MANAGEMENT AGREEMENT
AGREEMENT made as of the 1st day of February, 1999 among XXXXX
XXXXXX FUTURES MANAGEMENT INC., a Delaware corporation ("SBFM"), XXXXX XXXXXX
DIVERSIFIED FUTURES FUND X. X. XX, a New York limited partnership (the
"Partnership") and X.X. XXXXXXXXXXXX CAPITAL MANAGEMENT, INC., a Delaware
corporation (the "Advisor").
W I T N E S S E T H :
WHEREAS, SBFM is the general partner of Xxxxx Xxxxxx
Diversified Futures Fund X. X. XX, a limited partnership organized for the
purpose of speculative trading of commodity interests, including futures
contracts, options and forward contracts with the objective of achieving
substantial capital appreciation; and
WHEREAS, the Limited Partnership Agreement establishing the
Partnership (the "Limited Partnership Agreement") permits SBFM to delegate to
one or more commodity trading advisors SBFM's authority to make trading
decisions for the Partnership; and
WHEREAS, the Advisor is registered as a commodity trading
advisor with the Commodity Futures Trading Commission ("CFTC") and is a member
of the National Futures Association ("NFA"); and
WHEREAS, SBFM is registered as a commodity pool operator with
the CFTC and is a member of the NFA; and
WHEREAS, SBFM, the Partnership and the Advisor wish to enter
into this Agreement in order to set forth the terms and conditions upon which
the Advisor will render and implement advisory services in connection with the
conduct by the Partnership of its commodity trading activities during the term
of this Agreement;
NOW, THEREFORE, the parties agree as follows:
1. DUTIES OF THE ADVISOR. (a) For the period and on the terms
and conditions of this Agreement, the Advisor shall have sole authority and
responsibility, as one of the Partnership's agents and attorneys-in-fact, for
directing the investment and reinvestment of the assets and funds of the
Partnership allocated to it by the General Partner in commodity interests,
including commodity futures contracts, options and forward contracts. All such
trading on behalf of the Partnership shall be in accordance with the trading
policies set forth in the Prospectus and Disclosure Document dated April 30,
1998, as supplemented (the "Prospectus"), and as such trading policies may be
changed from time to time upon receipt by the Advisor of prior written notice of
such change and pursuant to the trading strategy selected by SBFM to be utilized
by the Advisor in managing the Partnership's assets. SBFM has initially selected
the Advisor's Financial Program (the "Program") to manage the Partnership's
assets allocated to it. Any open positions or other investments at the time of
receipt of such notice of a change in trading policy shall not be deemed to
violate the changed policy and shall be closed or sold in the ordinary course of
trading. The Advisor may not materially deviate from the trading policies set
forth in the Prospectus without the prior written consent of the Partnership
given by SBFM. SBFM acknowledges that the Advisor may utilize exchange for
physical transactions in its trading for the Partnership. The Advisor makes no
representation or warranty that the trading to be directed by it for the
Partnership will be profitable or will not incur losses.
(b) SBFM acknowledges receipt of the Advisor's Disclosure
Document dated October 9, 1998 as filed with the NFA and CFTC (the "Disclosure
Document"). All trades made by the Advisor for the account of the Partnership
shall be cleared through such commodity broker or brokers as SBFM shall direct,
and the Advisor shall have no authority or responsibility for selecting or
supervising any such broker in connection with the execution, clearance or
confirmation of transactions for the Partnership or for the negotiation of
brokerage rates charged therefor. However, the Advisor, with the prior written
permission (by either original or fax copy) of SBFM, may direct all trades in
commodity futures and options to a futures commission merchant or independent
floor broker it chooses for execution with instructions to give-up the trades to
the broker designated by SBFM, provided that the futures commission merchant or
independent floor broker and any give-up or floor brokerage fees are approved in
advance by SBFM. All give-up or similar fees relating to the foregoing shall be
paid by the Partnership after all parties have executed the relevant give-up
agreements (by either original or fax copy). SBFM will cause the Partnership's
commodity brokers to provide the Advisor with copies of all confirmation,
purchase and sale, monthly and similar statements at the time such statements
are available to SBFM.
