CAMPBELL GLOBAL TREND FUND, L.P. AMENDED AGREEMENT OF LIMITED PARTNERSHIP
Exhibit 4.1
XXXXXXXX GLOBAL TREND FUND, L.P.
AMENDED AGREEMENT OF LIMITED PARTNERSHIP
AMENDED AGREEMENT OF LIMITED PARTNERSHIP
This Second Amended Limited Partnership Agreement of Xxxxxxxx Global Trend Fund, L.P. (the
“Fund” or the “Partnership”), is entered into as of November 1, 2010 (this “Agreement”), by and
among Xxxxxxxx & Company, Inc., a Maryland corporation, as general partner (the “General Partner”
or “Xxxxxxxx & Company), and those other parties who may be hereafter admitted to the Fund and who
shall execute this Agreement, whether in counterpart, by separate instrument or otherwise, as
limited partners of the Fund (collectively the “Limited Partners”) executed by Xxxxxxxx & Company,
Inc. as general partner, in accordance with the provisions hereinafter set forth. This Agreement
amends and restates in its entirety the Amended Limited Partnership Agreement of the Fund dated as
of January 1, 2010.
WITNESSETH:
WHEREAS, the General Partner heretofore filed an Amended Certificate of Limited Partnership
with the Office of the Secretary of State of the State of Delaware under and pursuant to the
Delaware Revised Uniform Limited Partnership Act (6 Del. C. § 17-101 et seq., as amended
from time to time, the “Act”); and
WHEREAS, the parties desire to enter into this Agreement to: (i) set forth their respective
interests, rights, powers, authority, duties, responsibilities, liabilities and obligations in and
with respect to the Fund, as well as the respective interests, rights, powers, authority, duties,
responsibilities, liabilities and obligations of persons who may hereafter be admitted to the Fund
as Limited Partners in accordance with the provisions hereof, and (ii) provide for the management
and conduct of the business and affairs of the Fund.
NOW, THEREFORE, in consideration of the mutual premises and agreements made herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE 1.
NAME; APPOINTMENT OF GENERAL PARTNER; CONTINUATION
1.1. Name; Appointment of General Partner. The name of the Fund is Xxxxxxxx Global
Trend Fund, L.P. (the “Fund”). Xxxxxxxx & Company, Inc. shall be the General Partner of the Fund
and the General Partner shall be the General Partner of each Series (as defined herein). The
General Partner shall determine in its sole discretion the name or designation of any Series in the
Fund. The General Partner may, without the approval of the other Limited Partners, establish and
designate one or more additional Series and Classes (which may invest in the same or different
portfolios), change the name of the Fund or the name or designation of any Series or Class in the
Fund, or cause the Fund or any Series or Class in the Fund to transact business under another name.
The General Partner shall notify all Limited Partners and their permitted assigns of which it has
written notice of any such change. Any use in this Agreement of the term “Fund” shall, should the
context so require, be deemed to be a reference to any Series and any use in this Agreement of the
terms “Limited Partner,” “Capital Account,” “Capital Contribution” or “Interest” shall, should the
context so require, be deemed to be a reference to a Limited Partner, Capital Account, Capital
Contribution or Interest of any Series. The use of the terms “Fund” or “Series” in this Agreement
shall in no event alter the intent of the parties hereto that the Fund, may in the future, at the
General Partner’s discretion, receive the full benefit of the limitations on inter-Series liability
as set forth in the Act.
1.2. Formation and Continuation. The General Partner has formed the Fund as a series
limited partnership containing one or more series of limited partner interests pursuant to and in
accordance with the provisions of the Act. The General Partner has caused to be executed and filed
with the Secretary of State of the State of Delaware an Amended Certificate of Limited Partnership
conforming to the requirements of the Act which such Amended Certificate of Limited Partnership
provides for the limitation of liability of each Series (as may be so designated and established)
to the debts, liabilities, obligations and expenses of such Series and not those of any other
Series or the Fund in general, so that the liability of each Series shall be segregated and the
liability of each additional Series, as designated, may be segregated as such in the future, in the
sole discretion of the General Partner. The General Partner and the Limited Partners are entering
into this Agreement in order to provide for the
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establishment and continuation of the Fund as a series limited partnership under the Act and
the General Partner and shall execute, file and record as appropriate such amendments, assumed name
certificates and other documents as are or become necessary or advisable in connection with the
Fund as determined by the General Partner from time to time.
ARTICLE 2.
PRINCIPAL PLACE OF BUSINESS; REGISTERED OFFICE AND REGISTERED AGENT; LIMITED
PARTNERS NOT AGENTS
PARTNERS NOT AGENTS
2.1. Principal Place of Business. The principal office of the Fund shall be located at
0000 Xxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, or such other place as the General Partner may
designate from time to time.
2.2. Registered Office and Registered Agent. The registered office of the Fund in the
State of Delaware shall be at Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000. The registered agent for service of process on the Fund shall be The
Corporation Trust Company. The General Partner may from time to time change such registered agent
and registered office and shall give prompt notice of any such change to each Limited Partner.
2.3. Limited Partners Not Agents. Except as specifically provided herein, nothing
contained herein shall be construed to constitute any Limited Partner the agent of any other
Limited Partner.
ARTICLE 3.
BUSINESS AND PURPOSE OF THE FUND
The business and purpose of the Fund is to, directly or indirectly, trade, buy, sell, swap or
otherwise acquire, hold or dispose of any and all commodities (including, but not limited to,
foreign currencies, money market instruments, and any other financial instruments or items which
are now, or may hereafter be, the subject of futures contract trading), domestic and foreign
futures contracts, forward contracts, foreign exchange commitments, options on physical commodities
and on futures contracts, spot (cash) commodities and currencies, and any rights pertaining
thereto, as well as swaps and other derivatives of any type or nature whatsoever, whether currently
existing or hereafter developed, whether traded on an organized exchange or otherwise, to engage in
all activities necessary, convenient or incidental thereto and to carry on such other businesses,
purposes, or activities as may be set forth from time to time in the Fund’s Disclosure Document, as
amended or supplemented from time to time (the “Prospectus”). The Fund may also engage in “hedge,”
arbitrage and cash trading of any of the foregoing instruments. The Fund may engage in such
business and purpose either directly or through subsidiaries, joint ventures, entities or
partnerships, provided that the Fund’s participation in any of the foregoing has no adverse
economic or liability consequences for the Limited Partners, which consequences would not be
present had the Fund engaged in that same business or purpose directly. The objective of the
Fund’s business is appreciation of its assets through speculative trading.
The Fund shall possess and may exercise all the powers and privileges granted by the Act or by
any other law or by this Agreement, together with any powers incidental thereto, including such
powers and privileges as are necessary, appropriate, advisable or convenient to the conduct,
promotion or attainment of any business, purpose or activity of the Fund.
ARTICLE 4.
TERM, DISSOLUTION AND FISCAL YEAR
TERM, DISSOLUTION AND FISCAL YEAR
4.1 Term. The term of the Partnership commenced upon the execution and filing of the
Certificate of Limited Partnership, as amended, and shall end upon the first to occur of the
following: (i) an election to dissolve the Partnership in accordance with the provisions of Article
4.2 by Limited Partners owning more than 50% of the Units then outstanding; (ii) the withdrawal of
the General Partner, as defined in, and subject to the limitations of Article 13; (iii) a
determination by the General Partner that the purpose of the Partnership cannot be fulfilled; or
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(iv) any event which constitutes a dissolution of a limited partnership under the Act or otherwise
makes it unlawful for the existence of the Partnership to be continued.
