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EXHIBIT 10(q)
MANAGEMENT CONTRACT
THIS MANAGEMENT CONTRACT ("Agreement"), is made and entered into
effective as of November 1, 1995, by and between The Futures Dimension Fund, an
Illinois limited partnership (the "Partnership"), and Xxxxx Xxxx & Company,
Inc. (the "Trading Advisor").
W I T N E S S E T H:
WHEREAS, the purpose and business of the Partnership is
to seek capital appreciation by trading speculatively in futures
contracts, commodities and commodity options and forward contracts, and any
other items which are currently, or may later become, the subject of futures,
forward or options trading, and other related investments (sometimes
hereinafter referred to as "Contracts") on United States and non-United States
exchanges and markets; and
WHEREAS, the Partnership, through Xxxxxxx Asset
Management, Inc., its general partner (the "General Partner"), pursuant
to the Limited Partnership Agreement of the Partnership, is authorized to
utilize the services of professional trading advisors in connection with the
trading activities of the Partnership; and
WHEREAS, the Partnership has heretofore offered units
of limited partnership interest in the Partnership for sale to investors; and
WHEREAS, the Trading Advisor is engaged in the business of
making trading decisions on behalf of itself and others regarding the purchase
and sale of Contracts; and
WHEREAS, the Partnership and the Trading Advisor each
desire the Trading Advisor to make trading decisions for the Partnership
with respect to the assets of the Partnership allocated to be
managed by the Trading Advisor (the "Allocated Assets") on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises
and agreements set forth herein, the parties hereto do agree as follows:
1. DUTIES OF THE TRADING ADVISOR.
(a) The Partnership hereby appoints the Trading Advisor,
and the Trading Advisor hereby accepts appointment, as a trading
advisor of the Partnership in connection with the trading activities of the
Partnership.
(b) Upon the Trading Advisor's commencing of trading
operations for the Partnership and for the period and on the terms and
conditions set forth in this Agreement, the Trading Advisor shall have sole
authority and responsibility, as the Partnership's agent and attorney-in-fact,
for trading the Allocated Assets in Contracts and in accordance with the
Trading
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Advisor's Global Portfolio Trading Program ("Trading Approach"; which
term, for purposes of this Agreement, shall include trading approaches,
systems, instructions, methods, models, strategies, methodologies and formulas)
as described in the disclosure notice dated November 1995 relating to the
appointment of the Trading Advisor as a commodity trading advisor of the
Partnership (the "Disclosure Notice"), subject to the trading policies of the
Partnership furnished to the Trading Advisor in writing ("Trading Policies").
The parties hereto acknowledge that the Trading Advisor will trade Contracts
for the Partnership independently of any other trading advisor retained by the
Partnership. For purposes of this Agreement, the term "Contracts" shall not
include securities and options thereon.
(c) The Trading Advisor acknowledges and agrees
that the aggregate amount of Allocated Assets which the Trading Advisor
shall treat as equity and manage on behalf of the Partnership pursuant to this
Agreement may include "notional" funds. The General Partner shall inform the
Trading Advisor of the amount of "notional" funds included in Allocated Assets
from time to time. The Trading Advisor agrees to describe to the General
Partner its practices with respect to the leverage used by the Trading Advisor
in managing the Partnership's account relative to other accounts managed by the
Trading Advisor using the Trading Approach to enable the General Partner to
determine whether the "trading level" at which the Trading Advisor is currently
managing the Partnership's account is the level currently designated by the
General Partner.
(d) The General Partner and the Partnership acknowledge
receipt of the Trading Advisor's Disclosure Document dated August 5, 1995 (the
"Disclosure Document"). The Trading Advisor shall promptly furnish the
Partnership with a copy of each amended, supplemented or updated Disclosure
Document of the Trading Advisor filed with the Commodity Futures Trading
Commission (the "CFTC") and the National Futures Association ("NFA") upon
acceptance thereof by the CFTC. Prior to the commencement of trading on behalf
of the Partnership, the Partnership shall deliver to the Trading Advisor, and
renew when necessary, a Commodity Trading Authorization, in the form attached
hereto as Exhibit 1, appointing the Trading Advisor as the Partnership's agent
and attorney-in-fact for such purpose. All trades for the account of the
Partnership shall be made through such banks, brokers and dealers as the
General Partner shall direct, and the Trading Advisor shall have no authority
or responsibility for selecting any such banks, brokers or dealers in
connection with the execution of transactions for the Partnership or for the
negotiation of commission rates charged therefor; provided, however, that the
General Partner shall notify the Trading Advisor of any applicable changes in
the commission rates charged by the Partnership's banks, brokers and dealers
with respect to transactions entered into with respect to the Allocated Assets.