(c) The initial allocation of the Partnership's assets (all
actual, no notional, funds) to the Advisor will be made to the Program. The
parties acknowledge that if assets of the Fund under the Advisor's management
fall below U.S. $1 million, the Advisor may not be able to trade all of the
Program's portfolio for the Fund. In the event the Advisor wishes to use a
trading system or methodology materially different from, other than or in
addition to the Program as outlined in the Disclosure Document in connection
with its trading for the Partnership, either in whole or in part, it may not do
so unless the Advisor gives SBFM prior written notice of its intention to
utilize such different trading system or methodology and SBFM consents thereto
in writing. In addition, the Advisor will provide five days' prior written
notice to SBFM of any change in the trading system or methodology to be utilized
for the Partnership which the Advisor deems material. If the Advisor deems such
change in system or methodology or in markets traded to be material, the changed
system or methodology or markets traded will not be utilized for the Partnership
without the prior written consent of SBFM. In addition, the Advisor will notify
SBFM of any changes to the trading system or methodology that would require a
change in the description of the trading strategy or methods described in the
Disclosure Document, if applicable. Immaterial changes may be instituted without
prior written approval of SBFM. Further, the Advisor will provide the
Partnership with a current list of all commodity interests to be traded for the
Partnership's account. The Advisor also agrees to provide SBFM, on a monthly
basis, with a written report of the assets under the Advisor's management
together with all other matters deemed by the Advisor to be material changes to
its business not previously reported to SBFM. The Advisor further agrees that it
will use its best efforts to convert foreign currency balances (not required to
margin positions denominated in a foreign currency) to U.S.
dollars no less frequently than approximately monthly.
(d) The Advisor agrees to make all material disclosures to the
Partnership regarding itself and its principals as defined in Part 4 of the
CFTC's regulations ("principals"), shareholders, directors, officers and
employees, their trading performance and general trading methods, its customer
accounts (but not the identities of or identifying information with respect to
its customers) and otherwise as are required in the reasonable judgment of SBFM
to be made in any disclosure documents and amendments thereto or filings
required by Federal or state law or NFA rule or order. Notwithstanding Sections
1(d) and 4(d) of this Agreement, the Advisor is not required to disclose the
actual trading results of proprietary accounts of the Advisor or its principals
unless SBFM reasonably determines that such disclosure is required in order to
fulfill its fiduciary obligations to the Partnership or the reporting, filing or
other obligations imposed on it by Federal or state law or NFA rule or order.
The Partnership and SBFM acknowledge that the trading advice to be provided by
the Advisor is a property right belonging to the Advisor and that they will keep
all such advice confidential and will not make use of such advice in any manner
or disclose such advice to third parties. Further, SBFM agrees to treat as
confidential any results of proprietary accounts and/or proprietary information
with respect to trading systems obtained from the Advisor.
(e) The Advisor understands and agrees that SBFM may designate
other trading advisors for the Partnership and apportion or reapportion to such
other trading advisors the management of an amount of Net Assets (as defined in
Section 3(b) hereof) as it shall determine in its absolute discretion. The
designation of other trading advisors and the apportionment or reapportionment
of Net Assets to any such trading advisors pursuant to this Section 1 shall
neither terminate this Agreement nor modify in any regard the respective rights
and obligations of the parties hereunder. The Advisor may terminate this
Agreement immediately if the Net Assets of the Partnership managed by the
Advisor fall below $1,000,000 (after adjustment for trading losses and
redemptions).
(f) SBFM may, from time to time, in its absolute discretion,
select additional trading advisors and reapportion funds among the trading
advisors for the Partnership as it deems appropriate. SBFM shall use its best
efforts to make reapportionments, if any, as of the first day of a month. The
Advisor agrees that it may be called upon at any time promptly to liquidate
positions in SBFM's sole discretion so that SBFM may reallocate the
Partnership's assets, meet margin calls on the Partnership's account, fund
redemptions, or for any other reason, except that SBFM will not require the
liquidation of specific positions by the Advisor. SBFM and the Partnership
acknowledge that any such request to liquidate positions by SBFM may result in
the Partnership incurring losses which it might otherwise not have incurred.