4.2 Dissolution. Upon the occurrence of an event causing the dissolution of the Partnership,
the Partnership shall be wound up and terminated. Upon dissolution and termination of the
Partnership, the General Partner shall contribute to the Partnership an amount equal in the
aggregate to the lesser of (a) the deficit balance in their capital accounts, or (b) the excess of
1.01% of the total capital contributions paid in by the Limited Partners over any capital
previously contributed by the General Partner. Payment of creditors, and distribution of the
Partnership’s assets shall be effected as soon as practicable in accordance with the Act, and the
General Partner and each Limited Partner (and any assignee) shall share in the assets of the
Partnership pro rata in accordance with such Partner’s respective capital account, less any amount
owing by such Partner (or assignee) to the Partnership.
4.3 Fiscal Year. The fiscal year of the Partnership shall end on December 31, unless the
General Partner elects, with the approval of the Internal Revenue Service and the CFTC, a different
fiscal year.
ARTICLE 5.
GENERAL PARTNER
GENERAL PARTNER
5.1 The General Partner is Xxxxxxxx & Company, Inc., a Maryland corporation, 0000 Xxxxxx Xxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
ARTICLE 6.
CAPITAL CONTRIBUTIONS AND
UNITS OF LIMITED PARTNERSHIP INTEREST
CAPITAL CONTRIBUTIONS AND
UNITS OF LIMITED PARTNERSHIP INTEREST
6.1 Units and Capital Contributions of Limited Partners. Interests in the Partnership, other
than the General Partner’s interests, shall be evidenced by Units (individually a “Unit”).
6.2 Capital Contributions by General Partner; Net Worth. The General Partner has contributed
cash to the capital of each Series of the Partnership respectively in an amount equal to the
greater of (i) 1% of the net aggregate contributions of all Partners in each Series including the
General Partner or (ii) $25,000. The General Partner’s contribution shall be evidenced by Units of
General Partnership Interest. The General Partner may make withdrawals of its Units provided that
such withdrawals do not reduce the General Partner’s aggregate percentage interest in each Series
of the Partnership below the levels described in the previous sentence. If additional Limited
Partners are admitted during any Continuing Offering pursuant to the provisions of Article 11
herein, the General Partner shall make such additional capital contributions as may be required to
maintain its interest at the required level in each Series of the Partnership at all times during
the term of the Partnership. The General Partner shall maintain a net worth so long as it acts as
general partner equal to at least 5% of the capital contributed by all the limited partnerships for
which it acts as general partner, including the Partnership. The minimum required net worth shall
in no case be less than $50,000 nor shall net worth in excess of $1,000,000 be required.
6.3 Issuance and Sale of Units. The Fund is authorized to issue an unlimited number of Units.
The General Partner is authorized to admit as Limited Partners, in compliance with applicable law,
any person and may issue Units to such Limited Partners. In connection with the Fund’s offering of
Units, the General Partner, on behalf of the Fund, shall: (i) qualify Units for sale initially and
on a continuing basis under the Blue Sky and securities laws of such states of the United States or
other jurisdictions as the General Partner shall deem advisable; (ii) make such arrangements for
the offering and sale of Units as it shall deem appropriate; and (iii) take such action with
respect to the matters described in clauses (i) and (ii) as it shall deem advisable or necessary.
The General Partner in its discretion may, from time to time, without vote of the Limited Partners,
issue Units, in addition to the then issued and outstanding Units, to such party or parties at the
then current net asset value of such Units in connection with the business of the Fund. In
connection with any issuance of Units, the General Partner may issue fractional Units.
6.4 Establishment of Series. The General Partner, on behalf of the Fund, shall designate
various series of Units (each Series of Units is referred to herein as a “Series”), and each Series
may have such general partners, separate business purposes, investment objectives, rights, powers
or duties with respect to specified property or obligations of such Series or the Fund, as
applicable, or profits and losses associated with specified property or
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obligations, and such other rights as the General Partner shall determine. The General
Partner, in addition to being the general partner of the Fund, shall be the general partner
associated with each Series designated and established hereunder. The General Partner hereby
establishes and designates the following Series: the “Global Trend Series (USD)” and the “Global
Trend Series (GLD)”. Additional Series of Units may be offered from time to time in the discretion
of the General Partner and the terms of any such Series shall be determined by the General Partner
and set forth in the Prospectus. Separate and distinct records may be maintained for each Series
and the Fund may hold and account for the assets associated therewith separately from the other
Fund property and the assets associated with any other Series. Each Unit of a Series (or a Class
thereof,) shall represent an equal beneficial interest in the net assets associated with that
Series (or Class thereof).
The General Partner, in its sole discretion, shall organize the Fund so that the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect
to a particular Series or a general partner associated with such Series shall be enforceable only
against the assets of such Series or a general partner associated with such Series, and not against
the assets of the Fund generally, any other Series thereof or any general partner not associated
with such Series, and none of the debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to the Fund generally or any other Series thereof shall be
enforceable against the assets of such Series or a general partner associated with such Series.
With respect to debts, liabilities, obligations and expenses which relate to the Fund generally or
more than one Series, the General Partner in its discretion may allocate and apply such debts,
liabilities, obligations and expenses to and among certain Series as the General Partner considers
appropriate.
A Series may have a business purpose or investment strategy that differs from other Series. A
Series may be treated as a separate partnership for U.S. federal income tax purposes, in the
General Partner’s discretion. Every written agreement, instrument or other undertaking made or
issued by or on behalf of a particular Series may include a recitation limiting the obligation or
claim represented thereby to that Series and its assets.
6.5 Classes. Within each Series the General Partner may designate Units into any number of
classes (each a “Class”). The Global Trend Series (USD) shall consist initially of Class A, Class
B, Class C, Class D and Class E Units. The Global Trend Series (GLD) shall consist initially of
Class Gold A, Class Gold B, and Class Gold C Units. For the avoidance of doubt, the creation of
separate Classes of Units within a Series shall be for accounting purposes only, and is not
intended to separate or segregate the assets and liabilities of one Class within a Series from all
other Classes in that same Series. Further, for the avoidance of doubt, the General Partnership
Units shall be accounted for separately from all other Units and shall be considered the functional
equivalent of a separate “class” of Units for all purposes hereunder. Such General Partnership
Units shall share in the profits, losses, and expenses of the Partnership on a pro rata basis,
excluding any advisory fees, general partner fees, performance fees, and certain other expenses (or
a portion thereof) as determined by the General Partner in its sole discretion
6.6 Establishment of Additional Series and Classes. The establishment and designation of any
Series and/or Classes of Units other than those specifically named in Sections 6.4 and 6.5 above
shall be effective upon the execution by the General Partner of an instrument setting forth such
establishment and designation and the relative rights and preferences of such Series and/or
Classes, or as otherwise provided in such instrument. At any time that there are no Units
outstanding of any particular Series or Class previously established and designated, the General
Partner may, in its exclusive discretion, abolish that Series and/or Class and the establishment
and designation thereof. Each instrument referred to in this Section 6.6 shall have the status of
an amendment to this Agreement.
