed by
the General Partner to trade its allocated portion of the Partnership's
Net Assets pursuant to any one or more of the Trading Advisor's other
trading programs described in the Prospectus; and (B) only in futures and
option contracts traded on U.S. contract markets, foreign currency forward
contracts traded with MS&Co. (which may include forward contracts
initially executed with financial institutions other than MS&Co.) Xxxxxx
Xxxxxxx XX, and such other futures interests that are approved in writing
by the General Partner and have been approved by the CFTC for U.S.
persons.
The Trading Advisor is duly formed and validly existing as a
limited partnership under the laws of the state of its formation and is
qualified to do business as a foreign limited partnership and in good
standing in each other jurisdiction in which the nature or conduct of its
business requires such qualification and the failure to so qualify would
materially adversely affect the Trading Advisor's ability to perform its
duties under this Agreement. The Trading Advisor has full limited
partnership power and authority to perform its obligations under this
Agreement, and as described in the Registration Statement and Prospectus.
The only principals (as defined in Rule 4.10(e) under the CEAct) of the
Trading Advisor are those set forth in the Prospectus (the "Trading
Advisor Principals").
All references to the Trading Advisor and each Trading Advisor
Principal, including the Trading Advisor's trading programs, approaches,
systems and performance, in the Registration Statement and the Prospectus,
and in any supplemental selling material which has been approved in
writing by the Trading Advisor, are accurate and complete in all material
respects. With respect to the information relating to the Trading Advisor
and each Trading Advisor Principal, including the Trading Advisor's and
each Trading Advisor Principals' trading programs, approaches, systems,
and performance information, as applicable, (i) the Registration Statement
and Prospectus contain all statements and information required to be
included therein under the CEAct, (ii) the Registration Statement will not
contain any misleading or untrue statement of a material fact or omit to
state a material fact which is required to be stated therein or necessary
to make the statements therein not misleading and (iii) the Prospectus as
of each monthly closing will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which such
statements were made, not misleading.
This Agreement has been duly and validly authorized, executed
and delivered on behalf of the Trading Advisor and is a valid and binding
agreement of the Trading Advisor enforceable in accordance with its terms.
Each of the Trading Advisor and each "principal" of the
Trading Advisor, as defined in Rule 4.10(e)(2)(ii) under the CEAct, has
all federal and state governmental, regulatory and exchange licenses,
registrations and approvals and has effected all filings with federal and
state governmental and regulatory agencies required to conduct its or his
business and to act as described in the Registration Statement and
Prospectus or required to perform its or his obligations under this
Agreement. The Trading Advisor is registered as a commodity trading
advisor under the CEAct and is a member of the NFA in such capacity.
The execution and delivery of this Agreement, the incurrence
of the obligations set forth herein, the consummation of the transactions
contemplated herein and in the Prospectus and the payment of the fees
hereunder will not violate, or constitute a breach of, or default under,
the partnership agreement of the Trading Advisor or any other agreement or
instrument by which it is bound or of any order, rule, law or regulation
binding on it of any court or any governmental body or administrative
agency or panel or self-regulatory organization having jurisdiction over
it.
Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as may otherwise be
stated in or contemplated by the Registration Statement and the
Prospectus, there has not been any material adverse change in the
condition, financial or otherwise, business or prospects of the Trading
Advisor or any Trading Advisor Principal.
Except as set forth in the Registration Statement or
Prospectus there has not been in the five years preceding the date of the
Prospectus and there is not pending, or to the best of the Trading
Advisor's knowledge threatened, any action, suit or proceeding at law or
in equity before or by any court or by any federal, state, municipal or
other governmental body or any administrative, self-regulatory or
commodity exchange organization to which the Trading Advisor or any
Trading Advisor Principal is or was a party, or to which any of the assets
of the Trading Advisor or any Trading Advisor Principal is or was subject
and which resulted in or might reasonably be expected to result in any
material adverse change in the condition, financial or otherwise, of the
Trading Advisor or which is required under the Securities Act or CEAct to
be disclosed in the Prospectus. Neither the Trading Advisor nor any
Trading Advisor Principal has received any notice of an investigation by
the NFA or the CFTC regarding noncompliance by the Trading Advisor or any
of the Trading Advisor Principals with the CEAct.
