EXHIBIT 10.02
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT, made as of the day of ______, 1997, among
XXXXXX XXXXXXX TANGIBLE ASSET FUND L.P., a Delaware limited partnership (the
"Partnership"), DEMETER MANAGEMENT CORPORATION, a Delaware corporation (the
"General Partner"), and XXXXXX XXXXXXX COMMODITIES MANAGEMENT, INC., a Delaware
corporation (the "Trading Advisor").
W I T N E S S E T H:
WHEREAS, the Partnership's business and general purpose is to trade, buy,
sell, spread, or otherwise acquire, hold, or dispose of certain
commodity-related interests including but not limited to commodity futures
contracts (hereinafter referred to as "futures interests") and securities (such
as United States Treasury securities) approved by the Commodity Futures Trading
Commission (the "CFTC") for investment of customer funds, and to engage in all
activities incident thereto;
WHEREAS, the Trading Advisor has extensive experience trading in futures
interests and is willing to provide certain services and undertake certain
obligations as set forth herein;
WHEREAS, the Partnership desires the Trading Advisor to act as trading
advisor for the Partnership and to make investment decisions with respect to
futures interests for the Partnership and the Trading Advisor desires so to act;
WHEREAS, the Partnership plans to offer units of Limited Partnership
Interest ("Units") to investors in a public offering under the Securities Act of
1933, as amended, (the "Securities Act"), pursuant to a Registration Statement
on Form S-1 (No. _________) (as amended from time to time, the "Registration
Statement") and a final Prospectus constituting a part thereof (as amended and
supplemented, the "Prospectus"); and
WHEREAS, the Partnership, the General Partner and the Trading Advisor wish
to enter into this Management Agreement which, among other things, sets forth
certain terms and conditions upon which the Trading Advisor will conduct the
Partnership's futures interests trading;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Undertakings in Connection
WITH THE OFFERING OF UNITS.
(a) The Trading Advisor agrees: (i) to make all disclosures regarding
itself, its principals and affiliates, its trading performance, its trading
systems, methods, and strategies (subject to the need to preserve the secrecy of
proprietary information concerning such systems, methods, and strategies), any
client accounts over which it has discretionary trading authority, and
otherwise, as the Partnership may reasonably require (x) to be made in the
Partnership's Prospectus including any amendments or supplements thereto, or (y)
to comply with any applicable federal or state law or rule or regulation,
including those of the Securities and Exchange Commission (the "SEC"), the CFTC,
the National Futures Association (the "NFA"), the National Association of
Securities Dealers, Inc. (the "NASD")
or any other regulatory body, exchange, or board; and (ii) otherwise to
cooperate with the Partnership, the General Partner, and Xxxx Xxxxxx Xxxxxxxx
Inc., the selling agent for the Partnership ("DWR") by providing information
regarding the Trading Advisor in connection with the preparation and filing of
the Registration Statement and Prospectus, including any pre- or post-effective
amendments or supplements thereto, with the SEC, CFTC, NFA, NASD, and with
appropriate governmental authorities as part of making application for
registration of the Units under the securities or Blue Sky laws of such
jurisdictions as the Partnership may deem appropriate.
(b) The General Partner, in its sole discretion and at any time may (i)
withdraw the SEC registration of the Units, or (ii) discontinue the offering of
Units.
(c) If, while Units continue to be offered and sold, the Trading Advisor
becomes aware of any untrue or misleading statement or omission regarding itself
or any of its principals or affiliates in the Registration Statement or
Prospectus, or of the occurrence of any event or change in circumstances which
would result in there being any untrue or misleading statement or omission in
the Registration Statement or Prospectus regarding itself or any of its
principals or affiliates, the Trading Advisor shall promptly notify the General
Partner and shall cooperate with it in the preparation of any necessary
amendments or supplements to the Registration Statement or Prospectus.
