EXHIBIT 10.21
MANAGEMENT AGREEMENT
THIS AGREEMENT, made as of the 9th day of October, 2007 among
XXXXXX XXXXXXX SPECTRUM STRATEGIC L.P., a Delaware limited partnership (the
"Partnership"), DEMETER MANAGEMENT CORPORATION, a Delaware corporation (the
"General Partner"), and CORNERSTONE QUANTITATIVE INVESTMENT GROUP, INC., a New
York corporation (the "Trading Advisor").
W I T N E S S E T H:
WHEREAS, the Partnership has been organized pursuant to the Amended
and Restated Limited Partnership Agreement dated as of April 2, 2007, as may be
amended from time to time, (the "Limited Partnership Agreement"), to trade, buy,
sell, spread, or otherwise acquire, hold, or dispose of commodities (which may
include foreign currencies, mortgage-backed securities, money market
instruments, financial instruments and any other securities or items which are
now, or may hereafter be, the subject of futures contract trading), domestic and
foreign commodity futures contracts, commodity forward contracts, foreign
exchange commitments, options on physical commodities and on futures contracts,
spot (cash) commodities and currencies, and any rights pertaining thereto
(hereinafter referred to collectively as "futures interests") and securities
(such as United States Treasury bills) approved by the Commodity Futures Trading
Commission (the "CFTC") for investment of customer funds, and to engage in all
activities incident thereto;
WHEREAS, the Partnership is a member partnership of the Xxxxxx
Xxxxxxx Spectrum Series (the "Fund Group") pursuant to which units of limited
partnership interest ("Units") of such member partnerships are sold to investors
in a common prospectus. Units of the Partnership are being offered pursuant to a
Registration Statement on Form S-1 (as it may be amended from time to time, the
"Registration Statement") filed under the Securities Act of 1933, as amended
(the "Securities Act"), and a final prospectus constituting a part thereof (as
it may be amended and supplemented from time to time) (the "Prospectus"). Such
Units can be exchanged by a limited partner of a member partnership of the Fund
Group for Units of other member partnerships of the Fund Group after it has been
a limited partner of a member partnership of the Fund Group for six months at
100% of the respective Net Asset Value (as defined in Section 7(d)(2) of the
Limited Partnership Agreement) thereof;
WHEREAS, the principals of the Trading Advisor have extensive
experience trading in futures interests and the Trading Advisor is willing to
provide the services and undertake the obligations as set forth herein;
WHEREAS, the Partnership and the General Partner each 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 portion
of the Partnership's Net Assets (as defined in Section 7(d)(1) of the Limited
Partnership Agreement) and the Trading Advisor desires so to act; and
WHEREAS, the Partnership, the General Partner and the Trading
Advisor wish to enter into this Management Agreement which, among other things,
sets forth certain terms and conditions upon which the Trading Advisor will
conduct a portion of the Partnership's futures interests trading for the
Partnership;
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Undertakings in Connection with the Continuing Offering of Units.
(a) 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 secrecy of Proprietary Information (as defined in
Section 1(c) hereof) concerning such programs, systems, methods, and
strategies), any client accounts over which it has discretionary trading
authority (other than the names of or identifying information with respect to
any such clients), and otherwise, as the General Partner may reasonably require
(x) to be made in the Partnership's Prospectus required by Section 4.21 of the
CFTC's Regulations, including any amendments or supplements thereto, or (y) to
comply with any applicable federal or state law or rule or regulation, including
those of the Securities and Exchange Commission (the "SEC"), the CFTC, the
National Futures Association (the "NFA"), the National Association of Securities
Dealers, Inc. (the "NASD") or any other regulatory or self-regulatory body,
exchange, or board; and (ii) otherwise to cooperate with the Partnership, the
General Partner and Xxxxxx Xxxxxxx & Co. Incorporated, an affiliate of the
General Partner and the selling agent for the Partnership ("MS&Co."), by
providing information regarding the Trading Advisor in connection with the
preparation and filing of the Registration Statement and Prospectus, including
any pre-or post-effective amendments or supplements thereto, with the SEC, CFTC,
NFA, NASD, and with appropriate governmental authorities as part of making
application for registration of the Units under the securities or Blue Sky laws
of such jurisdictions as the Partnership may deem appropriate. As used herein,
the term "principal" shall have the meaning as defined in Rule 3.1(a) of the
CFTC's Regulations and the term "affiliate" shall mean any individual or entity
that directly or indirectly controls, is controlled by, or is under common
control with, the Trading Advisor.
(b) The General Partner, in its sole discretion and at any time may
(i) withdraw the SEC registration of the Units, or (ii) discontinue the offering
of Units.
(c) If, while Units continue to be offered and sold, the Trading
Advisor becomes aware of any materially untrue or misleading statement or
omission regarding itself or any of its principals or affiliates in the
Registration Statement or Prospectus, or of the occurrence of any event or
change in circumstances 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 thereof
shall distribute the Prospectus or selling literature or shall engage in any
selling activities whatsoever in connection with the continuing offering of
Units except as may be specifically requested by the General Partner.
(d) For purposes of this Agreement, and notwithstanding any of the
provisions hereof, all non-public information relating to the Trading Advisor
including, but not limited to, records, whether original, duplicated,
computerized, handwritten, or in any other form, and information contained
therein, business and/or marketing and/or sales plans and proposals, names of
past and current clients, names of past, current and prospective contacts,
trading methodologies, systems, strategies and programs, trading advice, trading
instructions, results of proprietary accounts, training materials, research data
bases, portfolios, and computer software, and all written and oral information,
furnished by the Trading Advisor to the Partnership, the General Partner and/or
their officers, directors, employees, agents (including, but not limited to,
attorneys, accountants, consultants, and financial advisors) or controlling
persons (each a "Recipient"), regardless of the manner in which it is furnished,
together with any analysis, compilations, studies or other documents or records
which are prepared by a Recipient of such information and which contain or are
generated from such information, regardless of whether explicitly identified as
confidential, with the exception of information which (i) is or becomes
generally available to the public other than as a result of acts by the
Recipient in violation of this Agreement, (ii) is in the possession of the
Recipient prior to its disclosure pursuant to the terms hereof, (iii) is or
becomes available to the Recipient from a source that is not bound by a
confidentiality agreement with regard to such information or by any other legal
obligation of confidentiality prohibiting such disclosure, or (iv) that is
independently developed by the Recipient without use of the confidential
information described in this Section 1(d), are and shall be confidential
information and/or trade secrets and the exclusive property of the Trading
Advisor ("Confidential Information" and/or "Proprietary Information").
