EXHIBIT 10.01
MANAGEMENT AGREEMENT
THIS AGREEMENT, made as of the 1st day of May, 2001 among XXXXXX XXXXXXX
XXXX XXXXXX SPECTRUM SELECT L.P., a Delaware limited partnership (the
"Partnership"), DEMETER MANAGEMENT CORPORATION, a Delaware corporation (the
"General Partner"), and NORTHFIELD TRADING L.P., a Delaware limited partnership
(the "Trading Advisor").
WITNESSETH:
WHEREAS, the Partnership has been organized pursuant to the Limited
Partnership Agreement dated as of March 21, 1991, as amended and restated as of
August 31, 1993, October 17, 1996, May 31, 1998, and February 28, 2000, (the
"Limited Partnership Agreement"), to trade, buy, sell, spread, or otherwise
acquire, hold, or dispose of commodities (including, but not limited to, 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 became a member partnership of the Xxxxxx Xxxxxxx
Xxxx Xxxxxx Spectrum Series (the "Fund Group") by entering into an agreement
pursuant to which units of limited partnership interest ("Units") of such member
partnerships are sold to investors in a common offering under the Securities Act
of 1933, as amended (the "Securities Act"), pursuant to a Registration Statement
on Form S-1 as it may be amended from time to time (the "Registration
Statement") and a final Prospectus, constituting a part thereof as it may be
amended and supplemented from time to time (the "Prospectus"), and thereafter,
pursuant to which such Units can be exchanged by a limited partner of a member
partnership of the Fund Group for six months for Units of other member
partnerships of the Fund Group at 100% of the respective Net Asset Value (as
defined in Section 7(d)(2) of the Limited Partnership Agreement) thereof;
WHEREAS, the Trading Advisor has extensive experience trading in futures
interests and is willing to provide certain services and undertake certain
obligations as set forth herein;
WHEREAS, the Partnership desires the Trading Advisor to act as a trading
advisor for the Partnership and to make investment decisions with respect to
futures interests for its allocated share of the Partnership's Net Assets (as
defined in Section 6(c) hereof) and the Trading Advisor desires so to act; and
Exh. 10.01-1
WHEREAS, the Partnership, the General Partner and the Trading Advisor wish
to enter into this Management Agreement which, among other things, sets forth
certain terms and conditions upon which the Trading Advisor will conduct a
portion of the Partnership's futures interests trading;
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Undertakings in Connection with the Continuing Offering of Units.
(a) The Trading Advisor agrees with respect to the continuing offering of
Units: (i) to make all disclosures regarding itself, its principals and
affiliates, its trading performance, its trading programs, systems, methods, and
strategies (subject to the need, in the reasonable discretion of the Trading
Advisor, to preserve the confidentiality of proprietary information concerning
such programs, systems, methods, and strategies), any client accounts over which
it has discretionary trading authority (other than the names of any such
clients), and otherwise, as the Partnership may reasonably require (x) to be
made in the Partnership's Prospectus required by Section 4.21 of the regulations
of the CFTC, 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 NASD Regulation, Inc. (the "NASD") or any
other regulatory body, exchange, or board; and (ii) otherwise to cooperate with
the Partnership, the General Partner, and Xxxx Xxxxxx Xxxxxxxx Inc., an
affiliate of the General Partner, the selling agent for the Partnership ("DWR")
by providing information regarding the Trading Advisor in connection with the
preparation and filing of the Registration Statement and Prospectus, including
any 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 Section 4.10(e) of the CFTC's
Regulations and the term "affiliate" shall mean an individual or entity that
directly or indirectly controls, is controlled by, or is under common control
with, the Trading Advisor.
(b) 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 that would result in there being any materially untrue or
misleading statement or omission in the Registration Statement or Prospectus
regarding itself or any of its principals or affiliates, the Trading Advisor
shall promptly notify the General Partner and shall cooperate with it in the
preparation of any necessary amendments or supplements to the Registration
Statement or Prospectus. Neither the Trading Advisor nor any of its principals,
or affiliates, or any stockholders, officers, directors, or employees shall
distribute the Prospectus or selling literature or shall engage in any selling
activities whatsoever in connection with the continuing offering of Units except
as may be specifically requested by the General Partner.