SBFM will use its best efforts to give two days' prior notice to the Advisor of
any reallocations or liquidations. The Advisor may refuse any increase in the
amount of the allocated assets in its sole discretion.
(g) The Advisor will not be liable for trading losses in the
Partnership's account including losses caused by errors; provided, however, that
the Advisor will be liable to the Partnership with respect to losses incurred
due to negligent errors committed or caused by it or any of its principals or
employees in communicating improper trading instructions or orders to any broker
on behalf of the Partnership.
2. INDEPENDENCE OF THE ADVISOR. For all purposes herein, the
Advisor shall be deemed to be an independent contractor and, unless otherwise
expressly provided or authorized, shall have no authority to act for or
represent the Partnership in any way and shall not be deemed an agent, promoter
or sponsor of the Partnership, SBFM, or any other trading advisor. The Advisor
shall not be responsible to the Partnership, the General Partner, any trading
advisor or any limited partners for any acts or omissions of any other trading
advisor, whether or not they are still acting as an advisor to the Partnership.
3. COMPENSATION. (a) In consideration of and as compensation
for all of the services to be rendered by the Advisor to the Partnership under
this Agreement, the Partnership shall pay the Advisor (i) an incentive fee
payable quarterly equal to 20% of New Trading Profits (as such term is defined
below) earned by the Advisor for the Partnership and (ii) a monthly fee for
professional management services equal to 1/6 of 1% (2% per year) of the
month-end Net Assets of the Partnership allocated to the Advisor.
(b) "Net Assets" shall have the meaning set forth in Paragraph
7(d)(1) of the Limited Partnership Agreement dated as of May 19, 1994, amended
as of August 8, 1994, and amended and restated as of July 31, 1995 and without
regard to further amendments thereto, provided that in determining the Net
Assets of the Partnership on any date, no adjustment shall be made to reflect
any distributions, redemptions or incentive fees payable as of the date of such
determination.
(c) "New Trading Profits" shall mean the excess, if any, of
Net Assets managed by the Advisor at the end of the fiscal period over Net
Assets managed by the Advisor at the end of the highest previous fiscal period
or Net Assets allocated to the Advisor at the date trading commences, whichever
is higher, and as further adjusted to eliminate the effect on Net Assets
resulting from new capital contributions, redemptions, reallocations or capital
distributions, if any, made during the fiscal period decreased by interest or
other income, not directly related to trading activity, earned on the
Partnership's assets during the fiscal period, whether the assets are held
separately or in margin accounts. Ongoing expenses will be attributed to the
Advisor based on the Advisor's proportionate share of Net Assets. Ongoing
expenses above will not include expenses of litigation not involving the
activities of the Advisor on behalf of the Partnership. Ongoing expenses include
offering and organizational expenses of the Partnership. No incentive fee shall
be paid until the end of the first full calendar quarter of trading, which fee
shall be based on New Trading Profits earned from the commencement of trading
operations by the Partnership through the end of the first full calendar
quarter. Interest income earned, if any, will not be taken into account in
computing New Trading Profits earned by the Advisor. If Net Assets allocated to
the Advisor are reduced due to redemptions, distributions or reallocations (net
of simultaneous additions), there will be a corresponding proportional reduction
in the related loss carryforward amount that must be recouped before the Advisor
is eligible to receive another incentive fee.
(d) Quarterly incentive fees and monthly management fees shall
be paid within twenty (20) business days following the end of the period, as the
case may be, for which such fee is payable. In the event of the termination of
this Agreement as of any date which shall not be the end of a fiscal quarter or
a calendar month, as the case may be, the quarterly incentive fee shall be
computed as if the effective date of termination were the last day of the then
current quarter and the monthly management fee shall be prorated to the
effective date of termination. If, during any month, the Partnership does not
conduct business operations or the Advisor is unable to provide the services
contemplated herein for more than two successive business days, the monthly
management fee shall be prorated by the ratio which the number of business days
during which SBFM conducted the Partnership's business operations or utilized
the Advisor's services bears in the month to the total number of business days
in such month.