Neither the Trading Advisor nor any Trading Advisor Principal
has received, or is entitled to receive, directly or indirectly, any
commission, finder's fee, similar fee, or rebate from any person in
connection with the organization or operation of the Partnership, other
than as described in the Prospectus.
The actual performance of each discretionary account of a
client directed by the Trading Advisor and the Trading Advisor Principals
since at least the later of (i) the date of commencement of trading for
each such account or (ii) a date five years prior to the effective date of
the Registration Statement, is disclosed in the Prospectus (other than
such discretionary accounts the performance of which are exempt from the
CEAct disclosure requirements); all of the information regarding the
actual performance of the accounts of the Trading Advisor and the Trading
Advisor Principals set forth in the Prospectus is complete and accurate in
all material respects and is in accordance with and in compliance with the
disclosure requirements under the CEAct and the Securities Act, and
interpretations and the rules and regulations of the NFA.
Covenants of the Trading Advisor. The Trading Advisor covenants and
agrees that:
The Trading Advisor shall use its best efforts to maintain all
registrations and memberships necessary for the Trading Advisor to
continue to act as described herein and to at all times comply in all
material respects with all applicable laws, rules, and regulations, to the
extent that the failure to so comply would have a materially adverse
effect on the Trading Advisor's ability to act as described herein.
The Trading Advisor shall inform the General Partner
immediately as soon as the Trading Advisor or any of its principals
becomes the subject of any investigation, claim or proceeding of any
regulatory authority having jurisdiction over such person or becomes a
named party to any litigation materially affecting the condition,
financial or otherwise, business or prospects of the Trading Advisor. The
Trading Advisor shall also inform the General Partner immediately if the
Trading Advisor or any of its officers become aware of any breach of this
Agreement by the Trading Advisor.
The Trading Advisor agrees reasonably to cooperate by
providing information regarding itself and its performance in the
preparation of any amendments or supplements to the Registration Statement
and the Prospectus.
The Trading Advisor agrees to participate, to the extent that
the General Partner may reasonably request, in "road shows" and other
promotional activities relating to the marketing of the Units, provided
that such participation shall not in the reasonable judgment of the
Trading Advisor require the registration of the Trading Advisor or any of
its principals or agents as a broker-dealer or salesman or interfere
materially with the trading activities of the Trading Advisor. The Trading
Advisor shall pay the costs of its reasonably requested participation in
such road shows.
Representations, Warranties, and Covenants of the General Partner
and the Partnership.
Representations of the Partnership and the General Partner. The
General Partner and the Partnership represent and warrant to the Trading
Advisor, as follows:
The Partnership has provided to the Trading Advisor, and filed
with SEC, the Registration Statement and has filed copies thereof with:
(i) the CFTC under the CEAct; (ii) the NASD pursuant to its Conduct Rules;
and (ii) the NFA in accordance with NFA Compliance Rule 2-13. The
Partnership will not file any amendment to the Registration Statement or
any amendment or supplement to the Prospectus unless the Trading Advisor
has received reasonable prior notice of and a copy of such amendments or
supplements and has not reasonably objected thereto in writing.
The Limited Partnership Agreement provides for the
subscription for and sale of the Units; all action required to be taken by
the General Partner and the Partnership as a condition to the sale of the
Units to qualified subscribers therefor has been, or prior to each monthly
closing will have been, taken; and, upon payment of the consideration
therefor specified in each accepted Subscription and Exchange Agreement
and Power of Attorney, in such form as attached to the Prospectus, the
Units will constitute valid limited partnership interests in the
Partnership.
The Partnership is a limited partnership duly organized
pursuant to the Certificate of Limited Partnership, the Limited
Partnership Agreement and the Delaware Revised Uniform Limited Partnership
Act ("DRULPA") and is validly existing under the laws of the State of
Delaware with full power and authority to engage in the trading of futures
interests and to engage in its other contemplated activities as described
in the Prospectus; the Partnership has received a certificate of authority
to do business in the State of New York as provided by Article 8-A of the
New York Revised Limited Partnership Act and is qualified to do business
in each jurisdiction in which the nature or conduct of its business
requires such qualification and where failure to be so qualified could
materially adversely affect the Partnership's ability to perform its
obligations hereunder.
The General Partner is duly organized and validly existing and
in good standing as a corporation under the laws of the State of Delaware
and in good standing and qualified to do business as a foreign corporation
under the laws of the State of New York and is qualified to do business
and is in good standing as a foreign corporation in each jurisdiction in
which the nature or conduct of its business requires such qualification
and where the failure to be so qualified could materially adversely affect
the General Partner's ability to perform its obligations hereunder.