Exh. 10.01-2
2. Duties of the Trading Advisor.
(a) The Trading Advisor hereby agrees to act as a Trading Advisor for the
Partnership and, as such, shall have sole authority and responsibility for
directing the investment and reinvestment of its allocable share of the Net
Assets of the Partnership on the terms and conditions and in accordance with the
prohibitions and trading policies set forth in Exhibit A hereto, the Prospectus,
or as otherwise provided in writing and consented to by 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 and with applicable speculative position limits, (ii) to fund
any distributions, redemptions, or reapportionments among other trading advisors
to the Partnership, (iii) to pay the Partnership's expenses, (iv) to the extent
the General Partner believes doing so is necessary for the protection of the
Partnership, (v) to terminate the futures interests trading of the Partnership,
or (vi) to comply with any applicable law or regulation. The General Partner
agrees not to override any such instructions for the reasons specified in
clauses (ii) or (iii) of the preceding sentence unless the Trading Advisor fails
to comply with a request of the General Partner to make the necessary amount of
funds available to the Partnership within two business days of such request. The
Trading Advisor shall not be liable for the consequences of any decision by the
General Partner to override instructions of the Trading Advisor, except to the
extent that the Trading Advisor is in breach of this Agreement. In performing
services to the Partnership the Trading Advisor may not materially alter the
trading program(s) used by the Trading Advisor in investing and reinvesting its
allocable share of the Partnership's Net Assets in futures interests as
described in the Prospectus without the prior written consent of the General
Partner, it being understood that changes in the futures interests or markets
traded shall not be deemed an alteration in the Trading Advisor's trading
program(s).
(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, and as otherwise provided in writing and consented to by the
Trading Advisor and the trading programs, systems, methods, and strategies
of the Trading Advisor described in the Prospectus, with such changes and
additions to such trading programs, systems, methods or strategies as the
Trading Advisor, from time to time, incorporates into its trading programs
for accounts the size of the Partnership.
(ii) Subject to reasonable assurances of confidentiality by the
General Partner and the Partnership, provide the General Partner, within
thirty days of a reasonable request therefor by the General Partner, with
information comparing the performance of the Partnership's account and the
performance of all other client accounts directed by the Trading Advisor
using the trading programs used by the Trading Advisor for the Partnership
over a specified period of time. In providing such information, the Trading
Advisor may take such steps as are necessary to assure the confidentiality
of the Trading Advisor's clients' identities. The Trading Advisor shall,
upon the General Partner's reasonable request, consult with the General
Partner concerning any discrepancies between the performance of such other
accounts and the Partnership's account. The
Exh. 10.01-3
Trading Advisor shall promptly inform the General Partner of any material
discrepancies of which the Trading Advisor is 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 that
have different portfolios or different fiscal years and that such
differences may cause divergent trading results.
(iii) Upon the reasonable request of the General Partner and subject
to reasonable assurances of confidentiality by the General Partner and the
Partnership, provide the General Partner with all material information
concerning the Trading Advisor other than proprietary information
(including, without limitation, information relating to changes in control,
personnel, trading approach, or financial condition). The General Partner
acknowledges that all trading instructions made by the Trading Advisor will
be held in confidence by the General Partner, except to the extent
necessary to conduct the business of the Partnership or as required by law.
(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 partners,
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
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 payment to DWR of the floor brokerage
commissions, exchange and NFA fees, and other transaction charges and give-up
charges incurred by DWR on such trades but only for the amount of DWR's
out-of-pocket costs in respect thereof. The Trading Advisor's errors shall
include, but not be limited to, inputting improper trading signals or
communicating incorrect orders for execution. However, the Trading Advisor shall
not be responsible for errors committed or caused by DWR or by floor brokers or
other futures commission merchants. 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
appointing the Trading Advisor the Partnership's attorney-in-fact for such
purpose.