2. DUTIES OF THE TRADING ADVISOR.
(a) The Trading Advisor agrees to act as the trading advisor for the
Partnership and, as such, shall have sole authority and responsibility for
advising the investment and reinvestment of the assets of the Partnership in
futures interests on the terms and conditions and in accordance with the
restrictions and trading policies set forth in this Agreement, the Partnership's
Limited Partnership Agreement as from time to time in effect (the "Limited
Partnership Agreement"), and the Prospectus; PROVIDED, HOWEVER, that the General
Partner may override the instructions of the Trading Advisor to the extent
necessary (i) to comply with the trading policies of the Partnership described
in the Limited Partnership Agreement, (ii) to fund any distributions or
redemptions, or (iii) to pay the Partnership's expenses. The General Partner
agrees not to override any such instructions for the reasons specified in
clauses (ii) and (iii) of the preceding sentence unless the Trading Advisor
fails to comply with a request of the General Partner to make the necessary
amount of funds available to the Partnership within five days of such request.
(b) The Trading Advisor shall exercise its best judgment in determining
the trades in futures interests for the account of the Partnership in accordance
with the restrictions and trading policies of the Partnership and the Trading
Advisor's trading strategy as in effect on the date hereof, [WITH SUCH CHANGES
AND ADDITIONS TO SUCH TRADING STRATEGY AS THE TRADING ADVISOR, FROM TIME TO
TIME, INCORPORATES INTO ITS TRADING APPROACH FOR ACCOUNTS THE SIZE OF THE
PARTNERSHIP.]
(c) All purchases and sales of futures interests pursuant to this
Agreement shall be for the account, and at the risk, of the Partnership and not
for the account, or at the risk, of the Trading Advisor or any of its
stockholders, directors, officers, or employees, or any other person, if any,
who controls the Trading Advisor within the meaning of the Securities Act. All
brokerage fees and commissions arising from trading by the Trading Advisor shall
be for the account of the Partnership.
(d) Notwithstanding any provision of this Agreement to the contrary, the
Trading Advisor shall assume financial responsibility for any errors committed
or caused by it
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in transmitting orders for the purchase or sale of futures interests for the
Partnership's account. The Trading Advisor's errors shall include, but not be
limited to, inputting improper trading signals or communicating incorrect orders
to any commodity broker for the Partnership. However, the Trading Advisor shall
not be responsible for errors committed or caused by any commodity broker for
the Partnership. The Trading Advisor shall have an affirmative obligation
promptly to notify the General Partner of its own errors, and the Trading
Advisor shall use its best efforts to identify and promptly notify the General
Partner of any order or trade which the Trading Advisor reasonably believes was
not executed in accordance with its instructions to any commodity broker for the
Partnership.
(e) The General Advisor on behalf of the Partnership shall deliver to the
Trading Advisor a trading authorization in the form annexed hereto as Exhibit A
appointing the Trading Advisor the Partnership's attorney-in-fact for such
purpose.
3. DESIGNATION OF ADDITIONAL TRADING ADVISORS; ADDITIONAL ASSETS.
(a) If the General Partner at any time deems it to be in the best
interests of the Partnership, the General Partner may designate an additional
trading advisor or advisors for the Partnership and may apportion to such
additional trading advisor(s) the management of such amounts of Net Assets (as
defined in Section 6(c) hereof) as the General Partner shall determine in its
absolute discretion. The designation of an additional trading advisor or
advisors and the apportionment of Net Assets to any such trading advisor(s)
pursuant to this Section 3 shall neither terminate this Agreement nor modify in
any regard the respective rights and obligations of the Partnership, the General
Partner and the Trading Advisor hereunder. In the event that additional trading
advisor(s) are so designated, the Trading Advisor shall thereafter receive
management and incentive fees based, respectively, on that portion of the Net
Assets managed by the Trading Advisor and that portion of the Net Profits
properly attributable to the trading done by the Trading Advisor.
(b) The Trading Advisor in its sole discretion may refuse to accept any
additional allocation of Partnership assets for management hereunder after the
final closing of the public offering pursuant to the Registration Statement.
4. TRADING ADVISOR INDEPENDENT.
For all purposes of this Agreement, the Trading Advisor shall be deemed to
be an independent contractor and shall, unless otherwise expressly provided
herein or authorized, have no authority to act for or represent the Partnership
in any way or otherwise be deemed an agent of the Partnership. Nothing
contained herein shall be deemed to require the Partnership to take any action
contrary to the Limited Partnership Agreement, the Certificate of Limited
Partnership of the Partnership as from time to time in effect (the "Certificate
of Limited Partnership"), or any applicable law or rule or regulation of any
regulatory body, exchange, or board. Nothing herein contained shall constitute
the Trading Advisor(s) for the Partnership as members of any partnership, joint
venture, association, syndicate or other entity, or 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.