The Partnership and the General Partner have full partnership
or corporate power and authority under applicable law to conduct their
business and to perform their respective obligations under this Agreement.
The Registration Statement and Prospectus contain all
statements and information required to be included therein by the CEAct.
When the Registration Statement becomes effective under the Securities Act
and at all times subsequent thereto up to and including the first monthly
closing following the date in which the Partnership begins to receive
trading advice from the Trading Advisor pursuant to this Agreement (the
"Initial Closing") and each monthly closing thereafter, the Registration
Statement and Prospectus will comply in all material respects with the
requirements of the Securities Act, the rules and regulations promulgated
thereunder (the "SEC Regulations"), the rules of the NFA and the CEAct.
The Registration Statement as of its effective date and as of the date of
each monthly closing will not contain any misleading or untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus as of its date of issue and at each monthly closing will not
contain any misleading or untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light
of the circumstances under which such statements were made, not
misleading. The supplemental selling material, when read in conjunction
with the Prospectus, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which such statements were
made, not misleading. The supplemental selling material will comply with
the CEAct and the regulations and rules of the NFA and NASD. The
representation and warranties in this clause (vi) shall not, however,
apply to any statement or omission in the Registration Statement,
Prospectus or supplemental selling material relating to the Trading
Advisor, or its Trading Advisor Principals or its trading programs or made
in reliance upon and in conformity with information furnished by the
Trading Advisor.
Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change in the condition, financial or otherwise, business
or prospects of the General Partner or the Partnership, whether or not
arising in the ordinary course of business.
This Agreement has been duly and validly authorized, executed
and delivered by the General Partner for itself and on behalf of the
Partnership and constitutes a valid, binding and enforceable agreement of
the Partnership and the General Partner in accordance with its terms.
The execution and delivery of this Agreement, the incurrence
of the obligations set forth herein and the consummation of the
transactions contemplated herein and in the Registration Statement and
Prospectus will not violate, or constitute a breach of, or default under,
the General Partner's certificate of incorporation or bylaws, the
Certificate of Limited Partnership, the Limited Partnership Agreement, or
any agreement or instrument by which either the General Partner or the
Partnership, as the case may be, is bound or any order, rule, law or
regulation applicable to the General Partner or the Partnership of any
court or any governmental body or administrative agency or panel or
self-regulatory organization having jurisdiction over the General Partner
or the Partnership.
Except as set forth in the Registration Statement or
Prospectus, there has not been in the five years preceding the date of the
Prospectus and there is not pending or, to the best of the General
Partner's knowledge, threatened, any action, suit or proceeding at law or
in equity before or by any court or by any federal, state, municipal or
other governmental body or any administrative, self-regulatory or
commodity exchange organization to which the General Partner or the
Partnership is or was a party, or to which any of the assets of the
General Partner or the Partnership is or was subject and which resulted in
or might reasonably be expected to result in any materially adverse change
in the condition, financial or otherwise, of the General Partner or the
Partnership or which is required under the Securities Act or the CEAct to
be disclosed in the Prospectus; and neither the General Partner nor any of
the principals of the General Partner, as "trading principals" is defined
under Rule 4.10(e)(i) under the CEAct ("General Partner Principals") has
received any notice of an investigation by the NFA, NASD, SEC or CFTC
regarding non-compliance by the General Partner or the General Partner
Principals or the Partnership with the Securities Act or the CEAct which
is required under the Securities Act or the CEAct to be disclosed in the
Prospectus.
The General Partner and each principal of the General Partner,
as defined in Rule 3.1 under the CEAct, have all federal and state
governmental, regulatory and exchange approvals, registrations, and
licenses, and have effected all filings with federal and state
governmental agencies and regulatory agencies required to conduct their
business and to act as described in the Registration Statement and
Prospectus or required to perform their obligations under this Agreement
(including, without limitation, registration as a commodity pool operator
under the CEAct and membership in the NFA as a commodity pool operator)
and will maintain all such required approvals, licenses, filings and
registrations for the term of this Agreement. The General Partner's
principals identified in the Registration Statement are all of the General
Partner Principals.
