Exhibit 10.02
MANAGEMENT AGREEMENT
THIS AGREEMENT, made as of the 13th day of October, 2006, among
XXXXXX XXXXXXX CHARTER WCM L.P., a Delaware limited partnership (the
"Partnership"), DEMETER MANAGEMENT CORPORATION, a Delaware corporation (the
"General Partner"), and XXXXXX CAPITAL MANAGEMENT LIMITED, a United Kingdom
company (the "Trading Advisor").
W I T N E S S E T H:
WHEREAS, the Partnership has been organized pursuant to the Amended
and Restated Limited Partnership Agreement, dated as of April 25, 2005, 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 Charter 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 (No. 333-113893) (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 amended and supplemented from time to time) (the "Prospectus").
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 after it has been
a limited partner of a member partnership of the Fund Group for six months 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 trading advisor for the Partnership and to make investment
decisions with respect to futures interests for 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 futures interests trading for the Partnership;
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Undertakings in Connection with the Continuing Offering of Units.
(a) Subject to Section 12 hereof, 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 and Confidential Information (as defined in Section
12(b) hereof) 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.
(b) 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.
(c) 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 thereof
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.
2. Duties of the Trading Advisor.
(a) The Trading Advisor hereby agrees to act as Trading Advisor for
the Partnership and, as such, shall have sole authority and responsibility,
commencing December 1, 2006, for directing the investment and reinvestment of
the Net Assets of the Partnership, which initially shall be traded pursuant to
its Diversified Trading Program as described in the Prospectus, and may be
subsequently traded pursuant to such other of the Trading Advisor's programs
described in the Prospectus as General Partner may instruct (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), (collectively, the "Trading Program") on the terms and conditions
and in accordance with the prohibitions and trading policies set forth in
Exhibit A hereto, the Prospectus, the Limited Partnership Agreement 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 Exhibit A hereto, the Prospectus, the Limited Partnership Agreement
and as otherwise provided in writing to the Trading Advisor, and with applicable
speculative position limits, (ii) to pay the Partnership's expenses, (iii) to
the extent the General Partner believes doing so is necessary for the protection
of the Partnership, (iv) to terminate the futures interests trading of the
Partnership, or (v) to comply with any applicable law or regulation. The General
Partner agrees not to override any such instructions for the reasons specified
in clause (ii) of the preceding sentence unless the Trading Advisor fails to
comply with a request of the General Partner to facilitate making 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 Program
without the prior written consent of the General Partner (and shall not effect
such alteration or change on behalf of the Partnership without the General
Partner's consent), and 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 Program.
(b) The Trading Advisor shall:
(i) 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, the Limited Partnership Agreement and as otherwise provided in
writing to the Trading Advisor. The Trading Advisor shall trade the
Partnership's Net Assets pursuant to the Trading Program.
(ii) Subject to Section 12 hereof and 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 Program 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.
(iii) Upon the request of the General Partner and subject to Section
12 hereof and 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 and Confidential 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.
(iv) 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.
(c) 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 fees, 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.
(d) Notwithstanding anything in 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 floor brokerage 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, an affiliate of the General Partner ("MS&Co.") or
any other floor broker or futures commission merchant executing trades. The
Trading Advisor shall have an affirmative obligation promptly to 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 that the Trading Advisor reasonably believes was not executed in
accordance with its instructions.
(e) 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 as Exhibit C hereto, appointing the Trading
Advisor the Partnership's attorney-in-fact for such purpose.
3. Designation of Additional or Replacement 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 or
replacement trading advisor or advisors for the Partnership and may apportion to
such additional or replacement 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 the Trading Advisor. The designation and retention of an
additional or replacement trading advisor(s) 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. 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.
4. 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 the
General Partner. Nothing contained herein shall be deemed to require the
Partnership or the 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, 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 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.
