FREMONT FUND SELLING AGREEMENT
THIS AGREEMENT dated this 22nd day of July, 1997, by and between Fremont Fund,
Limited Partnership, an Indiana Limited Partnership, (the "Fund") of 0000 X.
000, Xxxxxxx, XX 00000 and Xxxxxx Asset Management, Incorporated, its general
partner, (the "General Partner"); and, Futures Investment Company ("FIC" or
"Selling Agent") and any other selling agents appointed by the General Partner
to serve as additional selling agents ("Additional Selling Agents"), (FIC and
the Additional Selling Agents are collectively referred to as "Sales Agents").
WITNESSETH:
WHEREAS, the Fund was organized by a limited partnership agreement (the
"Limited Partnership Agreement") evidenced by a Certificate of Limited
Partnership filed with the Indiana Secretary of State on January 12, 1995, to
engage in speculative trading of futures, options on futures and other
commodity interests described in the Fund's offering document dated the 12TH day
of August, 1996, as amended, from time to time, (the "Prospectus") by which the
Fund has offered and continues to sell up to $5,000,000 of limited partnership
interests ("Units"); and
WHEREAS, FIC was approved as a broker dealer by the National Association of
Securities Dealers, Inc. (the "NASD") to sell Units in the Fund effective July
23, 1997; and
WHEREAS, the Fund and the Sales Agents mutually desire the Sales Agents to
promote, solicit, and complete the sale of Units to customers identified by
them upon the terms and in reliance upon the representations, warranties and
agreements set forth herein; and
WHEREAS, the General Partner desires to compensate the registered
representatives of the Sales Agents who are qualified to receive commodity
commissions, by the payment of a percentage of the fixed commission based upon
a percentage of equity in lieu of round turn commissions (hereinafter such
payments are called "Trailing Commissions") earned by the General Partner in
consideration of said registered representatives and associated persons
providing service to investors sold by the Sales Agents to the extent they
remain investors in the Fund; and
WHEREAS, the President of the General Partner, individually, and FIC, as
Broker/Dealer, have entered into a separate agreement to define their
activities related to the marketing and sale of security and commodity
products;
NOW THEREFORE, the parties hereto, intending to be legally bound hereby and in
consideration of the mutual covenants contained herein, agree as follows:
I. Appointment of Sales Agents. The Fund hereby engages FIC to serve as the
Selling Agent and to appoint, with the approval of the General Partner of the
Fund, other NASD registered broker dealers to serve as Selling Agents, on a
non-exclusive, best efforts basis, to solicit, obtain applications and orders
for the purchase of Units in the Fund by investors who meet the suitability
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standards established in the Prospectus and by applicable law upon the terms
and conditions described in the Prospectus and this Agreement. It is
understood that the Sales Agents have no commitment or obligation to make a
market or otherwise support the price of Units other than to use their best
efforts to attempt to make such sales.
A. Duties of Sales Agents. The Sales Agents agree, subject to a $5,000,000
maximum upon total sales, including sales commissions, to offer and sell Units
in the Fund until termination of the offering as provided in this Agreement or
the Prospectus, on the following terms and conditions:
1. Comply With Offering Procedures. Sales Agents agree to take those steps
deemed necessary or desirable by legal counsel to the Fund to comply with all
laws and procedures applicable to the offering of Units for sale in the
jurisdictions selected by the Fund and Sales Agents. Sales Agents shall use
only the sales and advertising literature specifically supplied and authorized
by the General Partner.
2. Suitability Standards. Sales Agents will comply with Appendix F of the
Rules of Fair Practice of the NASD. Specifically to procure information and
documentation from each subscriber solicited by its registered representatives
to prove that the sale of Units solicited by it shall not be transmitted to the
General Partner for acceptance unless said Sales Agent has reasonable grounds
to believe, on the basis of information obtained from the subscriber concerning
his investment objectives, other investments, financial situation and needs,
and any other information known by the Sales Agents, that the subscriber is:
(i) in a financial position appropriate to enable him to realize to a
significant extent the benefits of the Fund described in the Prospectus; and,
(ii) the subscriber has a fair market net worth sufficient to sustain the risks
inherent in the program, including loss of investment and lack of liquidity;
and (iii) the Units are otherwise a suitable investment for the subscriber.