(e) The Partnership and the General Partner each warrants and agrees
that they and their respective officers, directors, employees and agents
(including for purposes of this Agreement, but not limited to, attorneys,
accountants, consultants, and financial advisors) will protect and preserve the
Confidential Information and will disclose Confidential Information or otherwise
make Confidential Information available only to the Partnership's or the General
Partner's officers, directors, employees and agents (including for purposes of
this Agreement, but not limited to, attorneys, accountants, consultants, and
financial advisors), who need to know the Confidential Information (or any part
of it) for the purpose of satisfying their fiduciary, legal, reporting, filing
or other obligations hereunder or to monitor performance in the account during
the term of this Agreement or thereafter, or to the Partnership, General Partner
or a Recipient, as the case may be, is required to disclose such Confidential
Information due to a fiduciary obligation or legal or regulatory request.
Additionally, the Partnership and the General Partner each warrants and agrees
that it and any Recipient will use the Confidential Information solely for the
purpose of satisfying the Partnership's or the General Partner's obligations
under this Agreement and not in a manner which violates the terms of this
Agreement. Without limiting the generality of the foregoing, each of the General
Partner and the Partnership hereby agrees that it shall not disclose
Confidential Information to any affiliates, employees or agents that are
responsible for trading futures interests in a trading strategy substantially
similar to the Trading Advisor's Trading Program (as defined in Section 2(a)
hereof) for the Partnership's Net Assets allocated to the Trading Advisor,
except to satisfy its fiduciary, legal, reporting, filing or other obligations
hereunder or to monitor performance in the account during the term of this
Agreement, and further to the extent necessary to satisfy its obligations under
other agreements among the parties to this Agreement.
2. Duties of the Trading Advisor.
(a) Upon the commencement of trading operations on or about December
1, 2007 by the Trading Advisor on behalf of the Partnership, 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 allocated portion of the Net Assets of the Partnership which
initially shall be traded pursuant to its International Value Program, as
described in the Prospectus, and may be subsequently traded pursuant to such
other of the Trading Advisor's programs described in the Prospectus as agreed to
by the General Partner and the Trading Advisor (with such changes and additions
to such trading programs as the Trading Advisor, from time to time, incorporates
into its trading program(s) for accounts the size of the Partnership's),
(collectively, the "Trading Program") on the terms and conditions and in
accordance with the prohibitions and trading policies set forth in Exhibit A
hereto, the Prospectus, the Limited Partnership Agreement and as otherwise
provided in writing to the Trading Advisor; provided, however, that the General
Partner may override the instructions of the Trading Advisor without notice to
the Trading Advisor to the extent necessary (i) to comply with the trading
policies of the Partnership, as described in Exhibit A hereto, the Prospectus
and the Limited Partnership Agreement, and as otherwise provided in writing to
the Trading Advisor, and with applicable speculative position limits, (ii) to
fund any distributions, redemptions or reapportionments among other trading
advisors, if any, 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. Except as otherwise provided herein, the Trading Advisor shall
not be liable for the consequences of any decision by the General Partner to
override instructions of the Trading Advisor., except to the extent that such
consequences result from a material breach of this Agreement by the Trading
Advisor or the Trading Advisor fails to comply with the General Partner's
decision to override an instruction. In performing services for the Partnership,
the Trading Advisor may not materially alter or change the Trading Program
without the prior written consent of the General Partner (and shall not effect
such alteration or change on behalf of the Partnership without the General
Partner's consent), it being understood that changes in the futures interests
traded, provided that such futures interests are listed on Exhibit B hereto or
are otherwise approved in writing by the General Partner (as set forth in
Section 10(a)(iii) hereof), shall not be deemed an alteration in the Trading
Program.
(b) The Trading Advisor shall:
(i) Exercise good faith and due care in trading futures interests
for the account of the Partnership in accordance with the prohibitions and
trading policies of the Partnership described in Exhibit A hereto, the
Prospectus, the Limited Partnership Agreement and as otherwise provided in
writing to the Trading Advisor. The Trading Advisor shall trade its
allocated portion of the Partnership's Net Assets pursuant to the Trading
Program.
(ii) Subject to reasonable assurances of confidentiality by the
General Partner and the Partnership, provide the General Partner, within
45 days of the end of a calendar quarter, and within 45 days of a separate
request which the General Partner may make from time to time, with
information comparing the performance of the Partnership's account and the
performance of all other client accounts ("Other Accounts") directed by
the Trading Advisor using the Trading Program over a specified period of
time. In providing such information, the Trading Advisor may take such
steps as are necessary to assure the confidentiality of the Trading
Advisor's clients' identities. The Trading Advisor shall, upon the General
Partner's request, consult with the General Partner concerning any
discrepancies between the performance of such Other Accounts and the
Partnership's account. The Trading Advisor shall promptly inform the
General Partner of any material discrepancies of which the Trading Advisor
is aware. The General Partner acknowledges that the following differences
in accounts may cause divergent results: different trading programs,
strategies, implementation methods, degrees of leverage, or different
trading policies, accounts experiencing differing inflows or outflows of
equity, different risk profiles, accounts that commence trading at
different times and accounts that have different portfolios or different
fiscal years.
(iii) 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.
(iv) Upon the 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 information concerning
the Trading Advisor and its activities reasonably requested by the General
Partner (including, without limitation, information relating to changes in
control, key 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.
(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 affiliates
or each of their principals, stockholders, directors, officers, or employees, or
any other person, if any, who controls the Trading Advisor within the meaning of
the Securities Act. All brokerage fees, including give-up fees at rates approved
by MS&Co. 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) Subject to Section 8(a) hereof, the Trading Advisor shall assume
financial responsibility for any errors committed or caused by it in
transmitting orders for the purchase or sale of futures interests for the
Partnership's account, including, but not limited to, payment of the
commissions, exchange and NFA fees, and other transaction charges and give-up
charges incurred on such trades. The Trading Advisor's errors shall include, but
not be limited to, inputting improper trading signals or communicating incorrect
orders to the commodity brokers, as described in Section 5. The Trading Advisor
shall not be responsible for errors committed or caused by MS&Co. or any other
floor broker or futures commission merchant executing trades. The Trading
Advisor shall have an affirmative obligation promptly to notify the General
Partner upon discovery of its own errors with respect to the account, 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 to the commodity
brokers.
(e) Prior to the commencement of trading by the Trading Advisor, the
General Partner on behalf of the Partnership shall deliver to the Trading
Advisor a trading authorization in the form attached as Exhibit C hereto,
appointing the Trading Advisor the Partnership's attorney-in-fact for such
purpose.