5. 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. 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, an affiliate of
the General Partner ("MSIL"). In addition, MS&Co. will act as the counterparty
on all of the foreign currency forward trades for the Partnership. The General
Partner shall provide the Trading Advisor with copies of brokerage statements.
Notwithstanding that MS&Co. and MSIL shall act as the clearing commodity brokers
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. Except as provided in Exhibit A, the
Trading Advisor will not be responsible for paying give-up fees at rates
approved by Xxxxxx Xxxxxxx XX.
6. Fees.
(a) 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:
(i) 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 2.00% (a 2.00% annual rate) of the Partnership's "Net Assets" (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.
(ii) A monthly incentive fee equal to 20% of the "Trading Profits"
(as defined in Section 6(c) hereof) experienced by the Partnership as of
the end of each calendar month.
(b) 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.
(c) As used herein, the term "Trading Profits" shall mean net
futures interests trading profits (realized and unrealized) earned on the
Partnership's Net Assets, decreased by the monthly management fees and 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 begins to receive trading advice
from the Trading Advisor pursuant to this Agreement 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.
(d) If any payment of incentive fees is made to the Trading Advisor
on account of Trading Profits and the Trading Advisor thereafter fails to earn
Trading Profits or experiences losses for any subsequent incentive period, 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; provided, however, that
if the Partnership's Net Assets are reduced or increased because of redemptions
or additions that occur at the end of, or subsequent to, an incentive period in
which the Trading Advisor experiences a futures interests trading loss, the
trading loss for that incentive period which must be recovered before the
Trading Advisor will be deemed to experience Trading Profits will be equal to
the amount determined by (x) dividing the Partnership's Net Assets after such
increase or decrease by the Partnership's 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 without the payment of an
intervening incentive fee and the Partnership's Net Assets are increased or
reduced in more than one such month because of redemptions or additions, 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
futures interests trading profits.
7. Term.
(a) This Agreement shall continue in effect until February 28, 2007
(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. This Agreement shall terminate if the
Partnership terminates.
(b) The Partnership shall have the right to terminate this Agreement
at its discretion (i) at any month-end upon 5 calendar days' prior written
notice to the Trading Advisor or (ii) at any time upon written notice to the
Trading Advisor upon the occurrence of any of the following events: (a) if any
person described as a "principal" of the Trading Advisor in the Prospectus
ceases for any reason to be an active executive officer of the Trading Advisor;
(b) if the Trading Advisor becomes bankrupt or insolvent; (c) if the Trading
Advisor is unable to use its Trading Program as in effect on the date hereof and
as refined and modified in the future for the benefit of the Partnership; (d) 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; (e) 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; (f) if the Net Asset value of a Unit, after adjusting for
distributions, if any, shall be less than $5.00; (g) if, at any time, the
Trading Advisor 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 (h) if the Trading Advisor fails in a
material manner to perform any of its obligations under this Agreement.
(c) The Trading Advisor may terminate this Agreement (i) following
the Initial Termination Date upon 30 calendar days' prior written notice to the
Partnership or (ii) at any time upon written notice to the Partnership upon the
occurrence of any of the following events: (a) that the General Partner imposes
additional trading limitation(s) 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 the Partnership's Net Assets; (b) the General Partner objects to
the Trading Advisor implementing a proposed material change in the Trading
Advisor's Trading Program used by the Partnership and Trading Advisor certifies
to the General Partner in writing that it believes such change is in the best
interests of the Partnership; (c) the General Partner overrides a trading
instruction of the Trading Advisor for reasons unrelated to those set forth in
Section 2 hereof and 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; (d) 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 (e) if the Partnership or General Partner becomes bankrupt or
insolvent. In addition, the Trading Advisor may terminate this Agreement by
providing 60 calendar days' prior written notice to the General Partner if 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.
8. Standard of Liability; Indemnifications.
(a) Limitation of Trading Advisor Liability. In respect of the
Trading Advisor's role in the futures interests trading 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.