5. COMMODITY BROKER.
The Trading Advisor shall effect all transactions in futures interests for
the Partnership through, and shall maintain a separate account with, such
commodity broker or brokers as the General Partner shall direct. At the present
time, MS & Co. acts as commodity broker for the Partnership.
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6. FEES.
(a) For the services to be rendered to the Partnership by the Trading
Advisor under this Agreement, the Partnership shall pay the Trading Advisor the
following fees:
(i) A monthly management fee (the "Management Fee"), without regard
to the profitability of the Trading Advisor's trading for the Partnership's
account, equal to 5/24 of 1% of the Net Assets of the Partnership as of the
first day of each calendar month commencing with the month in which the
Partnership begins to receive trading advice from the Trading Advisor pursuant
to this Agreement (a 2.5% annual rate).
(ii) An annual incentive fee equal to 20% of the "Trading Profits" (as
defined in Section 6(d)) as of the end of each calendar year. Any accrued
incentive fees with respect to any Units redeemed at the end of the month which
is not the end of a calendar year will be deducted and paid to the Trading
Advisor at the time of the redemption.
(b) If this Agreement is terminated on a date other than the end of a
calendar year, the incentive fee described above shall be determined as if such
date were the end of a calendar year. If this Agreement is terminated on a date
other than the first day of a calendar month, the management fee described above
shall be prorated based on the ratio of the number of trading days in the month
through the date of termination to the total number of trading days in the
month. If, during any month after the Partnership commences trading operations
(including the month in which the Partnership commences such operations), the
Partnership does not conduct business operations, or suspends trading for the
account of the Partnership, or, as a result of an act or failure to act by the
Trading Advisor, is otherwise unable to utilize the trading advice of the
Trading Advisor on any of the trading days of that period for any reason, the
management fee described above shall be prorated based on the ratio of the
number of trading days in the month which the Partnership engaged in trading
operations or utilizes the trading advice of the Trading Advisor to the total
number of trading days in the month.
(c) As used herein, the term "Net Assets" shall have the same meaning as
in Section 8(d)(1) of the Limited Partnership Agreement.
(d) As used herein, the term "Trading Profits" shall mean futures
interests trading profits (realized and unrealized) earned by the Partnership,
decreased by monthly Management Fees, brokerage fees, service fees, and other
expenses directly attributable to the Partnership's futures interests trading
activities, with such trading profits and items of decrease determined from the
end of the last calendar year for which an incentive fee was earned by the
Trading Advisor or, if no incentive fee has been earned previously by the
Trading Advisor, from the date the Partnership commenced trading to the end of
the calendar year as of which such incentive fee calculation is being made. If
Net Assets are reduced or increased because of redemptions or subscriptions
which occur at the end of, or subsequent to, a calendar year in which the
Partnership experiences a futures interests trading loss, the trading loss which
must be recovered before the Partnership will be deemed to experience Trading
Profits will be equal to the amount determined by (x) dividing Net Assets after
such redemptions or subscriptions by the Net Assets immediately before such
redemptions or subscriptions and (y) multiplying that fraction by the amount of
the unrecovered futures interests trading loss. In the event that the
Partnership experiences a futures interests trading loss in more than one fiscal
year without an intervening payment of an incentive fee and Net Assets are
reduced or increased in more than one such calendar year because of redemptions
or subscriptions, then the trading loss shall in each case be adjusted in
accordance with the formula described above and such adjusted amount of futures
interests trading loss shall be carried forward and used to offset
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subsequent futures interests contract trading profits. Extraordinary expenses
of the Partnership, if any, will not be deducted in determining Trading Profits.
Trading Profits do not include interest income earned by the Partnership on its
assets.
(e) If any payment of incentive fees is made to the Trading Advisor on
account of Trading Profits earned by the Partnership and the Partnership
thereafter fails to earn Trading Profits or experiences losses for any
subsequent incentive period, the Trading Advisor shall be entitled to retain
such amounts of incentive fees previously paid to the Trading Advisor in respect
of such Trading Profits.