3. Designation of Additional or Replacement Trading Advisors and
Reallocation of Net Assets.
(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 or
replacement trading advisor or advisors for the Partnership and may apportion to
such additional or replacement trading advisor(s) the management of such amounts
of Net Assets as the General Partner shall determine in its absolute discretion.
The designation of an additional trading advisor or advisors or replacement of
any trading advisor for the Partnership by the General Partner shall not require
any approval of any existing trading advisor (including the Trading Advisor).
Subject to Section 7(c) hereof, the designation and retention of an additional
or replacement trading advisor(s) and the apportionment of Net Assets to any
such trading advisor(s) pursuant to this Section 3 shall neither terminate this
Agreement nor modify in any regard the respective rights and obligations of the
Partnership, the General Partner and the Trading Advisor hereunder with respect
to the assets that remain under the management of the Trading Advisor. In the
event that an additional or replacement trading advisor(s) is so designated, the
Trading Advisor shall thereafter receive management and incentive fees based,
respectively, on that portion of the Net Assets managed by the Trading Advisor
and that portion of the Trading Profits (as defined in Section 6(c) hereof)
attributable to the trading done 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 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 or the
General Partner. Nothing contained herein shall be deemed to require the
Partnership or the General Partner to take any action contrary to the Limited
Partnership Agreement, the Certificate of Limited Partnership of the Partnership
as from time to time in effect (the "Certificate of Limited Partnership"), or
any applicable law or rule or regulation of any regulatory body, exchange, or
board. Nothing herein contained shall constitute the Trading Advisor and any
other trading advisor or advisors for the Partnership, the General Partner, or
other member partnership of the Fund Group or their trading advisors as a member
of any partnership, joint venture, association, syndicate or other entity with
the Partnership or the General Partner, or, except as otherwise specifically
provided in this Agreement, be deemed to confer on any of them any express,
implied, or apparent authority to incur any obligation or liability on behalf of
any other. It is expressly agreed that the Trading Advisor is neither a
promoter, sponsor, nor issuer with respect to the Partnership.
5. Commodity Brokers.
The Trading Advisor shall effect all transactions in futures
interests for the Partnership through, and shall maintain a separate account
with, such commodity broker or brokers as the General Partner shall direct. At
the present time, MS&Co. shall act as the commodity broker for the Partnership,
with the exception of trades on the London Metal Exchange which will be cleared
by Xxxxxx Xxxxxxx & Co. International plc, an affiliate of the General Partner
("MSIL"). In addition, MS&Co. will act as the counterparty on all of the foreign
currency forward trades for the Partnership. The General Partner shall provide
the Trading Advisor with copies of brokerage statements. Notwithstanding that
MS&Co. and MSIL shall act as the 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
MS&Co. Except as provided in Exhibit A hereto, the Trading Advisor will not be
responsible for paying give-up fees at rates approved by MS&Co.
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 1% (a 1% annual rate) of the Partnership's Net Assets allocated to the
Trading Advisor as of the opening of business on the first day of each
calendar month, commencing with the month in which the Partnership begins
to receive trading advice from the Trading Advisor pursuant to this
Agreement.
(ii) A monthly incentive fee equal to 20% of the "Trading Profits"
(as defined in Section 6(c) hereof) experienced by the Partnership as of
the end of each calendar month, payable on a non-netted basis vis a vis
other trading advisor(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
portion of 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 brokerage fees and any transaction fees and costs relating to the
Trading Advisor's allocated Net Assets, if any, not included in the brokerage
fees; with such trading profits and items of decrease determined from the end of
the last calendar month in which an incentive fee was earned by the Trading
Advisor or, if no incentive fee has been earned previously by the Trading
Advisor, from the date that the Partnership begins to receive trading advice
from the Trading Advisor pursuant to this Agreement to the end of the month as
of which such incentive fee calculation is being made. Extraordinary expenses of
the Partnership, if any, will not be deducted in determining Trading Profits. No
incentive fee will be paid on interest income earned by the Partnership.
(d) If any payment of incentive fees is made to the Trading Advisor
on account of Trading Profits 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 or 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 the month prior to
such increase or decrease. In the event that the Partnership experiences a
futures interests trading loss in more than one month with respect to the
Trading Advisor's allocated Net Assets without the payment of an intervening
incentive fee and the Trading Advisor's allocated Net Assets are increased or
reduced in more than one such month because of redemptions or 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 interests 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.
(a) This Agreement shall continue in effect for a period of one year
from the date the Agreement was entered into unless otherwise terminated as set
forth in this Section 7. The Trading Advisor may terminate this Agreement at the
end of such one-year period by providing prior written notice of termination to
the Partnership at least sixty days prior to the expiration of such one-year
period. If the Agreement is not terminated upon the expiration of such one-year
period, this Agreement shall automatically renew for an additional one-year
period and shall continue to renew for additional one-year periods until this
Agreement is otherwise terminated, as provided for herein. This Agreement shall
automatically terminate if the Partnership is dissolved.
(b) The Partnership and the General Partner each shall have the
right to terminate this Agreement in its discretion (i) at any month-end upon
five days' prior written notice to the Trading Advisor or (ii) at any time upon
prior written notice to the Trading Advisor upon the occurrence of any of the
following events: (A) if any person described as a "principal" of the Trading
Advisor in the Prospectus ceases for any reason to be an active "principal" of
the Trading Advisor; (B) if the Trading Advisor becomes bankrupt or insolvent;
(C) if the Trading Advisor is unable to use its Trading Program, trading systems
or methods as in effect on the date hereof and as modified in the future for the
benefit of the Partnership; (D) if the registration, as a commodity trading
advisor, of the Trading Advisor with the CFTC or its membership in the NFA is
revoked, suspended, terminated, or not renewed, or limited or qualified in any
respect; (E) except as provided in Section 13 hereof, if the Trading Advisor
merges or consolidates with, or sells or otherwise transfers its advisory
business, or all or a substantial portion of its assets, any portion of its
futures interests trading programs, systems or methods, or its goodwill, to any
individual or entity; (F) if the Net Assets allocated to the Trading Advisor as
of the date of this Agreement, 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 at any time; (G) if, at any time, the Trading Advisor violates any
trading or administrative policy described in the Prospectus or the Limited
Partnership Agreement or otherwise provided in writing to the Trading Advisor by
the General Partner, except with the prior express written consent of the
General Partner; (H) if the Trading Advisor fails in a material manner to
perform any of its obligations under this Agreement; or (I) if the Trading
Advisor merges, consolidates or sells a substantial portion of its assets
pursuant to Section 13 of this Agreement.