Exh. 10.01-4
3. Designation of Additional Trading Advisors and Reallocation of
Net Assets.
(a) If the General Partner at any time deems it to be in the best interests
of the Partnership, the General Partner may designate an additional trading
advisor or advisors for the Partnership and may apportion to such additional
trading advisor(s) the management of such amounts of Net Assets as the General
Partner shall determine in its absolute discretion. The designation of an
additional trading advisor or advisors 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 or advisors 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 the Trading Profits attributable to the trading by the Trading Advisor.
(b) The General Partner may at any time and from time to time upon two
business days' prior notice reallocate Net Assets allocated to the Trading
Advisor to any other trading advisor or advisors of the Partnership or allocate
additional Net Assets upon two business days' prior notice to the Trading
Advisor from such other trading advisor or advisors; provided that any such
addition to or withdrawal from Net Assets allocated to the Trading Advisor of
the Net Assets will only take place on the last day of a month unless the
General Partner determines that the best interests of the Partnership require
otherwise.
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. Nothing contained herein shall be deemed to require the
Partnership 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 or any other trading advisor or
advisors for the Partnership as members of any partnership, joint venture,
association, syndicate or other entity, 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, or issuer with respect to the Partnership, nor does
the Trading Advisor have any authority or responsibility with respect to the
sale or issuance of Units.
5. Commodity Broker. 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, DWR shall act as non-clearing commodity broker and
Xxxxxx Xxxxxxx & Co. Incorporated ("MS & Co."), an affiliate of the general
partner, shall act as the clearing commodity broker for the Partnership, with
the exception of trades on the London Metal Exchange which will be cleared by
Xxxxxx Xxxxxxx & Co. International Limited ("MSIL"), also an affiliate of the
General Partner. In addition, MS & Co. will act as the counterparty on all of
the foreign currency forward trades for
Exh. 10.01-5
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. or MSIL and provided that the rates charged
by such floor brokers have been approved in writing by DWR. The Trading Advisor
will not be responsible for paying give-up fees.
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 3% (a 3% annual rate) of the "Net Assets" (as defined in Section 7(d)(1)
of the Limited Partnership Agreement) of the Partnership allocated to the
Trading Advisor as of the opening of business on the first day of each
calendar month.
(ii) A monthly incentive fee equal to 15% of the "Trading Profits" (as
defined in Section 6(c)) as of the end of each calendar month, payable on a
non-netted basis vis-a-vis other trading advisors(s) of the Partnership.
(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, 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 allocated to the Trading Advisor, decreased by the Trading Advisor's
monthly management fees and a pro rata portion of the monthly brokerage fee
relating to the Trading Advisor's allocated Net Assets; with such trading
profits and items of decrease determined from the end of the last calendar month
in which an incentive fee was earned by the Trading Advisor or, if no incentive
fee has been earned previously by the Trading Advisor, from the date that the
Partnership commenced trading to the end of the month as of which such incentive
fee calculation is being made. No incentive fee will be paid on interest income
earned by the Partnership.
Exh. 10.01-6
(d) If any payment of incentive fees is made to the Trading Advisor on
account of Trading Profits earned by the Partnership on Net Assets allocated to
the Trading Advisor and the Partnership thereafter fails to earn Trading Profits
or experiences losses for any subsequent incentive period with respect to such
amounts so allocated, the Trading Advisor shall be entitled to retain such
amounts of incentive fees previously paid to the Trading Advisor in respect of
such Trading Profits. However, no subsequent incentive fees shall be payable to
the Trading Advisor until the Partnership has again earned Trading Profits on
the Trading Advisor's allocated Net Assets; provided, however, that if the
Trading Advisor's allocated Net Assets are reduced or increased because of
redemptions, additions or reallocations that occur at the end of, or subsequent
to, an incentive period in which the Partnership experiences a futures interests
trading loss with respect to Net Assets allocated to the Trading Advisor, the
trading loss for that incentive period which must be recovered before the
Trading Advisor's allocated Net Assets will be deemed to experience Trading
Profits will be equal to the amount determined by (x) dividing the Trading
Advisor's allocated Net Assets after such increase or decrease by the Trading
Advisor's allocated Net Assets immediately before such increase or decrease and
(y) multiplying that fraction by the amount of the unrecovered futures interests
trading loss experienced in that month prior to such increase or decrease. In
the event that the Partnership experiences a futures interests trading loss in
more than one month with respect to the Trading Advisor's allocated Net Assets
without the payment of an intervening incentive fee and Net Assets are increased
or reduced in more than one such month because of redemptions, additions or
reallocations, then the trading loss for each such month shall be adjusted in
accordance with the formula described above and such increased or reduced amount
of futures interests trading loss shall be carried forward and used to offset
subsequent futures interest trading profits. The portion of redemptions to be
allocated to the Net Assets of the Partnership managed by each of the trading
advisors to the Partnership shall be in the sole discretion of the General
Partner.
