Exhibit 10.03
ADVISORY AGREEMENT
BY AND AMONG
ML SELECT FUTURES I L.P.
AND
SUNRISE CAPITAL PARTNERS, L.L.C.
AND
XXXXXXX XXXXX INVESTMENT PARTNERS INC.
DATED AS OF JULY 1, 1998
ML SELECT FUTURES I L.P.
ADVISORY AGREEMENT
TABLE OF CONTENTS
Section Page
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1. Undertakings of the Trading Advisor...................................................................... 1
2. Duties of the Trading Advisor............................................................................ 3
3. Allocation of Assets..................................................................................... 5
4. Trading Advisor Independent.............................................................................. 5
5. "Business Day"........................................................................................... 5
6. Commodity Broker; Floor Brokers; F/X Desk................................................................ 5
7. Advisory Fees............................................................................................ 6
8. Representations and Warranties........................................................................... 7
9. Term and Termination..................................................................................... 9
10. Right to Advise Others; Uniformity of Acts and Practices................................................. 10
11. Speculative Position Limits.............................................................................. 11
12. Entire Agreement......................................................................................... 12
13. Standard of Liability; Indemnification................................................................... 12
14. Assignment............................................................................................... 14
15. Amendment; Waiver........................................................................................ 14
16. Severability............................................................................................. 14
17. Notices.................................................................................................. 14
18. Governing Law............................................................................................ 15
19. Consent to Jurisdiction.................................................................................. 15
20. Promotional Material..................................................................................... 16
21. Confidentiality.......................................................................................... 16
22. Survival................................................................................................. 16
23. Counterparts............................................................................................. 16
24. Headings................................................................................................. 16
25. Pronouns and Plurals..................................................................................... 16
26. Binding Effect; Benefit.................................................................................. 16
27. Third-Party Beneficiary.................................................................................. 17
Annex A - Trading Authorization.................................................................................. A-1
Annex B - List of Commodity Interests Traded..................................................................... B-1
Annex C - Profit Share Calculations.............................................................................. C-1
Annex D - Acknowledgment of Receipt of Disclosure Document....................................................... D-1
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ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT ("Agreement"), made as of the date set
forth on the cover hereof (the "Effective Date"), by and among ML SELECT FUTURES
I L.P., a Delaware limited partnership (the "Fund"), SUNRISE CAPITAL PARTNERS,
L.L.C., a California limited liability company (the "Trading Advisor") and
XXXXXXX XXXXX INVESTMENT PARTNERS INC., a Delaware corporation ("MLIP").
W I T N E S S E T H:
WHEREAS, the Fund is engaged in the business of trading,
buying, selling or otherwise acquiring, holding or disposing of forward and
futures contracts, any rights pertaining thereto and any options thereon or on
physical commodities and engaging in all activities incident thereto (the
foregoing being collectively referred to herein as "commodity interests");
WHEREAS, the Fund offers its Units of Limited Partnership
Interest ("Units") for sale to investors, as described in the Fund's
Confidential Private Placement Memorandum, as amended and supplemental from time
to time (the "Memorandum");
WHEREAS, the Trading Advisor is engaged in the business of,
among other things, making trading decisions on behalf of investors in the
trading of certain commodity interests; and
WHEREAS, the Fund desires the Trading Advisor, upon the terms
and conditions set forth herein, to act as the trading advisor for the Fund and
to make commodity interest trading decisions for the Fund and the Trading
Advisor desires to act in such capacity.
NOW, THEREFORE, in consideration of the premises and of other
good and valuable consideration, the receipt and sufficiency of all of which are
hereby acknowledged, the parties hereto agree as follows:
1. Undertakings of the Trading Advisor
-----------------------------------
(a) To Furnish Information. The Trading Advisor agrees
----------------------
to make all disclosures reasonably requested by MLIP regarding the Trading
Advisor, its Expanded Diversified Program (the "Trading Program") and the
Trading Advisor's trading performance, strategies and accounts; provided, that
nothing herein shall require the Trading Advisor to disclose any proprietary or
confidential information related to its trading programs, systems or strategies
or to its clients.
Subject to the confidentiality provisions herein, the Trading
Advisor shall cooperate with the Fund and MLIP, to the extent that they may
reasonably request, in preparing investor information reports and regulatory
filings relating to the Fund, to the extent that information concerning the
Trading Advisor is relevant to such reports or filings.
Any written reference to the Trading Advisor, its strategies
or performance must be approved by the Trading Advisor prior to distribution by
the Fund, any of its Limited Partners or MLIP.
(b) To Furnish Updated Performance Information.
-------------------------------------------
The Trading Advisor, at its own expense, shall promptly
provide the Fund and MLIP, upon request, with a table or tables (in form and
substance consistent with all applicable regulations and all regulations which
would be applicable were the Fund publicly to distribute its securities)
reflecting the actual performance, on a monthly basis, of all customer accounts
directed by the Trading Advisor up to the latest practicable month-end date.
(c) To Notify of Changes.
---------------------
If the Trading Advisor shall become aware of any materially
inaccurate or incomplete statement, or of any omission which needs to be
rectified in order to avoid the statements relating specifically to the Trading
Advisor contained in the reports made by the Fund being materially misleading
(provided that the Fund shall have furnished the Trading Advisor with the
portions of such reports or offering materials relating to the Trading Advisor),
or of the occurrence of any event or change in circumstances which shall have
resulted or could reasonably be expected to result in there being any such
statement or omission, the Trading Advisor shall promptly notify the Fund and
MLIP in writing and shall cooperate with the Fund and MLIP in the preparation of
any amended or supplemental reports reasonably requested by MLIP.
The Trading Advisor shall promptly notify the Fund and MLIP of
any material change in the management, ownership, key personnel, organizational
structure, control or financial condition of the Trading Advisor.
(d) Not to Distribute Information Concerning the Fund.