(e) In the event the Trading Advisor and its principals
[as that term is defined in Regulation Section 4.10(e) promulgated by
the CFTC under the Commodity Exchange Act, as amended (the "Act")],
shareholders, partners, employees and affiliates or any person who controls the
foregoing (collectively, "Principals and Affiliates"), wish to use trading
programs, systems or strategies other than or in addition to the Trading
Approach in connection with its trading for the Partnership, either in whole or
in part, it may not do so unless the Trading Advisor gives the General Partner
15 days' prior written notice of its intention to utilize such different
trading programs, systems or strategies ad the General Partner consents thereto
in writig. Non-material changes in the Trading Approach may be instituted
without prior written approval.
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(f) The Trading Advisor agrees to make all material
disclosures to the Partnership regarding itself and its Principals and
Affiliates, their trading performance and general trading methods, their
accounts (but not the identities of customers) and otherwise as are required in
the reasonable judgment of the General Partner or the Partnership to be made in
any filings required by any governmental body or by any applicable law,
regulation, rule or order. Nothing contained in this Agreement shall be
construed or deemed to require the Trading Advisor to disclose the confidential
or proprietary details of its trading strategies.
(g) The Trading Advisor understands and agrees that the
General Partner intends to designate other trading advisors and to
apportion from time to time to such other trading advisors the management of
such portion of the Partnership's assets as the General Partner shall determine
in its absolute discretion. The designation of other trading advisors and
apportionment and reapportionment of a portion of the Partnership's assets to
such trading advisors shall neither terminate this Agreement nor modify in any
regard the respective rights and obligations of the parties hereto.
(h) The General Partner shall have the right to make
additions to, or withdrawals from, the Allocated Assets (including any
"notional" funds comprising part of the Allocated Assets) at any time. The
General Partner agrees that the Trading Advisor may refuse any additional
allocation of funds for any reason. The General Partner, in its sole
discretion, may at any time remove all assets from the management of the
Trading Advisor and may require the Trading Advisor to liquidate existing
positions.
(i) Upon receipt of instructions from the General
Partner, the Trading Advisor shall immediately cease its trading
activities with respect to the Allocated Assets, close out all existing
positions in an orderly manner and not initiate any new positions unless
otherwise instructed by the General Partner or the Partnership.
(j) The Trading Advisor shall review the positions held
by the Allocated Assets in accordance with its standard policies and
procedures and shall immediately notify the General Partner of any errors
committed by the Trading Advisor or of any trade not executed in accordance
with the Trading Advisor's instructions.
2. OTHER ACCOUNTS AND ACTIVITIES OF THE TRADING ADVISOR.
(a) The services provided by the Trading Advisor
hereunder are not to be deemed exclusive. Subject to the terms of this
Agreement, the Trading Advisor and its Principals and Affiliates shall be free
to trade for their own accounts and to advise other persons and manage other
accounts during the term of this Agreement and to use the same or different
degrees of leverage, information, computer programs and trading strategies or
formulas which they obtain, produce or utilize in the performance of services
for the Partnership. However, the Trading Advisor represents, warrants and
agrees that the rendering of such consulting, advisory and management services
to others should not, in the judgement of the Trading Advisor, require any
material change in the Trading Approach and should not, in the judgement of the
Trading Advisor, materially adversely affect the capacity of the Trading
Advisor to continue to render services to the Partnership of the quality and
nature contemplated by this Agreement. The Trading Advisor makes no
representation
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that the trading to be directed by it on behalf of the Partnership will
be profitable or will not result in losses.
(b) If, at any time during the term of this Agreement,
the Trading Advisor is required to aggregate the Partnership's Contract
positions with the positions of any other person or entity for purposes of
applying CFTC- or exchange-imposed position limits, the Trading Advisor agrees
that it will promptly notify the General Partner if the Partnership's positions
are included in an aggregate amount which equals or exceeds the applicable
limit. The Trading Advisor agrees that, if its trading recommendations are
altered because of the application of any position limit, it will not modify
the trading instructions with respect to the Partnership's account in such
manner as to affect the Partnership substantially disproportionately as
compared with the Trading Advisor's other accounts. The Trading 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 Trading
Advisor's and its Principals' and Affiliates' current accounts and all proposed
accounts for which they have contracted to act as trading advisor. The Trading
Advisor further represents, warrants and agrees that under no circumstances
will it knowingly or deliberately use trading strategies or systems for the
Partnership that are inferior to trading strategies or systems 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, it being
acknowledged, however, that different trading strategies, methods or degrees of
leverage may be utilized for differing sizes of accounts, accounts with
different trading policies, accounts experiencing differing inflows or outflows
of equity, accounts funded at less than the Trading Advisor's recommended
minimum account size, accounts which commence trading at different times,
accounts which have different portfolios or different fiscal years and accounts
with other differences, and that such differences may cause divergent trading
results.