7. Term. This Agreement shall continue in effect until April 30, 2004 (the
"Initial Termination Date"). If this Agreement is not terminated on the Initial
Termination Date, as provided for herein, then, this Agreement shall
automatically renew for an additional one-year period and shall continue to
renew for additional one-year periods until this Agreement is otherwise
terminated, as provided for herein. At least sixty days prior to the expiration
of the Initial Termination Date or any subsequent one-year period, as the case
may be, the Trading Advisor may terminate this Agreement at the end of the
current period by providing written notice to the Partnership indicating that
the Trading Advisor desires to terminate this Agreement at the end of such
period. This Agreement shall also terminate if the Partnership terminates. The
Partnership shall have the right to terminate this Agreement at its discretion
(a) at any month end upon five calendar days' prior written notice to the
Trading Advisor or (b) at any time upon written notice to the Trading Advisor
upon the occurrence of any of the following events: (i) if 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; (ii) if the Trading
Advisor becomes bankrupt or insolvent; (iii) if the Trading Advisor is unable to
use its trading programs, systems or methods as in effect on the date hereof and
as refined and modified in the future for the benefit of the Partnership; (iv)
if the registration, as a commodity trading advisor, of the Trading Advisor with
the CFTC or its membership in the NFA is revoked, suspended, terminated, or not
renewed, or limited or qualified in any respect; (v) except as provided in
Section 12 hereof, if the Trading Advisor merges or consolidates with, or sells
or otherwise
Exh. 10.01-7
transfers its advisory business, or all or a substantial portion of its assets,
any portion of its futures interests trading programs, systems or methods, or
its goodwill to, any individual or entity; (vi) if the Trading Advisor's
initially allocated Net Assets, after adjusting for distributions, additions,
redemptions, or reallocations, if any, shall decline by 50% or more as a result
of trading losses or if Net Assets allocated to the Trading Advisor fall below
$5,000,000.00 at any time; (vii) if, at any time, the Trading Advisor violates
any trading or administrative policy described in writing to the Trading Advisor
by the General Partner, except with the prior express written consent of the
General Partner; or (viii) if the Trading Advisor fails in a material manner to
perform any of its obligations under this Agreement. The Trading Advisor may
terminate this Agreement at any time, upon written notice to the Partnership, in
the event: (i) that the General Partner imposes additional trading limitation(s)
in the form of one or more trading policies or administrative policies which the
Trading Advisor does not agree to follow in its management of its allocable
share of the Partnership's Net Assets; (ii) the General Partner objects to the
Trading Advisor implementing a proposed material change in the Trading Advisor's
trading program(s) used by the Partnership and the Trading Advisor certifies to
the General Partner in writing that it believes such change is in the best
interests of the Partnership; (iii) the General Partner overrides a trading
instruction of the Trading Advisor for reasons unrelated to those set forth in
Section 2 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; (iv) the Partnership
materially breaches this Agreement and does not correct the breach within ten
business days of receipt of a written notice of such breach from the Trading
Advisor; or (v) the Trading Advisor has amended its trading program to include a
foreign futures or option contract that may lawfully be traded by the
Partnership under CFTC regulations and counsel, mutually acceptable to the
parties, has not opined that such inclusion would cause adverse tax consequences
to Limited Partners and the General Partner does not consent to the Trading
Advisor's trading such contract for the Partnership within five business days of
a written request by the Trading Advisor to do so, and, if such consent is
given, does not make arrangements to facilitate such trading within ninety days
of such notice. In addition, the Trading Advisor may terminate this Agreement by
providing sixty days prior written notice to the General Partner if the
Partnership's Net Assets allocated to the Trading Advisor fall below $5,000,000
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, partners, 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
Exh. 10.01-8