(c) The Trading Advisor may terminate this Agreement (i) in its
discretion at any month-end upon sixty days' prior written notice to the
Partnership and the General Partner, provided, however, that one year has passed
from the date the Agreement was entered into, to the day upon which the Trading
Advisor wishes the Agreement to be terminated, or (ii) at any time, upon thirty
days' prior written notice to the Partnership and the General Partner, in the
event: (A) that the General Partner imposes additional trading limitation(s) in
the form of one or more trading policies or administrative policies that the
Trading Advisor does not agree to follow in its management of its allocated
share of the Partnership's Net Assets; (B) the General Partner objects to the
Trading Advisor implementing a proposed material change in the Trading Advisor's
Trading Program used by the Partnership and the Trading Advisor certifies to the
General Partner in writing that it believes such change is in the best interests
of the Partnership; (C) the General Partner overrides a trading instruction of
the Trading Advisor for reasons unrelated to those set forth in Section 2 hereof
and a determination by the General Partner that the Trading Advisor has violated
the Partnership's trading policies and the Trading Advisor certifies to the
General Partner in writing that as a result the Trading Advisor believes the
performance results of the Trading Advisor relating to the Partnership will be
materially adversely affected; (D) the General Partner or the Partnership
materially breaches this Agreement and does not correct the breach within ten
days of receipt of a written notice of such breach from the Trading Advisor; (E)
the Partnership's Net Assets allocated to the Trading Advisor fall below
$1,000,000 at any time; (F) the Partnership becomes bankrupt or insolvent; or
(G) the registration of the General Partner with the CFTC as a commodity pool
operator or its membership in the NFA is revoked, suspended, terminated or not
renewed, or limited or qualified in any respect. If the General Partner or
Partnership merges, consolidates or sells a substantial portion of its assets
pursuant to Section 13 of this Agreement, the Trading Advisor may terminate this
Agreement upon prior written notice to the General Partner and the Partnership.
(d) Except as otherwise provided in this Agreement, any termination
of this Agreement in accordance with this Section 7 shall be without penalty or
liability to any party on account of such termination.
(e) 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 its allocated portion
of the Partnership's Net Assets, the Trading Advisor shall not be liable to the
Partnership or the General Partner or their partners, directors, officers,
principals, managers, members, shareholders, employees, controlling persons or
successors and assigns except that the Trading Advisor shall be liable for acts
or omissions that constitute a breach of this Agreement or a representation,
warranty or covenant herein, misconduct or negligence, or are the result of the
Trading Advisor not having acted in good faith and in the reasonable belief that
such actions or omissions were in, or not opposed to, the best interests of the
Partnership.
(b) Trading Advisor Indemnity in Respect of Management Activities.
The Trading Advisor shall indemnify, defend and hold harmless the Partnership
and the General Partner, their controlling persons, their affiliates and their
respective directors, officers, principals, managers, members, 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, accounting and other expenses incurred in
connection with, and any amounts paid in, any litigation or other proceeding or
any settlement; provided that solely in the case of a settlement, the Trading
Advisor 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 this Agreement
(except as covered by paragraph (d) below); provided that a court of competent
jurisdiction upon entry of a final judgment finds (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 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 Partnership or the General Partner, their
controlling persons, their affiliates and their respective directors, officers,
shareholders, employees, and controlling persons and was done in good faith.
(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,
principals, managers, members, 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,
accounting and other expenses incurred in connection with, and any amounts paid
in, any litigation or other proceeding or any settlement; provided that, solely
in the case of a settlement, 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 this Agreement (except as covered by paragraph
(e) below); provided that a court of competent jurisdiction upon entry of a
final judgment finds (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 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, its controlling persons, its affiliates and directors,
officers, shareholders, employees, and controlling persons and was done in good
faith.
(d) Trading Advisor Indemnity in Respect of Sale of Units. The
Trading Advisor shall indemnify, defend and hold harmless the Partnership, the
General Partner, MS&Co., MSIL, any selling agent, their controlling persons and
their affiliates and their respective directors, officers, principals, managers,
members, shareholders, employees and controlling persons from and against any
and all losses, claims, damages, liabilities, costs, and expenses, (joint and
several), to which any indemnified person may become subject under the
Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the Commodity Exchange Act, as amended, and rules promulgated thereunder
(the "CEAct"), the securities or Blue Sky law of any jurisdiction, or otherwise
(including any reasonable investigatory, legal, accounting and other expenses
incurred in connection with, and any amounts paid in, any litigation or other
proceeding or any settlement; provided that, solely in the case of a settlement,
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 losses, claims, damages, liabilities, costs, or expenses (or
action in respect thereof) arise out of, or are based upon: (i) a breach by the
Trading Advisor of any applicable laws or regulations or any representation,
warranty, or agreement in this Agreement; (ii) a breach of the disclosure
requirements under the CEAct or NFA Rules that relate to the Trading Advisor and
the Trading Advisor Principals (as defined below); or (iii) a misleading or
untrue statement or alleged misleading or untrue statement of a material fact
made in the Registration Statement, the Prospectus, or any related selling
material or an omission or alleged omission to state a material fact therein
which is required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus and any selling material, in light of the
circumstances under which they were made) not misleading, and such statement or
omission relates specifically to the Trading Advisor, or its Trading Advisor
Principals (including the historical performance capsules, but excluding the pro
forma performance information except to the extent the pro forma performance
information was based on information furnished by the Trading Advisor) or was
made in reliance upon, and in conformity with, written information or
instructions furnished by the Trading Advisor (provided, however, that with
respect to any related selling material only such related selling material as
shall have been approved in writing by the Trading Advisor).