3. Subscriptions and Redemption. During the Offering Period, all qualification
documentation, subscriptions for Units, and checks for payment for Units shall
be delivered by the Sales Agents to the General Partner of the Fund for review
and acceptance. All checks shall be made payable to "Fremont Fund, Limited
Partnership" and will be accepted for investment in the Fund effective on the
next admission date by the General Partner or, within 24 hours after receipt,
will be returned by the General Partner to the Sales Agents together with an
explanation of the reason for the refusal of the acceptance. Subscriptions
will be accepted as described in the Prospectus. The Sales Agents may not
accept cash for the sale of Units. Checks not made payable as described in the
Prospectus and above will be returned to the Sales Agents.
B. Prospectus Review. Sales Agents hereby affirm that they have reasonable
grounds to believe that all material facts related to the Fund have been
adequately and accurately disclosed to them and that such facts are sufficient
for them to provide prospective investors with a basis for evaluating the
merits of an investment in the Fund. In making the foregoing affirmation,
Sales Agents may make reference specifically to the following descriptions in
the Prospectus:
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(i) the Risk Disclosure Statement; (ii) the items of compensation relating to
the Fund set forth under "Fees, Compensation And Expenses"; (iii) certain tax
aspects of an investment in the Fund set forth under "Summary of Income Tax
Consequences"; (iv) the financial condition and experience of the General
Partner set forth under "General Partner"; and, (v) the risk factors relating
to an investment in the Units set forth under "Risk Factors". Sales Agents
agree to maintain files to disclose and preserve the basis upon which the
determination of suitability for investment in the Fund was reached as to each
subscriber solicited by it for a period of not less than six years. The basis
for determining suitability may include the Subscription Agreement and Power of
Attorney and other certificates submitted by subscribers upon which the Sales
Agents and the Fund may rely, absent actual knowledge of or a reason to believe
any information contained in such documents is inaccurate.
C. Payments to Sales Agents. Sales Agents will be paid a one time sales
commission of six percent (6%) of the gross subscriptions for all Units sold by
the Sales Agents at the time of acceptance of the sale by the General Partner.
The General Partner may, but is not obligated to, waive the sales commission in
certain circumstances, from time to time. The General Partner shall pay a
portion of the fixed commodity commission, after payment of expenses, as
Trailing Commissions to its associated persons on terms it shall negotiate with
such persons. The term expenses means the amounts paid by the General Partner
for clearing charges and fees to the FCM and other Clearing Brokers, the Cash
FX Firm, if any, the Exchanges, and the NFA. The method and the amount of such
commissions or fees paid by the General Partner to its associated persons and
the Sales Agents shall be determined solely by negotiations between the General
Partner its associated persons and the Sales Agents; provided, however, no such
change shall be made to permit a retroactive adjustment to Trailing Commissions
previously paid. Any such adjustment in rate of Trailing Commissions must have
equal application to all Sales Agents. Such fees and charges paid by the Fund
to the General Partner are described in detail in the Prospectus.
D. Continuing Service. In consideration of the payment of Trailing Commissions
related to the trade of commodities by the General Partner to the associated
persons, who are Commodity Futures Trading Commission registered, such
associated persons agree to provide services to the Fund, to investors in the
Fund, and the General Partner. Such services shall include, but not limited
to, preparation of projections of methods to be used and costs to identify
accredited investors to solicit, establishment of promotion budget for delivery
of information regarding the Fund to registered representatives of the Sales
Agents who are not commodity registered, inquiring of the General Partner of
the Fund, from time to time, at the request of an owner of Units to determine
the net asset value of a Unit, the commodity markets traded, the advisors
utilized, the Fund performance, and assisting, at the request of the General
Partner, in the transfer and redemption of Units sold by the sales agents.