6.7 Availability of Contributions. The aggregate of all Partnership contributions shall be
available to the Partnership to carry on its business and purpose, and no interest shall be paid to
any Partner on any such contributions.
ARTICLE 7.
ALLOCATION OF PROFITS AND LOSSES
ALLOCATION OF PROFITS AND LOSSES
7.1 Capital Accounts. A separate capital account shall be established and maintained for each
Limited Partner, including with respect to each Series. The initial balance of each Limited
Partner’s capital account shall be the amount initially contributed to that capital account, and
shall be appropriately adjusted to reflect allocations of net profits, net losses and distributions
of cash or other property, whether through redemption or otherwise. To the
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extent that a Limited Partner purchases Units of different Series, the Fund shall establish a
separate memorandum account within the Limited Partner’s primary capital account for each Series of
Units.
7.2 Periodic Allocations. The Fund shall commence operations as a monthly liquidity fund.
Profits and losses, accordingly, initially will be allocated on a monthly basis. However, the
General Partner reserves the right, without the consent of the Limited Partners, to provide
liquidity to the Limited Partners of any existing or future Series or Class on a more frequent
basis, employing periods shorter than one month for, among other things, the allocation of profits
and losses. As of the close of business (as determined by the General Partner) on the last day of
each period and on each Redemption Date, the following determinations and allocations shall be made
with respect to each Series and each Class: (i) any increase or decrease in the Net Assets (prior
to the accrual of all fees and other charges) shall be determined; (ii) fees and charges shall then
be charged against Net Assets; (iii) accrued performance fees, if any, shall then be charged
against Net Assets; (iv) any remaining increase or decrease in the Net Assets as compared to the
last such determination of Net Assets shall be credited or charged to the capital accounts of each
Limited Partner of such Series and Class in the ratio that the balance of each capital account
bears to the balance of all capital accounts for such Series and Class; and (v) the amount of any
distribution to a Limited Partner and any amount paid to a Limited Partner on redemption of Units
shall be charged to such Limited Partner’s capital account.
7.3 Allocation of Profit and Loss for Federal Income Tax Purposes. At the end of each taxable
year, each item of Partnership taxable income, gain, loss, deduction, or credit will be allocated
among the Partners in accordance with the following provisions:
(1) Capital gain shall be allocated first to each Partner who has redeemed Units (Units of
General Partnership Interest in the case of the General Partner) during the year to the extent that
the amount the Partner received on redemption exceeds the amount paid for the redeemed Units (as
set forth in subparagraph (5));
(2) Capital gain remaining after the allocation in subparagraph (1) shall be allocated among
all Partners in the ratio that each Partner’s capital account bears to all Partner’s capital
accounts;
(3) Capital losses shall be allocated first to each Partner who has redeemed Units (Units of
General Partnership Interest in the case of the General Partner) during the year to the extent that
the amount the Partner paid for the redeemed Units (as set forth in subparagraph (5)) exceeds the
amount the Partner received on redemption;
(4) Capital losses remaining after the allocation in subparagraph (3) shall be allocated among
all Partners in the ratio that each Partner’s capital account bears to all Partners’ capital
accounts;
(5) For the purpose of the allocations of capital gain and loss in subparagraphs (1) and (3),
the amount each Partner paid for each of his Units shall be deemed to have increased by the amount
of capital gain allocated to him with respect to such Unit pursuant to subparagraph (2) or ordinary
income pursuant to subparagraph (6); decreased by the amount of any capital loss allocated to him
with respect to such Unit pursuant to subparagraph (4) or ordinary expense pursuant to subparagraph
(6); and decreased by the amount of any distributions to him with respect to such Unit pursuant to
Article 7.8;
(6) Items of ordinary income and expense will be allocated pro rata among the Partners based
upon their respective capital accounts as of the end of each month in which the items of ordinary
income or expense accrue; provided that any performance fee paid to the General Partner shall be
allocated among the Units outstanding at any time during the fiscal year based upon the ratio that
each such Unit’s net performance fee (the excess, if any, of the aggregate of all performance fees
allocated to the capital account relating to such Unit over the aggregate of all reversals of
performance fees allocated to such Unit) bears to the net performance fee of all Units;
(7) Notwithstanding subparagraphs (4) and (6), if the allocation of such loss would cause a
Limited Partner to have a capital account deficit, then such loss shall be allocated to the General
Partner, according to its capital account, to the extent of such losses;
(8) For purposes of this Paragraph 7.3, “capital gain” and “capital loss” shall mean gain or
loss characterized as gain or loss from the sale or exchange of a capital asset by the Internal
Revenue Code of 1986, as
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amended (the “Code”), including but not limited to gain or loss required to be taken into
account pursuant to Section 1256 thereof and any income, gain or loss determined under Section 988
of the Code; and
(9) Allocations of capital gain or loss will be made pro rata from each category of capital
gain or loss determined under Section 1(h) of the Code and income or loss determined under Section
988 of the Code.
7.4 Definitions; Accounting.
(1) Net Assets. “Net Assets” of the Partnership shall mean the total assets of the
Partnership, including all cash and cash equivalents (valued at cost), plus accrued interest
thereon, and the market value of all open commodity positions and other assets of the Partnership,
less all liabilities of the Partnership, including accrued performance fees determined in
accordance with the principles specified in this subparagraph and, where no principle is specified,
in accordance with generally accepted accounting principles consistently applied under the accrual
basis of accounting. The market value of a commodity or commodity futures contract traded on an
exchange, or through a clearing firm or through a bank, shall mean the most recent available
settlement price or closing quotation, as appropriate on the exchange, or of the clearing firm or
bank on or through which the commodity or contract is traded by the Partnership on the day with
respect to which Net Assets are being determined. If such contract cannot be liquidated, due to the
operation of daily limits or otherwise, on a day as of which Net Assets are determined, the
liquidating value on the first subsequent day on which the contract would be liquidated may be used
or such other value as the General Partner may deem fair and reasonable. The market value of a
commodity forward contract or a commodity futures contract traded on a foreign exchange shall mean
its market value as determined by the General Partner on a basis consistently applied. The “Net
Assets of a ‘Series’ or ‘Class’” shall mean the Net Assets of the Partnership, on a
Series-by-Series or Class-by-Class basis.
(2) Net Asset Value. The “Net Asset Value” of the Partnership shall mean the total capital
accounts of all Partners. The “Net Asset Value” of a Series or Class shall mean the Net Asset Value
of the Partnership on a Series-by-Series or Class-by-Class basis. The “Net Asset Value” of a Unit
shall be the total capital accounts of all Partners, divided by the number of Units owned by all
Partners.
(3) Blue Sky Glossary. The definitions in the Blue Sky Glossary in Appendix I to the
Partnership’s Prospectus are hereby incorporated herein by reference.