(c) The Partnership and the General Partner
acknowledge and agree that the Trading Advisor and/or its Principals
and Affiliates presently act and that they may continue to act as advisors 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. The Trading Advisor agrees that in
the management of such other accounts by it and its Principals and Affiliates,
it will act in good faith to seek to achieve an equitable treatment of all
accounts under management including the Partnership's account with respect to,
among other things, priorities of order entry and position limits.
(d) The Trading Advisor agrees that it shall make
such information available to the General Partner respecting the
performance of the Partnership's account as compared to the performance of all
other client accounts managed by the Trading Advisor and its Principals and
Affiliates as shall be reasonably requested by the General Partner or the
Partnership. The Trading Advisor shall not be required to disclose the
identity of its clients or the performance of proprietary/experimental
accounts.
3. ALLOCATION OF ASSETS TO THE TRADING ADVISOR. The
Trading Advisor's Allocated Assets initially shalll be a total of approximately
$1,000,000 of which $0 is notional funding.
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4. FEES.
(a) Commencing with the commencement of trading by
the Trading Advisor for the Partnership, the Partnership agrees to pay
to the Trading Advisor as follows:
(i) Management Fee. A monthly management fee equal to
0.166% of the Net Asset Value of the Allocated Assets as of the close
of business on the last business day of each calendar month (an approximate
2.0% annual rate). The definition of the term "Net Asset Value" is set forth
in Section 4 of the Partnership's Limited Partnership Agreement which is
attached as Exhibit 2, hereto.
(ii) For purposes of calculating the management fee, Net
Asset Value of the Allocated Assets shall be determined before
reduction for the management fees or incentive fees, if any, accrued or payable
with respect to the Allocated Assets as of such month-end, and before giving
effect to any distributions and redemptions paid or payable at such month-end.
In the event that (A) the Trading Advisor commences trading as of any day other
than the first day of a calendar month, (B) this Agreement is terminated as of
any date other than the last day of a calendar month, or (C) the Partnership
reallocates assets to or from the Trading Advisor as of any day other than the
first or last day of any calendar month, the amount of the management fee shall
be prorated on the basis of the number of business days during such month that
the Allocated Assets (as adjusted in the case of reallocation of assets) were
traded by the Trading Advisor as compared to the total number of business days
in such calendar month. To the extent that the Partnership instructs the
Trading Advisor to trade the Allocated Assets at a "nominal account size" in
excess of the actual assets comprising Allocated Assets, the Trading Advisor's
management fee shall be calculated based upon the "nominal account size" of the
Allocated Assets.
(iii) Incentive Fee. A quarterly incentive fee equal to
20% of any New Trading Profits (as defined below) achieved during each
fiscal quarter. New Trading Profits during a quarter shall mean the sum of (A)
the net of any profits and losses realized on trades closed out during the
period, plus or minus (B) the change in the net of any unrealized profits and
losses on trades which remained open as of the end of the period (net of
accrued brokerage commissions and other allocated expenses) from the net of any
unrealized profits and losses on trades initiated by the Trading Advisor which
remained open as of the end of the immediately preceding period (net of accrued
brokerage commissions and other allocated expenses), (C) any Trading Advisor
management fees paid or accrued through the end of the period, and (D) the
Trading Advisor's carryforward loss (as hereinafter defined) from the
immediately preceding period. If the sum of subparagraphs (A) through (D) for
any period is negative, such amount shall be the Trading Advisor's carryforward
loss for the next period. For purposes of calculating incentive fees, interest
income earned on the Allocated Assets will be disregarded. In the event of a
withdrawal from the Allocated Assets at a time when the Trading Advisor has a
carryforward loss in effect, the amount thereof shall be reduced by an amount
determined by multiplying the carryforward loss by a fraction, the numerator of
which shall be the amount of the withdrawal and the denominator of which shall
be the Net Asset Value of the Allocated Assets immediately prior to giving
effect to the withdrawal. In the event that an addition is made to the
Allocated Assets subsequent to a reduction in th Trading Advisor's carryforward
loss by reason of a withdrawal, the Trading Advisor's carryforward loss shall
be increased by or created in an amount (up to the aggregate amount of prior
carryforward loss reductions) determined by multiplying
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the aggregate amount of prior carryforward loss reductions by a
fraction, the numerator of which shall be the amount of the addition and the
denominator of which shall be the sum of the previous withdrawals which
resulted in carryforward loss reductions. The incentive fee charged to the
Partnership with respect to the Allocated Assets will be dependent upon the
performance of the Trading Advisor and will not be affected by the performance
of any other trading advisor appointed by the Partnership or the Partnership as
a whole. The initial incentive period shall commence on the date the Trading
Advisor commences trading activity for the Partnership and shall end at the
immediate following quarter-end (even though such period may not be a full
quarter). Subsequent incentive periods shall commence on the first day of the
next succeeding fiscal quarter and end on the last day of such fiscal quarter.