(e) Partnership Indemnity in Respect of Sale of Units. The
Partnership shall indemnify, defend and hold harmless the Trading Advisor, its
controlling persons, their affiliates and their respective directors, officers,
principals, managers, members, shareholders, employees and controlling persons
from and against any loss claim, damage, liability, cost, and expense, joint and
several, to which any indemnified person may become subject under the Securities
Act, the Exchange Act, the CEAct, the securities or Blue Sky law of any
jurisdiction, or otherwise (including any reasonable investigatory, legal,
accounting and other expenses incurred in connection with, and any amounts paid
in, any litigation or other proceeding or any settlement; provided that solely
in the case of a settlement, the Partnership shall have approved such
settlement, and in connection with any administrative proceedings), in respect
of the offer or sale of Units, unless 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 applicable laws or regulations or any
representation, warranty, or agreement in this Agreement; (ii) a breach of the
disclosure requirements under the CEAct or NFA Rules that relate to the Trading
Advisor and the Trading Advisor Principals (as defined below); or (iii) a
misleading or untrue statement or alleged misleading or untrue statement of a
material fact made in the Registration Statement, the Prospectus, or any related
selling material or an omission or alleged omission to state a material fact
therein which is required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus and any selling material, in
light of the circumstances under which they were made) not misleading, and such
statement or omission relates specifically to the Trading Advisor, or its
Trading Advisor Principals (including the historical performance capsules, but
excluding the pro forma performance information except to the extent the pro
forma performance information was based on information furnished by the Trading
Advisor) or was made in reliance upon, and in conformity with, written
information or instructions furnished by the Trading Advisor (provided, however,
that with respect to any related selling material only such related selling
material as shall have been approved in writing by the Trading Advisor).
(f) Subject to Section 8(a) hereof, 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 that the
indemnifying party may have to the indemnified person hereunder, except where
such omission has materially prejudiced the indemnifying party. In case any
action, claim, or proceeding is brought against an indemnified person and the
indemnified person notifies the indemnifying party of the commencement thereof
as provided above, the indemnifying party will be entitled to participate
therein and, to the extent that the indemnifying party desires, to assume the
defense thereof with counsel selected by the indemnifying party and not
unreasonably disapproved by the indemnified person. After notice from the
indemnifying party to the indemnified person of the indemnifying party's
election so to assume the defense thereof as provided above, the indemnifying
party will not be liable to the indemnified person under the indemnity
provisions hereof for any legal and other expenses subsequently incurred by the
indemnified person in connection with the defense thereof, other than reasonable
costs of investigation.
Notwithstanding the preceding paragraph, if in any action, claim, or
proceeding as to which indemnification is or may be available hereunder, an
indemnified person reasonably determines that its interests are or may be
adverse, in whole or in part, to the indemnifying party's interests or that
there may be legal defenses available to the indemnified person that 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
(provided the indemnified person is so entitled) 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
clients 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 clients (including affiliates and stockholders, officers,
directors, and employees of the Trading Advisor and its affiliates and their
families) and trading for their own accounts. The Trading Advisor will use its
best efforts to implement a fair and consistent allocation policy that seeks to
ensure that all clients are treated equitably and positions allocated as nearly
as possible in proportion to the assets available for trading of the accounts
managed or controlled by the Trading Advisor. Upon written request, the General
Partner may request a copy of the Trading Advisor's procedures regarding the
equitable treatment of trades across accounts. Such procedures shall be provided
to the General Partner within 30 days of such request by the General Partner.
Except as otherwise set forth herein, the Trading Advisor and its principals and
affiliates agree to treat the Partnership in a fiduciary capacity to the extent
recognized by applicable law, but subject to that standard. Under no
circumstances shall the Trading Advisor or any of its principals or affiliates
by any act or omission knowingly or intentionally favor any account advised or
managed by the Trading Advisor or any of its principals or affiliates over the
account of the Partnership in any way or manner. Nothing contained in this
Section 9(a) shall preclude the Trading Advisor from charging different
management and/or incentive fees to its clients. Subject to the Trading
Advisor's obligations under applicable law, the Trading Advisor or any of its
principals or affiliates shall be free to advise and manage accounts for other
clients and shall be free to trade on the basis of the same Trading Program,
trading systems, methods, or strategies employed by the Trading Advisor for the
account of the Partnership, or trading 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 intentionally prefer any of such accounts
over the account of the Partnership on an overall basis.
(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 knowingly hold 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 other applicable law, or any applicable
rule or regulation of the CFTC or any other regulatory or self-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 that 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 or
self-regulatory body, exchange, or board so as to require the significant
modification of positions taken or intended for the account of the Partnership;
provided that the Trading Advisor may modify its Trading Program, trading
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 or
self-regulatory body, exchange, or board, the Trading Advisor and its principals
and affiliates shall promptly liquidate positions in all of their accounts,
including the Partnership's account, as to which positions are attributed to the
Trading Advisor as nearly as possible in proportion to the accounts' respective
amounts available for trading (taking into account different degrees of leverage
and "notional" equity) to the extent necessary to comply with the applicable
position limits.
10. Representations, Warranties, and Covenants of the Trading
Advisor.
(a) Representations, Warranties, and Agreements of the Trading
Advisor. The Trading Advisor with respect to itself and each of its principals
represents and warrants to and agrees with the General Partner and the
Partnership as follows:
(i) It will exercise good faith and due care in implementing the
Trading Program on behalf of the Partnership or any other trading programs
agreed to by the General Partner and the Trading Advisor.
(ii) The Trading Advisor shall follow and comply with, at all times,
the trading policies of the Partnership (as described in the Prospectus
and the Limited Partnership Agreement and as set forth in Exhibit A
hereto) and as amended in writing and furnished to the Trading Advisor
from time to time.
(iii) The Trading Advisor shall trade: (A) its allocated portion of
the Partnership's Net Assets pursuant to the Trading Program; (B) such
futures interests as are set forth on Exhibit B hereto; and (C) only in
futures and options contracts traded on U.S. contract markets, foreign
currency forward contracts traded with MS&Co. (which may include forward
contracts initially executed with financial institutions other than MS&Co)
and such other futures interests that are approved in writing by the
General Partner and have been approved by the CFTC for U.S. persons. With
respect to this Section 10(a)(iii), the parties agree that the Trading
Advisor is not obligated to trade all of the futures interests listed on
Exhibit B hereto or otherwise subsequently approved in writing by the
General Partner.
(iv) The Trading Advisor is duly organized, validly existing and in
good standing under the laws of the state of its organization and is
qualified to do business as a foreign corporation 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 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) The Disclosure Document (as defined in Section 20 hereof)
contains all statements and information required to be included therein
under the CEAct and other applicable laws, and such information is
accurate and complete in all material respects.