--------------------------------------------------
None of the Trading Advisor, its affiliates, their respective
employees, agents, stockholders, directors, officers or principals or their
respective successors or assigns (collectively, "related parties") shall
publish, circulate or distribute any information relating to the Fund, any
Limited Partner or MLIP or any of their respective affiliates other than in the
context of the preparation of the Trading Advisor's performance tables or as
otherwise required by applicable law or regulation. (The Trading Advisor may,
however, circulate performance information relating to the Fund's account (the
"Account") so long as none of the Fund, any Limited Partner, MLIP or any of
their respective affiliates are named.)
(e) Not to Solicit Investors.
-------------------------
None of the Trading Advisor or any related parties shall (i)
use or distribute for any purpose whatsoever any list containing the names
and/or residence addresses of and/or other information relating to any Limited
Partner or (ii) contact any person known to be a current investor for
solicitation as a client unless such investor shall have first contacted the
Trading Advisor or such investor is already a client of the Trading Advisor.
(f) Not to Contact Financial Consultants.
-------------------------------------
None of the Trading Advisor or any related party shall
communicate with any Xxxxxxx Xxxxx Financial Consultant or other employee or
officer regarding the Trading Advisor's trading of the Account except upon prior
notice to MLIP and in conjunction with MLIP personnel unless MLIP otherwise
agrees in writing.
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(g) To Provide Access to Books and Records.
---------------------------------------
Upon five business days' notice to the Trading Advisor, the
Fund or MLIP shall have the right, during normal business hours, to have access
to and to inspect and copy, in each case at their own expense and at the Trading
Advisor's offices, such books and records relating to the Trading Advisor and/or
the Trading Program as the Fund or MLIP may reasonably request, as may enable
them to verify the accuracy and completeness of the data furnished by the
Trading Advisor pursuant to this Section 1 (subject to such restrictions as the
Trading Advisor may reasonably deem necessary or advisable so as to preserve the
confidentiality of proprietary information and the identity of the Trading
Advisor's clients). Such right of inspection shall terminate upon the
termination of this Agreement, and shall not include any right to access
computer programs, records or other information used in determining trading
decisions. The Fund and MLIP shall keep confidential all information obtained in
the course of any inspection hereunder.
2. Duties of the Trading Advisor
-----------------------------
(a) Speculative Trading.
--------------------
The Trading Advisor shall act as a Commodity Trading Advisor
for the Fund implementing the Trading Program with the assets in the Account as
described is the Disclosure Document provided by the Trading Advisor to MLIP, as
the same may be developed and modified over time (the "Disclosure Document").
The Trading Advisor shall have sole and exclusive authority and responsibility
for directing the investment and reinvestment of the assets of the Account,
utilizing the Trading Program as refined and modified from time to time in the
future, for the period and on the terms and conditions set forth herein.
Notwithstanding the foregoing, the Fund may override the trading instructions of
the Trading Advisor to the extent necessary: (i) to comply with the Trading
Policies; (ii) to fund any distributions or redemptions of Units to be made by
the Fund; (iii) to pay the Fund's expenses; (iv) to effect any allocation or
reallocation of the Fund's assets in accordance with this Agreement; or (v) as
required by law, provided that the Fund shall, unless otherwise required by law,
use best efforts to permit the Trading Advisor three (3) full business days in
which to liquidate positions prior to exercising the Fund's override authority.
(There are currently no relevant Fund trading policies applicable to the Trading
Advisor's account, and MLIP shall give the Trading Advisor prior notice and a
reasonable period within which to terminate this Agreement should MLIP determine
to impose any such policies.)
The Fund and MLIP each specifically acknowledge that in
agreeing to manage the Account the Trading Advisor is in no respects making any
guarantee of profits or protection against loss.
The Trading Advisor shall give the Fund and MLIP prompt
written notice of any proposed material change in the Trading Advisor's trading
approach or in the manner in which the Trading Advisor's trading decisions are
to be made or implemented, and shall not make any such proposed material change
with respect to trading the Account without having given the Fund and MLIP at
least 30 days' prior written notice of such change. The addition and/or deletion
of commodity interests from the Fund's portfolio, or change in the trading
leverage employed, shall not be deemed a change in the Trading Advisor's trading
approach, and prior written notice to the Fund or MLIP shall not be required
therefor (except as set forth in Section 2(b) below); provided, that the Trading
Advisor may only utilize a trading program other than
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the Trading Program with the consent of the Fund and MLIP, and may only use one
trading program at any one time for the Account.
(b) Investment of Assets Held in Securities and Cash.
------------------------------------------------
Notwithstanding any provision of this Agreement to the contrary, the Fund and
MLIP, and not the Trading Advisor, shall have the sole and exclusive authority
and responsibility with regard to the investment, maintenance and management of
the Fund's assets other than in respect of the Trading Advisor's trading of
commodity interests.
(c) Trading Authorization. Prior to the Fund's acceptance
---------------------
of trading advice from the Trading Advisor in accordance with this Agreement,
the Fund shall deliver to the Trading Advisor a trading authorization in the
form of Annex A hereto, appointing the Trading Advisor as sole agent of the Fund
and attorney-in-fact for trading the Account.
(d) Delivery of Disclosure Documents. The Trading Advisor
--------------------------------
shall, during the term of this Agreement, deliver to the fund copies of all
disclosure documents filed with the Commodity Futures Trading Commission
("CFTC") or the National Futures Association ("NFA") by the Trading Adviser
promptly following filing in final form. The Fund shall, if requested, sign the
Acknowledgment of Receipt of Disclosure in the form Appendix C hereto, for each
disclosure document so delivered.
The Trading Advisor agrees, during the term of this Agreement,
to immediately notify MLIP of any material changes which the Trading Advisor
makes in the disclosures concerning itself or in its performance tables -- as
included in any other disclosure documents or as filed with any governmental
authority. Specifically, non-material revisions to and routine updates of
performance tables shall not be discussed with MLIP in advance.