In the event this Agreement is terminated (or if there is a withdrawal from the
Allocated Assets) as of any date which is not the end of an incentive period,
an incentive fee will be paid by the Partnership, if earned, with respect to
the Allocated Assets as though such termination date (or date of withdrawal)
were the last day of the incentive period. For purposes of calculating the
first incentive fee, the Trading Advisor hereby agrees that it shall assume an
initial carryforward loss (constituting a portion of the Partnership's current
overall carryforward loss) equal to $150,000; which carryforward loss shall not
exceed 15% of the Allocated Assets hereunder.
(b) Payment of Fees. The management fees and
incentive fees due to the Trading Advisor shall be paid by the
Partnership within thirty (30) days of the end of the calendar period to which
they relate. The Partnership expressly agrees that any such fees due the
Trading Advisor shall survive the termination or other expiration of this
Agreement.
5. TRADING ADVISOR INDEPENDENT. The Trading Advisor
shall for all purposes herein be deemed to be an independent contractor
to the Partnership and the General Partner and shall, except as otherwise
expressly provided herein, have no authority to act for or represent the
Partnership or the General Partner in any way or otherwise be deemed a sponsor
of the Partnership or an agent, joint venturer or partner of the Partnership,
the General Partner or of any other trading advisor retained by the
Partnership.
6. BROKER.
(a) The Trading Advisor agrees to enter all Contract
orders through E.D. & F. Man International Inc. ("Man"), or such other
brokers and forward contract dealers as may be designated, from time to time,
in writing by the Partnership. The Partnership must consent in writing to the
use of other floor brokers who will give up such trades to Man in accordance
with exchange rules and the give-up procedures established by the Partnership
from time to time. The Trading Advisor shall be responsible for any errors
committed by any executing broker not previously approved by Man in writing who
gives-up to Man on behalf of the Partnership. In placing trades for the
Partnership's account, the Trading Advisor agrees that it shall use its
standard procedures for allocating orders among the Trading Advisor's various
accounts and not knowingly favor any other such account over the Partnership's
account.
(b) All forward contract and other trades forthe
Partnership will be executed through the forward trading and other facilities
of such affiliates of Man or other entities as the Partnership may designate
from time to time.
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(c) The Trading Advisor must consent to any banks,
brokers and dealers not set forth herein (such consent not to be
unreasonably withheld). The Trading Advisor shall be permitted to trade on a
"give-up" basis upon prior written consent from the Partnership (such consent
not to be unreasonably withheld).
7. STANDARD OF LIABILITY; INDEMNIFICATIONS.
(a) Standard of Liability. The Trading Advisor shall not
be liable to the Partnership, the General Partner or any of their
respective successors or assigns under this Agreement except by reason of (i)
acts or omissions to act which constitute bad faith, negligence or misconduct
or (ii) a breach of any of the representations, warranties, covenants or
agreements of the Trading Advisor set forth in this Agreement.
(b) Indemnity. (i) The Partnership agrees to indemnify
and hold harmless the Trading Advisor and each of its Principals and
Affiliates from and against any and all losses, claims, damages, liabilities,
costs and expenses (including, without limitation, attorneys' and accountants'
fees and disbursements), judgments and amounts paid in settlement
(collectively, "Losses") to which an indemnified person may become subject
arising out of this Agreement, the transactions contemplated hereby or the fact
the Trading Advisor is or was a trading advisor to the Partnership, unless any
such Losses arise out of, relate to, or are based upon the Trading Advisor's
failure to meet the standard of liability applicable to it under SECTION 7(a).
(ii) The Trading Advisor agrees to indemnify and hold
harmless the Partnership, the General Partner and each of their
respective Principals and Affiliates from and against any and all Losses to
which they may become subject, if any such Losses arise directly out of, relate
directly to, or are based directly upon the Trading Advisor's failure to meet
the standard of liability applicable to it under SECTION 7(a).