(b) 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.
(c) Partnership Indemnity in Respect of Management Activities. The
Partnership shall indemnify, defend, and hold harmless the Trading Advisor, its
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
Partnership 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; 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.
(d) Trading Advisor Indemnity in Respect of Sale of Units. The
Trading Advisor shall indemnify, defend and hold harmless Xxxxxx Xxxxxxx XX,
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).
(e) Partnership Indemnity in Respect of Sale of Units. The
Partnership and the General Partner agree to indemnify, defend and hold harmless
the Trading Advisor and each of its officers, directors, principals,
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 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 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.
(f) 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.
(g) 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.
9. Right to Advise Others and Uniformity of Acts and Practices.
(a) 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 the 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 agree 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 Program employed by the Trading
Advisor for the account of the Partnership, or trading programs, systems,
methods, or strategies that 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.
(b) 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 Program 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.
10. Representations, Warranties, and Covenants of the Trading
Advisor.
(a) 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:
(i) It will exercise good faith and due care in using the Trading
Program on behalf of the Partnership.
(ii) The Trading Advisor shall follow, at all times, the trading
policies of the Partnership (as described in the Prospectus and the
Limited Partnership Agreement and as set forth in Exhibit A hereto) and as
amended in writing and furnished to the Trading Advisor from time to time.
(iii) The Trading Advisor shall trade: (A) the Partnership's Net
Assets pursuant to the Trading Program; 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.), 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.
(iv) The Trading Advisor is duly organized, validly existing and in
good standing as a corporation under the laws of the jurisdiction of its
incorporation and is qualified to do business as a foreign corporation 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 corporate
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").
(v) All references to the Trading Advisor and each Trading Advisor
Principal, including the Trading Advisor's Trading Program, any other
trading programs, approaches and systems and Trading Advisor 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.
(vi) 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.
(vii) Each of the Trading Advisor and each "principal" of the
Trading Advisor, as defined in Rule 4.10(e) 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.
(viii) 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 certificate of incorporation or bylaws 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 federal, state,
municipal or other governmental body or administrative agency or panel or
self-regulatory organization having jurisdiction over it.
(ix) 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.
(x) 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.
(xi) 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.
(xii) 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, including
the Division of Trading and Markets "notional equity" advisories and
interpretations and the rules and regulations of the NFA.
(b) Covenants of the Trading Advisor. The Trading Advisor covenants
and agrees that:
(i) The Trading Advisor shall use its best efforts to maintain all
registrations and memberships necessary for the Trading Advisor and the
Trading Advisor Principals 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.
(ii) The Trading Advisor shall inform the General Partner
immediately as soon as the Trading Advisor or Trading Advisor 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.
(iii) 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.
(iv) 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.
11. Representations, Warranties, and Covenants of the Partnership
and the General Partner.
(a) Representations of the Partnership and the General Partner. The
General Partner and the Partnership represent and warrant to the Trading
Advisor, as follows:
(i) The Partnership has provided to the Trading Advisor, and filed
with the SEC, the Registration Statement and has filed copies thereof
with: (a) the CFTC under the CEAct; (b) the NASD pursuant to its Conduct
Rules; and (c) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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 (v) 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 its performance
information or made in reliance upon and in conformity with information
furnished by the Trading Advisor.
(vi) 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.
(vii) 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.
(viii) 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.
(ix) 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.
(b) Covenants of the General Partner and the Partnership. The
General Partner for itself and the Partnership covenants and agrees that:
(i) The General Partner shall use its best efforts to maintain all
registrations and memberships necessary for the General Partner or its
principals 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.
(ii) 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.
(iii) 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.
(iv) The General Partner shall change the name of the Partnership so
as to exclude the name of the Trading Advisor if the Trading Advisor
ceases to be the sole Trading Advisor for the Partnership, unless
otherwise agreed to by the General Partner and the Trading Advisor.