(e) List of Commodity Interests Traded. The Trading
----------------------------------
Advisor shall provide MLIP with a complete list of the commodity interests which
it may, or intends to, trade for the Account other than commodity interests
traded on organized exchanges (in the United States or otherwise approved by the
CFTC). All such commodity interests shall be listed in Annex B to this
Agreement, as the same may be amended from time to time.
(f) Trade Reconciliations. The Trading Advisor
---------------------
acknowledges its obligation to review the new positions in the Account on the
day established (or liquidated), until finally posted, and to notify the Fund
and MLIP promptly of any errors committed by the Trading Advisor or any trade
which the Trading Advisor believes was not executed in accordance with its
instructions and which cannot be promptly resolved. The Trading Advisor will use
its own systems to evaluate the trade and portfolio information for the Account
until it receives the necessary information from the Fund, upon which time the
Trading Advisor will use the information from the Fund to evaluate the trade and
portfolio information for the Account. The Trading Advisor shall periodically
review the Account on an overall basis consistent with the Trading Advisor's
policies and procedures in place in respect of customer accounts.
(g) Trade Information. The Trading Advisor shall use its
-----------------
best efforts to provide trade information to OMR Systems by 4:30 p.m. on the
date of any trade made on behalf of the Fund.
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3. Allocation of Assets
--------------------
Equity allocated to the Account shall not include "notional
funds." This initial amount shall be on deposit at Xxxxxxx Xxxxx Futures Inc.
("MLF" or "Xxxxxxx Xxxxx Futures") or an affiliate on the date set forth on the
cover of this Agreement (the "Effective Date"), available for trading by the
Trading Advisor.
The Trading Advisor agrees to accept additional allocations of
Fund assets for management, from time to time, on at least three business days'
notice, provided that the Net Asset Value of the Account may not exceed $50
million as of any month-end without the Trading Advisor's prior consent, and
provided further that the Fund will use its best efforts to make additional
allocations only as of the beginning of a month. The Trading Advisor shall not
be required to accept additional allocations in respect of any program closed to
new investment (including the Trading Program). The Trading Advisor agrees to
use its best efforts to provide MLIP with not less than forty-five (45) days'
prior written notice in the event that the Trading Program will be closed to new
investment.
4. Trading Advisor Independent
---------------------------
For all purposes of this Agreement, the Trading Advisor shall
be deemed to be an independent contractor and shall have no authority to act for
or represent the Fund in any way and shall not otherwise be deemed to be an
agent of the Fund or any of its Limited Partners. Nothing contained herein shall
create or constitute the Trading Advisor, the Fund, any Limited Partner or MLIP
as a member of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, nor shall 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. The parties acknowledge that the
Trading Advisor has not been an organizer or promoter of the Fund and assumes no
responsibility for the marketing, organization or administration thereof.
5. "Business Day"
------------
"Business day," as used herein, shall mean a day on which
banks are required or authorized to remain open for business in New York City.
6. Commodity Broker; Floor Brokers; F/X Desk
-----------------------------------------
(a) Clearing of All Trades. The Trading Advisor shall
----------------------
clear orders for all commodity interest transactions for the Account through
such commodity broker or brokers as the Fund shall designate from time to time
in its sole discretion (the Fund initially so designating MLF). The Trading
Advisor will not, without the consent of the Fund, trade on a "give up" basis
through floor brokers not associated with MLF. The Fund will review and approve
or disapprove all executing brokers proposed by the Trading Advisor for the
Fund's account. The Fund agrees that it will only disapprove a proposed
executing broker suggested by the Trading Advisor for cause and that, if an
executing broker is approved, the Fund will not hold the Trading Advisor liable
for any error or breach of contract by any such executing broker, barring
negligence, misconduct or bad faith on the part of the Trading Advisor. Even if
such float brokers receive Fund consent to execute trades on behalf of the Fund,
all such trades will be
5
"given-up" to be carried by MLF. The Trading Advisor shall receive copies of all
daily and monthly brokerage statements for the Account directly from MLF.
The parties acknowledge that the Trading Advisor has no
authority or responsibility for selecting a commodity broker or dealers or for
the negotiation of brokerage commission rates. MLIP shall provide adequate
dealing lines of credit for the Trading Advisor to place orders for spot and
forward currency contracts on behalf of the Fund.
(b) Forward Trading. All forward trades for the Account
---------------
shall be executed through the forward trading facilities of the counterparties
selected by MLIP's affiliated Foreign Exchange Service Desk, unless MLIP
consents to some other forward trading arrangement, which consent shall not be
unreasonably withheld. The Trading Advisor shall only use such other banks or
dealers for what the Trading Advisor, in good faith, believes to be good cause.
(c) Floor Brokerage. Notwithstanding Section 6(a) of this
----------------
Agreement, the Trading Adviser may place orders for commodity interest
transactions for the Account through floor brokers selected by the Trading
Advisor, and approved by MLIP, such approval not to be unreasonably withheld.
Such floor brokers shall "give up" all Account trades to Xxxxxxx Xxxxx Futures
for clearance.
The brokerage and floor commissions, "give-up" fees and other
transaction costs charged by any floor broker, other xxxx Xxxxxxx Xxxxx Futures,
to effect Account transactions shall be subject to the approval of MLIP, which
shall pay such costs, such approval not to be unreasonably withheld provided
that such fees and transaction costs are competitive with MLF's standard rates.
The Trading Advisor shall be responsible for correcting all
trading errors or omissions relating to transactions executed in respect of the
Account by any broker. The Trading Advisor shall use its own systems to monitor
trading activity in the Account for errors or omissions until the Fund provides
the necessary information to the Trading Advisor upon which time, the Trading
Advisor will use the Fund's information for this purpose.
7. Advisory Fees
-------------
(a) Profit Share. For the advisory services contemplated
------------
by this Agreement, the Fund shall pay to the Trading Advisor an annual Profit
Share calculated as set forth in Annex C.
(b) No Share in Commissions. Without the express written
-----------------------
consent of the Fund, neither the Trading Advisor nor any related party shall
receive or accept, whether in the form of rebates or otherwise, (i) any share of
the brokerage, floor, or clearinghouse commissions or fees or other transaction
costs paid by the Fund to any commodity broker or floor broker, or (ii) any form
of compensation or remuneration from any executing or clearing broker used by
the Fund.