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 of 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, the result of bad faith, 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 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 DWR, MS & Co., MSIL, the
Partnership, the General Partner, any additional seller, and their affiliates
and each of their officers, directors, principals, shareholders, 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 Securities Exchange Act of 1934, as amended (the "Exchange
Act") the Commodity Exchange Act, as amended, and rules promulgated thereunder
(the "CEAct"), the
Exh. 10.01-9
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; (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 (as defined in Section 10(a)(iv) below) (including the historical
performance capsules) 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
agrees to indemnify, defend and hold harmless the Trading Advisor and each of
its officers, directors, principals, shareholders, 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) or was not made in reliance upon, and in
conformity with, 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.
Exh. 10.01-10
(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 proceeding 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
Exh. 10.01-11
Advisor by any act or omission favor any account advised or managed by the
Trading Advisor over the account of the Partnership in any way or manner (other
than by charging different management and/or incentive fees). The Trading
Advisor agrees to treat the Partnership in a fiduciary capacity to the extent
recognized by applicable law, but, subject to that standard, the Trading Advisor
or any of its principals or affiliates shall be free to advise and manage
accounts for other investors and shall be free to trade on the basis of the same
trading programs, systems, methods, or strategies employed by the Trading
Advisor for the account of the Partnership, or trading programs, systems,
methods, or strategies 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 shall not be restricted as to the number or nature
of its clients, except that: (i) so long as the Trading Advisor acts as a
trading advisor for the Partnership, neither the Trading Advisor nor any of its
principals or affiliates shall hold knowingly any position or control any other
account that would cause the Partnership, the Trading Advisor, or the principals
or affiliates of the Trading Advisor to be in violation of the CEAct or any
regulations promulgated thereunder, any applicable rule or regulation of the
CFTC or any other regulatory body, exchange, or board; and (ii) neither the
Trading Advisor nor any of its principals or affiliates shall render futures
interests trading advice to any other individual or entity or otherwise engage
in activity which shall knowingly cause positions in futures interests to be
attributed to the Trading Advisor under the rules or regulations of the CFTC or
any other regulatory body, exchange, or board so as to require the significant
modification of positions taken or intended for the account of the Partnership;
provided that the Trading Advisor may modify its trading programs, systems,
methods or strategies to accommodate the trading of additional funds or
accounts. If applicable speculative position limits are exceeded by the Trading
Advisor in the opinion of (i) independent counsel (who shall be other than
counsel to the Partnership), (ii) the CFTC, or (iii) any other regulatory body,
exchange, or board, the Trading Advisor and its principals and affiliates shall
promptly liquidate positions in all of their accounts, including the
Partnership's account, as to which positions are attributed to the Trading
Advisor as nearly as possible in proportion to the accounts' respective amounts
available for trading (taking into account different degrees of leverage and
"notional" equity) to the extent necessary to comply with the applicable
position limits.
10. Representations, Warranties, and Covenants of the Trading Advisor.
(a) Representations 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
programs on behalf of the Partnership that are described in the Prospectus
(as modified from time to time) or any other trading programs agreed to by
the General Partner.
(ii) The Trading Advisor shall follow, at all times, the trading
policies of the Partnership (as described in the Prospectus and as set
forth in Exhibit A hereto) and as
Exh. 10.01-12
amended in writing and furnished to the Trading Advisor from time to time,
provided, that the General Partner has notified the Trading Advisor of
these trading policies and the Trading Advisor has consented thereto.