II. Fund Support to the Sales Effort. The Fund will provide sales literature,
memorandum, telephone consultations and any other reasonable services to
support the selling efforts of the Sales Agents.
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A. Customer Support. The Fund will provide copies of all communications
required to keep the investors sold by the Sales Agents informed of the
performance of the Fund and required by law to be distributed to the purchasers
of Units sold by the Sales Agents, including, but not limited to, the monthly
and the annual audited financial statements for the Fund. In addition, the
General Partner shall provide prompt redemption and professional courteous
response to requests made for service made directly to the General Partner by
investors sold by the Sales Agents.
B. Customers Protected. The Fund, General Partner and their affiliates agree,
on a best efforts basis, to not solicit or do business with any customer or any
person referred by a person sold by the Sales Agents. If such business is
done, knowingly or unknowingly, all sales and Trailing Commission payable as a
result of sales to customers of Sales Agents or persons referred by customers
of Sales Agents will be paid to the Sales Agents as provided in this Agreement
for those Units sold to those accounts. In the event of a common prospect,
whoever signs the customer up first receives the commission and the right to
future referrals. The documentation used by the customer will identify the
sales person and control the determination of who made the sale and, whenever
possible, the customer will not be involved in the dispute. The General
Partner will use its best efforts to keep the names of the customers and
prospects of the Sales Agents confidential.
III. Representations by All Parties. Each party hereto represents the
following to all other parties to this Agreement.
Legal Compliance. The Parties hereto will use their best efforts to comply
fully with all applicable laws and the rules of the National Association of
Securities Dealers (the "NASD"), the Securities and Exchange Commission (the
"SEC"), the Commodity Futures Trading Commission (the "CFTC"), the National
Futures Association (the "NFA") and state securities administrators of the
several states and various other jurisdictions applicable to each of them in
regard to their activities under this Agreement which in any way effects the
offer and sale of Units.
A. Authority to Act. The Fund and each corporation which is a party to this
agreement represents to the others that it is duly organized and validly
existing under the laws of the state of its formation, is a member in good
standing of the self regulating organizations, if any, which regulate the sale
of Units, have all the registrations, licenses and permits required to perform
its duties hereunder, and have the full power and authority to act in its
capacity in the manner contemplated by this Agreement and as described in the
Prospectus. This Agreement has been duly and validly authorized, executed and
delivered on behalf of each party hereto and is a valid and binding agreement,
enforceable in accordance with its terms. Each party has been afforded the
opportunity to be represented by legal counsel of its choice.
B. No Breach of Agreements. The entry of this Agreement will not cause a
default of any other agreement to which any party hereto is a party. No party
to this Agreement is in breach of any agreement to which it is a party which
will be material to its performance under this Agreement nor will any party
during the term of this Agreement be in contravention of or default under any
order, law or regulation binding upon it. The execution and delivery of this
Agreement, consummation of the transactions herein contemplated and compliance
with the terms hereof will not constitute or result in a default under or
contravene any provision by any party of the limited partnership agreement or
any other agreement, order, law or regulation related to the Fund.
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IV. Representations of the Fund. The Fund represents and warrants to the Sales
Agents that:
A. All Material Facts Disclosed. The Prospectus contains all material
statements and information required to be included therein by the Securities
Act of 1933 and the Commodity Exchange Act, both as amended, from time to time,
and the rules and regulations promulgated under such Acts; will conform in all
material respects with the requirements of such Acts and the rules and
regulations thereunder; and will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which such statements were made, not misleading; provided, however, that
this representation and warranty shall not apply, with respect to the Sales
Agents, to any statements or omissions in the Prospectus, or any such amendment
or supplement, made in reliance upon and in conformity with information
furnished in writing to the Fund or the General Partner, by the Selling Agent
or the Fund's Advisors.
