EXHIBIT 10.4
RefcoFund Holdings, LLC
One World Financial Center
Tower A, 23rd Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
________________, 2003
PlusFunds Group Inc.
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Re: S&P Managed Futures Index Fund, LP
Ladies and Gentlemen:
This Letter Agreement will set forth our understanding of the terms upon
which PlusFunds Group Inc. ("PlusFunds") will serve as sub-investment manager of
S&P Managed Futures Index Fund, LP (the "Fund") to facilitate the management of
the Fund. Pursuant to an Investment Management Agreement effective as of the
12th day of July, 2002 between SPhinX(TM) Managed Futures Fund SPC (the "SPC")
and PlusFunds (the "Investment Management Agreement"), PlusFunds serves as the
investment manager of the SPC. The Fund will invest all or substantially all of
its assets in the SPC (the "Interests"). This Letter Agreement supplements the
Investment Management Agreement. In the event of any inconsistency between the
Investment Management Agreement and this Letter Agreement, this Letter Agreement
shall control with respect to the Fund's investment in the SPC.
(a) PlusFunds will allocate the Interests in the same manner as the
Standard & Poor's Managed Futures Index is constituted, to the
greatest extent possible.
(b) PlusFunds will provide the Fund with the SPC's monthly and audited
annual reports in accordance with CFTC rules. PlusFunds will provide
the Fund with the information necessary for its investors to prepare
any required tax filings on or about March 31 of each year. PlusFunds
will inform the Fund, in a timely manner, of any anticipated delay in
delivery of such information.
(c) PlusFunds will provide RefcoFund Holdings, LLC, the general partner of
the Fund ("Refco") with the net asset value of the Interests as of the
last day of each month at the close of business no later than the end
of the next succeeding business day. PlusFunds will also provide Refco
with daily indicative and monthly finalized net asset values for the
Interests, including month to date and year to date performance.
PlusFunds Group Inc.
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(d) PlusFunds represents and warrants to Refco that it is registered as a
commodity pool operator and commodity trading advisor under the
Commodity Exchange Act, as amended, and that the SPC is not an
investment company and is not excluded from regulation under the
Investment Company Act by 3(c)(1) or 3(c)(7) thereof.
(e) PlusFunds represents that the only fees and expenses borne by the
Interests will be the Interests' pro rata portion of the management
fees and incentive allocations payable to the portfolio managers of
the various series of SPC; the fees payable to the administrator of
the SPC; audit, accounting and legal fees of the SPC; organizational
expenses of the SPC; custodial expenses of the SPC, brokerage fees and
other transaction-related expenses of the various series of the SPC;
and any extraordinary expenses of the SPC. PlusFunds does not expect
the fees and expenses borne by the Interests to exceed 0.05% of the
net assets of the Interests.
(f) PlusFunds will accept subscriptions for Interests from the Fund on at
least six (6) business days notice prior to the offering date (the
first day of each month), with subscription proceeds to be received at
least three (3) days prior to the offering date (the first day of each
month). PlusFunds will allocate the subscription proceeds to the
portfolio managers on the offering date.
(g) PlusFunds will ordinarily redeem the Fund's investment in the
Interests on the last day of each month (each, a "redemption date") on
at least six business days notice. PlusFunds will pay at least 95% of
the redemption proceeds to the Fund within five business days of the
redemption date and will pay the balance, if any, within 20 business
days of the redemption date. Redemptions of the Fund's Interests as of
any particular redemption date cannot exceed 20% of the Fund's
Interests as of that date unless PlusFunds has received at least 15
business days' notice prior to a redemption date that is a month-end.
PlusFunds will honor redemption requests that exceed the 20% limit and
will redeem the balance of the requested amounts in full on the next
succeeding redemption date if such redemption date is a month-end and
subject to the 20% limit if the next succeeding redemption date is not
a month-end.
(h) Refco will pay to PlusFunds, as compensation for its services
hereunder, a sub-investment management fee as agreed to between the
parties.
(i) Each of Refco and PlusFunds has full power to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement has
been duly authorized, executed and delivered by each of Refco and
PlusFunds, and constitutes a valid and binding agreement of each of
them enforceable in accordance with its terms.
(j) The performance by Refco and PlusFunds of their respective obligations
under this Agreement will not constitute a breach of, or default
under, the organizational
PlusFunds Group Inc.
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documents of either of them, any instrument by which either of them or
their respective principals is bound or under any order, rule or
regulation applicable to either of them or their respective
principals, or any court or any governmental body or administrative
agency having jurisdiction over either of them or their respective
principals.