7. TERM.
This Agreement shall continue in effect for a period of one year after the
date of this Agreement. Thereafter, this Agreement shall be renewed
automatically for additional one-year terms unless either the Partnership or the
Trading Advisor, upon written notice given not less than 60 days prior to the
original termination date or any extended termination date, notifies the other
party of its intention not to renew. This Agreement shall terminate if the
Partnership terminates. The Partnership shall have the right to terminate this
Agreement without penalty (a) upon 15 days prior written notice to the Trading
Advisor or (b) at any time upon written notice to the Trading Advisor upon the
occurrence of any of the following events: (i) if the Trading Advisor becomes
bankrupt or insolvent; (ii) if the Trading Advisor is unable to use its trading
systems or methods as in effect on the date of this Agreement and as refined and
modified in the future for the benefit of the Partnership; (iii) if the
registration as a commodity trading advisor of the Trading Advisor with the CFTC
or its membership in the NFA is revoked, suspended, terminated, or not renewed,
or limited or qualified in any respect; (iv) except as provided in Section 11
hereof, if the Trading Advisor merges or consolidates with, or sells or
otherwise transfers its advisory business, or all or a substantial portion of
its assets, any portion of its trading systems or methods, or its goodwill to,
any individual or entity; (v) if, the Net Asset Value of a Unit, after adding
back distributions, if any, shall be less than $500; (vi) if, at any time, the
Trading Advisor violates any trading policy set forth in the Limited Partnership
Agreement or any administrative policy the General Partner delivered to the
Trading Advisor, except with the prior express written consent of the General
Partner; or (vii) if the Trading Advisor fails in a material manner to perform
any of its obligations under this Agreement. The indemnities set forth in
Section 8 hereof shall survive any termination of this Agreement.
8. STANDARD OF LIABILITY AND INDEMNITY.
(a) The Trading Advisor and its affiliates (as defined below) shall not be
liable to the Partnership, the General Partner, the Limited Partners, or any of
its or their respective successors or assigns, for any act, omission, conduct,
or activity undertaken by or on behalf of the Partnership; provided, that, the
Trading Advisor shall be liable for such act, omission, conduct or activity
unless the Trading Advisor in good faith determines such act, omission, conduct
or activity to be in the best interests of the Partnership, and such act,
omission, conduct, or activity did not constitute misconduct or negligence.
(b) The Partnership shall indemnify, defend and hold harmless the Trading
Advisor and its affiliates from and against any loss, liability, damage, cost,
or expense (including attorneys' and accountants' fees and expenses incurred in
the defense of any demands, claims, or lawsuits) actually and reasonably
incurred arising from any act, omission, conduct, or activity undertaken by the
Trading Advisor or its affiliates on behalf of the Partnership, including,
without limitation, any demands, claims, or lawsuits initiated by a Limited
Partner of the Partnership (or assignee thereof), PROVIDED, that (i) the Trading
Advisor
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has determined, in good faith, that the act, omission, conduct, or activity
giving rise to the claim for indemnification was in the best interests of the
Partnership, and (ii) the act, omission, conduct, or activity that was the basis
for such loss, liability, damage, cost, or expense was not the result of
misconduct or negligence. Notwithstanding anything to the contrary contained in
the foregoing, neither the Trading Advisor nor any of its affiliates shall be
indemnified by the Partnership for any losses, liabilities, or expenses arising
from or out of an alleged violation of federal or state securities laws unless
(A) there has been a successful adjudication on the merits of each count
involving alleged securities law violations as to the particular indemnitee, or
(B) such claims have been dismissed with prejudice on the merits by a court of
competent jurisdiction as to the particular indemnitee, or (C) a court of
competent jurisdiction approves a settlement of the claims against the
particular indemnitee and finds that indemnification of the settlement and
related costs should be made, PROVIDED, with regard to such court approval, the
indemnitee must apprise the court of the position of the SEC, and the position
of the securities administrators of Massachusetts, Missouri, Tennessee, and/or
those other states and jurisdictions in which the plaintiffs claim they were
offered or sold Units, with respect to indemnification for securities laws
violations before seeking court approval for indemnification. Furthermore, in
any action or proceeding brought by a Limited Partner in the right of the
Partnership to which the Trading Advisor or any affiliate thereof is a party
defendant, any such person shall be indemnified only to the extent and subject
to the conditions specified in this Section 8. The Partnership shall make
advances to the Trading Advisor or its affiliates hereunder only if: (1) the
demand, claim, lawsuit, or legal action relates to the performance of duties or
services by such persons to the Partnership; (2) such demand, claim, lawsuit, or
legal action is not initiated by a Limited Partner; and (3) such advances are
repaid, with interest at the legal rate under Delaware law, if the person
receiving such advance is ultimately found not to be entitled to indemnification
hereunder.