(c) Promptly after receipt by a party to be indemnified
under SECTION 7(b), above, of any notice of the commencement of any
action or proceeding, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnified party under such subsection,
notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under such
subsection. The requirement that an indemnifying party be given written notice
of the commencement of any action shall be deemed to be satisfied if such
indemnifying party shall have actual knowledge thereof or shall have been given
written notice of the commencement of any action or proceeding within a
reasonable time after the commencement thereof. If any such action shall be
brought against any indemnified party and the indemnified party notifies the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, to assume
the defense thereof with counsel satisfactory to such indemnified party, and
shall have the right to negotiate and consent to a settlement thereof, provided
that the indemnified party shall have consented to the settlement. After
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the indemnified party
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shall have the right to employ counsel to represent it, if, in the indemnified
party's reasonable judgment, it is advisable for such party to be represented
by separate counsel, in which event the fees and expenses of such separate
counsel shall be borne by the indemnified party. No indemnifying party shall
be liable for any settlement of any such action effected without its consent,
but if any such action or proceeding is settled with the consent of any
indemnifying party or if there be a final judgment for the plaintiff in any
such action or proceeding (of which an indemnifying party shall have been
notified), such indemnifying party shall indemnify and hold harmless each
indemnified party from and against any Losses incurred or suffered by reason of
such settlement or judgment.
(d) Any indemnification required by this SECTION 7,
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 7.
(e) The provisions of this SECTION 7 shall survive the
termination or other expiration of this Agreement.
8. THE TRADING ADVISOR'S REPRESENTATIONS AND WARRANTIES.
The Trading Advisor represents and warrants to the Partnership and the
General Partner as follows:
(a) The Trading Advisor is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and has full power and authority to enter into and perform its
obligations under this Agreement and to conduct its business as described in
this Agreement and the Disclosure Notice, and the Trading Advisor is qualified
to conduct its business and is in good standing in every jurisdiction in which
the nature or conduct of its business requires such qualification and failure
to so qualify would have a materially adverse effect on its ability to comply
with, or perform its obligations under, this Agreement, it being understood
that any decision as to the jurisdiction or jurisdictions in which the Trading
Advisor shall conduct its business is within the sole discretion of the Trading
Advisor.
(b) This Agreement has been duly and validly
authorized, executed and delivered by the Trading Advisor and is a
valid and binding agreement of the Trading Advisor enforceable in accordance
with its terms.
(c) The execution and delivery of this Agreement
and the performance of the obligations and the consummation of the
transactions contemplated in this Agreement and in the Disclosure Notice will
not conflict with, violate, breach or constitute a default under, any term or
provision of the Trading Advisor's certificate of incorporation, by-laws, or
other charter documents, or any indenture, mortgage, deed of trust, loan
agreement, or other agreement or instrument to which the Trading Advisor or any
of its Principals and Affiliates is a party or by which any of them are bound,
or to which any of the property (including, but not limited to, its Trading
Approach) or assets of the Trading Advisor or its Principals and Affiliates are
subject, or any order, rule, law, statute, regulation, or other legal
requirement applicable to the Trading Advisor or any of its Principals or to
the property or assets of the Trading Advisor or its Principals and Affiliates
of any court or any governmental or administrative body or agency or panel or
any regulatory or self-regulatory
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organization or exchange having jurisdiction over the Trading Advisor
or any of its Principals and Affiliates.
(d) The Trading Advisor is registered as a commodity
trading advisor under the Act, its Principals are identified on the
Trading Advisor's most recent CFTC Form 7-R filed with the NFA pursuant to the
Act, and it is a member of the NFA in such capacity and such registration and
membership has not expired or been revoked, lapsed, suspended, terminated, or
not renewed or limited or qualified in any respect.
(e) The Trading Advisor is not bankrupt or insolvent.
(f) The Disclosure Document is complete and accurate in
all material respects and does not contain any misstatement of any
material fact and complies in all material respects with the applicable
requirements of the Act and the rules promulgated thereunder (as in effect on
the date on which such Disclosure Document was last filed with the CFTC)
including the requirement to include all material information and may be relied
upon by the Partnership and the General Partner in preparing the Disclosure
Notice and allocating assets of the Partnership to the Trading Advisor and
there has not been, since the date of the Disclosure Document's issuance, any
material adverse change in the condition, financial or otherwise, business or
prospects of the Trading Advisor or any of its Principals and Affiliates,
whether or not arising in the ordinary course of business, or relating to the
historical performance and operations of the Trading Advisor; provided, that,
with respect to information concerning the Trading Advisor, the Partnership
and/or the General Partner have determined the extent of the information
regarding the Trading Advisor and its historical trading performance that is
necessary and adequate for inclusion in the Disclosure Notice.