(vi) All references to the Trading Advisor and each Trading Advisor
Principal, including the Trading Advisor's Trading Program and other
trading programs, approaches, and systems and Trading Advisor performance,
in the Registration Statement and the Prospectus, and in any supplemental
selling material which has been approved in writing by the Trading
Advisor, are accurate and complete in all material respects. With respect
to the information relating to the Trading Advisor and each Trading
Advisor Principal, including the Trading Advisor's and 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 will not contain any
misleading or untrue statement of a material fact or omit to state a
material fact which is required to be stated therein or necessary to make
the statements therein not misleading and (iii) the Prospectus as of each
monthly closing will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which such statements were made, not
misleading. Except as otherwise disclosed in the Prospectus, the actual
performance of each discretionary account directed by the Trading Advisor
or any principal or affiliate of the Trading Advisor over the past five
years and year-to-date is disclosed in the Prospectus on either a
composite or a stand alone basis. The information regarding the actual
performance of such accounts set forth in the Prospectus has been
calculated and presented in accordance with the descriptions therein and
is complete and accurate in all material respects.
(vii) 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.
(viii) Each of the Trading Advisor and the Trading Advisor
Principals has all federal, state and foreign governmental, regulatory and
exchange licenses, and approvals and has effected all filings and
registrations with federal, state and foreign governmental and regulatory
agencies required to conduct its business and to act as described in the
Registration Statement and Prospectus or required to perform its or his
obligations under this Agreement. The Trading Advisor is registered as a
commodity trading advisor under the CEAct and is a member of the NFA in
such capacity.
(ix) The execution and delivery of this Agreement, the incurrence of
the obligations set forth herein, the consummation of the transactions
contemplated herein and in the Prospectus and the payment of the fees
hereunder will not violate, or constitute a breach of, or default under,
the certificate of incorporation or bylaws (or any other organizational
documents of the Trading Advisor or any other agreement or instrument by
which it is bound or of any order, rule, law or regulation binding on it
of any court or any governmental body or administrative agency or panel or
self-regulatory organization having jurisdiction over it.
(x) 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.
(xi) Except as set forth in the Registration Statement or Prospectus
there have not been and there is not pending, or to the best of the
Trading Advisor's knowledge after due inquiry, threatened, any action,
suit or proceeding before or by any court or other governmental body or
any administrative, self-regulatory or commodity exchange organization to
which the Trading Advisor or any Trading Advisor Principal is or was a
party, or to which any of the assets of the Trading Advisor or any Trading
Advisor Principal is or was subject and which resulted in or might
reasonably be expected to result in any material adverse change in the
condition, financial or otherwise, business or prospects of the Trading
Advisor or which is required under the Securities Act or CEAct to be
disclosed in the Prospectus. None of the Trading Advisor or any Trading
Advisor Principal has received any notice of an investigation by the NFA,
CFTC or other administrative agency or self-regulatory body (whether
United States or foreign) regarding noncompliance by the Trading Advisor
or any of the Trading Advisor Principals with the CEAct or any other
applicable law.
(xii) 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.
(xiii) Participation by the Trading Advisor in accordance with the
terms hereof and as described in the Registration Statement and Prospectus
will not violate any provisions of the Investment Advisers Act of 1940, as
amended.
(xiv) 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.
(xv) The foregoing representations and warranties shall be
continuing during the term of this Agreement and if at any time any event
shall occur which could make any of the foregoing representations or
warranties inaccurate, the Trading Advisor shall promptly notify the
General Partner and the Partnership of the nature of such event.
(b) Covenants of the Trading Advisor. The Trading Advisor covenants
and agrees that:
(i) The Trading Advisor shall maintain all registrations and
memberships necessary for the Trading Advisor and the Trading Advisor
Principals to continue to act as described herein and to at all times
comply in all 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 Trading Advisor
Principal 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 (or which may, with the
passage of time, materially affect) 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 becomes aware of any breach of
this Agreement by the Trading Advisor.
(iii) The Trading Advisor agrees 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. Property Rights of the Trading Advisor.
The General Partner and the Partnership agree to maintain in
confidence any and all trading details and instructions, positions and histories
related to the advisory services rendered under this Agreement, unless otherwise
agreed with the Trading Advisor. The General Partner and the Partnership
acknowledge that the advisory services provided by the Trading Advisor
constitute proprietary information and further agree that they shall not copy,
disclose, misuse, misappropriate or reverse engineer or otherwise appropriate or
make use of in any manner the investment and trading strategies, systems,
algorithms, models, techniques, methods, policies, programs and analyses
previously, currently or hereafter used by the Trading Advisor in the conduct of
its business. These provisions regarding confidentiality and property rights
shall survive the termination of this Agreement.
12. Representations, Warranties, and Covenants of the Partnership
and the General Partner.
(a) Representations of the General Partner and the Partnership. The
Partnership and the General Partner represent and warrant to the Trading
Advisor, as follows:
(i) The Partnership has provided to the Trading Advisor, and filed
with the SEC, the Registration Statement and has filed copies thereof
with: (A) the CFTC under the CEAct; (B) the NASD pursuant to its Conduct
Rules; and (C) the NFA in accordance with NFA Compliance Rule 2-13. The
Partnership will not file any amendment to the Registration Statement or
any amendment or supplement to the Prospectus unless the Trading Advisor
has received reasonable prior notice of and a copy of such amendments or
supplements and has not reasonably objected thereto in writing.
(ii) The Partnership is a limited partnership duly organized
pursuant to the Certificate of Limited Partnership, the Limited
Partnership Agreement and the Delaware Revised Uniform Limited Partnership
Act ("DRULPA") and is validly existing under the laws of the State of
Delaware with full power and authority to engage in the trading of futures
interests and to engage in its other contemplated activities as described
in the Prospectus; the Partnership has received a certificate of authority
to do business in the State of New York as provided by Article 8-A of the
New York Revised Limited Partnership Act and is qualified to do business
in each jurisdiction in which the nature or conduct of its business
requires such qualification and where failure to be so qualified could
materially adversely affect the Partnership's ability to perform its
obligations hereunder.
(iii) The General Partner is duly organized and validly existing and
in good standing as a corporation under the laws of the State of Delaware
and in good standing and qualified to do business as a foreign corporation
under the laws of the State of New York and is qualified to do business
and is in good standing as a foreign corporation in each jurisdiction in
which the nature or conduct of its business requires such qualification
and where the failure to be so qualified could materially adversely affect
the General Partner's ability to perform its obligations hereunder.
(iv) The Partnership and the General Partner have full partnership
or corporate power and authority under applicable law to conduct their
business and to perform their respective obligations under this Agreement.