Covenants of the General Partner and the Partnership. The General
Partner for itself and the Partnership covenants and agrees that:
The General Partner shall use its best efforts to maintain all
registrations and memberships necessary for the General Partner to
continue to act as described herein and in the Prospectus and to all times
comply in all material respects with all applicable laws, rules, and
regulations, to the extent that the failure to so comply would have a
materially adverse effect on the General Partner's ability to act as
described herein and in the Prospectus.
The General Partner shall inform the Trading Advisor
immediately as soon as the General Partner or any of its principals
becomes the subject of any investigation, claim, or proceeding of any
regulatory authority having jurisdiction over such person or becomes a
named party to any litigation materially affecting the condition,
financial or otherwise, business or prospects of the General Partner. The
General Partner shall also inform the Trading Advisor immediately if the
General Partner or any of its officers become aware of any breach of this
Agreement by the General Partner.
The Partnership will furnish to the Trading Advisor copies of
the Registration Statement, the Prospectus, and all amendments and
supplements thereto, in each case as soon as available.
The Partnership and the General Partner will keep confidential
and not disseminate any information regarding the trading systems,
strategies, methods and programs of the Trading Advisor or specific trades
made by the Trading Advisor for the account of the Partnership to any of
the limited partners of the Partnership or the customers, employees,
agents, shareholders, officers, directors or affiliates of the General
Partner or Xxxxxx Xxxxxxx XX or any other person or entity, except such
details as may be, in the reasonable judgment of the General Partner,
necessary or appropriate for the conduct of the business of the
Partnership or as required by law. The Partnership and the General Partner
shall neither reverse engineer nor attempt to reverse engineer any
investment program or system used by the Trading Advisor and acknowledge
and agree that any attempt on its part to do so warrants the Trading
Advisor's recourse to immediate equitable relief.
Merger or Transfer of Assets of Trading Advisor.
The Trading Advisor may merge or consolidate with, or sell or otherwise transfer
its advisory business, or all or a substantial portion of its assets, any
portion of its commodity trading programs, systems or methods, or its goodwill,
to any entity that is directly or indirectly controlled by, controlling, or
under common control with, the Trading Advisor, provided that such entity
expressly assumes all obligations of the Trading Advisor under this Agreement
and agrees to continue to operate the business of the Trading Advisor,
substantially as such business is being conducted on the date hereof.
Complete Agreement.
This Agreement constitutes the entire agreement between the parties with respect
to the matters referred to herein, and no other agreement, verbal or otherwise,
shall be binding as between the parties unless in writing and signed by the
party against whom enforcement is sought.
Assignment.
This Agreement may not be assigned by any party hereto without the express
written consent of the other parties hereto.
Amendment.
This Agreement may not be amended except by the written consent of the parties
hereto.
Severability.
The invalidity or unenforceability of any provision of this Agreement or any
covenant herein contained shall not affect the validity or enforceability of any
other provision or covenant hereof or herein contained and any such invalid
provision or covenant shall be deemed to be severable.
Closing Certificates and Opinions.
(1) The Trading Advisor shall, at the Initial Closing and at the request of the
General Partner at any monthly closing thereafter, provide the following:
To Xxxxxx Xxxxxxx XX, the General Partner and the Partnership a
certificate, dated the date of any such closing and in form and substance
satisfactory to such parties, to the effect that:
The representations and warranties by the Trading Advisor in
this Agreement are true, accurate, and complete on and as of the date of
the closing, as if made on the date of the closing.
The Trading Advisor has performed all of its obligations and
satisfied all of the conditions on its part to be performed or satisfied
under this Agreement, at or prior to the date of such closing.
To Xxxxxx Xxxxxxx XX, the General Partner and the Partnership an
opinion of counsel to the Trading Advisor in form and substance satisfactory to
such parties, to the effect that:
The Trading Advisor is a limited partnership duly formed and
validly existing under the laws of the state of its formation and is
qualified to do business and in good standing in each other jurisdiction
in which the nature or conduct of its business requires such qualification
and the failure to be duly qualified would materially adversely affect the
Trading Advisor's ability to perform its obligations under this Agreement.
The Trading Advisor has full limited partnership power and authority to
conduct its business as described in the Registration Statement and
Prospectus and to perform its obligations under this Agreement.