B. The Units are Valid. The Units, when issued and sold pursuant to the terms
hereof and of the Prospectus, will be validly issued, fully paid and not
subject to further call or assessment, and the Fund will apply the net proceeds
received from the issuance and sale of the Units in the manner set forth in the
Prospectus.
C. Other Agreements Valid. The customer agreement with each clearing broker
and/or foreign exchange clearing firm (the "Brokerage Agreements") and the
Power of Attorney granted to the commodity trading advisor has, to the best
knowledge of the General Partner after due inquiry, been duly and validly
authorized, executed and delivered on behalf of the Fund and the other party to
the agreement, and each is a valid and binding agreement of the Fund in
accordance with its terms, except to the extent that the exculpation and
indemnification provisions of such agreements may be limited by applicable law
or this Agreement.
D. Necessary Authority. The Fund has all necessary governmental, regulatory
and commodity exchange approvals and licenses and has effected all filings and
registrations required to conduct its business and perform its obligations as
described in the Prospectus. The Fund will use its best efforts to be and
remain qualified to offer and sell the Units in those jurisdictions in which
the Units will be offered. The Fund is not and, upon implementation or
consummation of the transactions contemplated by this Agreement and the limited
partnership agreement, will not be an investment company within the meaning of
the Investment Company Act of 1940, as amended.
V. The General Partner represents and warrants to the Fund and the Sales Agents
that:
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A. Government Authority. The General Partner has all governmental, regulatory
and commodity legal approvals and licenses and has effected all filings and
registrations including, without limitation, registration as a commodity pool
operator under the Commodity Exchange Act, as amended, and membership in NFA,
required to conduct its business as described in the Prospectus or required to
perform its obligations as described therein or under the limited partnership
agreement, the power of attorney to the CTA, this Agreement and the Brokerage
Agreements, and covenants that it will use its best efforts to maintain such
approvals, licenses, filings, registrations, and memberships in full force and
effect.
B. Contracts and Information Complete. The limited partnership agreement, the
power of attorney, the Brokerage Agreements and this Agreement have each been
duly authorized, executed and delivered by the General Partner, and each is
intended to be a valid and binding agreement of the General Partner in
accordance with its terms. All references and information concerning the
General Partner in the Prospectus supplied by it are accurate in all material
respects and, as to it, the Prospectus does not contain any misleading or
untrue statement of a material fact or omit to state a material fact which is
required to be stated or which is necessary to prevent the statements therein
from being misleading.
C. Compliance with Partnership Requirements. The General Partner will purchase
or subscribe for the Units of General Partnership Interest required of it as
disclosed in the Prospectus and will have a net worth equal to or in excess of
the requirements stated therein upon the offering described in the Prospectus
and upon admission to the Fund of all limited partners who purchase Units
during this Offering Period.
D. Fees and Costs Attendant to Fund Offering. The Fund will pay, or cause to
be paid, all costs and expenses associated with this offering of the Fund's
Units, including (i) the preparation, printing and filing of the Prospectus and
all amendments and supplements thereto with the appropriate Federal and state
regulatory agencies and the self regulatory agencies; (ii) the furnishing to
the Sales Agents of copies of the Prospectus and of other documents required to
be furnished, including costs of shipping and mailing; (iii) fees and
disbursements of legal counsel, accountants, and other experts in connection
with the transactions contemplated by this Agreement; and, (iv) any other
organization and offering expenses of the Fund associated with this Offering
Period. The General Partner may be reimbursed by the Fund to the extent of any
organization and offering expenses it has advanced. Each other party to this
Agreement shall bear all of its own expenses under this Agreement, including
fees and disbursements of its legal counsel, accountants and other experts.