(v) The Registration Statement and Prospectus contain all statements
and information required to be included therein by the CEAct. When the
Registration Statement becomes effective under the Securities Act and at
all times subsequent thereto up to and including the first monthly closing
following the date on which the Partnership begins to receive trading
advice from the Trading Advisor pursuant to this Agreement (the "Initial
Closing") and each monthly closing thereafter, the Registration Statement
and Prospectus will comply in all material respects with the requirements
of the Securities Act, the rules and regulations promulgated thereunder
(the "SEC Regulations"), the rules of the NFA and the CEAct. The
Registration Statement as of its effective date and as of the date of each
monthly closing will not contain any misleading or untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus as of its date of issue and at each monthly closing will not
contain any misleading or untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light
of the circumstances under which such statements were made, not
misleading. The supplemental selling material, when read in conjunction
with the Prospectus, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which such statements were
made, not misleading. The supplemental selling material will comply with
the CEAct and the regulations and rules of the NFA and NASD. The
representation and warranties in this clause (v) shall not, however, apply
to any statement or omission in the Registration Statement, Prospectus or
supplemental selling material relating to the Trading Advisor, or its
Trading Advisor Principals or its trading programs or its performance
information or made in reliance upon and in conformity with information
furnished by the Trading Advisor.
(vi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change in the condition, financial or otherwise, business
or prospects of the General Partner or the Partnership, whether or not
arising in the ordinary course of business.
(vii) This Agreement has been duly and validly authorized, executed
and delivered by the General Partner for itself and on behalf of the
Partnership and constitutes a valid, binding and enforceable agreement of
the Partnership and the General Partner in accordance with its terms.
(viii) The execution and delivery of this Agreement, the incurrence
of the obligations set forth herein and the consummation of the
transactions contemplated herein and in the Registration Statement and
Prospectus will not violate, or constitute a breach of, or default under,
the General Partner's certificate of incorporation or bylaws, the
Certificate of Limited Partnership, the Limited Partnership Agreement, or
any agreement or instrument by which either the General Partner or the
Partnership, as the case may be, is bound or any order, rule, law or
regulation applicable to the General Partner or the Partnership of any
court or any governmental body or administrative agency or panel or
self-regulatory organization having jurisdiction over the General Partner
or the Partnership.
(ix) The General Partner and each principal of the General Partner,
as defined in Rule 3.1 under the CEAct, (each, a "General Partner
Principal") have all federal and state governmental, regulatory and
exchange approvals and licenses, and have effected all filings and
registrations with federal and state governmental agencies and regulatory
agencies required to conduct their business and to act as described in the
Registration Statement and the Prospectus or required to perform their
obligations under this Agreement (including, without limitation,
registration as a commodity pool operator under the CEAct and membership
in the NFA as a commodity pool operator) and will maintain all such
required approvals, licenses, filings and registrations for the term of
this Agreement. The General Partner's principals identified in the
Prospectus are all of the General Partner Principals.
(x) The foregoing representations and warranties shall be continuing
during the term of this Agreement and if at any time any event shall occur
which could make any of the foregoing representations or warranties
inaccurate, the General Partner shall promptly notify the Trading Advisor
of the nature of such event.
(b) Covenants of the General Partner. 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 lawsuit, 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 or
prospects of the General Partner. The General Partner shall also inform
the Trading Advisor immediately if the General Partner or any of its
officers become aware of any material 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.
13. Merger or Transfer of Assets of General Partner, Partnership
or Trading Advisor.
The General Partner, the Partnership, or the Trading Advisor may
merge or consolidate with, or sell or otherwise transfer its business, or all or
a substantial portion of its assets, to any entity upon written notice to the
other parties.
14. 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.
15. Assignment.
Subject to Section 13 hereof, this Agreement may not be assigned,
transferred by operation of law, change in control or otherwise, by any party
hereto without the express written consent of the other parties hereto.
16. Amendment.
This Agreement may not be amended except by the written consent of
the parties hereto. No waiver of any provision of this Agreement shall be
implied from any course of dealings between the parties, from any failure by any
party to assert its rights hereunder or any occasion or series of occasions.
17. 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.
18. Closing Certificates and Opinions.
(a) The Trading Advisor shall, at the Initial Closing and at the
request of the General Partner at any monthly closing thereafter, provide the
following:
(i) To MS&Co., 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 MS&Co., 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 corporation duly organized and
validly existing under the laws of the jurisdiction of its
incorporation and is qualified to do business and in good standing
in each other jurisdiction in which the nature or conduct of its
business requires such qualification and the failure to be duly
qualified would materially adversely affect the Trading Advisor's
ability to perform its obligations under this Agreement. The Trading
Advisor has full 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 to conduct its
business as described in the Registration Statement and Prospectus,
except for such licenses, memberships, filings and registrations,
the absence of which would not have a material adverse effect on its
ability to act as described in the Registration Statement and
Prospectus or to perform its obligations under this Agreement, and,
to the best of such counsel's knowledge, after due investigation,
none of such licenses, memberships or registrations have been
rescinded, revoked or suspended.
(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 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 pending or threatened before or by any court, governmental
body, administrative agency, panel or self-regulatory organization,
nor have there been any such actions, suits or proceedings within
the five years preceding the date of the Prospectus against the
Trading Advisor or any Trading Advisor Principal which are required
to be disclosed in the Registration Statement or Prospectus.
(E) The execution and delivery by the Trading Advisor of this
Agreement, and the performance by the Trading Advisor of its
obligations hereunder and in the Prospectus (a) 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
provision of the Trading Advisor's organizational documents 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
indenture, mortgage, deed of trust, agreement or instrument known to
such counsel to which the Trading Advisor or any of its subsidiaries
is a party or by which the Trading Advisor or any of its
subsidiaries is bound or to which any of the property or assets of
the Trading Advisor or any of its subsidiaries is subject, or (ii)
any judgment, decree or order known to such counsel 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 or the
Trading Advisor Principals, in light of the circumstances under
which they were made, not misleading; provided, however, that such
counsel need express no opinion or belief as to the performance data
and notes or descriptions thereto set forth in the Registration
Statement and Prospectus, except that such counsel shall opine,
without rendering any opinion as to the accuracy of the information
in such tables, that the actual performance tables of the Trading
Advisor set forth in the Prospectus comply as to form in all
material respects with applicable CFTC rules and all CFTC and NFA
interpretations thereof.
In giving the foregoing opinion, counsel may rely on information
obtained from public officials, officers of the Trading Advisor, and other
sources believed by it to be responsible and may assume that signatures on all
documents examined by it are genuine.
(iii) To MS&Co., the General Partner and the Partnership, a report
dated the date of the closing that shall present, for the period from the
date after the last day covered by the historical performance capsules in
the Prospectus to the latest practicable day before closing, updated
performance information, and that shall certify that such information is,
to the best of such Trading Advisor's knowledge, accurate in all material
respects.