(e) The provisions of this Paragraph 3 shall survive the
termination of this Agreement.
4. RIGHT TO ENGAGE IN OTHER ACTIVITIES. (a) The services
provided by the Advisor hereunder are not to be deemed exclusive. SBFM on its
own behalf and on behalf of the Partnership acknowledges that, subject to the
terms of this Agreement, the Advisor and its principals, officers, directors,
employees and shareholder(s), may render advisory, consulting and management
services to other clients and accounts. The Advisor and its principals,
officers, directors, employees and shareholder(s) shall be free to trade for
their own accounts and to advise other investors and manage other commodity
accounts during the term of this Agreement and to use the same and different
information, computer programs and trading strategies, programs or formulas
which they obtain, produce or utilize in the performance of services to SBFM for
the Partnership. The Partnership and SBFM acknowledge that all such trading for
other accounts may increase the level of competition with respect to priorities
of order entry and may restrict the ability of the Advisor to obtain or maintain
positions in futures due to the application of CFTC or exchange imposed
speculative position limits and daily trading limits. However, the Advisor
represents, warrants and agrees that it believes the rendering of such
consulting, advisory and management services to other accounts and entities will
not require any material change in the Advisor's basic trading strategies and
will not affect the capacity of the Advisor to continue to render services to
SBFM for the Partnership of the quality and nature contemplated by this
Agreement.
(b) If, at any time during the term of this Agreement, the
Advisor is required to aggregate the Partnership's commodity positions with the
positions of any other person for purposes of applying CFTC- or exchange-imposed
speculative position limits, the Advisor agrees that it will promptly notify
SBFM if the Partnership's positions are included in an aggregate amount which
exceeds the applicable speculative position limit. The Advisor agrees that, if
its trading recommendations are materially altered because of the application of
any speculative position limits, it will not modify the trading instructions
with respect to the Partnership's account in such a manner as to affect the
Partnership substantially disproportionately as compared with the Advisor's
other accounts. The Advisor further represents, warrants and agrees that under
no circumstances will it knowingly or deliberately use trading strategies or
methods for the Partnership that are inferior to strategies or methods employed
for any other client or account and that it will not knowingly or deliberately
favor any client or account managed by it over any other client or account on an
overall basis, it being acknowledged, however, that different trading
strategies, programs, methods and degrees of leverage may be utilized for
differing sizes of accounts, accounts with different trading policies and
restrictions, accounts experiencing differing inflows or outflows of equity,
accounts which commence trading at different times, accounts which have
different portfolios or different fiscal years, accounts utilizing different
executing brokers and accounts with other differences, and that such differences
may cause divergent trading results. SBFM and the Partnership further
acknowledge that the Advisor offers another trading program than the Program
which they have selected and that such other trading program may obtain more
favorable results than the Program.
(c) It is acknowledged that the Advisor and/or its principals,
officers, employees, directors and shareholder(s) presently act, and it is
agreed that they may continue to act, as advisor for other accounts managed by
them, and may continue to receive compensation with respect to services for such
accounts in amounts which may be more or less than the amounts received from the
Partnership.
(d) The Advisor agrees that it shall make such information
available to SBFM respecting the performance of the Partnership's account as
compared to the performance of other client accounts managed by the Advisor or
its principals pursuant to the Program as shall be reasonably requested by SBFM.
The Advisor presently believes and represents that existing speculative position
limits will not materially adversely affect its ability to manage the
Partnership's account given the potential size of the Partnership's account and
the Advisor's and its principals' current accounts and all proposed accounts for
which they have contracted to act as trading advisor.