The Trading Advisor (including the Trading Advisor Principals)
has all governmental, regulatory, self-regulatory and commodity exchange
and clearing association licenses, registrations, and memberships required
by law, and the Trading Advisor (including the Trading Advisor Principals)
has made all filings necessary to perform its obligations under this
Agreement and to conduct its business as described in the Registration
Statement and Prospectus, except for such licenses, memberships, filings
and registrations, the absence of which would not have a material adverse
effect on its ability to act as described in the Registration Statement
and Prospectus or to perform its obligations under this Agreement, and, to
the best of such counsel's knowledge, after due investigation, none of
such licenses, memberships or registrations have been rescinded, revoked
or suspended.
This Agreement has been duly authorized, executed and
delivered by or on behalf of the Trading Advisor and constitutes a legal,
valid and binding agreement of the Trading Advisor, enforceable against
the Trading Advisor in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium,
receivership or other laws relating to or affecting creditors' rights
generally, and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity), and except
that the enforcement of rights with respect to indemnification and
contribution obligations and provisions (a) purporting to waive or limit
rights to trial by jury, oral amendments to written agreements or rights
of set off or (b) relating to submission to jurisdiction, venue or service
of process, may be limited by applicable law or considerations of public
policy.
To such counsel's knowledge, based upon due inquiry of certain
officers of the Trading Advisor, except as disclosed in the Prospectus,
there are no actions, suits or proceedings at law or in equity pending or
threatened before or by any court, governmental body, administrative
agency, panel or self-regulatory organization, nor have there been any
such actions, suits or proceedings within the five years preceding the
date of the Prospectus against the Trading Advisor or any Trading Advisor
Principal which are required to be disclosed in the Registration Statement
or Prospectus.
The execution and delivery by the Trading Advisor of this
Agreement, and the performance by the Trading Advisor of its obligations
hereunder and in the Prospectus (a) do not require any Governmental
Approval (as defined below) to be obtained on the part of the Trading
Advisor, except those that have been obtained and, to such counsel's
knowledge, are in effect, (b) do not result in a violation of any
provision of the partnership agreement of the Trading Advisor or any
Applicable Laws (as defined below) applicable to the Trading Advisor, and
(c) do not breach or result in a violation of, or default under, (i) any
indenture, mortgage, deed of trust, agreement or instrument known by us to
which the Trading Advisor or any of its subsidiaries is a party or by
which the Trading Advisor or any of its subsidiaries is bound or to which
any of the property or assets of the Trading Advisor or any of its
subsidiaries is subject, or (ii) any judgment, decree or order known to
such counsel which is applicable to the Trading Advisor and, pursuant to
any Applicable Laws, is issued by any Governmental Authority (as defined
below) having jurisdiction over the Trading Advisor or its properties.
"Applicable Laws" means those laws, rules and regulations of the State of
New York and of the United States of America which, in such counsel's
experience, are normally applicable to transactions of the type
contemplated by this Agreement. "Governmental Authorities" means
executive, legislative, judicial, administrative or regulatory bodies of
the State of New York or the United States of America. "Governmental
Approval" means any consent, approval, license, authorization or
validation of, or filing, recording or registration with, any Governmental
Authority pursuant to Applicable Laws.
Based upon reliance of certain SEC "no-action" letters, as of
the closing, the performance by the Trading Advisor of the transactions
contemplated by this Agreement and as described in the Prospectus will not
require the Trading Advisor to be registered as an "investment adviser" as
that term is defined in the Investment Advisors Act of 1940, as amended.
Nothing has come to such counsel's attention that would lead
them to believe that, (A) the Registration Statement at the time it became
effective, insofar as the Trading Advisor and the Trading Advisor
Principals are concerned, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (B) the
Prospectus at the time it was issued or at the closing contained an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein relating to the Trading Advisor or
the Trading Advisor Principals, in light of the circumstances under which
they were made, not misleading; provided, however, that such counsel need
express no opinion or belief as to the performance data and notes or
descriptions thereto set forth in the Registration Statement and
Prospectus, except that such counsel shall opine, without rendering any
opinion as to the accuracy of the information in such tables, that the
actual performance tables of the Trading Advisor set forth in the
Prospectus comply as to form in all material respects with applicable CFTC
rules and all CFTC and NFA interpretations thereof.
In giving the foregoing opinion, counsel may rely on information obtained from
public officials, officers of the Trading Advisor, and other sources believed by
it to be responsible and may assume that signatures on all documents examined by
it are genuine.