12. Confidentiality.
(a) The Partnership and the General Partner will keep confidential
and not disseminate any Confidential Information (as defined in Section 12(b)
hereof) 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 General Partner agrees to use any Confidential Information provided
by the Trading Advisor only to the extent necessary to conduct the business of
the Partnership or as required by law. At the written request of the Trading
Advisor, the General Partner further agrees to return to the Trading Advisor any
Confidential Information provided to the General Partner, except for copies of
materials retained for record-keeping purposes as required by law or by this
Agreement. The General Partner further agrees to maintain internal procedures
and safeguards designed to reasonably comply with the confidentiality
obligations of the Partnership and the General Partner as set forth in this
Agreement.
(b) The term "Confidential Information" shall mean any written or
oral information: (1) as described in Section 2(b)(ii) of this Agreement; (2) as
described in Section 2(b)(iii) of this Agreement; (3) regarding the trading
systems, strategies, methods and programs of the Trading Advisor; and (4)
regarding specific trades made by the Trading Advisor for the account of the
Partnership; provided that Confidential Information shall not include any
written or oral information: (aa) that was already in the possession of any of
the parties as of the date of this Agreement other than by reason of discussions
with or disclosures by the parties negotiating this Agreement; (bb) that is
obtained from a third party who, insofar as is known to the receiving party, is
not prohibited from disclosing or transmitting the information by a contractual,
legal or fiduciary obligation; (cc) that is or becomes publicly available
through no fault of the receiving person; and (dd) that is independently
developed by the recipient without use of the Confidential Information.
(c) Without prejudice to the generality of the foregoing, the
Partnership and the General Partner specifically agree not to use any
Confidential Information: (i) so as to procure any commercial advantage over the
Trading Advisor; or (ii) in any other manner detrimental to the Trading Advisor.
13. 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.
14. Assignment.
This Agreement may not be assigned by any party hereto without the
express written consent of the other parties hereto.
15. Amendment.
This Agreement may not be amended except by the written consent of
the parties hereto.
16. 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.
17. 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:
(a) 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:
(i) 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.
(ii) 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.
(b) 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:
(i) The Trading Advisor is a corporation duly organized and validly
existing under the laws of the jurisdiction of its incorporation 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 corporate power and authority to conduct its
business as described in the Registration Statement and Prospectus and to
perform its obligations under this Agreement.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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 certificate of incorporation or bylaws 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.
(vi) 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 Advisers Act of 1940, as amended.
(vii) 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.
(c) 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:
(a) 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:
(i) 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.
(ii) 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.
(iii) 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.
(b) 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:
(i) 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 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.
(ii) 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 corporate power and authority to
conduct its business as described in the Registration Statement and
Prospectus and to perform its obligations under this Agreement.
(iii) 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 and 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.
(iv) This Agreement has been duly authorized, executed and delivered
by or on behalf of the General Partner and the Partnership and constitutes
a legal, valid and binding agreement of the General Partner and the
Partnership, enforceable against the General Partner and the Partnership,
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.
(v) 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.
(vi) 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.
(vii) 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.
(viii) The information in the Prospectus under the captions
"Summary--Tax Considerations," "Risk Factors--Taxation Risks," "Certain
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.
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.
18. 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.
19. Disclosure Document.
During the term of this Agreement, the Trading Advisor shall furnish
to the General Partner promptly copies of all disclosure documents or similar
documents used by the Trading Advisor. The General Partner acknowledges receipt
of the Trading Advisor's disclosure document dated May 24, 2006.
20. 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 Charter WCM L.P.
c/o Demeter Management Corporation
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx, President
if to the General Partner:
Demeter Management Corporation
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx, President
if to the Trading Advisor:
Xxxxxx Capital Management Limited
0-0 Xx. Xxxx Xxxxx'x Xxxxx
Xxxxxx
X0 0XX
Xxxxxx Xxxxxxx
Attn: Xxxxxx Xxxx, Director/ Xxxxxx Xxxxxx, General Counsel
21. 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.