5. TERM. (a) This Agreement shall continue in effect until
June 30, 1999. SBFM may, in its sole discretion, renew this Agreement for
additional one-year periods upon notice to the Advisor not less than 30 days
prior to the expiration of the previous period. At any time during the term of
this Agreement, SBFM may terminate this Agreement at any month-end upon 30 days'
notice to the Advisor. At any time during the term of this Agreement, SBFM may
elect to immediately terminate this Agreement upon 30 days' notice to the
Advisor if (i) the Net Asset Value per Unit shall decline as of the close of
business on any day to $400 or less; (ii) the Net Assets allocated to the
Advisor (adjusted for redemptions, distributions, withdrawals or reallocations,
if any) decline by 50% or more as of the end of a trading day from such Net
Assets' previous highest value; (iii) limited partners owning at least 50% of
the outstanding Units shall vote to require SBFM to terminate this Agreement;
(iv) the Advisor fails to comply with the terms of this Agreement in all
material respects; (v) SBFM, in good faith, reasonably determines that the
performance of the Advisor has been such that SBFM's fiduciary duties to the
Partnership require SBFM to terminate this Agreement; or (vi) SBFM reasonably
believes that the application of speculative position limits will substantially
affect the performance of the Partnership. At any time during the term of this
Agreement, SBFM may elect immediately to terminate this Agreement if (i) the
Advisor merges, consolidates with another entity, sells a substantial portion of
its assets, or becomes bankrupt or insolvent, (ii) X.X. Xxxxxxxxxxxx dies,
becomes incapacitated, leaves the employ of the Advisor, ceases to control the
Advisor or is otherwise not managing the trading programs or systems of the
Advisor, or (iii) the Advisor's registration as a commodity trading advisor with
the CFTC or its membership in the NFA or any other regulatory authority, is
terminated or suspended. This Agreement will immediately terminate upon
dissolution of the Partnership or upon cessation of trading prior to
dissolution.
(b) The Advisor may terminate this Agreement by giving not
less than 30 days' notice to SBFM (i) in the event that the trading policies of
the Partnership as set forth in the Prospectus are changed in such manner that
the Advisor reasonably believes will adversely affect the performance of its
trading strategies; (ii) after June 30, 1999; or (iii) in the event that the
General Partner or Partnership fails to comply with the terms of this Agreement.
The Advisor may immediately terminate this Agreement if SBFM's registration as a
commodity pool operator or its membership in the NFA is terminated or suspended.
(c) Except as otherwise provided in this Agreement, any
termination of this Agreement in accordance with this Paragraph 5 or Paragraph
1(e) shall be without penalty or liability to any party, except for any fees due
to the Advisor pursuant to Section 3 hereof.
6. EXCULPATION AND INDEMNIFICATION. (a)(i) The Advisor shall
not be liable to SBFM, the Partnership or their respective shareholders,
partners, successors or assigns under this Agreement for any act or failure to
act taken or omitted in good faith in a manner reasonably believed to be in or
not opposed to the best interests of the Partnership if such act or failure to
act did not constitute negligence, intentional misconduct, a material breach of
any material representations or warranties made by the Advisor in this
Agreement, or a breach of its fiduciary obligations to the Partnership as a
commodity trading advisor. In any threatened, pending or completed action, suit,
or proceeding to which the Advisor was or is a party or is threatened to be made
a party arising out of or in connection with this Agreement or the management of
the Partnership's assets by the Advisor or the offering and sale of units in the
Partnership, SBFM shall, subject to subparagraph (a)(iii) of this Paragraph 6,
indemnify and hold harmless the Advisor against any loss, liability, damage,
cost, expense (including, without limitation, attorneys' and accountants' fees),
judgments and amounts paid in settlement actually and reasonably incurred by it
in connection with such action, suit, or proceeding if the Advisor acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the Partnership, and provided that its conduct did not constitute
negligence, intentional misconduct, a material breach of any material
representations or warranties made by the Advisor in this Agreement, or a breach
of its fiduciary obligations to the Partnership as a commodity trading advisor,
unless and only to the extent that the court or administrative forum in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all circumstances of the case, the
Advisor is fairly and reasonably entitled to indemnity for such expenses which
such court or administrative forum shall deem proper; and further provided that
no indemnification shall be available from the Partnership if such
indemnification is prohibited by Section 16 of the Partnership Agreement. The
termination of any action, suit or proceeding by judgment, order or settlement
shall not, of itself, create a presumption that the Advisor did not act in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the Partnership.