6
8. Representations and Warranties
------------------------------
(a) The Trading Advisor hereby represents and warrants to
the other parties as follows:
(i) The Trading Advisor is a limited liability
company duly organized and validly existing and in good
standing under the laws of the State of California 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 affect the
Trading Adviser's ability to perform its obligations under
this Agreement. The Trading Advisor has full limited liability
company power and authority to perform its obligations under
this Agreement.
(ii) This Agreement has been duly and validly
authorized, executed and delivered on behalf of the Trading
Advisor and constitutes a valid, binding and enforceable
agreement of the Trading Advisor in accordance with its terms.
(iii) The Trading Advisor has all Federal and
state governmental, regulatory and commodity exchange licenses
and approvals and has effected all filings and registrations
with Federal and state governmental and regulatory agencies
required to conduct its business and to act as described
herein or required to perform its obligations hereunder
(including, without limitation, registration of the Trading
Advisor as a commodity trading advisor under the Commodity
Exchange Act, as amended (the "CEA"), and membership of the
Trading Adviser as a commodity trading advisor in NFA), and
the performance of such obligation will not violate or result
in a breach of any provision of the Trading Advisor's
certificate of incorporation, by-laws or any agreement,
instrument, order, law or regulation binding on the Trading
Advisor. The principals of the Trading Advisor are duly listed
as such on its commodity trading advisor Form 7-R
registration.
(iv) The Trading Advisor's implementation of the Trading
Program will not infringe any other person's copyrights,
trademark or other property rights.
(v) The execution and delivery of this Agreement, the
incurrence of the obligations herein set forth and the
consummation of the transactions contemplated herein will not
constitute a breach of, or default under, any instrument by
which the Trading Advisor is bound or any order, rule or
regulation application to the Trading Advisor of any court or
any governmental body or administrative agency having
jurisdiction aver the Trading Advisor.
(vi) Other than as may have been disclosed in writing to
MLIP by the Trading Advisor, there is not pending, or to the
best of the Trading Advisor's knowledge threatened, any
action, suit or proceeding before or by any court or other
governmental body to which the Trading Advisor is a party, or
to which any of the assets of the Trading Advisor is subject,
which might reasonably be expected to result in any material
adverse change in the condition, financial or
7
otherwise, business or prospects of the Trading Advisor. The
Trading Advisor has not received any notice of an
investigation or warning letter from NFA or CFTC regarding
non-compliance by the Trading Advisor with the CEA or the
regulations thereunder.
(vii) The Trading Advisor's provision of
management services as contemplated hereby will not violate
the Investment Advisers Act of 1940.
(viii) As a condition precedent to the allocation
of the Fund's assets to the Trading Adviser, the Trading
Advisor agrees to furnish to the Fund such opinions and
certificates as the Fund may reasonably request.
(b) MLIP hereby represents and warrants to the Trading
Advisor as follows:
(i) MLIP is duly organized and validly existing
and in good standing under the laws of the State of Delaware
and in good standing under the laws of 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 MLIP's ability to perform its obligations
hereunder.
(ii) MLIP has the corporate power and authority
under applicable law to perform its obligations hereunder.
(iii) This Agreement has been duly and validly
authorized, executed and delivered by MLIP and constitutes a
legal, valid and binding agreement of MLIP enforceable in
accordance with its terms.
(iv) The execution and delivery of this
Agreement, the incurrence of the obligations set forth herein
and the consummation of the transactions contemplated herein
will not constitute a breach of, or default under, any
instrument by which MLIP, or any Limited Partner is bound or
any order, rule or regulation applicable to MLIP or any
Limited Partner of any court or any governmental body or
administrative agency having jurisdiction over MLIP or any
Limited Partner.
(v) There is not pending, or, to the best of
MLIP's knowledge threatened, any action, suit or proceeding
before or by any court or other governmental body to which
MLIP is a party, or to which any of the assets of MLIP is
subject, which might reasonably be expected to result in any
material adverse change in the condition (financial or
otherwise), business or prospects of MLIP or is required to be
disclosed pursuant to applicable CFTC regulations. MLIP has
not received any notice of an investigation or warning letter
from NFA or CFTC regarding non-compliance by MLIP with the CEA
or the regulations thereunder.
(vi) MLIP has all Federal and state governmental,
regulatory and commodity exchange approvals and licenses, and
has effected all filings and registrations with Federal and
state governmental agencies required to conduct its
8
business and to act as described herein or required to perform
its obligations hereunder (including, without limitation,
registration as a commodity pool operator under the CEA and
membership in NFA as a commodity pool operator), and the
performance of such obligations will not contravene or result
in a breach of any provision of its certificate of
incorporation, by-laws or any agreement, order, law or
regulation binding upon it. The principals of MLIP are duly
registered as such on MLIP'S commodity pool operator Form 7-R
registration.
(c) The Fund represents and warrants to the Trading
Advisor as follows:
(i) The Fund is duly organized pursuant to and
validly existing under the laws of the State of Delaware, with
full power and authority to engage in the activities as
described in the Memorandum.
(ii) The Fund has full power and authority under
applicable law to perform its obligations under this
Agreement.
(iii) This Agreement has been duly and validly
authorized, executed and delivered by the Fund and constitutes
the binding and enforceable obligation of the Fund in
accordance with its terms.
(iv) The execution and delivery of this
Agreement, the incurrence of the obligations set forth herein
and the consummation of the transactions contemplated herein
will not constitute a breach of, or default under, the
Certificate of Limited Partnership or Limited Partnership
Agreement of the Fund, or any instrument by which the Fund is
bound or any order, rule or regulation applicable to the Fund
of any court or any governmental body of administrative agency
having jurisdiction over the Fund.