(c) The Trading Advisor shall indemnify, defend and hold harmless the
Partnership, the General Partner, and each of their affiliates from and against
any liabilities, losses, claims, damages, costs and expenses (including
attorneys' and accountants' fees and expenses incurred in the defense of any
demands, claims, or lawsuits) actually and reasonably incurred as a result any
act, omission, conduct or activity of the Trading Advisor or its affiliates,
PROVIDED that the act, omission, conduct, or activity giving rise to the claim
for indemnification was the result of such person's bad faith, misconduct or
negligence.
(d) The indemnities provided in this Section 8 by the Partnership to the
Trading Advisor and its affiliates shall be inapplicable in the event of any
liabilities, losses, claims, damages or expenses arising out of, or based upon,
any material breach of any representation, warranty, covenant, or agreement of
the Trading Advisor contained in this Agreement to the extent caused by such
event. Likewise, the indemnities provided in this Section 8 by the Trading
Advisor to the General Partner and the Partnership and any of their affiliates
shall be inapplicable in the event of any liabilities, losses, claims, damages
or expenses arising out of, or based upon, any material breach of any
representation, warranty, covenant, or agreement of the Partnership or the
General Partner, as applicable, contained in this Agreement to the extent caused
by such event. The indemnifying party will not be liable for any settlement
effected without the indemnifying party's express written consent.
(e) As used in this Section 8, the term "affiliate" of an entity shall
mean: (i) any natural person, partnership, corporation, association, or other
legal entity directly or indirectly owning, controlling, or holding with power
to vote 10% or more of the outstanding voting securities of such entity; (ii)
any partnership, corporation, association, or other legal entity 10% or more of
whose outstanding voting securities are directly or indirectly owned,
controlled, or held with power to vote by such entity; (iii) any natural person,
partnership, corporation, association, or other legal entity directly or
indirectly controlling, controlled by,
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or under common control with, such entity; or (iv) any officer or director of
such entity. Notwithstanding the foregoing, "affiliates" of the Trading Advisor
for purposes of this Section 8 shall include only those persons acting on behalf
of the Trading Advisor within the scope of the authority of the Trading Advisor,
as set forth in this Agreement, who perform services for the Partnership.
9. RIGHT TO ADVISE OTHERS AND
UNIFORMITY OF ACTS AND PRACTICES.
(a) The Trading Advisor is engaged in the business of advising persons as
to the purchase and sale of futures interests. During the term of this
Agreement, the Trading Advisor, its principals and affiliates, will be advising
other persons (including affiliates) and trading for their own accounts.
However, under no circumstances shall the Trading Advisor by any act or omission
favor any account advised or managed by the Trading Advisor (which employs the
same trading strategy as the Partnership) over the account of the Partnership in
any way or manner (other than by charging different management and/or incentive
fees or employing different leverage). The Trading Advisor agrees to treat the
Partnership in a fiduciary capacity to the extent recognized by applicable law,
but, subject to that standard, the Trading Advisor or any of its principals or
affiliates shall be free to advise and manage accounts for other persons and
shall be free to trade on the basis of the same trading systems, methods, or
strategies employed by the Trading Advisor for the account of the Partnership,
or trading systems, methods, or strategies which are entirely independent of, or
materially different from, those employed for the account of the Partnership,
and shall be free to compete for the same futures interests as the Partnership
or to take positions opposite to the Partnership, where such actions do not
knowingly or deliberately prefer any of such accounts over the account of the
Partnership.