(b) The General Partner shall, at the Initial Closing, 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) To the parties hereto, an opinion of Cadwalader, Xxxxxxxxxx &
Xxxx LLP, counsel to the General Partner and the Partnership, in form and
substance satisfactory to such parties, to the effect that:
(A) The Partnership is a limited partnership validly existing
and in good standing under the laws of the State of Delaware with
limited partnership power to enter into and perform its obligations
under this Agreement; the Partnership has received a certificate
from the New York Secretary of State certifying that the Partnership
filed an application for authority pursuant to Section 121-902 of
the New York Revised Limited Partnership Act and that, so far as
shown by the records of the New York Department of State, the
Partnership is authorized to do business under the laws of the State
of 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 with corporate power to conduct its business as described
in the Prospectus and to perform its obligations under this
Agreement. The General Partner is duly qualified as a foreign
corporation to do business in the State of New York. To such
counsel's knowledge, the General Partner does not conduct business
in any jurisdiction other than the State of New York.
(C) The General Partner, each of its principals as defined in
Rule 3.1 under the CEAct, and the Partnership have all federal and
New York state governmental and regulatory licenses, registrations
and memberships required by law and have made all filings necessary
in order for the General Partner and the Partnership to perform
their obligations under this Agreement and to conduct their business
as described in the Prospectus, except for such licenses,
memberships, filings, and registrations, the absence of which,
either individually or in the aggregate, would not be reasonably
likely to have a material adverse effect on the ability of the
Partnership or the General Partner to conduct their business as
described in the Prospectus, or to perform their obligations under
this Agreement, and, to 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 against the General Partner
and the Partnership, in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, receivership or other laws relating to
or affecting creditors' rights generally, and to general principles
of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity), and except that the enforcement of
rights with respect to indemnification and contribution obligations
and provisions relating to submission to jurisdiction, venue or
service of process, may be limited by applicable law or
considerations of public policy.
(E) The execution and delivery by each of the General Partner
and the Partnership of this Agreement and the performance by each of
the General Partner and the Partnership of its respective
obligations hereunder and in the Prospectus (a) do not require any
Governmental Approval to be obtained on the part of the General
Partner or the Partnership, except those that have been obtained
and, to such counsel's knowledge, are in effect, (b) do not result
in a violation of any provision of the General Partner's certificate
of incorporation or bylaws, the Certificate of Limited Partnership
or the Limited Partnership Agreement of the Partnership or any
Applicable Laws applicable to the General Partner and the
Partnership, and (c) do not breach or result in a violation of, or
default under, (i) any of the agreements listed on the Registration
Statement which are known to such counsel's knowledge to be
effective, or (ii) any judgment, decree or order known to such
counsel which is applicable to the General Partner or the
Partnership and, pursuant to any Applicable Laws, is issued by any
Governmental Authority having jurisdiction over it or its
properties. "Applicable Laws" means those laws, rules and
regulations of the State of New York and of the United States of
America which, in such counsel's experience, are normally applicable
to transactions of the type contemplated by this Agreement.
"Governmental Authorities" means executive, legislative, judicial,
administrative or regulatory bodies of the State of New York or the
United States of America. "Government Approval" means any consent,
approval, license, authorization or validation of, or filing,
recording or registration with any Governmental Authority pursuant
to Applicable Laws.
(F) Based upon reliance on certain SEC "no-action" letters, as
of the closing, the performance by the Partnership of the
transactions contemplated by this Agreement and as described in the
Prospectus will not require the Partnership to register as an
"investment company" under the Investment Company Act of 1940, as
amended.
(G) Nothing has come to such counsel's attention that would
lead them to believe that the Registration Statement, as of its
effective date, contained an 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, as of the date of such counsel's opinion, contains any
untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; it
being understood that Cadwalader, Xxxxxxxxxx & Xxxx LLP express no
view as to the adequacy and accuracy of (a) information in the
Registration Statement or the Prospectus regarding any trading
advisor to the Partnership or its principals, (b) any financial,
numerical, statistical or computational information included in or
omitted from the Registration Statement or Prospectus, or (c) as to
the performance data and notes or descriptions thereto set forth in
the Registration Statement and Prospectus.
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.
19. 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.
20. Disclosure Document.
During the term of this Agreement, the Trading Advisor shall furnish
to the General Partner promptly copies of all disclosure documents or similar
documents used by the Trading Advisor. The General Partner hereby acknowledges
on behalf of the Partnership receipt of the Trading Advisor's disclosure
document dated March 1, 2007 (the "Disclosure Document").
21. Notices.
All notices required to be delivered under this Agreement shall be
in writing and shall be effective when delivered personally on the day
delivered, by facsimile on receipt confirmation, by email followed by delivery
of an original, or when given by registered or certified mail, postage prepaid,
return receipt requested, on the second business day following the day on which
it is so mailed, 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 Spectrum Strategic L.P.
c/o Demeter Management Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx, President
if to the General Partner:
Demeter Management Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx, President
if to the Trading Advisor:
Cornerstone Quantitative Investment Group, Inc.
Xxx Xxxxxxx Xxxxx, Xxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
22. Survival.
All representations, warranties and covenants contained in this
Agreement shall be continuing during the term of this Agreement and the
provisions of this Agreement shall survive the termination of this Agreement
with respect to any matter arising while this Agreement was in effect. Each
party hereby agrees that as of the date of this Agreement it is, and during its
term shall be, in compliance with its representations, warranties and covenants
herein contained. In addition, if at any time any event occurs which would make
any of such representations, warranties or covenants not true, the affected
party will use its best efforts to promptly notify the other parties of such
fact.
23. 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.
24. 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.
25. 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.
26. Successors.
This Agreement, including the representations, warranties and
covenants contained herein shall be binding upon and inure to the benefit of the
parties hereto, their successors and permitted assigns, and no other person
shall have any right or obligation under this Agreement.
27. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
28. Waiver of Breach.
The waiver by any party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
or of a breach by any other party. The failure of a party to insist upon strict
adherence to any provision of the Agreement shall not constitute a waiver or
thereafter deprive such party of the right to insist upon strict adherence.
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 SPECTRUM STRATEGIC L.P.
by Demeter Management Corporation,
General Partner
By /s/ Xxxxxx Xxxxx
------------------------------------
DEMETER MANAGEMENT CORPORATION
By /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: President
CORNERSTONE QUANTITATIVE INVESTMENT
GROUP, INC.
By /s/ Xxxx X. Xxxxxxxx XX
------------------------------------
Name: Xxxx X. Xxxxxxxx XX
Title: Principal