22. 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.
23. 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.
24. 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.
25. 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 CHARTER WCM L.P.
by Demeter Management Corporation,
General Partner
By /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: President
DEMETER MANAGEMENT CORPORATION
By /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: President
XXXXXX CAPITAL MANAGEMENT LIMITED
By /s/ Xxxxxx Xxxx
------------------------------------
Name: Xxxxxx Xxxx
Title: Director
EXHIBIT A
Trading Policies
1. Futures Trade Execution through Clearing Commodity Broker:
o When placing orders for futures trades with the clearing commodity
broker designated in this Agreement or by the General Partner (the
"Clearing Commodity Broker"), the Trading Advisor must follow the
Clearing Commodity Broker's order entry procedures, of which the
Trading Advisor has been advised.
o For futures trades at exchanges where give-up execution is not
allowed, the Trading Advisor must use the execution facilities
provided by the Clearing Commodity Broker.
2. FX Trade Execution through FX Counterparties:
o When placing orders for foreign currency forward contracts ("FX
Trades") with a dealer ("FX Counterparty"), the Trading Advisor must
follow the FX Counterparty's order entry procedures, of which the
Trading Advisor has been advised.
o When executing FX Trades on behalf of the Partnership, the Trading
Advisor must use the execution facilities of the FX
Counterparty(ies) designated by the General Partner for such FX
Trades, unless the General Partner otherwise agrees in a form
acceptable to the General Partner.
3. "Give-Up" Futures Trade Execution:
o The Trading Advisor shall ensure that a "give-up" execution
agreement is in place prior to the execution of any trade through a
floor broker in accordance with this Agreement or as otherwise
provided in writing to the Trading Advisor by the General Partner.
o The Trading Advisor may authorize payment of an execution service
fee ("Give-Up Fee") only to the executing clearing firm or the floor
broker (the "Executing Broker") that directly gives the futures
trade to the Clearing Commodity Broker for such clearance, and in an
amount not greater than the amount permitted by the General Partner
from time to time (the "Execution Allowance"). The Execution
Allowance shall be based on the General Partner's assessment for
prevailing competitive rates for Give-Up Fees.
o Give-Up Fee bills in amounts up to the Execution Allowance will be
processed by the Clearing Commodity Broker, with notice provided to
the Trading Advisor. To the extent that such bills will be greater
than the Execution Allowance, the Trading Advisor will obtain the
prior written consent of the General Partner.
o The Trading Advisor shall provide that information which may
reasonably be requested by the General Partner to verify the Give-Up
Fees processed by the Clearing Commodity Broker.
4. Trade Allocations:
o The Trading Advisor shall be responsible for determining the
procedure(s) used to allocate trades to all customer accounts it
manages, including the Partnership's account(s), in accordance with
CFTC regulations. In the event that either of the Clearing Commodity
Broker or the Executing Broker agrees to perform any step(s)
necessary to such allocation procedure, it remains the Trading
Advisor's responsibility to ensure that the procedure(s) are
performed correctly and that the allocated trades are correctly
booked to he Partnership's account(s).
5. Daily Trade Reporting and Checkout:
o The Trading Advisor shall be responsible for the timely reporting of
those futures trades not executed by, and subsequently given-up to,
the Clearing Commodity Broker, and shall be responsible for ensuring
that the Executing Broker(s) transmit such futures trades to the
Clearing Commodity Broker for clearance within a timely basis.
o The Trading Advisor shall be responsible for daily "checkout" (trade
recap) of all of the Partnership's futures, options, and FX Trades.
Such checkout or trade recap shall be administered according to the
procedures set forth by the Clearing Commodity Broker's and/or FX
Counterparty's designated checkout area, of which the Trading
Advisor has been advised.