To Xxxxxx Xxxxxxx XX, the General Partner and the Partnership, a
report dated the date of the closing that shall present, for the period from the
date after the last day covered by the historical performance capsules in the
Prospectus to the latest practicable day before closing, updated performance
information, and which shall certify that such information is, to the best of
such Trading Advisor's knowledge, accurate in all material respects.
(2) The General Partner shall, at the Initial Closing, provide the following:
To the Trading Advisor a certificate, dated the date of such closing
and in form and substance satisfactory to the Trading Advisor, to the effect
that:
The representations and warranties by the Partnership and the
General Partner in this Agreement are true, accurate, and complete on and
as of the date of the closing as if made on the date of the closing.
No stop order suspending the effectiveness of the Registration
Statement has been issued by the SEC and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the General
Partner, are contemplated or threatened under the Securities Act. No order
preventing or suspending the use of the Prospectus has been issued by the
SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the General Partner, are
contemplated or threatened under the Securities Act or the CEAct.
The Partnership and the General Partner have performed all of
their obligations and satisfied all of the conditions on their part to be
performed or satisfied under this Agreement at or prior to the date of the
closing.
To the parties hereto, an opinion of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, counsel to the General Partner and the Partnership, in form and substance
satisfactory to such parties, to the effect that:
The Partnership is a limited partnership duly formed pursuant
to the Certificate of Limited Partnership, the Limited Partnership
Agreement and the DRULPA and is validly existing under the laws of the
State of Delaware with full partnership power and authority to conduct the
business in which it proposes to engage as described in the Registration
Statement and Prospectus and to perform its obligations under this
Agreement; the Partnership has received a Certificate of Authority as
contemplated under the New York Revised Limited Partnership Act and is
qualified to do business in New York.
The General Partner is a corporation validly existing and in
good standing as a corporation under the laws of the State of Delaware and
is duly qualified as a foreign corporation to do business and is in good
standing in the State of New York and in each other jurisdiction in which
the nature or conduct of its business requires such qualification and the
failure to so qualify might reasonably be expected to result in material
adverse consequences to the Partnership or the General Partner's ability
to perform its obligations as described in the Registration Statement and
Prospectus. The General Partner has full corporate power and authority to
conduct its business as described in the Registration Statement and
Prospectus and to perform its obligations under this Agreement.
The General Partner, each of its principals as defined in Rule
3.1 under the CEAct, and the Partnership have all federal and state
governmental and regulatory licenses, registrations and memberships
required by law and have made all filings necessary in order for the
General Partner and the Partnership to perform their obligations under
this Agreement to conduct their business as described in the Registration
Statement and Prospectus, except for such licenses, memberships, filings,
and registrations, the absence of which would not have a material adverse
effect on the ability of the Partnership or the General Partner to act as
described in the Registration Statement and Prospectus, or to perform
their obligations under this Agreement, and, to the best of such counsel's
knowledge, after due investigation, none of such licenses and memberships
or registrations have been rescinded, revoked or suspended.
This Agreement and the Limited Partnership Agreement have been
duly authorized, executed and delivered by or on behalf of the General
Partner and this Agreement has been duly authorized, executed and
delivered by or on behalf of the Partnership, and each constitutes a
legal, valid and binding agreement of the General Partner and/or the
Partnership, as applicable, enforceable against the General Partner and/or
the Partnership, as applicable, in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, receivership or other laws relating to or affecting creditors'
rights generally, and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity), and
except that the enforcement of rights with respect to indemnification and
contribution obligations and provisions (a) purporting to waive or limit
rights to trial by jury, oral amendments to written agreements or rights
of set off or (b) relating to submission to jurisdiction, venue or service
of process, may be limited by applicable law or considerations of public
policy.
The execution and delivery by each of the General Partner and
the Partnership of this Agreement, the offer and sale of the Units by the
Partnership and the performance by the General Partner and the Partnership
of its respective obligations hereunder and in the Prospectus (a) do not
require any Governmental Approval to be obtained on the part of the
General Partner or the Partnership, except those that have been obtained
and, to such counsel's knowledge, are in effect, (b) do not result in a
violation of any provision of the General Partner's certificate of
incorporation or bylaws, the Certificate of Limited Partnership or the
Limited Partnership Agreement of the Partnership or any Applicable Laws
applicable to the General Partner and the Partnership, and (c) do not
breach or result in a violation of, or default under, (i) any indenture,
mortgage, deed of trust, agreement or instrument known by us to which it
or any of its subsidiaries is a party or by which it or any of its
subsidiaries is bound or to which any of the property or assets of it or
any of its subsidiaries is subject, or (ii) any judgment, decree or order
known to such counsel which is applicable to the General Partner or the
Partnership and, pursuant to any Applicable Laws, is issued by any
Governmental Authority having jurisdiction over it or its properties.