VI. Representations of the Sales Agents. The Sales Agents represent to the
Fund and the General Partner as follows:
A. All Material Facts Disclosed. All facts disclosed to the Sales Agents by
the General Partner in regard to the due diligence of the General Partner
conducted by the Sales Agents, are true and correct, and the Sales Agents have
disclosed all material statements and information related to the Sales Agents
required to be disclosed to the General Partner by the Securities Act of 1933
and the Commodity Exchange Act, both as amended, from time to time, and the
rules and regulations promulgated under such Acts; and, (i) all information
furnished to the Fund or the General Partner or prospects and subscribers to
the Fund by the Sales Agents regarding the
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subscribers in the Fund will be complete, true and correct; and, (ii) all
information furnished by the Sales Agents to prospects and subscribers to the
Fund by the Sales Agents regarding the Fund will also be true and correct and
will be in reliance upon and only the information furnished in writing by the
General Partner or in the Prospectus.
B. Agreements Valid. The Sales Agents have the authority to enter into this
Agreement and all other agreements required to perform its obligations
hereunder.
C. Necessary Authority. The Sales Agents have all necessary governmental,
regulatory and commodity exchange approvals and licenses and has effected all
filings and registrations required to conduct its business and perform its
obligations as described in the Prospectus and this Agreement. The Sales
Agents will use their best efforts to be and remain qualified to offer and sell
the Units in those jurisdictions in which the General Partner and the Sales
Agents agree the Units will be offered.
D. Use of Discretionary Authority. Sales Agents will not make sales of Units
from a discretionary account over which it or any of its registered
representatives or the affiliates of any of them has control without prior
written approval of the customer in whose name such discretionary account is
maintained.
VII. Indemnification and Limits. The parties hereto agree to provide
indemnification upon the following terms and limits:
A. Indemnification from General Partner to Sales Agents. The General Partner
agrees to indemnify and hold harmless the Sales Agents and each person, if any,
who controls the Sales Agents within the meaning of Section 15 of the
Securities Act, from and against any and all losses, claims, damages,
liabilities and expenses including, but not limited to, any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted to which,
jointly or severally, they, or any of them, may become subject as a result of
any breach of fiduciary duty owed by the General Partner to the Fund or under
the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, the Commodity Exchange Act, as amended, any other Federal or state
statutory or foreign law or regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses or actions with respect
thereto arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus or any amendment or
supplement thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; except insofar as any such untrue statement or omission
or alleged untrue statement or omission was made in the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Fund expressly for use therein by the
Sales Agent or any other independent third party; provided, however, in no
event shall the General Partner's agreement to indemnify contained herein inure
to the benefit of the Sales Agents or any person controlling the Sales Agents
on account of any losses, claims, damages, liabilities, expenses or actions
arising from the sale of Units to any person by the Sales Agents if such
losses, claims, damages, liabilities, expenses or actions arise
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out of or are claimed to be based upon an untrue statement or omission or
alleged untrue statement or omission in a Prospectus if a subsequent Prospectus
or supplemental Prospectus shall correct, prior to the delivery to the Sales
Agents by such person of his subscription, the untrue statement or omission or
the alleged untrue statement or omission which is the basis of the loss, claim,
damage, liability, expense or action for which indemnification is sought, or a
copy of such subsequent Prospectus was not sent or given to such person
simultaneously with or prior to the receipt by the Sales Agents of such
person's subscription. In addition, this indemnification will not apply to any
claims asserted as a result of the alleged misstatement of fact by any other
party other than the General Partner or in the Prospectus, as amended, from
time to time.
B. Indemnification from Sales Agents to Other Parties. The Sales Agents agree
to indemnify and hold harmless the General Partner, the Fund, and each person,
if any, who controls any of them within the meaning of Section 15 of the
Securities Act, from and against any and all losses, claims, damages,
liabilities and expenses including, but not limited to, any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted to which,
jointly or severally, they, or any of them, may become subject under the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, the Commodity Exchange Act, as amended, any other Federal or state
statutory or foreign law or regulation, at common law or otherwise, insofar as
the losses, claims, damages, liabilities or expenses indemnified against arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which was made to a prospect or subscriber to Units by
the Sales Agents or either of them; provided, however, that the obligation of
the Sales Agents to indemnify the Fund or the General Partner, or any person
who controls them, hereunder shall be limited to the total price of the Units
sold by the Sales Agents.