(v) The Fund does not require any governmental,
regulatory or exchange approvals or licenses, nor need it
effect any filings or registrations with any federal, state or
other governmental agencies in order to conduct its business
and to act as contemplated by this Agreement.
The foregoing representations and warranties shall be
continuing during the entire term of this Agreement and, if at any time, any
event shall occur which would make any of the foregoing representations and
warranties of any party no longer true and accurate, such party shall promptly
notify the other parties.
9. Term and Termination
--------------------
(a) Term and Renewal. This Agreement shall continue in
----------------
effect until December 31, 1999. Thereafter, this Agreement will be automatically
renewed for successive one-year periods unless terminated by either the Trading
Adviser or the Fund upon all prior notice to the other.
(b) Termination. Notwithstanding Section 9(a) hereof,
-----------
this Agreement shall terminate:
9
(i) immediately if the Fund shall terminate and
be dissolved;
(ii) at the discretion of MLIP on 24 hours' prior
notice to the Trading Adviser;
(iii) at the discretion of the Trading Advisor,
upon twenty (20) days' notice to MLIP, as of any month-end
should (a) the Trading Advisor notify MLIP of a proposed
material change to the strategies to be used in managing the
Account and MLIP has instructed the Trading Advisor not to
implement such changes; (b) if the Trading Advisor has
determined to cease managing any customer accounts; (c) the
Trading Advisor's instructions are overridden; or (d) should
the Account have a Net Asset Value, as of the close of
business on any day, of less than $1,000,000 (any such
termination to be made at the first available month-end after
the event giving rise to the termination right or such right
to be waived); or
(iv) immediately at the discretion of MLIP or the
Trading Advisor, as the case may be, in the event that the
Trading Advisor, on the one hand, or the Fund, MLIP or Xxxxxxx
Xxxxx Futures, on the other, is in material breach of any
provision hereof.
Any non-renewal of this Agreement pursuant to Section 9(a) or
any termination of this Agreement pursuant to clauses 9(b)(i), (b)(ii) or
(b)(iii), above, shall be without penalty or liability to any party.
10. Right to Advise Others; Uniformity of Acts and
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Practices
---------
During the term of this Agreement, the Trading Advisor and its
affiliates shall be free to advise other investors as to the purchase and sale
of commodity interests, to manage and trade other investors' commodity interests
accounts and to trade for and on behalf of their own proprietary commodity
interests accounts. However, under no circumstances shall the Trading Advisor or
any of its affiliates favor any commodity interests account directed by any of
them (regardless of the date on which they began or shall begin to direct such
account) over the Account, giving due consideration to the fact that the Trading
Advisor will trade only the Trading Program on behalf of the Fund. For purposes
of this Agreement, the Trading Advisor and its affiliates shall not be deemed to
be favoring another commodity interests account over the Account if the Trading
Advisor or its affiliates, in accordance with specific instructions of the owner
of such account, trades such account pursuant to the Trading Program but at a
degree of leverage or in accordance with trading policies different from those
applied by the Fund for the Account or, in accordance with the Trading Advisor's
money management principles, shall not trade certain commodity interests
contracts for a particular Trading Program account based on the amount of equity
in such account.
The parties hereto acknowledge that the Trading Advisor will
trade only the Trading Program on behalf of the Fund, and that the Trading
Program may significantly underperform other programs offered by the Trading
Advisor and other accounts in the Trading Program.
10
The Trading Advisor agrees that it will not accept additional
client accounts for management if doing so might reasonably be expected to
require material changes to the trading strategies used by the Trading Advisor
for the Account or materially adversely affect the Trading Advisor's ability to
perform services hereunder.
The Trading Advisor agrees that in the event the Trading
Advisor determines to trade or is now trading another commodity interest account
pursuant to a trading approach materially different from the trading approach
utilized by the Trading Advisor in trading on behalf of the Account, the Trading
Advisor will disclose such trading approach to MLIP, subject to reasonable
assurances of confidentiality, and, provided that the Trading Advisor and MLIP
materially agree on a fee structure for trading the Account pursuant to such
different trading approach, will, if MLIP so elects, utilize any such trading
approach in trading the Account in the future, provided that the Trading
Advisor shall not hereby be required to use, on behalf of the Account, any
approach used solely in trading, experimental or proprietary accounts or any
approach which the Trading Advisor reasonably believes to be inappropriate for
the Account.
At the request of the Fund, the Trading Advisor and its
affiliates shall promptly make available to the Fund copies of any daily,
monthly, quarterly and annual, as the case may be, written reports prepared by
the Trading Advisor in the ordinary course, reflecting the performance of all
Trading Program accounts advised, managed, owned or controlled by the Trading
Advisor or its affiliates (subject to the need to preserve the confidentiality
of proprietary information concerning the Trading Advisor's trading systems,
methods, models, strategies and formulas and the identity of the Trading
Advisor's clients). At the request of the Fund, the Trading Advisor or its
affiliates shall promptly deliver to the Fund a satisfactory written
explanation, in the reasonable judgment of the Fund, of the differences, if any,
in the performance between the Account and such other Trading Program accounts
(subject to the need to preserve the confidentiality of proprietary information
concerning the Trading Advisor's trading systems, methods, models, strategies
and formulas and the identity of the Trading Advisor's clients).
11. Speculative Position Limits
---------------------------
(a) Limits Applicable to Trading Advisor. The Trading
------------------------------------
Advisor agrees that in the event the Trading Advisor exceeds speculative
position limits in respect to the Trading Advisor's commodity interest trading,
the Trading Advisor will liquidate positions as necessary to comply with
applicable speculative position limits in all of the Trading Adviser's
outstanding accounts in such manner as the Trading Advisor deems to be fair and
equitable. The Trading Advisor agrees that in the event that any such
liquidation becomes necessary, the Trading Advisor will so inform MLIP and will
report to MLIP the steps taken by the Trading Advisor in order to comply with
all applicable speculative position limits.
The Trading Advisor represents and warrants that existing
speculative position limits will not materially adversely affect the Trading
Adviser's ability to manage the Account, provided that such account does not
exceed $25,000,000.