(ii) To the extent that the Advisor has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in
subparagraph (i) above, or in defense of any claim, issue or matter therein,
SBFM shall indemnify it against the expenses (including, without limitation,
attorneys' and accountants' fees) actually and reasonably incurred by it in
connection therewith.
(iii) Any indemnification under subparagraph (i) above, unless
ordered by a court or administrative forum, shall be made by SBFM only as
authorized in the specific case and only upon a determination by independent
legal counsel in a written opinion that such indemnification is proper in the
circumstances because the Advisor has met the applicable standard of conduct set
forth in subparagraph (i) above. Such independent legal counsel shall be
selected by SBFM in a timely manner, subject to the Advisor's approval, which
approval shall not be unreasonably withheld. The Advisor will be deemed to have
approved SBFM's selection unless the Advisor notifies SBFM in writing, received
by SBFM within five days of SBFM's telecopying to the Advisor of the notice of
SBFM's selection, that the Advisor does not approve the selection.
(iv) In the event the Advisor is made a party to any claim,
dispute or litigation or otherwise incurs any loss or expense as a result of, or
in connection with, the Partnership's or SBFM's activities or claimed activities
unrelated to the Advisor, SBFM shall indemnify, defend and hold harmless the
Advisor against any loss, liability, damage, cost or expense (including, without
limitation, attorneys' and accountants' fees) incurred in connection therewith.
(v) As used in this Paragraph 6(a), the terms "Advisor" shall
include the Advisor, its principals, officers, directors, stockholders and
employees and the term "SBFM" shall include the Partnership.
(b)(i) The Advisor agrees to indemnify and hold harmless SBFM,
the Partnership and their affiliates against any loss, liability, damage, cost
or expense (including, without limitation, attorneys' and accountants' fees),
judgments and amounts paid in settlement actually and reasonably incurred by
them as a result of the Advisor's failure to act in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Partnership, or if the Advisor's conduct constituted negligence, intentional
misconduct, a material breach of any material representations or warranties made
by the Advisor in this Agreement, or a breach of its fiduciary obligations to
the Partnership as a commodity trading advisor.
(ii) In the event SBFM, the Partnership or any of their
affiliates is made a party to any claim, dispute or litigation or otherwise
incurs any loss or expense as a result of, or in connection with, the activities
or claimed activities of the Advisor or its principals, officers, directors,
shareholder(s) or employees unrelated to SBFM's or the Partnership's business,
the Advisor shall indemnify, defend and hold harmless SBFM, the Partnership or
any of their affiliates against any loss, liability, damage, cost or expense
(including, without limitation, attorneys' and accountants' fees) incurred in
connection therewith.
(iii) Any indemnification under subparagraph (i) above, unless
ordered by a court or administrative forum, shall be made by the Advisor only as
authorized in the specific case and only upon a determination by independent
legal counsel in a written opinion that such indemnification is proper in the
circumstances. Such independent legal counsel shall be selected by the Advisor
in a timely manner, subject to SBFM's approval, which approval shall not be
unreasonably withheld. SBFM will be deemed to have approved the Advisor's
selection unless SBFM notifies the Advisor in writing, received by the Advisor
within five days of the Advisor's telecopying to SBFM of the notice of Advisor's
selection, that SBFM does not approve the selection.
(c) In the event that a person entitled to indemnification
under this Paragraph 6 is made a party to an action, suit or proceeding alleging
both matters for which indemnification can be made hereunder and matters for
which indemnification may not be made hereunder, such person shall be
indemnified only for that portion of the loss, liability, damage, cost or
expense incurred in such action, suit or proceeding which relates to the matters
for which indemnification can be made.
(d) None of the indemnifications contained in this Paragraph 6
shall be applicable with respect to default judgments, confessions of judgment
or settlements entered into by the party claiming indemnification without the
prior written consent, which shall not be unreasonably withheld, of the party
obligated to indemnify such party.
(e) The provisions of this Paragraph 6 shall survive the
termination of this Agreement.