(k) PlusFunds agrees to indemnify, defend and hold harmless Refco, the
Fund and each of their respective affiliates, officers, directors,
agents and employees, and their respective successors and assigns,
from and against any and all losses, claims, liabilities, actions,
judgments, causes of action, fines, assessments, penalties, costs and
expenses (including but not limited to reasonable attorneys' and
accountants' fees and expenses, investigatory expenses, court costs,
and any reasonable expenses incurred in connection with and any
amounts paid in any settlement) arising out of, relating to or
otherwise in connection with: (i) the breach of any representation,
warranty or covenant made by PlusFunds herein or in the Investment
Management Agreement, or (ii) fraud, bad faith, misconduct, negligence
or violation of law by PlusFunds or its officers, directors, agents
and employees. Refco agrees to indemnify, defend and hold harmless
PlusFunds and its affiliates, officers, directors, agents and
employees, and their respective successors and assigns, from and
against any and all losses, claims, liabilities, actions, judgments,
causes of action, fines, assessments, penalties, costs and expenses
(including but not limited to reasonable attorneys' and accountants'
fees and expenses, investigatory expenses, court costs, and any
reasonable expenses incurred in connection with and any amounts paid
in any settlement) arising out of, relating to or otherwise in
connection with: (i) the breach of any representation, warranty or
covenant made by Refco herein, or (ii) fraud, bad faith, misconduct,
negligence or violation of law by Refco or its officers, directors,
agents and employees. Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against any indemnifying party under this Section, notify in writing
the indemnifying party of the commencement thereof; and the omission
to so notify the indemnifying party will relieve the indemnifying
party from any liability under this Section as to the particular item
for which indemnification is then being sought, but not from any other
liability which it may have to any indemnified party, and if the
indemnified party notifies any indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof,
with counsel who shall be to the reasonable satisfaction of such
indemnified party, and after notice from the indemnifying party to
such indemnified party of its election to so assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof, other than the reasonable costs of
PlusFunds Group Inc.
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investigation, unless incurred at the written request of the
indemnifying party, or the indemnifying party shall not have employed
counsel to have charge of the defense of such action or proceeding, or
such indemnified party shall have reasonably concluded that there may
be defenses available to it which are different from or additional to
those available to the indemnifying party (in which case the
indemnifying party shall not have the right to direct the defense of
any such action or proceeding on behalf of the indemnified party), in
any of which events such legal or other expenses shall be borne by the
indemnifying party. Any such indemnifying party shall not be liable to
any such indemnified party on account of any settlement of any claim
or action effected without the consent of such indemnifying party.
(l) This Letter Agreement shall remain in effect until (i) the Fund no
longer owns the Interests, or (ii) PlusFunds no longer serves as
investment manager of the SPC.
(m) This Letter Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to principles
of conflicts of law. Any action or proceeding brought by any party
relating to this Letter Agreement shall be brought and enforced in the
courts located in the Borough of Manhattan, City and State of New
York, and the parties irrevocably submit to the jurisdiction of such
courts in respect of any such action or proceeding.
(n) All notices under this Letter Agreement shall be in writing and shall
be delivered to the addresses set forth below or to such other
addresses as are designated in writing by the parties hereto. Notices
shall be delivered by courier, postage prepaid mail, fax or other
similar means and shall be effective upon actual receipt by the party
to which such notice shall be directed.
If to RefcoFund Holdings, LLC:
RefcoFund Holdings, LLC
One World Financial Center
Tower A, 23rd Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to PlusFunds:
PlusFunds Group Inc.
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
PlusFunds Group Inc.
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Attention: Xxxxxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(o) This Letter Agreement shall not be amended except by a writing signed
by the parties hereto. No waiver of any provision of this Agreement
shall be implied from any course of dealing between the parties or
from any failure by any party to assert its rights hereunder on any
occasion or series of occasions. This Letter Agreement constitutes the
entire agreement between the parties hereto with respect to the
matters referred to herein, and supersedes all prior and
contemporaneous agreements, oral or written, relating to the subject
matter of this Letter Agreement. This Agreement shall not be assigned
by any party without the prior express written consent of the other
parties. The provisions of this Agreement shall survive the
termination hereof with respect to any matter arising while this
Agreement shall be in effect.
Kindly indicate your agreement to the terms set forth above by signing
below and returning the fully signed copy to us, whereupon this Letter Agreement
will become effective.
Sincerely,
REFCOFUND HOLDINGS, LLC
By:
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Name:
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Title:
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Acknowledged and Agreed this
___ day of _________, 2003
PLUSFUNDS GROUP, INC.
By:
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Name:
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Title:
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