C. Sales Agents Responsible for Payment of Commissions. Provided the General
Partner properly pays the Trailing Commissions to the Sales Agents, Sales
Agents agree to indemnify and hold harmless the Fund and the General Partner
from all claims, including attorney fees and costs, from any person who asserts
they are entitled to a portion of the Trailing Commissions paid to such Sales
Agent.
D. Limits upon Indemnification. The obligation to provide the above
described indemnification's are conditioned upon and subject to the following
limitations:
1. Provide Notice. As condition precedent to indemnification under this
Agreement, a party must, within ten days after receipt of information to inform
it of the existence of a potential claim or the commencement of any action,
suit or proceeding against it for which it will make a claim for
indemnification from another party under this Agreement, provide a complete
description of the claim and give notice to the indemnifying party of all facts
related to such claim including, but not limited to, sending a copy of all
papers served. The failure to provide such timely notice shall be a waiver of
indemnification under this Agreement but such omission shall not be a waiver of
any liability of any person under common law or statute or any other basis
other than under the indemnification provisions of
8
this Agreement. In case any such action, suit or proceeding shall be brought
against any indemnified party and it shall have properly notified the
indemnifying party of such claim, the indemnifying party shall be entitled to
participate in the defense of such claim and, if it so elects, individually or
jointly with any other indemnifying party similarly notified, to assume the
defense thereof with counsel satisfactory to such indemnified party. After
notice from the indemnifying party to such indemnified party of its election to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses, other than reasonable costs
of investigation requested by the indemnifying party, subsequently incurred by
such indemnified party in connection with the defense thereof.
2. Legal Counsel. The indemnified party shall have the right to employ its own
counsel in any such action in which the indemnifying party has so assumed the
defense, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the employment of counsel by such indemnified
party has been authorized by the indemnifying party, (ii) the indemnified party
shall have reasonably concluded that there may be a conflict of interest
between the indemnifying party and the indemnified party in the conduct of the
defense of such action (in which case the indemnifying party shall not have the
right to direct the defense of such action on behalf of the indemnified party)
or (iii) the indemnifying party shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses
of counsel shall be at the expense of the indemnifying party. An indemnifying
party shall not be liable for any settlement of any action or claim effected
without its consent. In the case of (ii) above, the indemnifying party, or the
indemnifying parties, if an indemnified party shall have a claim for
indemnification against more than one indemnifying party, shall not be liable
for the expenses of more than one separate counsel for the General Partner and
the Fund and any person who controls them within the meaning of Section 15 of
the Securities Act.
3. General Partner Liability Limitation. Any exculpation provisions of the
Limited Partnership Agreement shall not relieve the General Partner from any
liability it may have or incur to the Fund under this Agreement, nor shall the
General Partner be entitled to be indemnified by the Fund, pursuant to any
indemnification provisions contained in the Limited Partnership Agreement or
the Brokerage Agreements, against any loss, liability, damage, cost or expense
it may incur under this Agreement.
VIII. Termination. This Agreement may be terminated upon the following terms
and conditions:
A. Without Cause. This Agreement may be terminated without cause by any party
upon forty-five (45) days notice to the other parties.
B. With Cause. Any party may terminate this Agreement at anytime for cause
if the General Partner commits a breach of fiduciary duty owed to the Fund, any
domestic or international event, act or occurrence has materially disrupted, or
in the opinion of the General Partner will, in the immediate future, materially
disrupt the commodities markets; or, any party to this Agreement breaches a
material term of this Agreement including, but not limited to, fails to cure
any law or rule violation attendant to its right to perform under this
Agreement or makes any false statement or omission to any prospect or
subscriber of Units or required to be made under this Agreement.