7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) The Advisor represents and warrants to the Partnership and
SBFM that:
(i) All references, if any, to the Advisor and its principals
in the Prospectus are accurate in all material respects and as to them the
Prospectus does not contain any untrue statement of a material fact or omit to
state a material fact which is necessary to make the statements therein not
misleading, except that with respect to Table B in the Prospectus (if
applicable), this representation and warranty extends only to the underlying
data made available by the Advisor for the preparation thereof and not to any
hypothetical or pro forma adjustments. Subject to such exception, all
references, if any, to the Advisor and its principals in the Prospectus will,
after review and approval of such references by the Advisor prior to the use of
such Prospectus in connection with the offering of the Partnership's units, be
accurate in all material respects.
(ii) The information with respect to the Advisor set forth in
the actual performance tables in the Advisor's Disclosure Document have been
prepared in accordance with the "Fully Funded Subset" method or such other
method approved by the CFTC as described in the Disclosure Document. The
information with respect to the Program pertains to all of the customer accounts
managed on a discretionary basis by the Advisor's principals and/or the Advisor
during the period covered by such tables and required to be disclosed therein.
(iii) The Advisor will be acting as a commodity trading
advisor with respect to the Partnership and not as a securities investment
adviser and is duly registered with the CFTC as a commodity trading advisor, is
a member of the NFA, and is in compliance with such other registration and
licensing requirements as shall be necessary to enable it to perform its
obligations hereunder, and agrees to maintain and renew such registrations and
licenses during the term of this Agreement.
(iv) The Advisor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
full corporate power and authority to enter into this Agreement and to provide
the services required of it hereunder.
(v) The Advisor will not, by acting as a commodity trading
advisor to the Partnership, breach or cause to be breached any undertaking,
agreement, contract, statute, rule or regulation to which it is a party or by
which it is bound which would materially limit or affect the performance of its
duties under this Agreement.
(vi) This Agreement has been duly and validly authorized,
executed and delivered by the Advisor and is a valid and binding agreement
enforceable in accordance with its terms.
(vii) At any time during the term of this Agreement that a
prospectus relating to the Units is required to be delivered in connection with
the offer and sale thereof, the Advisor agrees upon the request of SBFM to
provide the Partnership with such information as shall be necessary so that, as
to the Advisor and its principals, such prospectus is accurate in all material
respects.
(b) SBFM represents and warrants to the Advisor for itself and
the Partnership that:
(i) The Prospectus (as from time to time amended or
supplemented, which amendment or supplement is approved by the Advisor as to
descriptions of itself and its actual performance, if any) is complete and
accurate in all material respects and does not contain any untrue statement of a
material fact or omit to state a material fact which is necessary to make the
statements therein not misleading, except that the foregoing representation does
not apply to any statement or omission concerning the Advisor in the Prospectus,
if any, made in reliance upon, and in conformity with, information furnished to
SBFM by or on behalf of the Advisor expressly for use in the Prospectus (it
being understood, if applicable, that the hypothetical and pro forma adjustments
in Table B were not furnished by the Advisor).
(ii) It is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has full corporate
power and authority to perform its obligations under this Agreement.
(iii) SBFM and the Partnership have the capacity and authority
to enter into this Agreement on behalf of the Partnership.
(iv) This Agreement has been duly and validly authorized,
executed and delivered on SBFM's and the Partnership's behalf and is a valid and
binding agreement of SBFM and the Partnership enforceable in accordance with its
terms.
(v) SBFM will not, by acting as General Partner to the
Partnership and the Partnership will not, breach or cause to be breached any
undertaking, agreement, contract, statute, rule or regulation to which it is a
party or by which it is bound which would materially limit or affect the
performance of its duties under this Agreement.
(vi) It is registered as a commodity pool operator and is a
member of the NFA, and it will maintain and renew such registration and
membership during the term of this Agreement.
(vii) The Partnership is a limited partnership duly organized
and validly existing under the laws of the State of New York and has full power
and authority to enter into this Agreement and to perform its obligations under
this Agreement.
(viii) The Partnership and SBFM are and shall remain in
compliance in all material respects with all statutes, laws, rules, regulations
and orders of any government, governmental agency or self-regulatory
organization applicable to its business, this Agreement or the offering of the
units in the Partnership.