7.5 Expenses.
(1) The Fund, and in turn, each Class of Units (excluding Class E (USD) Units and Class C
(GLD) Units), shall pay, monthly, its organization and offering expenses (collectively, “Offering
Costs”) as incurred, subject to an annual cap of 0.50% of the Fund’s, and in turn, each Class of
Units’, month end net asset value. Such Offering Costs include all fees and expenses in connection
with the distribution of the Units, including legal, accounting, printing, mailing, filing fees,
escrow fees, salaries and bonuses of employees while engaged in sales activities (including
wholesaling), and marketing expenses of Xxxxxxxx & Company and the selling agents which are paid by
the Fund. Any Offering Costs incurred in excess of the aforementioned annual cap are initially
paid by the trading advisor; provided, however, that the Fund reimburses the Offering Costs paid by
the trading advisor at such time, if any, as the Fund is able to do so within the limit of the
aforementioned cap. In its discretion, the General Partner may require the Fund to reimburse the
General Partner in any subsequent calendar year for amounts that exceeded these limits in any
calendar year, provided that the maximum amount reimbursed by the Fund in any calendar year not
exceed the overall limits set forth above. In no event will the reimbursement exceed 2.5% of the
total subscriptions accepted by the Fund. In no event shall the Offering Costs paid by the Fund
exceed the limits set by the NASAA Guidelines during such time as the Units are registered for sale
to the public. Each Class of Units (excluding Class E (USD) Units and Class C (GLD) Units) shall be
specifically allocated its pro rata Share of the Offering Costs.
(2) The Partnership shall be obligated to pay all liabilities incurred by it, including
without limitation, (i) advisory and general partner fees payable to Xxxxxxxx & Company; (ii) fees
payable to the futures broker and over-the-counter counterparty; (iii) selling commissions and
broker-dealer custodial fees as described in the Prospectus payable to the selling agents; (iv)
operating expenses and performance fees; (v) administrative, legal and accounting fees; and (vi)
taxes and other extraordinary expenses incurred by the Partnership. During any year of
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operations,
the
General Partner shall be responsible for payment of operating expenses in excess of 0.5% of
the Partnership’s month-end Net Asset Value during that year. Indirect expenses of the General
Partner, such as indirect salaries, rent and other overhead expenses, shall not be liabilities of
the Partnership. The Partnership shall receive all interest earned on its assets.
(3) Class A (USD) Units, Class C (USD) Units, Class A (GLD) Units, and Class B (GLD) Units
shall pay a monthly broker-dealer custodial fee of 0.25% of each respective Class’s month-end net
asset value per annum to the selling agents (the firm, not the individual) provided, however that
the total of such broker-dealer custodial fees per Unit do not exceed 1.0% of the gross offering
proceeds of Class A (USD) Units and Class A (GLD) Units and 6% of the gross offering proceeds of
Class C (USD) Units and Class B (GLD) Units.
(4) Compensation to any party, including the General Partner (or any advisor which may be
retained in the future), shall not exceed the limitations imposed as of the date hereof by the
North American Securities Administrators Association (“NASAA”). In the event the compensation
exceeds such limitations, the General Partner shall promptly reimburse the Partnership for such
excess. NASAA limitations on fees are as follows: general partner fees, advisory fees and all other
fees paid to the General Partner, except for performance fees and commodity brokerage commissions,
when added to organization and offering expenses, shall not exceed 6% annually of net asset value.
The aggregate performance fees shall not exceed 15% of new trading profits. The sponsor or advisor
will be entitled to an additional 2% performance fee for each 1% by which the net asset value fee
(including any general partner or advisory fees paid to the General Partner and organization and
offering expenses) is reduced below 6%. Commodity brokerage rates will be presumptively reasonable
if they satisfy either 80% of the published retail rate plus pit brokerage fees or 14% annually of
average net assets, including pit brokerage fees. Each Class of Units of the Partnership will pay
to the futures brokers and over-the-counter counterparty up to 1% of the net asset value of that Class of Units, respectively. Each Class of Units will pay Xxxxxxxx & Company a monthly
(i) advisory fee at the annual rate of 2% and (ii) general partner fee at an annual rate of 1%, of
the net asset value of that Class of Units, respectively, prior to any accrual for or payment of
any general partner fee, advisory fee, performance fee, redemption or subscription during said
month, allowing the performance fee to be 20%, as discussed above.
(5) The Partnership will pay to selected selling agents who have sold Class A (USD) Units,
Class B (USD) Units, and Class A (GLD) Units selling commissions of 2% of each subscription of
Class A (USD) Units, Class B (USD) Units, and Class A (GLD) Units (which includes the initial
distribution of the Units, execution of commodity transactions, and ongoing services to the Limited
Partners), which is less than the 14% limit imposed by NASAA. The amount paid to selling agents of
Class A (USD) Units, Class B (USD) Units, and Class A (GLD) Units sold pursuant to each disclosure
document will not, however, exceed 8.0% of the gross offering proceeds of the Class A (USD) Units
and ClassA (GLD) Units and 9.0% of the gross offering proceeds of the Class B (USD) Units sold
pursuant to the disclosure document. The Partnership will pay selected selling agents (the firm and
not the individual) who have sold Class A (USD) Units, Class C (USD) Units, Class A (GLD) Units,
and Class B (GLD) Units a broker-dealer custodial fee of 0.25% of each respective Class’s month-end
net asset value per annum provided, however that the total of such broker-dealer custodial fees per
Unit do not exceed 1.0% of the gross offering proceeds of Class A (USD) Units and Class A (GLD)
Units and 6% of the gross offering proceeds of Class C (USD) Units and Class B (GLD) Units.
Once total underwriting compensation, including, but not limited to, the fees mentioned in the
preceding paragraph, paid on any Class A (USD) Unit, Class B (USD) Unit, Class C (USD) Unit, Class
D (USD) Unit, Class A (GLD) Unit or Class B (GLD) Unit reaches 10% of the gross offering proceeds,
(1) the Class A (USD) Unit, Class B (USD) Unit, Class C (USD) Unit or Class D (USD)Unit will
automatically be re-designated as Class E (USD) Units., which are identical to Class A
(USD) Units, Class B (USD) Units, Class C (USD) Units and Class D (USD) Units except that Class E
(USD) Units do not pay any offering expenses, selling agent fee, broker-dealer custodial fee
payable to the selling agents and, if applicable, redemption fees, and (2) the Class A (GLD) Unit
or Class B (GLD) Unit will automatically be re-designated as Class C (GLD) Units, which are
identical to Class A (GLD) Units and Class B (GLD) Units, except that Class C (GLD) Units do not
pay any offering expenses, selling agent fee, broker-dealer custodial fee payable to the selling
agents and, if applicable, redemption fees.
(6) The Partnership shall also be obligated to pay any costs of indemnification to the extent
permitted under Article 15 of this Agreement.
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7.6 Limited Liability of Limited Partners. Each Unit purchased by a Limited Partner is fully
paid and non-assessable. A Limited Partner shall be liable for the Partnership’s obligations to the
extent of the capital contributed by him plus his share of profits remaining in the Partnership, if
any.
In addition, if a Limited Partner receives a return of any part of his capital contribution,
he shall be liable to the Partnership for a period of one year thereafter for the amount of the
returned contribution, but only to the extent
necessary to discharge the Partnership’s liabilities to creditors who extended credit to the
Partnership during the period the contribution was held by the Partnership.
A Limited Partner shall also be liable to the Partnership for return of any part of his
capital contribution returned to him, for a period of six years, if such return was in violation of
this Agreement or the Act.