(g) The Trading Advisor and each Principal has complied
and will continue to comply with all orders, rules, laws, statutes,
regulations or other legal requirements applicable to the Trading Advisor or
any of its Principals and Affiliates or to their respective businesses,
properties, or assets, including the Act and the rules promulgated by the CFTC
and the NFA, the violation of which would materially and adversely affect its
or their ability to comply with, and perform its or their obligations under
this Agreement, and there are no actions, suits, proceedings, or notices of
investigations or investigations pending or threatened against the Trading
Advisor, or any of its Principals or Affiliates, by the NFA, the CFTC or any
governmental, regulatory or self-regulatory agency regarding noncompliance by
the Trading Advisor or any of its Principals or Affiliates with any law,
statute, rule or regulation, or at law or in equity or before or by any court,
any federal, state, municipal or other governmental department commission,
board, bureau, agency, or instrumentality, or by any regulatory or
self-regulatory organization, or exchange, in which an adverse decision would
materially and adversely affect its or their ability to comply with or to
perform its or their obligations under this Agreement or that would be required
to be disclosed in the Disclosure Notice, which is not so disclosed, would
result in a material adverse change in the condition, financial or otherwise,
business or prospects of the Trading Advisor.
(h) The Trading Advisor and each Principal has all
governmental, regulatory, self-regulatory and exchange licenses and
approvals and has effected all filings and registrations with all governmental,
regulatory and self-regulatory agencies required to conduct their respective
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businesses and to act as described in the Disclosure Notice and to
perform its or their respective obligations under this Agreement.
(i) The information contained in the Disclosure
Notice relating to the Trading Advisor, including, without limitation,
the tables and notes thereto, has been reviewed and approved by the Trading
Advisor and is complete and accurate in all material respects and does not
contain any untrue statement of material fact.
(j) In the placement of orders and the allocation of
executed trades for the Partnership and for the accounts of any other
client, the Trading Advisor shall utilize a fair and reasonable order entry
system and trade allocation system, which shall be no less favorable to the
Partnership than to any other account managed by the Trading Advisor.
(k) The Trading Advisor shall promptly notify the other
parties hereto of the commencement of any suit, action or proceeding
involving it or its Principals and Affiliates, if such action or proceeding
might reasonably be expected to have a materially adverse effect on the Trading
Advisor's ability to comply with or perform its obligations under this
Agreement, whether or not any such suit, action or proceeding also involves any
of the other parties hereto.
The foregoing representations and warranties shall be
continuing during the term of this Agreement and any renewal hereof and
if at any time any event shall occur which would make or tend to make any of
the foregoing not true or incomplete, the Trading Advisor shall promptly notify
the Partnership and the General Partner of the occurrence of such event.
9. THE PARTNERSHIP'S REPRESENTATIONS AND WARRANTIES. The
General Partner and the Partnership represent and warrant to the
Trading Advisor as follows:
(a) The Partnership is duly organized, validly existing
and in good standing as a limited partnership under the laws of
Illinois. The Partnership has full power and authority to perform its
obligations under this Agreement and to conduct its business and to act as
described in the Disclosure Notice.
(b) This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Partnership and is a valid and
binding agreement of it enforceable in accordance with its terms.
(c) The Partnership has complied and will continue to
comply with all orders, rules, laws, statutes, regulations or other
legal requirements applicable to it, to its business, properties, and assets,
including the Act and the rules promulgated by the CFTC and the NFA, the
violation of which would materially and adversely affect its ability to comply
with, and perform its obligations under this Agreement, and there are no
actions, suits, proceedings, or notices of investigations or investigations
pending or threatened against it, by the NFA, the CFTC or any governmental,
regulatory or self-regulatory agency regarding noncompliance by it with any
law, statute, rule or regulation, or at law or in equity or before or by any
court, any federal, state, municipal or other governmental department,
commission, board, bureau, agency, or instrumentality, or by any regulatory or
self-regulatory organization, or exchange, in which an adverse decision would
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materially and adversely affect its ability to comply with or to
perform its obligations under this Agreement or that would be required to be
disclosed in the Disclosure Notice, which is not so disclosed, or would result
in a material adverse change in the condition, financial or otherwise, business
or prospects of the Partnership.
(d) The Partnership has all federal and state
governmental, regulatory, self-regulatory and exchange licenses and
approvals and has effected all filings and registrations with all federal and
state governmental and regulatory and self-regulatory agencies required to
conduct its business and to act as described in the Disclosure Notice and to
perform its obligations under this Agreement.
(e) Except with respect to information contained in the
Disclosure Notice relating to the Trading Advisor, the Disclosure
Notice does not contain any untrue statement of material fact or omit to state
therein a material fact required to be stated therein or necessary to be stated
therein in order to prevent the statements made therein, in light of the
circumstances under which they are made, from being misleading.