9
C. Payments after Termination. The General Partner will continue to pay Sales
Commissions and Trailing Commissions after termination of this Agreement, for
any reason, for all Units sold by the Sales Agents during the term of this
Agreement; provided, however, to receive trailing commissions, the Sales Agents
must continue to service the holders of Units after any such termination.
IX. General Provisions. The following general terms are to apply to this
Agreement.
A. Reference to Prospectus. The Sales Agents acknowledge receipt of a copy of
the draft Prospectus referred to above and, subject to the delivery by the
General Partner of all revisions, Amendments and Addendum thereto, together
with an opinion from counsel for the Fund that they are complete and that the
Units are available for sale in the states identified in the opinion of
counsel, the Sales Agents will distribute the offering in accordance with the
instructions of the General Partner. Terms not defined is this Agreement are
defined in the Prospectus.
B. Survival of Representations. The representations contained in this
Agreement made by any party shall survive the issue, sale and payment for the
Units hereunder and the termination of this Agreement as to all Units which
remain in the Fund. The fact a party may conduct a due diligence review to
determine the accuracy of one or all of the representations made in this
agreement shall not be deemed a waiver or apply estoppel or otherwise legally
affect such representation should at some later time any such representation be
proved untrue.
C. Independent Contractors. The parties hereto, subject to the procedures
established by the General Partner to preserve the legality of the offering and
to assure that all persons solicited will be pre-qualified as suitable to
become investors in the Fund, shall be free to exercise their independent
judgment as to the performance of their obligations under this agreement. The
parties hereto shall be free to devote whatever time they choose to any other
business of their choice. The Sales Agents are independent from the General
Partner and the Fund; the relationship of the Sales Agents with the General
Partner and the Fund are as independent contractors.
D. Successors and Assigns. This Agreement has been and is made solely for the
benefit of the parties hereto to the extent expressed herein, for the benefit
of persons controlling any of such parties hereto and the respective successors
and assigns of such controlling persons, and no other person shall acquire or
have any right under or by virtue of this Agreement.
E. Notices. Any notices under this Agreement shall be given or confirmed in
writing and sent registered or certified mail, postage prepaid, addressed as to
such person at the address in the caption of this Agreement or to such other
address as changed from time to time by any party hereto by written notice to
all other parties hereto.
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F. Entire Agreement. This Agreement contains the entire understanding of the
parties hereto with respect to the subject matter contained herein.
G. Arbitration. Any controversy or disagreement between the parties to this
Agreement shall be determined by binding arbitration in the City of Fremont,
State of Indiana, by a single arbitrator knowledgeable in the securities or
commodities business in accordance with the rules and regulations as
promulgated by the American Arbitration Association and judgment on any award
so made may be entered in any court having jurisdiction. In the event a party
is required to retain legal counsel to enforce or defend its rights under this
Agreement, the loser of any such dispute agrees to pay all costs including all
reasonable attorney fees and court costs, attendant to the protection of its
rights hereunder. Specifically, and not by way of limitation to the
foregoing, should either party lose an arbitration claim and subsequently file
a court action, such losing party shall pay the legal fees and costs of the
party defending the attempted avoidance of the arbitration award.
H. Applicable Law and Severability. This Agreement shall be governed by the
laws of the State of Indiana. If any of the provisions of this Agreement are
held unlawful, void or unenforceable, such event shall not affect the
enforceability of the remaining provisions.
I. Captions. All captions used herein are for convenience only, are not a
portion of this Agreement and are not to be used in construing or interpreting
any aspect of this Agreement.
J. 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 one and the same instrument.
IN WITNESS WHEREOF, the Fund, the General Partner, and the Sales Agent have
executed this Agreement on the day and year first above written.
Fremont Fund, Limited Partnership Xxxxxx Asset Management, Inc.
By: Xxxxxx Asset Management, Inc.
Its General Partner
BY: s/ Shira Del Xxxxxx BY: s/ Shira Del Xxxxxx
Xxxxx Del Xxxxxx Xxxxx Del Xxxxxx
President President
Futures Investment Company
By: s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
President
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