7.7 Return of Limited Partner’s Capital Contribution. Except to the extent that a Limited
Partner shall have the right to redeem Units, no Limited Partner shall have any right to demand the
return of his capital contribution or any profits added thereto, except upon dissolution and
termination of the Partnership. In no event shall a Limited Partner be entitled to demand or
receive property other than cash.
7.8 Distributions. The General Partner shall have sole discretion in determining what
distributions (other than on redemption of Units or dissolution), if any, the Partnership will make
to its Partners (or any assignee thereof). Distributions shall be made pro rata in accordance with
the respective capital accounts of the Partners.
ARTICLE 8.
MANAGEMENT
MANAGEMENT
8.1 General.
(1) The General Partner, to the exclusion of the Limited Partners, shall conduct and manage
the business of the Partnership including, without limitation, all functions necessary for
administration of the Partnership. The General Partner shall have the fiduciary responsibility for
the safekeeping and use of all assets of the Partnership, whether or not in its immediate
possession or control, shall not contract away such duty and shall not employ or permit another to
employ such assets in any manner except for the exclusive benefit of the Partnership. The General
Partner, on behalf of the Partnership, shall make all investment decisions regarding the
Partnership and shall have complete trading discretion. The General Partner shall seek the best
price and services available in its futures brokerage transactions, and all brokerage transactions
for the Partnership’s futures trades will be effected at competitive rates.
(2) The General Partner shall receive from the Partnership: (i) advisory fee of 2% per annum
of the month-end Net Asset Value of all Classes of Units; general partner fee of 1% per annum of
the month-end Net Asset Value of all Classes of Units; and (ii) a quarterly “performance fee” of
20% of the Partnership’s aggregate cumulative appreciation in the Net Asset Value per Unit,
exclusive of interest income. The performance fee is paid on the cumulative increase, if any, in
the Net Asset Value per Unit over the highest previous cumulative Unit value or Unit value as of
the commencement of trading, whichever is higher. In determining the fees in this paragraph,
adjustments shall be made for capital additions and withdrawals and Net Assets shall not be reduced
by the performance fees being calculated for such current period. Such fees may be changed upon
sixty days’ notice to the Limited Partners, provided that prior to the imposition of the revised
fees, Limited Partners have an opportunity to redeem (and there are no delays in receiving payment
therefor) and the notice explains their redemption and voting rights. Further, any new contract
with any advisor, including the General Partner, shall carryforward all losses attributable to such
advisor or General Partner, as the case may be.
(3) The General Partner may take such other actions as it deems necessary or desirable to
manage the business of the Partnership including, but not limited to, the following: entering into
commercially reasonable contracts, opening bank accounts, paying or authorizing the payment of
distributions to the Partners and expenses of the Partnership including fees to the General
Partner, taxes and other fees of governmental agencies.
(4) The General Partner shall keep and retain for at least six years, at the principal office
of the Partnership, such books and records relating to the business of the Partnership as it deems
necessary to substantiate that Units
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were sold only to purchasers for whom such securities were suitable and which are required by
the Commodity Exchange Act, and the rules and regulations thereunder. Such books and records shall
be available to any Limited Partner or his authorized attorney or agent for inspection and copying
during normal business hours of the Partnership.
(5) The General Partner may engage in other business activities and shall not refrain from any
other activity nor disgorge any profits from any such activity, whether as general partner of
additional partnerships for investment in commodity futures or forward contracts or otherwise.
Subject to the terms and conditions set forth in this Agreement, the General Partner may engage and
compensate on behalf of the Partnership, from funds of the Partnership, such persons, firms or
corporations, as the General Partner in its sole judgment shall deem advisable for the conduct and
operation of the business of the Partnership. The General Partner may develop and implement a cash
management facility. In such event, the General Partner may cause the Partnership to participate in
such facility if doing so would be in the best interests of the Partnership. Competitive management
fees may be paid to the General Partner or an affiliate thereof.
(6) No person dealing with the General Partner shall be required to determine its authority to
make any undertaking on behalf of the Partnership, nor to determine any fact or circumstance
bearing upon the existence of such authority.
(7) Except as provided by Article 13, the General Partner may not sell, assign, or otherwise
dispose of all or substantially all of its General Partnership Interest in the Partnership except
for a sale or transfer of all Partnership interests of all Partners or a sale of all or
substantially all of its interest to a corporation controlled by such General Partner. The
foregoing restriction shall not be applicable to the General Partner mortgaging, pledging,
hypothecating or granting a security interest in its General Partnership Interest as collateral for
a loan or loans and any such assignment of all or any portion of the General Partner’s Interest
shall not cause an event of withdrawal with respect to the General Partner pursuant to Article 13
of this Agreement.
(8) The maximum period covered by any contract entered into by the Partnership, except for
certain provisions which survive the stated term, shall be one year. Agreements between the
Partnership and the General Partner or any affiliate shall be terminable by the Partnership without
penalty on 60 days’ written notice. All sales of Units in the United States shall be made by
registered brokers. No sales will be made by the General Partner or an affiliate.
8.2 Prohibitions. The Partnership shall not: (i) engage in pyramiding; (ii) commingle its
assets with the assets of any other person, except as permitted by law; (iii) make loans to the
General Partner or any affiliate thereof or to any person; (iv) pay per-trade compensation to the
General Partner or any advisor or any affiliate thereof or to any person who receives any other
form of compensation from the Partnership; or (v) permit rebates or give-ups to be received by the
General Partner or affiliates thereof nor shall the General Partner participate in any reciprocal
business arrangements which would circumvent the foregoing or any other provision of this
Agreement; or (vi) borrow cash or other assets from the General Partner.
ARTICLE 9.
REPORTS TO LIMITED PARTNERS
REPORTS TO LIMITED PARTNERS
The books and records of the Partnership shall be audited annually by an independent certified
public accountant. Net Assets and Net Asset Value per Unit shall be determined daily and will be
supplied in writing to any Limited Partner who requests such information. The General Partner will
cause each Partner to receive (i) within ninety (90) days after the close of each fiscal year an
annual report with audited financial statements (including a balance sheet and income statement)
for the fiscal year then ended, and (ii) within seventy-five (75) days after the close of each
fiscal year such tax information as is necessary for the Partner to complete his Federal income tax
return. In addition, the General Partner will report within 30 days after the end of each month to
the Limited Partners the information required by the CFTC to be reported, which information
currently includes the following: the total amount of realized net gain or loss on commodity
interest positions liquidated during the month; the change in unrealized net gain or loss on
commodity interest positions during the month; the total amount of net gain or loss from all other
transactions engaged in by the Partnership during the month, including interest earned; the total
amount of (i) the general partner and advisory fees payable to Xxxxxxxx & Company; (ii) fees
payable to the futures
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broker and over-the-counter counterparty; (iii) fees payable by Class A (USD) Units, Class B
(USD) Units, and Class A (GLD) Units to the selling agents who have sold Class A (USD) Units, Class
B (USD) Units and Class A (GLD) Units; and (iv) performance fees, and all other expenses incurred
or accrued by the Partnership during the month; the Net Asset Value of a Unit as of the end of the
month and as of the end of the previous month; the total amount of additions to the Net Assets of
the Partnership made during the month; the total amount of withdrawals from and redemptions of
Units for the month; and the total net income or loss of the Partnership during the month. In the
event either Net Asset Value per Unit as of the end of any business day declines by more than 50%
of the previous year-end or month-end Net Asset Value per Unit, or there is a material change in
the advisory agreement with the General Partner or otherwise affecting the compensation to any
party, including the General Partner, the General Partner will notify each Limited Partner of such
information, their redemption and voting rights and any material effect on the Units within seven
business days. In the event of the 50% decline in Net Asset Value per Unit referred to in the
previous sentence, the General Partner will declare a special redemption period and temporarily
suspend the Partnership’s trading during such period.