(f) The General Partner is registered as a commodity pool
operator under the Act and is a member of the NFA in such capacity and
such registration and membership has not expired or been revoked, lapsed,
suspended, terminated, or not renewed or limited or qualified in any respect.
(g) The General Partner has all federal and state
governmental, regulatory, self-regulatory and exchange licenses and
approvals and has effected all filings and registrations with all federal and
state governmental and regulatory and self-regulatory agencies required to
conduct its business and to act as described in the Disclosure Notice and to
perform its obligations under this Agreement.
The foregoing representations and warranties shall be
continuing during the term of this Agreement and any renewal hereof and
if at any time any event shall occur which would make or tend to make any of
the foregoing not true or incomplete, the General Partner will promptly notify
the Trading Advisor thereof.
10. TERM AND TERMINATION.
(a) Unless terminated earlier as provided below, the term
of this Agreement shall be until the end of the twelfth full calendar
month after the Trading Advisor commences trading activity and is
automatically renewable thereafter for successive one-year periods unless (i)
the Partnership terminates this Agreement during the initial one-year term
thereof by giving thirty days' prior written notice to the Trading Advisor, or
(ii) either the Trading Advisor or the Partnership terminates the Agreement at
the end of the initial one-year term or at any time thereafter by giving thirty
days' prior written notice to such other party.
(b) Notwithstanding the foregoing, this Agreement may be
terminated by the Partnership immediately upon written notice to the
Trading Advisor if (i) the Trading Advisor, if other than a natural person,
merges, consolidates with or sells a substantial portion of its assets to any
individual or entity, or there is a material adverse change relating to the
Trading Advisor or a material
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adverse change in control, organizational structure, financial
condition, regulatory compliance or personnel of the Trading Advisor, (ii) any
of the Trading Advisor's registrations under the Act or otherwise are
suspended, terminated, lapsed or not renewed, (iii) the Trading Advisor's
membership in the NFA or other self-regulatory organization is suspended,
terminated, lapsed or not renewed, (iv) the Trading Advisor otherwise becomes
unable to serve as a trading advisor to the full extent contemplated by this
Agreement, (v) the Trading Advisor breaches any of its representations,
warranties, covenants or agreements contained in this Agreement, or (vi) the
General Partner determines doing so is in the best interests of the
Partnership.
(c) The Trading Advisor may terminate this Agreement in
its discretion, (i) upon thirty days' prior written notice to the
Partnership in the event that the trading or accounting policies applicable to
the Partnership as in effect on the date hereof or as amended from time to time
in the reasonable judgment of the Trading Advisor adversely affect the
performance of the Trading Advisor's Trading Approach, (ii) immediately upon
written notice to the Partnership if the Partnership or the General Partner
materially breaches any representation, warranty or covenant or otherwise fails
to comply with the terms of this Agreement, or (iii) upon thirty days' prior
written notice to the Partnership if the Allocated Assets allocated to the
Trading Advisor shall be less than $250,000 (after adding back trading losses
in the current quarter and applicable loss carryforwards).
11. NOTICES. Except as otherwise provided herein, all
notices, demands or requests required to be made or delivered under
this Agreement shall be effective only if in writing and delivered personally
or by facsimile or mail, postage prepaid (airmail if the addressee is in
another country), to the respective addresses below or to such other addresses
as may be designated by the party entitled to receive the same by notice
similarly given and shall be deemed given by the party required to provide
notice when received by the party to whom notice is required to be given.
If to the Partnership or the General Partner to:
Xxxxxxx Asset Management, Inc.
One Financial Plaza
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, President
Fax No.: 000-000-0000
If to the Trading Advisor to:
Xxxxx Xxxx & Company, Inc.
Prudential Business Campus
0 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxxxx Xxxxx, President
Fax No.: 000-000-0000
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12. ASSIGNMENT. No party hereto may transfer,
sell, encumber, appoint agents or assign any of its rights or
obligations hereunder in whole or in part without the express written consent
of each of the other parties hereto.
13. AMENDMENT; MODIFICATION. This Agreement may not be
amended or modified, nor any of the provisions hereof waived, except by
the written consent of all of the parties hereto.
14. COMPLETE AGREEMENT. This Agreement constitutes the
entire agreement among the parties hereto with respect to the subject
hereof and supersedes all prior agreements written or oral, and no other
agreement, verbal or otherwise, shall be binding as between the parties hereto
unless in writing and signed by the party against whom enforcement is sought.
