Exhibit 1.06
XXXXXX CAPITAL MANAGEMENT, INC.
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT ("Agreement") is made and entered into this 29th
day of October , 2001 by and between XXXXXX CAPITAL MANAGEMENT, INC., a
registered commodity trading advisor, ("Advisor") and THE PRICE FUND 1, L.P., an
Illinois limited partnership ("Client").
In consideration of the mutual promises contained in this Agreement, the
parties hereby agree as follows:
1. Account with Broker. Client shall open an account with MAN FINANCIAL, a
registered futures commission merchant ("Broker"), and deposit with Broker funds
or securities for an account whose level of trading risk and management fees
shall be based on the "Nominal Account Size", as defined in paragraph 4 below.
As of the date of this Agreement, the Nominal Account Size shall be $750,000,
which shall initially include $0 of notional funds and $750,000 of actual funds,
the ratio of such notional funds to such actual funds being: 0/100%. The
advisor shall have sole authority and responsibility for trading the Allocated
Assets. The advisor agrees to trade the Allocated Assets pursuant to its
Millenium trading program as described in the Advisor's commodity trading
advisor disclosure document.
2. Brokerage. The client authorizes the Advisor to execute orders for the
account through floor brokers and execution desks, which may be unrelated to the
Broker. Executed trades will then be "given up" to the Broker for the benefit of
the account. Orders executed in this manner will result in "give-up" fees that
will be charged to the account in addition to the brokerage commissions charged
by the Broker. The client hereby authorizes the Advisor to enter into execution
or give-up agreements on behalf of the client with the Broker and executing
brokers, and agrees to be bound by such agreements. The advisor also agrees that
brokerage commissions will not exceed $27.50 per round turn futures contract or
$13.75 per side option contract, inclusive of transaction expenses, without the
prior written consent of the General Partner.
The client understands that Advisor will not be responsible for the
execution or clearance of the client's trades once complete orders have been
transmitted to the executing brokers.
3. Change in Nominal Account Size. Effective as of the first business
day of any calendar month, Client may increase the Nominal Account Size by
depositing additional funds with Broker, or increasing the notional fund
allocation in such amount as Client shall determine with concurrence of the
Advisor, and with written notice to such effect received by Advisor on or before
the last business day prior to the effective date of such increase. Client may
decrease the Nominal Account Size, either through the reduction of actual funds
or notional funds (in each case, a "withdrawal"), effective as of the last
business day of any calendar month, upon written notice to Advisor at least two
business days prior to the effective date of such withdrawal; other than with
respect to the termination of this Agreement, as set forth in paragraph 14
below.
4. Limited Power of Attorney. Client hereby constitutes and appoints
Advisor, as Client's agent and attorney-in-fact, with full power and authority,
to buy, sell (including short sales) and trade in, commodity futures contracts,
options on futures contracts, and cash transactions (collectively referred to as
"futures contracts"), on margin or otherwise, for Client's account and risk.
Such transactions may be of any nature and shall relate to all such futures
contracts that are now traded, or that may be traded in the
future, on United States and international commodity exchanges and in the
over-the-counter spot and forward markets. Accordingly, the Broker is authorized
and empowered to follow the instructions of Advisor, as agent and
attorney-in-fact for Client, in every respect with regard to any such trades,
purchases or sales, on margin or otherwise, and Client hereby ratifies and
confirms any and all transactions, trades or dealings effected for Client by
Advisor.
5. Fees.
(a) Management Fee. Client agrees to pay to Advisor a management fee,
which shall be 0% per annum of the Nominal Account Size, calculated
and paid as follows. The management fee will accrue at the close of the
last business day of each calendar month from the date of this Agreement
(and as of the day this Agreement terminates) and shall be an amount equal
to 100% of the Nominal Account Size as at the close of the last business
day of the month immediately preceding. Such fees will accumulate in
arrears and shall be made payable upon the close of each calendar quarter
(being the months of March, June, September and December). Client
understands that, since the Nominal Account Size includes notional funds,
Client may be paying a management fee not only on an amount equal to actual
funds and securities held in the account, but also on notional funds to the
extent that actual funds held in the account is less than the Nominal
Account Size. The management fee shall accrue and shall be paid to the
Advisor regardless of whether the account has realized or unrealized
profits.
(b) Incentive Fee. Client agrees to pay Advisor a quarterly incentive
fee consisting of 30% of New High Trading Profits, if any, for each
calendar quarter. This incentive fee accrues and shall be made payable
upon the close of each calendar quarter (and as of the day this Agreement
terminates). Incentive fees accrued on funds withdrawn from Client's
account are deemed due and payable at the time of withdrawal.
(c) Definitions. For purposes of this paragraph 4, the following
definitions shall apply:
(i) Nominal Account Size shall be the sum of all cash and
marketable securities; plus outstanding gains/losses on open
positions marked to market as at end-of-day; less accrued fees, if
any; plus any dollar amount that Client has stated is subject to
Advisor's trading discretion but is not deposited in the trading
account.