To such counsel's knowledge, based upon due inquiry of certain
officers of the General Partner, except as disclosed in the Prospectus,
there are no actions, suits or proceedings at law or in equity pending or
threatened before or by any court, governmental body, administrative
agency, panel or self-regulatory organization, nor have there been any
such actions, suits or proceedings within the five years preceding the
date of the Prospectus against the General Partner or the Partnership
which are required to be disclosed in the Registration Statement or
Prospectus.
The Registration Statement is effective under the Securities
Act and, to the best of such counsel's knowledge, no proceedings for a
stop order are pending or threatened under Section 8(d) of the Securities
Act or any similar state securities laws.
At the time the Registration Statement became effective, the
Registration Statement, and at the time the Prospectus was issued and as
of the closing, the Prospectus, complied as to form in all material
respects with the requirements of the Securities Act, the Securities
Regulations, the CEAct and the regulations of the NFA and NASD.
Based upon reliance on certain SEC "no-action" letters, as of
the closing, the performance by the Partnership of the transactions
contemplated by this Agreement and as described in the Prospectus will not
require the Partnership to register as an "investment company" under the
Investment Company Act of 1940, as amended.
Nothing has come to such counsel's attention that would lead
them to believe that the Registration Statement at the time it became
effective contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus at the time
it was issued or at the closing contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they where
made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx &
Xxxx LLP need express no opinion or belief (a) as to information in the
Registration Statement or the Prospectus regarding any Trading Advisor or
its principals, or (b) as to the financial statements, notes thereto and
other financial or statistical data set forth in the Registration
Statement and Prospectus, or (c) as to the performance data and notes or
descriptions thereto set forth in the Registration Statement and
Prospectus.
The General Partner and its "principals," as defined in CFTC
Rule 3.1(a), and the Partnership have all federal and state governmental,
regulatory, self-regulatory and exchange approvals, licenses,
registrations, and memberships, and have effected all filings with federal
and state governmental regulators, self-regulatory organizations and
exchanges required to conduct their business and to act as described in
the Prospectus, or required to perform their obligations under this
Agreement and the Limited Partnership Agreement, except for such
approvals, licenses, registrations, memberships, and filings the absence
of which would not have a material adverse effect on their ability to act
as described in the Prospectus, or to perform their obligations under such
agreements, and, to the best of such counsel's knowledge, after due
investigation, none of such approvals, licenses, registrations,
memberships, or filings has been rescinded, revoked, or suspended.
The information in the Prospectus under the captions "Summary
of the Prospectus--Tax Considerations," "Risk Factors--Taxation and
Regulatory Risks," "Purchases by Employee Benefit Plans--ERISA
Considerations," "Material Federal Income Tax Considerations," "State and
Local Income Tax Aspects," and "The Limited Partnership Agreements," to
the extent that such information constitutes matters of law or legal
conclusions, has been reviewed by such counsel and is correct.
The Limited Partnership Agreement provides for the
subscription for and sale of the Units; all action required to be taken by
the General Partner and the Partnership as a condition to the subscription
for and sale of the Units to qualified subscribers therefor has been
taken; and, upon payment of the consideration therefor specified in the
accepted Subscription and Exchange Agreement and Power of Attorney, the
Units will constitute valid limited partnership interests in the
Partnership and each subscriber who purchases Units will become a Limited
Partner, subject to the requirement that each such purchaser shall have
duly completed, executed and delivered to the Partnership a Subscription
and Exchange Agreement and Power of Attorney relating to the Units
purchased by such purchaser, that such purchaser meets all applicable
suitability standards and that the representations and warranties of such
purchaser in the Subscription and Exchange Agreement and Power of Attorney
are true and correct and that such purchaser is included as a Limited
Partner in the Partnership's records.