8. COVENANTS OF THE ADVISOR, SBFM AND THE PARTNERSHIP.
(a) The Advisor agrees as follows:
(i) In connection with its activities on behalf of the
Partnership, the Advisor will comply with all applicable rules and regulations
of the CFTC and/or the commodity exchange on which any particular transaction is
executed.
(ii) The Advisor will promptly notify SBFM of the commencement
of any material suit, action or proceeding involving it, whether or not any such
suit, action or proceeding also involves SBFM.
(iii) In the placement of orders for the Partnership's account
and for the accounts of any other client, the Advisor will utilize a
pre-determined, systematic, fair and reasonable order entry system, which shall,
on an overall basis, be no less favorable to the Partnership than to any other
account managed by the Advisor. The Advisor acknowledges its obligation to
review the Partnership's positions, prices and equity in the account managed by
the Advisor daily and within two business days to notify, in writing, the broker
and SBFM and the Partnership's brokers of (i) any error committed by the
Advisor; (ii) any trade which the Advisor believes was not executed in
accordance with its instructions; and (iii) any discrepancy with a value of
$10,000 or more (due to differences in the positions, prices or equity in the
account) between its records and the information reported on the account's daily
and monthly broker statements.
(iv) The Advisor will maintain a net worth of not less than
$250,000 during the term of this
Agreement.
(b) SBFM agrees for itself and the Partnership that:
(i) SBFM and the Partnership will comply with all applicable
rules and regulations of the CFTC and/or the commodity exchange on which any
particular transaction is executed.
(ii) SBFM will promptly notify the Advisor of the commencement
of any material suit, action or proceeding involving it or the Partnership,
whether or not such suit, action or proceeding also involves the Advisor.
9. COMPLETE AGREEMENT. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter hereof.
10. ASSIGNMENT. This Agreement may not be assigned by any
party without the express written consent of the other parties, and any
assignment without the express written consent of all the parties shall be null
and void.
11. AMENDMENT. This Agreement may not be amended except by the
written consent of the parties.
12. NOTICES. All notices, demands or requests required to be
made or delivered under this Agreement shall be in writing and delivered
personally or by registered or certified mail or expedited courier, return
receipt requested, postage prepaid, to the addresses below or to such other
addresses as may be designated by the party entitled to receive the same by
notice similarly given:
If to SBFM:
Xxxxx Xxxxxx Futures Management Inc.
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
If to the Advisor:
X.X. Xxxxxxxxxxxx Capital Management, Inc.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxxxxx
13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
14. ARBITRATION. The parties agree that any dispute or
controversy arising out of or relating to this Agreement or the interpretation
thereof, shall be settled by arbitration in accordance with the rules, then in
effect, of the National Futures Association or, if the National Futures
Association shall refuse jurisdiction, then in accordance with the rules, then
in effect, of the American Arbitration Association; provided, however, that the
power of the arbitrator shall be limited to interpreting this Agreement as
written and the arbitrator shall state in writing his reasons for his award.
Judgment upon any award made by the arbitrator may be entered in any court of
competent jurisdiction.
15. CONFIDENTIALITY. Nothing in this Agreement shall require
the Advisor to disclose the details of its trading system, methods, models,
strategies and formulas. SBFM acknowledges that the trading systems, methods,
models, strategies and formulas of the Advisor are the sole and exclusive
property of the Advisor; SBFM further agrees that it will keep confidential and
will not disseminate information regarding such systems, methods, models,
strategies and formulas to any person.
15. NO THIRD PARTY BENEFICIARIES. Except as otherwise provided
in this Agreement, there are no third party beneficiaries to this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed for and
on behalf of the undersigned as of the day and year first above written.
XXXXX XXXXXX FUTURES
MANAGEMENT INC.
By
Xxxxx X. Xxxxx
President and Director
XXXXX XXXXXX DIVERSIFIED
FUTURES FUND X. X. XX
By: Xxxxx Xxxxxx
Futures Management Inc.
(General Partner)
By
Xxxxx X. Xxxxx
President and Director
X.X. XXXXXXXXXXXX CAPITAL
MANAGEMENT, INC.
By
Xxx X. Xxxxxxxxxxxx
President