15. SUCCESSORS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their successors and
permitted assigns. No other person other than the persons indemnified under
SECTION 7 hereof for matters relating to that Section shall have any right or
obligation under this Agreement.
16. HEADINGS. Headings to sections herein are for the
convenience of the parties only, and are not intended to be a part of
or to affect the meanings or interpretation of this Agreement.
17. GOVERNING LAW. This Agreement shall be
governed by, and construed in accordance with, the laws of the State
of Illinois without giving effect to principles of conflicts of laws.
18. ARBITRATION. The parties agree that all
controversies which may arise in connection with any transaction
contemplated by this Agreement or the construction, performance or breach of
this Agreement shall be determined by arbitration, to be held in the City of
Chicago, State of Illinois unless otherwise agreed to by the parties hereto,
and in accordance with the rules then obtaining of the NFA, or if no such rules
are then in effect or if jurisdiction is declined, then the rules then
obtaining of the American Arbitration Association; provided,
however, that (a) the arbitrator(s) shall be knowledgeable in industry
standards and practices and the matters giving rise to the dispute, (b) the
arbitrator(s) shall not have the power and authority to award punitive damages,
(c) the authority of the arbitrator(s) shall be limited to construing and
enforcing the terms and conditions of this Agreement as expressly set forth
herein, and (d) the arbitrator(s) shall state the reasons for their award and
their legal and factual conclusions underlying the award in a written opinion.
The award of the arbitrator(s), or a majority of them, shall be final, and
judgment upon the award may be confirmed and entered in any court, state or
federal, having jurisdiction.
19. CONSENT TO JURISDICTION. Each party hereto expressly
and irrevocably agrees (a) that it waives any objection, and
specifically consents, to venue in the United States federal or state courts
located in the City of Chicago, State of Illinois, United States of America, so
that any action at law or in equity may be brought and maintained in any such
court, and (b) that service of process in any such action may be effected
against such party by certified or registered mail or in any other manner
permitted by applicable United States Federal Rules of Civil Procedure or Rules
of the Courts of the State of Illinois. In addition, each party hereto
expressly and irrevocably waives, in
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respect of any action brought in any United States federal or state
court located in the City of Chicago, State of Illinois or any resulting
judgment, any objection, and hereby specifically consents, to the jurisdiction
of any such court, and agrees not to seek to change the situs of such action or
to assert that any other court in any other action is a more suitable forum for
the hearing and adjudication of any claim or dispute raised in such action.
20. SURVIVAL. The indemnity provisions of this Agreement
shall survive the termination or expiration of this Agreement with
respect to any matter existing prior to such termination; the payment
obligations under this Agreement shall continue until satisfied; and the other
provisions of the Agreement shall survive the termination of this Agreement
with respect to any matter arising while this Agreement was in effect.
21. WAIVER OF BREACH. The waiver by a party of a breach
of any provisions of this Agreement shall not operate or be construed
as a waiver of any subsequent breach by a party. The failure of a party to
insist upon strict adherence to any provision of this Agreement shall not
constitute a waiver or thereafter deprive such party of the right to insist
upon a strict adherence.
22. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been executed as
of the day and year first above written.
THE FUTURES DIMENSION FUND
By: Xxxxxxx Asset Management, Inc.
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
President
XXXXX XXXX & COMPANY, INC.
By: /s/ Xxxxxxxxx Xxxxx
-------------------------------
Xxxxxxxxx Xxxxx
Principal
XXXXXXX ASSET MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
President
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EXHIBIT 1
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November 1, 1995
Xxxxx Xxxx & Company, Inc.
Prudential Business Campus
0 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Re: Commodity Trading Authorization
Gentlemen:
The Futures Dimension Fund, an Illinois limited
partnership (the "Partnership"), does hereby make, constitute, and
appoint you as its Attorney-in-Fact to purchase and sell futures contracts,
commodities and commodity options and forward contracts, and any other items
which are currently, or may later become, the subject of futures, forward or
options trading, and other related investments on domestic and international
exchanges, through E.D. & F. Man International Inc., or such other brokers and
forward contract dealers as may be designated, from time to time, in writing by
the Partnership, as brokers, in accordance with the Management Contract between
us dated November 1, 1995.
Very truly yours,
THE FUTURES DIMENSION FUND
By: Xxxxxxx Asset Management, Inc.
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
President
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ACKNOWLEDGMENT OF RECEIPT
OF DISCLOSURE DOCUMENT
The undersigned hereby acknowledges receipt of Xxxxx Xxxx &
Company, Inc.'s Disclosure Document dated August 5, 1995.
The Futures Dimension Fund
By: Xxxxxxx Asset Management, Inc.
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
President