(b) Notice That Limits Exceeded. If the Trading Advisor
---------------------------
at any time shall become aware that the positions in any commodity interest
owned, held, or controlled by the
11
Trading Advisor exceed [[90% of]] the applicable speculative position limit
allocable to the Trading Advisor, the Trading Advisor shall promptly notify
MLIP of that fact in writing.
The Trading Advisor shall promptly notify MLIP if speculative
position limits may reasonably be expected to require alteration of the
strategies used in managing the Account.
(c) Liquidation of Positions to Comply with Limits.
----------------------------------------------
If limits are exceeded by the Fund, MLIP shall instruct the
Trading Advisor as to whether any liquidation of Account positions managed by
the Trading Advisor is required.
12. Entire Agreement
----------------
This Agreement constitutes the entire agreement between the
parties hereto with respect to the matters referred to herein, and no other
agreement, verbal or otherwise, shall be binding as between the parties unless
it shall be in writing and signed by the party against whom enforcement is
sought.
13. Standard of Liability; Indemnification
--------------------------------------
The Trading Advisor, its officers, directors, employees and
shareholders (as applicable) shall not be liable to the Fund, MLIP, or to any of
their successors or assigns except by reason of acts or omissions in
contravention of the express terms of this Agreement, or due to their misconduct
or negligence, or by reason of 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 Fund.
The Trading Advisor shall indemnify, defend and hold harmless
the Fund, MLIP, their respective affiliates and their respective directors,
officers, partners, shareholders, employees and controlling persons from and
against any and all losses, claims, damages, liabilities (joint and several),
costs and expenses (including any reasonable investigatory, legal and other
expenses incurred in connection with, and any amounts paid in, any settlement;
provided that the Trading Advisor shall have approved such settlement) resulting
from a demand, claim, lawsuit, action or proceeding relating to any action or
omission of the Trading Advisor or any of its respective officers, directors or
employees relating to the business or activities of such person under this
Agreement or relating to the management of the Account; provided, that the
action or omission of such person which was the subject of the demand, claim,
lawsuit, action or proceeding constituted negligence or misconduct or a breach
of this Agreement or of any fiduciary obligation under applicable law to the
Fund or was an action or omission taken otherwise than in good faith and in a
manner reasonably believed to be in, or not opposed to, the best interests of
the Fund.
The Fund shall indemnify, defend and hold harmless the Trading
Advisor, its affiliates and their respective directors, officers, shareholders,
employees and controlling persons from and against any and all losses, claims,
damages, liabilities (joint and several), costs and expenses (including any
investigatory, legal and other expenses incurred in connection with, and any
amounts paid in, any settlement; provided that the Fund shall have approved such
settlement) resulting from a demand, claim, lawsuit, action or proceeding
relating to any of such person's actions or capacities relating to the business
or activities of the Fund pursuant to this
12
Agreement or the operation of the Fund, or disclosure related to it; provided
that the conduct of such person which was the subject of the demand, claim,
lawsuit, action or proceeding did not constitute negligence, misconduct or a
breach of this Agreement or of any fiduciary obligation to the Fund arising
under applicable law and was done in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best interests of the Fund.
The termination of any demand, claim, lawsuit, action or proceeding by
settlement shall not, in itself, create a presumption that the conduct in
question was not undertaken in good faith and in a manner reasonably believed to
be in, or not opposed to, the best interests of the Fund.
Any indemnification required by this Section 13, unless
ordered or expressly permitted by a court, shall be made by the indemnifying
party only upon a determination by independent legal counsel in a written
opinion that the conduct which is the subject of the claim, demand, lawsuit,
action or proceeding with respect to which indemnification is sought meets the
applicable standard set forth in this section 13; provided, however, that if the
indemnified party shall prevail on the merits and the defense of any demand,
claim, lawsuit or proceeding subject to indemnification hereunder,
indemnification shall be payable hereunder irrespective of the receipt of any
such legal opinion.
In the event that a person entitled to indemnification under
this Section 13, is made a party to an action, suit, or proceeding alleging both
matters for which indemnification may be due hereunder and matters for which
indemnification may not be due hereunder, such person shall be indemnified only
in respect of the former matters.
The Fund or the Trading Advisor, as the case may be, shall
advance indemnification payments reasonably asserted to be due hereunder,
provided that the putatively indemnified party which receives such advances
undertakes in writing to repay the advanced funds, without interest, in the
event that such recipient is determined not to be entitled to indemnification
under this Section 13.
Notwithstanding any provision of this Agreement to the
contrary, in respect of all losses, liabilities, claims, demands, damages,
costs, and expenses described above in this Section 13 (including legal,
accounting, and other expenses incurred in each connection therewith), the
Fund's indemnity obligation shall be limited to the net worth of the Trading
Advisor as of the time that any event giving rise for a claim to indemnity
arose.
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 party under this Agreement.
Promptly after receipt by any of the indemnified parties under
this Agreement of notice of any demand, claim, lawsuit, action or proceeding,
the indemnified party shall notify the indemnifying party in writing of the
commencement thereof if a claim in respect thereof is to be made under this
Agreement, but the omission so to notify shall not relieve the indemnifying
party from any obligation or liability which it may have to any such
indemnified party otherwise than under this section. In case such demand, claim,
lawsuit, action or proceeding is brought against a person indemnified under this
Agreement, and the indemnifying party is notified of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
13
extent that the indemnifying party may wish, to assume the defense thereof,
with counsel selected by the indemnifying party and approved by the indemnified
person (provided that approval may not be unreasonably withheld), and after
notice from the indemnifying party to such indemnified person of the
indemnifying party's election so to assume the defense thereof, the indemnifying
party shall not be liable to such person under this section for any legal or
other expenses subsequently incurred by such person in connection with the
defense thereof, unless (i) the indemnifying party approves the employment of
separate counsel by such person, or (ii) the action has been brought against
both such person and the indemnifying party and such person's counsel has
advised it or him that it or he has legal defenses different from or in addition
to those of the indemnifying party (it being understood, however, that the
indemnifying party shall not be liable for legal or other expenses of more than
one separate firm of attorneys for all such persons indemnified hereunder, which
firm shall be designated in writing by the Trading Advisor or the Fund, as the
case may be).