(ii) Trading Profits shall be computed in accordance with
generally accepted accounting principles and shall be the sum of all
realized gains or losses on positions, the change in unrealized gains
or losses on open positions, less brokerage commissions, exchange fees
and the Advisor's monthly management fee and any other expenses, but
exclusive of the incentive fee allocation to the Advisor.
(iii) New High Trading Profits shall mean the total of Trading
Profits as calculated above, less the total of Trading Profits for
which fees have previously accrued according to this Agreement. During
a calendar quarter in which the account has incurred a loss, New High
Trading Profits calculated in this manner shall be negative and such
amount will constitute a "Carry-forward Loss." Consequently, no
incentive fee will accrue in that quarter, and such loss shall be
carried forward and fully deducted from the Trading Profits of
subsequent quarters for the purpose of the calculation of fees. If
there is a Carry-forward Loss at the time Client effects a withdrawal
(as set out in paragraph 2 above), the Carry-forward Loss shall be
adjusted proportionately.
6. Payment of Fees. After the close of business of each calendar month,
Advisor shall calculate and record all fees that may be due and payable
according to this Agreement. Within a reasonable time after the end of each
quarter (and the day this Agreement terminates), Advisor will prepare an invoice
setting forth the amount of management and incentive fees, if any, payable and
shall furnish such invoice to the Broker, which will be directed to deduct and
pay such fees to Advisor directly from Client's account. Client agrees that
management and incentive fees are due and payable within five business days of
the date of an invoice. Payment shall be made by check.
7. Reduction of Positions. In the event that the amount of funds required
by Broker as margin in support of outstanding trading positions for the account
exceeds 50% of the Nominal Account Size at the close of any day, Advisor will
effect the orderly reduction of outstanding positions upon the first opportunity
thereafter so that such margin will be reduced to an amount that is less than
such percentage of the Nominal Account Size.
8. Transactions Subject Applicable Law and Rules. All transactions executed
for Client's account shall be subject to the provisions of the Commodity
Exchange Act and the regulations promulgated thereunder by the Commodity Futures
Trading Commission ("CFTC"), the constitution, laws, rules, regulations and
customs, as they may be amended, of the National Futures Association ("NFA"),
the commodity exchanges or contract markets on which such transactions are
executed, their clearing houses, and any other applicable laws or regulations.
If any provision of this Agreement is or at any time becomes inconsistent with
any present or future law, rule, or regulation of any exchange, NFA or the
CFTC, or of any other sovereign government agency or a self-regulatory body
thereof, such provision shall be deemed to be superseded or modified to conform
to such law, rule, or regulation, but in all other respects this Agreement shall
continue and remain in full force and effect.
9. Representations and Warranties.
(a) Client represents and warrants that it understands fully the
fundamental aspects and the speculative nature of the trading of futures
contracts by virtue of education level achieved, employment experience,
independent investment, legal, accounting and tax advice, and/or previous
experience with investments of a similar nature.
(b) Client acknowledges that it may suffer losses significantly
greater than the amount held in the account due to conditions beyond the
control of Advisor. Client further acknowledges that it may be required to
deposit additional capital into the account and confirms that the loss of
funds pursuant to activities contemplated in this Agreement will not cause
undue financial hardship upon Client nor impinge upon Client's ability to
meet its current and future financial obligations.
(c) Client represents that, to the best of its knowledge, it is in
compliance with all laws applicable to its operation. It further represents
and warrants that it has full right, power and authority to enter into this
Agreement, given the actions contemplated to be taken herein, and the
performance hereof will not cause Client to be in non-compliance with any
laws applicable to its operation.
(d) Client acknowledges that no warranty is expressed or implied by
Advisor as to the returns to Client pursuant to trading decisions of
Advisor and its officers. Client releases Advisor, its directors, officers,
shareholders, associates and employees from all liability for losses
whatsoever incurred, monetary or otherwise, whether such actions are
initiated by Client or a result of the actions of Advisor in accordance
with the terms of this Agreement.
(e) Client acknowledges that it has received, read, and understood the
Advisor's Disclosure Document dated 4-26-01, and has carefully considered
the matters discussed therein in determining to open a commodity trading
account advised by Advisor.
10. Services Not Exclusive. The services described in this Agreement are
not exclusive and Client acknowledges that Advisor presently renders advisory
and consulting services to other clients. Advisor, its principals, employees and
affiliates may trade futures contracts or securities for their own account.
11. Confidentiality. Client acknowledges that Advisor's trading
methods are proprietary and agrees not to disclose any of Advisor's trading
recommendations to any third party.