(iii) The Trading Advisor shall trade: (A) the Partnership's Net
Assets pursuant to the same trading programs described in the Prospectus
unless the General Partner agrees otherwise and (B) only in futures and
option contracts traded on U.S. contract markets, foreign currency forward
contracts traded with MS & Co., and such other futures interests that are
approved in writing by the General Partner.
(iv) The Trading Advisor is duly organized, validly existing and in
good standing as a limited partnership under the laws of the state of its
formation and is qualified to do business and is in good standing in each
other jurisdiction in which the nature or conduct of its business requires
such qualification and the failure to so qualify would materially adversely
affect the Trading Advisor's ability to perform its duties under this
Agreement. The Trading Advisor has full limited partnership power and
authority to perform its obligations under this Agreement, and as described
in the Registration Statement and Prospectus. The only principals (as
defined in Rule 4.10(e) under the CEAct) of the Trading Advisor are those
set forth in the Prospectus (the "Trading Advisor Principals").
(v) All references to the Trading Advisor and each Trading Advisor
Principal, including the Trading Advisor's trading programs, approaches,
systems and performance, in the Registration Statement and the Prospectus,
and in the 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 material relating to the Trading Advisor and each
Trading Advisor Principal, including the Trading Advisor's and the 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 as of its effective date
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 at its date of issue and as of each 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 3.1 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
Exh. 10.01-13
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 limited partnership or the limited partnership agreement
of the Trading Advisor or any agreement or instrument by which it is bound
or of any order, rule, law or regulation binding on it of any court or any
governmental body or administrative agency or panel or self-regulatory
organization having jurisdiction over it.
(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 before or by any court or other
governmental body 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 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, business or prospects 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 nor 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.
Exh. 10.01-14
(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 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 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 business 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 General Partner and
the Partnership.
(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:
(i) the CFTC under the CEAct; (ii) the NASD pursuant to its Conduct Rules;
and (iii) 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 Limited Partnership Agreement provides for the subscription
for and sale of the Units; all action required to be taken by the General
Partner and the Partnership as a condition to the sale of the Units to
qualified subscribers therefor has been, or prior to each monthly closing
will have been taken; and, upon payment of the
Exh. 10.01-15
consideration therefor specified in each accepted Subscription and Exchange
Agreement and Power of Attorney, in such form as attached to the
Prospectus, the Units will constitute valid limited partnership interests
in the Partnership.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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 each Closing, 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 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 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
Exh. 10.01-16
material will comply with the CEAct and the regulations and rules of the
NFA and NASD. The representation, and warranties in this clause (vi) shall
not, however, apply to any statement or omission in the Registration
Statement, Prospectus or supplemental selling material relating to the
Trading Advisor, or its Trading Advisor Principals or its trading programs
or made in reliance upon and in conformity with information furnished by
the Trading Advisor.
(vii) 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.
(viii) This Agreement has been duly and validly authorized, executed
and delivered by the General Partner on behalf of the Partnership and
constitutes a valid, binding and enforceable agreement of the Partnership
in accordance with its terms.
(ix) 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, bylaws, the Certificate of Limited
Partnership, or 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.
(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 General Partner's
knowledge, threatened, any action, suit or proceeding at law or in equity
before or by any court or by any federal, state, municipal or other
governmental body or any administrative, self-regulatory or commodity
exchange organization to which the General Partner or the Partnership is or
was a party, or to which any of the assets of the General Partner or the
Partnership is or was subject and which resulted in or might reasonably be
expected to result in any materially adverse change in the condition,
financial or otherwise, of the General Partner or the Partnership or that
is required under the Securities Act or the CEAct to be disclosed in the
Prospectus; and neither the General Partner nor any of the principals of
the General Partner, as "principals" is defined under Rule 4.10(e) under
the CEAct ("General Partner Principals") has received any notice of an
investigation by the NFA, NASD, SEC or CFTC regarding non-compliance by the
General Partner or the General Partner Principals or the Partnership with
the CEAct or the Securities Act that is required under the Securities Act
or the CEAct to be disclosed in the Prospectus.