ARTICLE 10.
DISPOSITIONS AND REDEMPTIONS OF PARTNERSHIP UNITS
DISPOSITIONS AND REDEMPTIONS OF PARTNERSHIP UNITS
10.1 Permissible Dispositions. A Limited Partner may transfer, assign, pledge, or encumber his
Units only as provided in this Article 10.1. No such transferee, pledgee, assignee, or secured
creditor shall become a substituted Limited Partner unless the General Partner consents in writing
to such substitution. The General Partner has complete discretion to withhold consent but only
intends to do so in order to prevent or minimize potential adverse legal or tax consequences to the
Partnership. Any transfer or assignment of Units which is permitted hereunder shall be effective as
of the beginning of the month following the month in which such transfer or assignment is made;
provided, however, that the Partnership need not recognize any transfer, assignment, or pledge
until it has received at least 30 days’ prior written notice thereof from the transferor, assignor,
or pledgor, which notice shall include (i) the name, signature, address and social security or
taxpayer identification number of the transferee, assignee, or pledgee, (ii) the number of Units
transferred, assigned or pledged, and (iii) the signature of the transferor, assignor, or pledgor.
The General Partner may, in its discretion, waive receipt of the above described written notice or
waive any defect therein. No transfer or assignment shall be permitted unless the General Partner
is satisfied that (i) such transfer or assignment would not be in violation of the Act, (ii) the
amount of the transfer is at least the minimum subscription amount except for transfers by gift,
inheritance, or to affiliates, including family members of the person transferring the Units, and
(iii) notwithstanding such transfer or assignment, the Partnership shall continue to be classified
as a partnership rather than as a corporation or an association under the Internal Revenue Code, as
amended. No transfer or assignment of Units shall be effective or recognized by the Partnership if
following such transfer or assignment there would result a termination of the Partnership for
federal income tax purposes as provided in Code 708(b) and any attempted transfer or assignment in
violation hereof shall be ineffective to transfer or assign any such Units. Any transferee or
assignee of Units who has not been admitted to the Partnership as a substituted Limited Partner
shall not have any of the rights of a Limited Partner, except that the assignee shall receive that
share of capital and profits and shall have that right of redemption to which his assignor would
otherwise have been entitled and shall remain subject to the other terms of this Agreement binding
upon Limited Partners. The transfer or assignment of Units shall be subject to all applicable
securities laws. The transferor or assignor shall bear all costs (including any attorneys’ fees)
related to such transfer or assignment.
10.2 Redemptions.
(1) A Limited Partner (or any assignee thereof) may withdraw all or part of his capital
contribution and undistributed profits, if any, by requiring the Partnership to redeem all or part
of his Units at the Net Asset Value per Unit, reduced as hereinafter described (such withdrawal
being herein referred to as a “Redemption”).
(2) Redemptions shall be effective as of the end of any month ending after a Request for
Redemption in proper form has been timely received by the General Partner (the “Redemption Date”).
Redemption fees apply to the Class A (USD) Units, Class B (USD) Units, and Class A (GLD) Units
through the first twelve month-ends following purchase as follows: 1.833% of net asset value per
redeemed Unit through the second month-end, 1.666% of net asset value per redeemed Unit through
the third month-end, 1.500% of net asset value per redeemed Unit through the fourth month-end,
1.333% of net asset value per redeemed Unit through the fifth month-end, 1.167% of net asset value
per redeemed Unit through the sixth month-end, 1.000% of net asset value per redeemed Unit through
the
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seventh month-end, 0.833% of net asset value per redeemed Unit through the eighth month-end,
0.667% of net asset value per redeemed Unit through the ninth month-end, 0.500% of net asset value
per redeemed Unit through the tenth month-end, 0.333% of net asset value per redeemed Unit
through the eleventh month-end, 0.167% of net asset value per redeemed Unit through the twelfth
month-end. The month-end as of which the Unit is purchased is counted as the first month-end. After
the twelfth month-end following purchase of a Class A (USD) Unit, Class B (USD) Unit, or Class A
(GLD) Unit, no redemption fees apply. Because the purchase date counts as the first month-end in
determining whether a redemption fee applies, no redemption fee would be due in respect of a Class
A (USD) Unit, Class B (USD) Unit, or Class A (GLD) Unit redeemed on the first anniversary of the
xxxxxxxx.Xx used herein, “Request for Redemption” shall mean a written request of such
withdrawal transmitted by the Limited Partner (or any assignee thereof) to the General Partner not
less than ten business days prior to the end of the month or such shorter period as established by
the General Partner. Upon Redemption, a Limited Partner (or any assignee thereof) shall receive,
per Unit redeemed, an amount equal to the Net Asset Value per Unit as of the Redemption Date, less
any amount owing by such Limited Partner (and his assignee, if any) to the Partnership pursuant to
Article 15.3, and less any applicable redemption fees due to the General Partner. If redemption is
requested by an assignee, all amounts owed to the Partnership under Article 15.3 by the Partner to
whom such Unit was sold, as well as all amounts owed by the assignees of such Unit, shall be
deducted from the amount payable upon Redemption by any assignee. All Requests for Redemption in
proper form shall be honored and payment will be made within twenty (20) business days following
the Redemption Date, except that under special circumstances, including, but not limited to, the
inability on the part of the Partnership to liquidate commodity positions or the default or delay
in payments due the Partnership from commodity brokers, banks, or other persons, the Partnership
may delay payment to Partners requesting Redemption of Units. In the event that Redemptions are
requested for more Units than the General Partner is able to honor due to the foregoing
contingencies, the General Partner will honor Requests for Redemption in the order actually
received and will hold Requests for Redemption in such order. Limited Partners will be notified
within 10 days after month-end if any Redemption cannot be honored under the terms hereof and their
Requests thereafter will be honored at the first available opportunity. The Partnership shall not
be obligated to redeem Units that are subject to a pledge or otherwise encumbered in any fashion.
(3) Subparagraph (2) notwithstanding, if the Net Asset Value per Unit is determined for
purposes of Redemption as of a month-end which is not the end of a quarter, any performance fees
payable and applicable to such Unit, will be determined and charged to such Unit as though such
month-end were the end of a quarter and such performance fees were payable and such performance
fees will be paid.
ARTICLE 11.
OFFERING OF UNITS; ADMISSION OF ADDITIONAL LIMITED PARTNERS
OFFERING OF UNITS; ADMISSION OF ADDITIONAL LIMITED PARTNERS
The General Partner shall, from time to time, (i) cause the Partnership to file a Registration
Statement and such amendments as the General Partner deems advisable, with the Securities and
Exchange Commission for the registration and public offering of the Units; (ii) seek to qualify the
Units for sale in various jurisdictions as the General Partner deems advisable; and (iii) take such
other actions as the General Partner deems advisable.