12. Indemnifications.
(a) Client hereby agrees to indemnify and hold harmless Advisor, its
employees and affiliates from any and all trading losses, claims, damages
costs, expenses (including reasonable attorneys fees), indebtedness and
liabilities arising therefrom, including any acts, omissions or errors of
Broker in executing orders in Client's account, unless a court of competent
jurisdiction has found that Advisor has committed gross negligence,
willful misconduct or wanton recklessness in connection with the
activities arising from Client's account.
(b) Client further agrees to indemnify Advisor, its employees and
affiliates against any and all losses, claims, damages, liabilities, costs
and expenses, arising under the federal securities laws, the Commodity
Exchange Act, or the securities or Blue Sky law of any jurisdiction, in
respect of the offer or sale of units. This indemnification shall be made
for liabilities resulting from a breach of any representation, warranty or
agreement in this Agreement relating to the offering, or an actual or
alleged misleading or untrue statement of a material fact, or an actual or
alleged omission of a material fact, made in the registration statement,
prospectus or related selling material, provided, the statement or omission
does not relate to the Advisor or its principals, was not made in reliance
upon, and in conformity with, information or instructions furnished by the
trading advisor, and does not result from a breach by the Advisor of any
representation, warranty or agreement relating to the offering.
(c) Advisor agrees to indemnify Client, its general partner, their
respective employees, agents and affiliates against any and all losses,
claims, damages, liabilities, costs and expenses, arising under the
federal securities laws, the Commodity Exchange Act, or the securities or
Blue Sky law of any jurisdiction, in respect of the offer or sale of units.
This indemnification shall be made for liabilities resulting from a breach
of any representation, warranty or agreement in this Agreement or an
actual or alleged misleading or untrue statement of a material fact, or an
actual or alleged omission of a material fact, made in the registration
statement, prospectus or related selling material, provided, the statement
or omission does relates to the Advisor or its principals, was made in
reliance upon, and in conformity with, information or instructions
furnished by the Advisor, and results from a breach by the Advisor of any
representation, warranty or agreement relating to the offering.
13. Term.
(a) This Agreement shall have an initial term of one year commencing
on the date that Advisor first begins to direct trading on Client's behalf
and shall be renewable automatically
thereafter for additional one year terms, unless earlier terminated in
accordance with this Agreement.
(b) Client may terminate this Agreement as of any month-end upon five
(5) days' prior written notice to Advisor. All outstanding management and
incentive fees incurred prior to the effective date of termination shall
remain due and payable and shall be calculated and billed as if such
termination were the end of the current quarter.
(c) Client may terminate this Agreement at any time upon written
notice to Advisor, if Client, in its sole discretion, determines that
Advisor's trading activities are contrary to the trading policies set
forth in the registration statement. Advisor may terminate this Agreement
at any time upon written notice to Client, if Advisor, in its sole
discretion, determines that subsequent changes in Client trading policies
would adversely affect Advisor's ability to direct trading on Client's
behalf.
(d) Advisor may terminate this Agreement as of any month-end upon
sixty (60) days prior written notice to the Client. All outstanding
management and incentive fees incurred prior to the effective date of
termination shall remain due and payable and shall be calculated and
billed as if such termination were the end of the current quarter.
14. Assignment. This Agreement shall be binding upon the parties hereto,
their heirs and successors and may not be assigned without the written consent
of both parties.
15. Notices. Communications may be sent to Client at the address given
below, or at such other address as Client may hereafter give to Advisor in
writing, and all communications so sent, whether by mail, telegraph, messenger,
or otherwise, shall be deemed given to Client personally, whether actually
received or not.
16. Governing Law. This Agreement and its validity, construction and
enforcement shall be governed by the laws of the State of Illinois and its
provisions shall be continuous, shall cover individually and collectively all
account(s) that Client may open or re-open with Advisor and shall inure to the
benefit of Advisor, his successors, and assigns by merger, consolidation or
otherwise.
17. Waiver. No waiver of any provision of this Agreement shall be deemed
a waiver of any other provision, nor a continuing waiver of the provision or
provisions so waived.
18. Authorization to Pay Incentive Fees. Client hereby authorizes Broker
to pay Advisor the management fees and incentive fees owing to Advisor upon
presentation of a statement by Advisor to Broker.
19. Complete Agreement. This Agreement contains the final and complete
Agreement between the parties bereto and may not be altered or modified without
the signed written consent of both parties.
In Witness Whereof, the parties have caused this agreement to be duly
executed as of the date set forth above.
10-29-01 The Price Fund I, L.P.
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Date 000 X. Xxxxxxx Xxxxx 0000-X
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000 000-0000 Address
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Telephone Number Xxxxxxx, XX 00000
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By: Price Asset Management, Inc.
Its General Partner
Xxxxx Xxxxxxx
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(Authorized Officer)
Xxxxx X. Xxxxxxx
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(Print Name)
Executive Vice President
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(Title)
Xxxxxx Capital Management, Inc.
By: /s/ Xxxxxxx Xxxxxx
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President