(xi) 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,
Exh. 10.01-17
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 covenants and agrees that:
(i) The General Partner shall use its best efforts to maintain all
registrations and memberships necessary for the General Partner to continue
to act as described herein and in the Prospectus and to all times comply in
all material respects with all applicable laws, rules, and regulations, to
the extent that the failure to so comply would have a materially adverse
effect on the General Partner's ability to act as described herein and in
the Prospectus.
(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 business 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.
12. Merger or Transfer of Assets of Trading Advisor. The Trading Advisor
may merge or consolidate with, or sell or otherwise transfer its advisory
business, or all or a substantial portion of its assets, any portion of its
commodity trading programs, systems or methods, or its goodwill, to any entity
that is directly or indirectly controlled by, controlling, or under common
control with, the Trading Advisor, provided that such entity expressly assumes
all obligations of the Trading Advisor under this Agreement and agrees to
continue to operate the business of the Trading Advisor, substantially as such
business is being conducted on the date hereof.
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.
Exh. 10.01-18
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.
(a) The Trading Advisor shall at the request of the General Partner provide
the following:
(i) To DWR, 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:
(A) 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.
(B) 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.
(ii) To DWR, 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:
(A) The Trading Advisor is a limited partnership duly formed and
validly existing under the laws of the State of Delaware 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
power and authority to conduct its business as described in the
Registration Statement and Prospectus and to perform its obligations
under this Agreement.
(B) 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 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 investigations, none of such licenses,
memberships or registrations have been rescinded, revoked or
suspended.
Exh. 10.01-19
(C) 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 the 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
may be limited by applicable law or considerations of public policy.
(D) To such counsel's knowledge, except as disclosed in the
Prospectus, there are no actions, suits or proceedings at law or in
equity either threatened or pending in any court or before or by any
governmental or administrative body nor have there been any such
actions, suits or proceedings at any time 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.
(E) The execution and delivery by the Trading Advisor of this
Agreement, and the performance by the Trading Advisor of its
obligations herein (a) will not require any governmental approval 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)
will not result in a violation of any of the provisions of the
certificate of limited partnership or limited partnership agreement of
the Trading Advisor or any applicable laws applicable to the Trading
Advisor, and (c) will not breach or result in a violation of, or
default under, (i) any instrument or agreement known to such counsel
by which the Trading Advisor is bound or to which any of the property
or assets of the Trading Advisor is subject or (ii) any judgment,
decree or order known to such counsel that is applicable to the
Trading Advisor and, pursuant to any applicable laws, is issued by any
governmental authority having jurisdiction over the Trading Advisor or
its properties.
(F) 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.
(G) 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
Exh. 10.01-20
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, except as disclosed in
the Prospectus or as otherwise permitted by the CFTC staff.
In giving the foregoing opinion, counsel may rely on information obtained
from public officials, officers of the Trading Advisor, and other resources
believed by it to be responsible and may assume that signatures on all documents
examined by it are genuine.
(iii) To DWR, 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 records in the
Prospectus to the latest practicable day before closing, figures that shall
be a continuation of such historical performance records and that shall
certify that such figures are, to the best of such Trading Advisor's
knowledge, accurate in all material respects.
(b) The General Partner shall at the request of the Trading Advisor provide
the following:
(i) 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:
(A) 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.
(B) 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.
(C) 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.
(ii) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and
the Partnership, shall deliver its opinion to the parties hereto, in form
and substance satisfactory to the parties hereto, to the effect that:
Exh. 10.01-21
(A) The Partnership is a limited partnership duly formed pursuant
to the Certificate of Limited Partnership, the Limited Partnership
Agreement and the DRULPA and is validly existing under the laws of the
State of Delaware with full partnership power and authority to conduct
the business in which it proposes to engage as described in the
Registration Statement and Prospectus and to perform its obligations
under this Agreement; the Partnership has received a Certificate of
Authority as contemplated under the New York Revised Limited
Partnership Act and is qualified to do business in New York.