The General Partner, at its option, may admit additional Limited Partners to the Partnership
without the consent of the Limited Partners at any time. Such additional Limited Partners shall
contribute capital to the Partnership, and shall be admitted as Limited Partners as of the first
business day of the month immediately following the month-end as of which their subscriptions were
accepted by the General Partner at no less than the Net Asset Value per Unit as of such month-end.
ARTICLE 12.
SPECIAL POWER OF ATTORNEY
SPECIAL POWER OF ATTORNEY
By execution of this Agreement, each Limited Partner irrevocably constitutes and appoints the
General Partner with full power of substitution, as his true and lawful attorney-in-fact, in his
name, place and xxxxx, to execute, acknowledge, swear to, file and record in his behalf in the
appropriate public offices and publish (i) this Agreement and any amendments thereto; (ii) all
instruments which the General Partner deems necessary or appropriate to reflect any amendment,
change, or modification of the Limited Partnership Agreement or Certificate of Limited Partnership
in accordance with the terms of this Agreement; and (iii) Certificates of Fictitious or Assumed
Name. The Power of Attorney granted herein shall be irrevocable and deemed to be a power coupled
with
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an interest and shall survive the incapacity or death of a Limited Partner. Each Limited
Partner hereby agrees to be bound by any representation made by the General Partner and by any
successor thereto, acting in good faith pursuant to such Power of Attorney.
ARTICLE 13.
WITHDRAWAL OF A PARTNER
WITHDRAWAL OF A PARTNER
The Partnership shall terminate and be dissolved upon the withdrawal, or insolvency of the
General Partner (unless in the case of the withdrawal of the General Partner, the actions necessary
to continue the Partnership are taken pursuant to Article 16). The General Partner shall cease to
be a general partner of the Partnership upon the occurrence of any of the following events of
withdrawal: (i) the General Partner’s bankruptcy or insolvency; (ii) any event prescribed in the
Act that is not encompassed in this Article 13; or (iii) 120 days’ prior written notice to the
Limited Partners of the General Partner’s intent to withdraw as a General Partner. If the General
Partner withdraws as general partner, it can redeem its interests in the Partnership at Net Asset
Value as of the next month-end in which it is calculated. If the Limited Partners elect to continue
the Partnership, the withdrawing General Partner shall pay all Partnership expenses incurred as a
result of its withdrawal. The death, incompetency, incapacity, withdrawal, insolvency, or
dissolution of a Limited Partner shall not dissolve or terminate the Partnership, and said Limited
Partner, his estate, custodian, or personal representative shall have no right to withdraw or value
such Limited Partner’s Units except as provided in Article 10 hereof. Each Limited Partner (and any
assignee of such Limited Partner) expressly agrees that in the event of his death, he waives on
behalf of himself and his estate, and he directs the legal representative of his estate and any
person interested therein to waive the furnishing of any inventory, accounting, or appraisal of the
assets of the Partnership and any right to a special audit of the books and records of the
Partnership, provided that the waiver shall not relieve the General Partner from its reporting
obligations set forth in Article 9.
ARTICLE 14.
NO PERSONAL LIABILITY FOR RETURN OF CAPITAL
NO PERSONAL LIABILITY FOR RETURN OF CAPITAL
Subject to the provisions of Article 15 below, the General Partner shall not be personally
liable for the return or repayment of all or any portion of the capital or profits of any Partner
(or assignee), it being expressly agreed that any such return of capital or profits made pursuant
to this Agreement shall be made solely from the assets (which shall not include any right of
contribution from the General Partner) of the Partnership.
ARTICLE 15.
STANDARD OF LIABILITY; INDEMNIFICATION
STANDARD OF LIABILITY; INDEMNIFICATION
15.1 Standard of Liability. The General Partner and its controlling persons shall have no
liability to the Partnership or any Limited Partner for any loss suffered by the Partnership which
arises out of any action of the General Partner if the General Partner, in good faith, determined
that such course of conduct was in the best interests of the Partnership and such course of conduct
did not constitute negligence or misconduct of the General Partner.
15.2 Indemnification by the Partnership. The Partnership shall indemnify, defend, and hold
harmless the General Partner (including controlling persons and a former General Partner who has
withdrawn from the Partnership) from and against any loss, liability, damage, cost or expense
(including attorneys’ fees, and expenses incurred in defense of any demands, claims or lawsuits)
arising from actions or omissions concerning the business or activities undertaken by or on behalf
of the Partnership, from any source only if all of the following conditions are satisfied: (i) the
General Partner has determined, in good faith, that the course of conduct which caused the loss or
liability was in the best interests of the Partnership, (ii) the General Partner was acting on
behalf of or performing services for the Partnership, (iii) such liability or loss was not the
result of negligence or misconduct by the General Partner, and (iv) such indemnification is
recoverable only out of the Partnership’s assets and not from the Limited Partners. In no event
shall the General Partner or any of the selling agents receive indemnification from the Partnership
arising out of alleged violations of federal or state securities laws unless the following
conditions are satisfied; (a) there has been a successful adjudication on the merits of each count
involving alleged securities law violations, or (b) such claims have been dismissed with prejudice
on the merits by a court of competent jurisdiction, or (c) a court of competent jurisdiction
approves a settlement of the claims and finds that indemnification of the settlement and related
costs should be made, and (d) in the case of subparagraph (c), the court considering the
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request has been advised of the position of the Securities and Exchange Commission and the
states in which Units were offered and sold as to indemnification for violations of securities
laws; provided that the court need only be advised and consider the positions of the securities
regulatory authorities in those states in which plaintiffs claim they were offered or sold Units.
The Partnership shall not incur the cost of that portion of liability insurance which insures the
General Partner for any liability as to which the General Partner is prohibited from being
indemnified herein.
15.3 Advance Payment. Expenses incurred in defending a threatened or pending civil,
administrative or criminal action, suit or proceeding against the General Partner may be paid by
the Partnership in advance of the final disposition of such action, suit or proceeding, if and to
the extent that (i) the legal action relates to acts or omissions with respect to the performance
of duties or services on behalf of the Partnership, (ii) the legal action is initiated by a party
who is not a Limited Partner, or if by a Limited Partner, then a court of competent jurisdiction
specifically approves such advancement, and (iii) the General Partner shall agree to reimburse the
Partnership, together with the applicable legal rate of interest thereon, in the event
indemnification is not permitted under this Article 15 upon final disposition.
ARTICLE 16.