Notwithstanding any other provision herein to the contrary,
neither Xxxx X. Xxxxx nor Xxxx X. Xxxxxxx shall have any liability to the Fund,
MLIP or any other person, or their controlling persons, directors, officers and
employees under this Agreement except for fraud or wilful misconduct by Xxxx X.
Xxxxx or Xxxx X. Xxxxxxx, as applicable.
14. Assignment
----------
This Agreement shall not be assigned by any of the parties
hereto without the prior express written consent of the other parties hereto.
15. Amendment; Waiver
-----------------
This Agreement shall not be amended except by a writing signed
by the parties hereto. No waiver of any provision of this Agreement shall be
implied from any course of dealing between the parties hereto or from any
failure by either party hereto to assert its rights hereunder on any occasion or
series of occasions.
16. Severability
------------
If any provision of this Agreement, or the application of any
provision to any person or circumstance, shall be held to be inconsistent with
any present or future law, ruling, rule or regulation of any court or
governmental or regulatory authority having jurisdiction over the subject matter
hereof, such provision shall be deemed to be rescinded or modified in accordance
with such law, ruling, rule or regulation, and the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those as to which it shall be held inconsistent, shall not be affected thereby.
17. Notices.
-------
Any notice required or desired to be delivered under this
Agreement shall be in writing and shall be delivered by courier service, postage
prepaid mail, telex, telegram or other similar means and shall be effective upon
actual receipt by the party to which such notice shall be directed, addressed as
follows (or to such other address as the party entitled to notice shall
hereafter designate in accordance with the terms hereof):
14
if to the Fund:
ML SELECT FUTURES I L.P.
c/x Xxxxxxx Xxxxx Investment
Partners Inc., General Partner
Xxxxxxx Xxxxx World Headquarters
Sixth Floor, South Tower
World Financial Center
New York, New York 10080-6106
Attn: Xxxxxx X. Xxxxx
if to MLIP:
XXXXXXX XXXXX INVESTMENT PARTNERS INC.
Xxxxxxx Xxxxx World Headquarters
Sixth Floor, South Tower
World Financial Center
New York, New York 10080-6106
Attn: Xxxxxx X. Xxxxx
Copy to:
Xxxxx X. Xxxxxxxxx
Xxxxxxx Xxxxx World Headquarters
Sixth Floor, South Tower
World Financial Center
Xxx Xxxx, Xxx Xxxx 00000-0000
if to the Trading Advisor:
SUNRISE CAPITAL PARTNERS, L.L.C,
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000-0000
Attn: Xx. Xxxxxx Xxxxxxxx
18. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS THEREOF.
19. Consent to Jurisdiction.
-----------------------
The parties hereto agree that any action or proceeding arising
directly, indirectly, or otherwise in connection with, out of, related to, or
from this Agreement, any breach hereof, or any transaction covered hereby, shall
be resolved, whether by arbitration or otherwise, within the County, City, and
State of New York. Accordingly, the parties consent and submit to the
15
jurisdiction of the federal and state courts and any applicable arbitral body
located within the County, City, and State of New York. The parties further
agree that any such action or proceeding brought by either party 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 federal or state courts,
or if appropriate before any applicable arbitral body, located within the
County, City, and State of New York.
20. Promotional Material
--------------------
None of the parties hereto will make reference to any other
such party in an officially filed or publicly or privately distributed material
without first submitting such material to the party so named for written
approval a reasonable period of time in advance of the proposed use of such
material.
21. Confidentiality
---------------
The Fund and MLIP acknowledge that the Trading Advisor's
strategies and trades constitute proprietary data belonging to the Trading
Advisor and agree that they will not disseminate any confidential information
regarding any of the foregoing, except as required by law, and any such
information as may be acquired by MLIP or the Fund is to be used solely to
monitor the Trading Advisor's performance on behalf of the Fund.
22. Survival
--------
The provisions of this Agreement shall survive the termination
hereof with respect to any matter arising while this Agreement shall be in
effect.
23. Counterparts
------------
This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
24. Headings
---------
Headings to sections and subsections in this Agreement are for
the convenience of the parties only and are not intended to be a part of or to
affect the meaning or interpretation hereof.
25. Pronouns and Plurals
--------------------
Wherever the context may require, any pronoun used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns, pronouns and verbs shall include the plural and vice
versa.
26. Binding Effect; Benefit.
-----------------------
This Agreement shall be binding upon and, except as otherwise
provided in this Agreement, shall inure to the benefit of the parties hereto,
all persons indemnified hereunder and
16
their respective successors, transferees, custodians, executors, administrators,
legal representatives, heirs and assigns.
27. Third-Party Beneficiary
This Agreement is not intended to and shall not convey any
rights to persons not a party to this Agreement. In particular, and not by way
of limitation, no investor in the Fund may assert any rights hereunder.
17
IN WITNESS WHEREOF, this Agreement has been executed for and
on behalf of the undersigned on the day and year first written above.
ML SELECT FUTURES I L.P.
By: Xxxxxxx Xxxxx Investment Partners
Inc., General Partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: VP and Secretary
XXXXXXX XXXXX INVESTMENT
PARTNERS INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: VP and Secretary
XXXXXXX XXXXX FUTURES INC.
By: /s/ Xxxx X. Xxxxxxx, Xx.
----------------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title:
SUNRISE CAPITAL PARTNERS, L.L.C.
By: Sunrise Capital Management Inc.,
as Manager
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
President
18
Annex A
TRADING AUTHORIZATION
SUNRISE CAPITAL PARTNERS, L.L.C.