(b) The Trading Advisor shall not be restricted as to the number or nature
of its clients, except that: (i) so long as the Trading Advisor acts as a
trading advisor for the Partnership, neither the Trading Advisor nor any of its
principals or affiliates shall hold knowingly any position or control any other
account which would cause the Partnership, the Trading Advisor, or the
principals or affiliates of the Trading Advisor to be in violation of the
Commodity Exchange Act or any regulations promulgated thereunder, any applicable
rule or regulation of the CFTC or any other regulatory body, exchange, or board;
and (ii) neither the Trading Advisor nor any of its principals or affiliates
shall render trading advice to any other individual or entity or otherwise
engage in activity which shall knowingly cause positions in futures interests to
be attributed to the Trading Advisor under the rules or regulations of the CFTC
or any other regulatory body, exchange, or board so as to require the
significant modification of positions taken or intended for the account of the
Partnership; provided that the Trading Advisor may modify its trading systems,
methods or strategies to accommodate the trading of additional funds or
accounts. If applicable speculative position limits are exceeded by the Trading
Advisor in the opinion of (i) independent counsel (who shall be other than
counsel to the Partnership), (ii) the CFTC, or (iii) any other regulatory body,
exchange, or board, the Trading Advisor and its principals and affiliates shall
promptly liquidate positions in all of their accounts, including the
Partnership's account, as to which positions are attributed to the Trading
Advisor, fairly and equitably in light of each accounts trading strategies to
the extent necessary to comply with the applicable position limits.
10. REPRESENTATIONS WARRANTIES AND COVENANTS.
(a) The Trading Advisor represents and warrants that:
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(i) It will exercise good faith and due care in trading on behalf
of the Partnership pursuant to the trading programs described in the Prospectus
or any other trading programs agreed to by the General Partner.
(ii) All information furnished or to be furnished in writing to the
General Partner by the Trading Advisor relating to the Trading Advisor or its
trading is or will be accurate and complete in all material respects.
(iii) The Trading Advisor has reviewed the information concerning
the Trading Advisor set forth in the Registration Statement and Prospectus and
such information is accurate in all material respects.
(iv) The Trading Advisor shall follow, at all times, the Trading
Policies of the Partnership (as described in the Prospectus) and as amended from
time to time with the consent of the Trading Advisor, which consent shall not be
unreasonably withheld.
(v) The Trading Advisor shall trade the Partnership's Net Assets
only in futures contracts traded on U.S. contract markets, and futures contracts
traded on non-U.S. exchanges which are permitted under the Commodity Exchange
Act for trading in the U.S. by U.S. persons.
(b) The Trading Advisor covenants and agrees that:
(i) The Trading Advisor shall use its best efforts to maintain all
registrations and memberships necessary for the Trading Advisor to continue to
act as described herein and to at all times comply in all material respects with
all applicable laws, rules, and regulations, to the extent that the failure to
so comply would have a materially adverse effect on the Trading Advisor's
ability to act as described herein.
(ii) The Trading Advisor shall inform the General Partner
immediately in the event that the Trading Advisor or any of its principals
described in the Prospectus becomes the subject of any investigation, claim, or
proceeding of any exchange, commission, court or regulatory authority or becomes
a named party to any litigation materially affecting the business of the Trading
Advisor. The Trading Advisor shall also inform the General Partner immediately
if the Trading Advisor or any of its officers becomes aware of any breach of
this Agreement by the Trading Advisor.
(c) The General Partner covenants and agrees that:
(i) The General Partner shall use its best efforts to maintain all
registrations and memberships necessary for the General Partner to continue to
act as described herein and in the Prospectus and to at all times comply in all
material respects with all applicable laws, rules, and regulations, to the
extent that the failure to so comply would have a materially adverse effect on
the General Partner's ability to act as described herein and in the Prospectus.
(ii) The General Partner shall inform the Trading Advisor immediately
in the event that the General Partner or any of its principals described in the
Prospectus becomes the subject of any investigation, claim, or proceeding of any
exchange, commission, court or regulatory authority or becomes a named party to
any litigation materially affecting the business of the General Partner. The
General Partner shall also inform the Trading Advisor immediately if the General
Partner or any of its officers become aware of any breach of this Agreement by
the General Partner.
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11. MERGER OR TRANSFER OF ASSETS OF TRADING ADVISOR.
The Trading Advisor may merge or consolidate with, or sell or otherwise
transfer its advisory business, or all or a substantial portion of its assets,
any portion of its trading systems or methods, or its goodwill, to any entity
that is directly or indirectly controlled by, controlling, or under common
control with, the Trading Advisor, provided that such entity expressly assumes
all obligations of the Trading Advisor under this Agreement and agrees to
continue to operate the business of the Trading Advisor, substantially as such
business is being conducted on the date hereof.