6. Reconciliations:
o The Trading Advisor shall be responsible for trade reconciliation
and account balancing with the Clearing Commodity Broker and/or FX
Counterparty's designated trade reconciliation area. The Trading
Advisor shall use best efforts to provide to the General Partner a
daily reconciliation for each Partnership account by no later than
10:00 a.m. EST/EDT. Such reconciliation will specify those trades to
be added to and/or canceled from an account, provide a valuation
versus current settlement prices of such trades, and advise of any
other pending cash adjustments due from Executing Brokers. The 10:00
a.m. time requirement is contingent upon the Clearing Commodity
Broker fulfilling its balancing obligations on an equally timely
basis.
o The Trading Advisor shall report to the General Partner any
incorrect settlement and/or closing price of which it becomes aware
with regard to the Clearing Commodity Broker's account statement(s)
for the Partnership.
7. Foreign Currency Conversions:
o The Trading Advisor shall be responsible for the conversion of
foreign currency balances to U.S. dollars. The Trading Advisor may,
at its discretion, place such foreign currency conversion trades as
may be necessary. Conversion trades should be verified in the
Trading Advisor's daily checkout or trade recap, account balancing,
and reconciliation procedures.
8. Monitoring of Delivery Periods, Option Expirations and Trade Settlement:
o The Trading Advisor shall be responsible for monitoring first notice
(delivery) dates, last trading dates, option expiration dates, and
forward settlement and/or maturity dates. The Trading Advisor shall
also take appropriate steps to ensure that it has exited positions
prior to delivery, expiration and settlement. With regard to option
positions, the Trading Advisor must, in a timely fashion,
communicate to the Clearing Commodity Broker's and/or FX
Counterparty's designated area proper notice of its intentions
regarding all such open positions that are due to expire.
9. Trading Errors:
o The Trading Advisor must inform the General Partner and Clearing
Commodity Broker of any such occasion in which trades are placed in
error. The provisions of Section 2(d) of this Agreement shall be
interpreted to mean that the benefit of profitable trading errors
made by the Trading Advisor when trading on behalf of the
Partnership shall be awarded to the Partnership, whereas the
detriment of unprofitable trading errors made by the Trading Advisor
when trading on behalf of the Partnership must be borne by the
Trading Advisor.
EXHIBIT B
Futures Interests Traded
THE WINTON DIVERSIFIED TRADING PROGRAM
Exchange Bloomberg
-------- ---------
Australian Dollar CME Curncy,GAD
SPI 200 SFE Index,XP
Aluminium LME Comdty,LA
Aussie Bonds (10 yr) SFE Comdty,XM
Aussie Bonds (3 yr) SFE Comdty,YM
Australian Bills SFE Comdty,IR
BOBL EUREX Comdty,OE
T Bonds CBOT Comdty,EUS
British Pound CME Curncy,GBP
Brazilian Real CME Curncy,BR
Bunds EUREX Comdty,RX