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000-0000
To Whom It May Concern:
ML SELECT FUTURES I L.P., a Delaware limited partnership (the
"Fund"), does hereby make, constitute, and appoint Sunrise Capital Partners,
L.L.C. as the Fund's attorney-in-fact to buy and sell commodity interests, in
accordance with the Advisory Agreement among us and certain others.
This authorization shall terminate and be null, void, and of
no further effect simultaneously with the termination of the said Advisory
Agreement.
Very truly yours,
Dated as of July 1, 1998
ML SELECT FUTURES I L.P.
By: Xxxxxxx Xxxxx Investment Partners
Inc., General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: VP and Secretary
ACCEPTED AND AGREED TO:
SUNRISE CAPITAL PARTNERS, L.L.C.
By: Sunrise Capital Management Inc.,
as Manager
By: _______________________________________
Xxxxxx X. Xxxxxxxx
President
A-1
Annex A
TRADING AUTHORIZATION
SUNRISE CAPITAL PARTNERS, L.L.C.
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000-0000
To Whom It May Concern:
ML SELECT FUTURES I L.P., a Delaware limited partnership (the
"Fund"), does hereby make, constitute, and appoint Sunrise Capital Partners,
L.L.C. as the Fund's attorney-in-fact to buy and sell commodity interests, in
accordance with the Advisory Agreement among us and certain others.
This authorization shall terminate and be null, void, and of
no further effect simultaneously with the termination of the said Advisory
Agreement.
Very truly yours,
Dated as of July 1, 1998 ML SELECT FUTURES I L.P.
By: Xxxxxxx Xxxxx Investment Partners Inc.
General Partner
By: __________________________________________
Name:
Title:
ACCEPTED AND AGREED TO:
SUNRISE CAPITAL PARTNERS, L.L.C.
By: Sunrise Capital Management Inc.,
as Manager
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxx
President
A-2
Annex B
LIST OF
COMMODITY INTERESTS TRADED
The undersigned represents that the following is a complete
list of commodity interests which the undersigned intends to trade on behalf of
ML SELECT FUTURES I L.P. other than regulated futures contracts and options on
regulated futures contracts traded on a qualified board of trade or exchange in
the United States and foreign futures and options contracts approved by the CFTC
as stated in the most recent CFTC Backgrounder:
Contract Type
(Futures, Forward,
Options on Futures) Exchange Contract
------------------ -------- --------
See attached.
SUNRISE CAPITAL PARTNERS, L.L.C.
By: Sunrise Capital Management Inc.,
as Manager
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxx
President
Dates as of July 1, 1998
B-1
Annex C
PROFIT SHARE CALCULATIONS
As of December 31, 1998, and each calendar year thereafter,
the Fund will pay the Trading Advisor a Profit Share equal to twenty-three
percent (23.0%) of any New Trading Profit generated by the Fund during the
preceding year (or, in the case of the first Profit Share calculation period,
since the Effective Date).
New Trading Profits means the increase, if any, in cumulative
net trading profits as of the end of any calendar year over the previous
all-time high in cumulative net trading profits as of the end of any previous
calendar year. New Trading Profits include all net trading profits but not
interest income. Net trading profits are determined by subtracting brokerage
commissions from gross trading profits (i.e., (i) gross realized trading profit
minus gross realized trading losses for the relevant period, plus or minus (ii)
the change in unrealized trading profit or loss for such period); provided that
brokerage commissions of 3.75% of average month-end assets (before
subscriptions, redemptions and distributions) per year, rather than the full
5.5% per year charged to the Fund, are deducted in calculating New Trading
Profits. New Trading Profits are not reduced for such purposes by profit shares
previously paid. New Trading Profit is only generated to the extent that the
Trading Advisor exceeds its previous calendar year-end high in cumulative
Trading Profit. If no New Trading Profits are achieved, the Fund will not be
assessed a profit share.
In the case of withdrawals of capital from the Account, net of
any additions or positive reallocation to such Account at the time of such
withdrawals, other than to pay losses and expenses, a proportional Profit Share
will be deducted, and the amounts so deducted will be paid to the Trading
Advisor. Such amounts will not be subject to being returned to the Fund (or to
any redeeming Limited Partners), irrespective of subsequent losses during the
year.
Withdrawal of capital from an Account, net of any additions or
positive reallocations to such Account, at the time of such withdrawals, will
result in a proportional decrease in any shortfall between the level of the
cumulative Trading Profit applicable to such Account as of the date of
withdrawal and the highest level of cumulative Trading Profit as of the end of
any previous calendar year (or $0, if higher) for purposes of subsequent
calculations of New Trading Profit.
Early redemption charges and extraordinary costs, such as
litigation or taxes, shall not reduce Trading Profit.
F/X Service Desk service fees shall reduce Trading Profit.
In calculating New Trading Profit, Profit Shares paid at
previous year-ends or month-ends when earned on withdrawals do not reduce
cumulative New Trading Profit in subsequent periods.
Termination of the Trading Advisor's Advisory Agreement will
be treated as if the date of termination were a calendar year-end for purposes
of calculating any Profit Share due to the Trading Advisor.
The Fund will remit the Profit Shares due to the Trading
Advisor within ten (10) business days of the year-end or month-end as of which
they are due. At such time as the Fund remits each Profit Share payment
hereunder to the Trading Advisor, the Fund shall also provide information
sufficient for the Trading Advisor to verify the Fund's calculations in respect
of such period. If the Trading Advisor does not object to such statement within
ten (10) business days of the receipt thereof, such statement shall for all
purposes be deemed to be conclusively correct.
C-1
Annex D
ACKNOWLEDGMENT OF RECEIPT OF DISCLOSURE DOCUMENT
The undersigned hereby acknowledges receipt of the Disclosure
Document dated February 28, 1998 of Sunrise Capital Partners, L.L.C. (the
"Trading Advisor") in connection with the Trading Advisor's management of an
account for ML SELECT FUTURES I L.P.
Dated as of July 1, 1998
ML SELECT FUTURES I L.P.
By: XXXXXXX XXXXX INVESTMENT PARTNERS INC.
General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: VP and Secretary
D-1