AMENDMENTS; MEETINGS
AMENDMENTS; MEETINGS
16.1. Amendments Not Requiring the Consent of the Fund.
(a) The General Partner, without obtaining the authorization or approval of any other Limited
Partner and without giving prior notification to any Limited Partner, may amend this Agreement at
any time and from time to time, whether by changing any one or more of the provisions hereof,
removing any one or more provisions herefrom or adding one or more provisions hereto, to the extent
necessary, in the reasonable judgment of the General Partner, to: (i) cause the provisions of this
Agreement to comply with the provisions of Section 7704 of the Code and the Treasury Regulations
thereunder; (ii) otherwise cause the provisions of this Agreement to comply with any requirement,
condition or guideline contained in any order, directive, opinion, ruling or regulation of a
federal or state agency or contained in federal or state law; (iii) ensure the Fund’s continuing
classification as a partnership for U.S. federal income tax purposes; (iv) prevent the Fund from
being treated as a “publicly traded partnership” within the meaning of Section 7704 of the Code and
the Treasury Regulations; (v) take such action as may be necessary or appropriate to avoid the
assets of the Fund being treated for any purpose of ERISA or Section 4975 of the Code as assets of
any “employee benefit plan” as defined in and subject to ERISA or of any plan or account subject to
Section 4975 of the Code (or any corresponding provision of succeeding law); (vi) prevent the Fund
from being required to register as an “investment company” under the Investment Company Act of
1940; (vii) avoid the Fund engaging in any “prohibited transaction” (within the meaning of Section
406 of ERISA or Section 4975(c) of the Code); (viii) add to the obligations of the General Partner
for the benefit of the Fund or the Limited Partners; (ix) make any modification to this Agreement
to reflect the admission of additional or substitute General Partners (x) reflect the admission,
substitution, termination or redemption of Limited Partners after the date hereof in accordance
with the provisions of this Agreement; (xi) cure any ambiguity in this Agreement, or correct any
provision in this Agreement that is manifestly incorrect; or (xii) provide that any one or more
additional or substitute General Partner may possess and exercise any one or more of the rights,
powers and authority of the General Partner hereunder; provided that such appointment of an
additional General Partner does not constitute an “assignment” within the meaning of Section
202(a)(1) of the Advisers Act.
(b) Upon giving notification to the Limited Partners, but without obtaining the authorization
or approval of any Limited Partner, the General Partner may amend this Agreement at any time and
from time to time, whether by changing any one or more of the provisions hereof, removing any one
or more provisions herefrom or adding one or more provisions hereto, for such purpose of purposes
as the General Partner may deem necessary, appropriate, advisable or convenient, provided that such
amendment is not adverse to the Fund or any Limited Partner.
16.2. Amendment Requiring Consent of the Fund. Subject to the provisions of Section 16.3, the
General Partner may amend this Agreement at any time and from time to time, whether by changing any
one or more of the provisions hereof, removing any one or more provisions herefrom or adding one or
more provisions hereto, in a manner that adversely affects the Fund or the Limited Partners;
provided, however, that the General Partner may not make any such Amendment without giving
notification to the Limited Partners, at least thirty (30) days prior to the implementation of such
amendment, setting forth all material facts relating to such amendment, and obtaining the
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Consent of the Fund to such amendment prior to the implementation thereof.
16.3. Consent of the Fund. For purposes of this Agreement, the “Consent of the Fund,”
when used with respect to a particular transaction, practice, amendment to this Agreement or other
action (any such transaction, practice, amendment or other action being referred to in this
Agreement as a “Consent Transaction”), shall be deemed to have been obtained if a Majority in
Interest of the Limited Partners, approves such Consent Transaction (it being understood and agreed
that, for purposes of the foregoing, (i) a Limited Partner shall be deemed to approve a Consent
Transaction if such Limited Partner either (a) affirmatively approves such Consent Transaction
prior to the completion, consummation or implementation thereof or (b) fails to give notification
to the Fund of its objection to such Consent Transaction prior to the completion, consummation or
implementation thereof and (ii) a Limited Partner who withdraws or is required to withdraw all
amounts from its capital account(s) pursuant to the provisions of this Agreement prior to the
completion, consummation or implementation of such a Consent Transaction shall thereupon
automatically cease to have any right to approve or withhold its approval of such Consent
Transaction and shall not be considered a Limited Partner for purposes of determining whether a
Majority in Interest of the Limited Partners has approved such Consent Transaction, notwithstanding
that such Limited Partner may have objected to such Consent Transaction). “Majority in Interest”
of the Limited Partners, means Limited Partners (other than the General Partner and its
affiliates), the opening balances of whose capital accounts at such time exceed 50% of the opening
balances of the capital accounts at such time of all Limited Partners (other than the General
Partner and its affiliates).
16.4. Certain Amendments Requiring Consent of Affected Limited Partners. Notwithstanding any
other provision of this Article XVI, this Agreement may not be amended so as to modify the limited
liability of a Limited Partner.
16.5. Amendments of Certificate.
(a) The General Partner shall cause the Certificate of Limited Partnership to be amended
and/or restated at such time or times, to such extent and in such manner as may be required by the
Act.
(b) The General Partner may cause the Certificate of Limited Partnership to be amended and/or
restated in accordance with the principles set forth in this Article XVI, and any such amendment
and/or restatement shall be effective immediately upon the filing of a certificate of amendment in
the office of the Secretary of State of the State of Delaware or upon such future date as may be
stated therein.
ARTICLE 17.
GOVERNING LAW
GOVERNING LAW
The General Partner and Limited Partners expressly agree that all the terms and provisions
hereof shall be construed under the Delaware Revised Uniform Limited Partnership Act as now adopted
or as may be hereafter amended and shall govern the partnership aspects of this Agreement absent
contrary terms contained in this Agreement.
ARTICLE 18.
MISCELLANEOUS
MISCELLANEOUS
18.1 Priority Among Limited Partners. No Limited Partner shall be entitled to any priority or
preference over any other Limited Partner in regard to the affairs of the Partnership.
18.2 Notices. All notices under this Agreement, other than Requests for Redemption of Units,
notices of assignment, transfer or pledge of Units, and reports by the General Partner to the
Limited Partners, shall be in writing and shall be effective upon personal delivery, or if sent by
first class mail, postage prepaid, addressed to the last known address of the party to whom such
notice is to be given, then, upon the deposit of such notice in the United States mails. Reports by
the General Partner to the Limited Partners shall be in writing or in such electronic format as
permitted by applicable rules. When such requests are in writing, they shall be sent by first class
mail to the last known address of each Limited Partner. When such reports are in electronic format,
they shall be delivered consistent with applicable rules. Requests for Redemption and notices of
assignment, transfer or pledge of Units shall be effective upon receipt by the Partnership.
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18.3 Binding Effect. This Agreement shall inure to and be binding upon all of the parties,
their successors, assigns as permitted herein, custodians, estates, heirs and personal
representatives. For purposes of determining the rights of any Partner or assignee hereunder, the
Partnership and the General Partner may rely upon the Partnership records as to who are Partners
and assignees, and all Partners and assignees agree that their rights shall be determined and that
they shall be bound hereby, including all rights which they may have under Article 16 hereof.
18.4 Captions. Captions in no way define, limit, extend or describe the scope of this
Agreement nor the effect of any of its provisions.
18.5 Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of such counterparts together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first
appearing above.
| LIMITED PARTNERS: | GENERAL PARTNER: |
|||||
| All Limited Partners now and hereafter admitted as limited partners of the Fund pursuant to the power of attorney now or hereafter executed in favor of and delivered to the General Partner. | XXXXXXXX & COMPANY, INC. | |||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| By: | Xxxxxxxx & Company, Inc. | Name: | Xxxxxx X. Xxxxx | |||
| Attorney-in-fact | Title: | General Counsel | ||||
| By: | /s/ Xxxxxx X. Xxxxx | By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxx | Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | General Counsel | Title: | Chief Financial Officer | |||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxxx | |||||
| Title: | Chief Financial Officer | |||||
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