12. COMPLETE AGREEMENT.
This Agreement constitutes the entire agreement between the parties with
respect to the matters referred to herein, and no other agreement, verbal or
otherwise, shall be binding as between the parties unless in writing and signed
by the party against whom enforcement is sought.
13. ASSIGNMENT.
This Agreement may not be assigned by any party hereto without the express
written consent of the other parties hereto.
14. AMENDMENT.
This Agreement may not be amended except by the written consent of the
parties hereto.
15. SEVERABILITY.
The invalidity or unenforceability of any provision of this Agreement or
any covenant herein contained shall not affect the validity or enforceability of
any other provision or covenant hereof or herein contained and any such invalid
provision or covenant shall be deemed to be severable.
16. INCONSISTENT FILINGS.
Prior to the end of 90 days following termination of the offering of Units,
the Trading Advisor agrees not to file, participate in the filing of, or publish
any description of the Trading Advisor, or of its respective principals and
affiliates or trading approaches that is materially inconsistent with those in
the Registration Statement and Prospectus, without so informing the General
Partner and furnishing to it copies of all such filings within a reasonable
period prior to the date of filing or publication. No such description shall be
published or filed to which the General Partner reasonably objects, except as
otherwise required by law. If a copy of any materially inconsistent filing or
publication is filed or published after the 90th day following termination of
the offering of Units, the Trading Advisor shall promptly furnish the General
Partner with such a copy, but the Trading Advisor need not give the General
Partner prior notice thereof.
17. DISCLOSURE DOCUMENTS.
The General Partner acknowledges receipt of the Trading Advisor's
disclosure document dated ___________________.
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18. NOTICES.
All notices required to be delivered under this Agreement shall be in
writing and shall be effective when delivered personally on the day delivered,
or when given by mail, on the day of receipt, addressed as follows (or to such
other address as the party entitled to notice shall hereafter designate in
accordance with the terms hereof):
if to the Partnership:
Xxxxxx Xxxxxxx Tangible Asset Fund
Limited Partnership
c/o Demeter Management Corporation
0 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
if to the General Partner:
Demeter Management Corporation
0 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx
if to the Trading Advisor:
Xxxxxx Xxxxxxx Commodities Management, Inc.
1221 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx
in each case with a copy to:
Xxxx Xxxxxx Xxxxxxxx Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
19. SURVIVAL.
The provisions of this Agreement shall survive the termination of this
Agreement with respect to any matter arising while this Agreement was in effect.
20. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY A
PARTY TO THIS AGREEMENT OR TO ENFORCE ANY RIGHT OR REMEDY UNDER THIS AGREEMENT,
EACH PARTY HERETO HEREBY CONSENTS AND WILL SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE COUNTY, CITY
AND STATE OF NEW YORK. ANY ACTION OR PROCEEDING BROUGHT BY ANY PARTY TO THIS
AGREEMENT TO ENFORCE ANY RIGHT, ASSERT
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ANY CLAIM OR OBTAIN ANY RELIEF WHATSOEVER IN CONNECTION WITH THIS AGREEMENT
SHALL BE BROUGHT BY SUCH PARTY EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW
YORK OR ANY FEDERAL COURT SITTING IN THE COUNTY, CITY AND STATE OF NEW YORK.
21. REMEDIES.
In any action or proceeding arising out of any of the provisions of this
Agreement, the Trading Advisor agrees not to seek any prejudgment equitable or
ancillary relief. The Trading Advisor agrees that its sole remedy in any such
action or proceeding shall be to seek actual monetary damages for any breach of
this Agreement.
22. HEADINGS.
Headings to sections herein are for the convenience of the parties only and
are not intended to be part of or to affect the meaning or interpretation of
this Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed for and on behalf of
the undersigned and its terms will take effect as of the day and year first
above written.
XXXXXX XXXXXXX TANGIBLE ASSET LIMITED
PARTNERSHIP
By: Demeter Management Corporation,
General Partner
By: _________________________________
Xxxx X. Xxxxxx, President
DEMETER MANAGEMENT CORPORATION
By: _________________________________
Xxxx X. Xxxxxx, President
XXXXXX XXXXXXX COMMODITIES MANAGEMENT, INC.
By: __________________________________
Xxxxx X. Xxxxxxxx, President
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