German Long Bond EUREX Comdty,UB
CAC 40 (10EU) MATIF Index,CF
Canadian Bills ME Comdty,BA
Canadian Bonds ME Comdty,CN
Canola (Rapeseed) WCE Comdty,RS
Canadian $ CME Curncy,GCD
Czech Koruna FINEX Curncy,UZ
Cocoa CSCE Comdty,CC
London Cocoa LCE Comdty,QC
Coffee CSCE Comdty,KC
London Coffee LCE Comdty,CF
Comex Copper COMEX Comdty,HG
Copper LME Comdty,LP
Corn CBOT Comdty,C
Cotton NYCE Comdty,CT
Crude Oil NYMEX Comdty,XX
Xxxxx Crude Oil IPE Comdty,CO
Crude Oil (E-Mini) NYMEX Comdty,EC
Crude Oil WTI (IPE) IPE Comdty,EN
DAX EUREX Index,GX
DJ Euro Stoxx EUREX Index,VG
DJ EuroStoxx Banks EUREX Index,CA
DJIA (E-Mini) CBOT Index,DM
Euribor (Liffe) LIFFE Comdty,ER
Euro CME Curncy,GEC
Eurodollar CME Comdty,GE
Euroswiss LIFFE Comdty,ES
Euroyen (TIFFE) TIFFE Comdty,YE
Feeder Cattle CME Comdty,FC
FTSE LIFFE Index,Z
Gasoil IPE Comdty,QS
Gasoline TOCOM Comdty,JV
Gilts LIFFE Comdty,G
Gold COMEX Comdty,GC
Gold (CBOT) CBOT Comdty,ZP
Hang Seng HKFE Index,HI
Heating Oil NYMEX Comdty,HO
Hungarian Forint FINEX Curncy,UF
IBEX 35 MEFF RV Index,IB
JGB (Mini) SIMEX Comdty,XX
Xxx CME Curncy,GJY
Live Cattle CME Comdty,LC
Lead LME Comdty,LL
Hogs CME Comdty,LH
Lumber CME Comdty,LB
S&P MIB IDM Index,ST
E Mini S&P Midcap CME Index,FA
Mexican Peso CME Curncy,GPE
Nasdaq Mini CME Index,NQ
Natural Gas (NYMEX) NYMEX Comdty,NG
Natural Gas (E-Mini) NYMEX Comdty,EO
New Zealand Dollar CME Curncy,GNV
Nickel LME Comdty,LN
Nikkei 225 SIMEX Index,NI
New Zealand Bills SFE Comdty,ZB
Oats CBOT Comdty,O
Orange Juice NYCE Comdty,JO
Palladium NYMEX Comdty,PA
Palm Oil MDV Comdty,KO
Pork Bellies CME Comdty,PB
Platinum NYMEX Comdty,PL
Polish Zloty CME Curncy,PP
Rough Rice CBOT Comdty,XX
Xxxxxxx Mini CME Index,XX
Xxxxx CME Curncy,RU
E Mini S&P CME Index,ES
Soybean Oil CBOT Comdty,XX
Xxxxxx EUREX Comdty,DU
Swiss Franc CME Curncy,GSF
Short Sterling LIFFE Comdty,L
Silver COMEX Comdty,SI
Silver (CBOT) CBOT Comdty,ZI
Soybeans CBOT Comdty,S
Soybean Meal CBOT Comdty,SM
South African Rand CME Curncy,RA
Sugar CSCE Comdty,SB
London Sugar LCE Comdty,QW
Swiss Bonds EUREX Comdty,FB
Taiwan Stock Index SIMEX Index,TW
Tin LME Comdty,LT
10yr Notes CBOT Comdty,ETY
2yr Notes CBOT Comdty,TU
5yr Notes CBOT Comdty,EFV
S&P TSE 60 ME Index,PT
Unleaded Gasoline NYMEX Comdty,HU
Volatility Index CBOE Index,UX
Wheat CBOT Comdty,W
Kansas City Wheat KCBOT Comdty,XX
Xxxxxxxx / J Yen FINEX Curncy,YK
Euro / Yen FINEX Curncy,JR
Zinc LME Comdty,LX
EXHIBIT C
TRADING AUTHORIZATION
Xxxxxx Capital Management Limited
0-0 Xx. Xxxx Xxxxx'x Xxxxx
Xxxxxx X0 0XX
Xxxxxx Xxxxxxx
Ladies and Gentlemen:
XXXXXX XXXXXXX CHARTER WCM L.P., a Delaware limited partnership (the
"Partnership"), does hereby make, constitute, and appoint XXXXXX CAPITAL
MANAGEMENT LIMITED, a United Kingdom company, (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 October 13, 2006 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 CHARTER WCM L.P.
By: Demeter Management Corporation,
General Partner
By:
--------------------------------
Xxxxxx Xxxxx, President
Dated: _______, 2006