(B) 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 qualified to do business and is in good standing as a foreign
corporation 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.
(C) 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 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.
(D) 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 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 principals of
equity (regardless of whether enforcement is sought in a proceeding at
law or in equity), and except as enforcement of rights with respect to
indemnification and contribution obligations and provisions may be
limited by applicable law or considerations of public policy.
(E) The execution and delivery by the General Partner and the
Partnership of this Agreement, and the performance by the General
Partner and the Partnership of their obligations herein (a) will not
require any governmental
Exh. 10.01-22
approval to be obtained on the part of the General Partner and the
Partnership, except those that have been obtained and, to such
counsel's knowledge, are in effect, (b) will not result in a violation
of any provision of the General Partner's certificate of incorporation
or bylaws, the Partnership's Certificate of Limited Partnership, or
the Limited Partnership Agreement or any applicable laws applicable to
the General Partner and the Partnership, and (c) will not breach or
result in a violation of, or default under, (i) any instrument or
agreement known to such counsel which the General Partner and the
Partnership is bound or to which any of the property or assets of the
General Partner and the Partnership is subject, or (ii) any judgment,
decree or order known to such counsel which is applicable to the
General Partner and the Partnership and, pursuant to any applicable
laws, is issued by any governmental authority having jurisdiction over
the General Partner and the Partnership having jurisdiction over the
General Partner and the Partnership or their properties.
(F) To such counsel's knowledge, based upon due inquiry of
certain officers of the General Partner, except as disclosed in the
Prospectus, there are no actions, suits or proceedings at law or in
equity pending or threatened against the General Partner and the
Partnership before or by any court, governmental body, administrative
agency, panel or self-regulatory organization, nor have there been any
such actions, suits or proceedings within the five years preceding the
date of the Prospectus against the General Partner or the Partnership,
which are required to be disclosed in the Registration Statement or
Prospectus.
(G) The Registration Statement is effective under the Securities
Act and, to the best of such counsel's knowledge, no proceedings for a
stop order are pending or threatened under Section 8(d) of the
Securities Act or any similar state securities laws.
(H) At the time the Registration Statement became effective, the
Registration Statement, and at the time the Prospectus was issued and
as of the closing, the Prospectus, complied as to form in all material
respects with the requirements of the Securities Act, the Securities
Regulations, the CEAct and the regulations of the NFA and NASD.
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 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.
Exh. 10.01-23
(I) Based upon reliance on certain SEC "no-action" letters, as of
the closing, the Partnership need not register as an "investment
company" under the Investment Company Act of 1940, as amended.
In rendering its opinion, such counsel may rely on information obtained
from public officials, officers of the General Partner and other sources
believed by it to be responsible and may assume that signatures on all documents
examined by it are genuine, and that a Subscription and Exchange Agreement and
Power of Attorney in the form attached to the Prospectus has been duly
authorized, completed, dated, executed, and delivered and funds representing the
full subscription price for the Units purchased have been delivered by each
purchaser of Units in accordance with the requirements set forth in the
Prospectus.
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 filed with the CFTC or NFA by the Trading Advisor. The General Partner
acknowledges receipt of the Trading Advisor's disclosure document dated February
7, 2001.
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 Xxxx Xxxxxx Spectrum Select L.P.
c/o Demeter Management Corporation
Two World Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx
if to the General Partner:
Demeter Management Corporation
Xxx Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx
Exh. 10.01-24
if to the Trading Advisor:
Northfield Trading L.P.
0000 X. Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxxx Xxxxxxxxxx
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.
Exh. 10.01-25
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 XXXX XXXXXX
SPECTRUM SELECT L.P.
by Demeter Management Corporation,
General Partner
By: /s/Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
DEMETER MANAGEMENT CORPORATION
By: /s/Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
NORTHFIELD TRADING L.P.
By: /s/Xxxxxxx Xxx
-----------------------------------------
Name: Xxxxxxx Xxx
Title: President
Exh. 10.01-26