In rendering its opinion, such counsel may rely on information obtained from
public officials, officers of the General Partner and other sources believed by
it to be responsible and may assume that signatures on all documents examined by
it are genuine, and that a Subscription and Exchange Agreement and Power of
Attorney in the form attached to the Prospectus has been duly authorized,
completed, dated, executed, and delivered and funds representing the full
subscription price for the Units purchased have been delivered by each purchaser
of Units in accordance with the requirements set forth in the Prospectus.
Inconsistent Filings.
The Trading Advisor agrees not to file, participate in the filing of, or publish
any description of the Trading Advisor, or of its respective principals or
trading approaches that is materially inconsistent with those in the
Registration Statement and Prospectus, without so informing the General Partner
and furnishing to it copies of all such filings within a reasonable period prior
to the date of filing or publication.
Disclosure Document.
During the term of this Agreement, the Trading Advisor shall furnish to the
General Partner promptly copies of all disclosure documents filed with the CFTC
or NFA by the Trading Advisor. The General Partner acknowledges receipt of the
Trading Advisor's disclosure document dated July 1, 2003.
Notices.
All notices required to be delivered under this Agreement shall be in writing
and shall be effective when delivered personally or by telecopy on the day
delivered, or when given by registered or certified mail, postage prepaid,
return receipt requested, on the day actually received, addressed as follows (or
to such other address as the party entitled to notice shall hereafter designate
in accordance with the terms hereof):
if to the Partnership:
Xxxxxx Xxxxxxx Spectrum Select L.P.
c/o Demeter Management Corporation
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, President
if to the General Partner:
Demeter Management Corporation
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, President
if to the Trading Advisor:
Xxxxxx Capital Management, L.P.
Stamford Harbor Park
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx, Chief Executive Officer
Survival.
The provisions of this Agreement shall survive the termination of this Agreement
with respect to any matter arising while this Agreement was in effect.
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the law
of the State of New York. If any action or proceeding shall be brought by a
party to this Agreement or to enforce any right or remedy under this Agreement,
each party hereto hereby consents and will submit to the jurisdiction of the
courts of the State of New York or any federal court sitting in the County, City
and State of New York. Any action or proceeding brought by any party to this
Agreement to enforce any right, assert any claim or obtain any relief whatsoever
in connection with this Agreement shall be brought by such party exclusively in
the courts of the State of New York or any federal court sitting in the County,
City and State of New York.
Remedies.
In any action or proceeding arising out of any of the provisions of this
Agreement, the Trading Advisor agrees not to seek any prejudgment equitable or
ancillary relief. The Trading Advisor agrees that its sole remedy in any such
action or proceeding shall be to seek actual monetary damages for any breach of
this Agreement.
Headings.
Headings to sections herein are for the convenience of the parties only and are
not intended to be part of or to affect the meaning or interpretation of this
Agreement.
Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original but all of which together shall constitute the same
agreement.
IN WITNESS WHEREOF, this Agreement has been executed for and on
behalf of the undersigned as of the day and year first above written.
XXXXXX XXXXXXX SPECTRUM SELECT L.P.
by Demeter Management Corporation,
General Partner
By s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
President
DEMETER MANAGEMENT CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
XXXXXX CAPITAL MANAGEMENT, L.P.
By /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
EXHIBIT A
---------
Trading Policies
EXHIBIT B
---------
Futures Interests Traded
EXHIBIT C
---------
TRADING AUTHORIZATION
Xxxxxx Capital Management L.P.
Stamford Harbor Park
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Dear Sirs:
XXXXXX XXXXXXX SPECTRUM SELECT L.P., a New York limited partnership (the
"Partnership"), does hereby make, constitute, and appoint XXXXXX CAPITAL
MANAGEMENT, L.P. (the "Trading Advisor") as the Partnership's agent and
attorney-in-fact to purchase and sell commodity interests through Xxxxxx Xxxxxxx
& Co. Incorporated and Xxxxxx Xxxxxxx & Co. International Limited, as commodity
brokers, as described in and in accordance with the terms of the Management
Agreement dated as of January 1, 2004 among the Partnership, Demeter Management
Corporation and the Trading Advisor, until further notice to the Trading
Advisor.
This authorization shall terminate and be null, void, and of no further effect
simultaneously with the termination of the said Management Agreement.
Very truly yours,
XXXXXX XXXXXXX SPECTRUM SELECT L.P.
by Demeter Management Corporation,
General Partner
By:
---------------------------------
Xxxxxxx X. Xxxxxxx, President
Dated: January 1, 2004
