Exhibit 10.8
MANAGEMENT AGREEMENT
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AGREEMENT made as of the 3rd day of January 2002, among XXXXX
XXXXXX FUTURES MANAGEMENT LLC, a Delaware limited liability company ("SBFM"),
XXXXXXX XXXXX BARNEY DIVERSIFIED 2000 FUTURES FUND L.P., a New York limited
partnership (the "Partnership") and ASPECT CAPITAL LIMITED, a corporation formed
under the laws of England and Wales (the "Advisor").
W I T N E S S E T H :
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WHEREAS, SBFM is the general partner of the Partnership a
limited partnership organized for the purpose of speculative trading of
commodity interests, including futures contracts, options and forward contracts
with the objective of achieving substantial capital appreciation; and
WHEREAS, the Limited Partnership Agreement establishing the
Partnership (the "Limited Partnership Agreement") permits SBFM to delegate to
one or more commodity trading advisors SBFM's authority to make trading
decisions for the Partnership; and
WHEREAS, the Advisor is registered as a commodity trading
advisor with the Commodity Futures Trading Commission ("CFTC") and is a member
of the National Futures Association ("NFA"); and
WHEREAS, SBFM is registered as a commodity pool operator with
the CFTC and is a member of the NFA; and
WHEREAS, SBFM, the Partnership and the Advisor wish to enter
into this Agreement in order to set forth the terms and conditions upon which
the Advisor will render and implement advisory services in connection with the
conduct by the Partnership of its commodity trading activities during the term
of this Agreement;
NOW, THEREFORE, the parties agree as follows:
1. DUTIES OF THE ADVISOR. (a) For the period and on the terms
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and conditions of this Agreement, the Advisor shall have sole authority and
responsibility, as one of the Partnership's agents and attorneys-in-fact, for
directing the investment and reinvestment of the assets and funds of the
Partnership allocated to it from time to time by the General
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Partner in commodity interests, including commodity futures contracts, options
and forward contracts. All such trading on behalf of the Partnership shall be in
accordance with the trading policies set forth in the Partnership's Prospectus
and Disclosure Document dated April 30, 2001, as supplemented (the
"Prospectus"), and as such trading policies may be changed from time to time
upon receipt by the Advisor of prior written notice of such change and pursuant
to the trading strategy selected by SBFM to be utilized by the Advisor in
managing the Partnership's assets. SBFM has initially selected the Advisor's
Diversified Program to manage the Partnership's assets allocated to it. Any open
positions or other investments at the time of receipt of such notice of a change
in trading policy shall not be deemed to violate the changed policy and shall be
closed or sold in the ordinary course of trading. The Advisor may not deviate
from the trading policies set forth in the Prospectus without the prior written
consent of the Partnership given by SBFM. The Advisor makes no representation or
warranty that the trading to be directed by it for the Partnership will be
profitable or will not incur losses.
(b) SBFM acknowledges receipt of the Advisor's Disclosure
Document (the "Disclosure Document") dated August 2001 as filed with the NFA and
the CFTC. All trades made by the Advisor for the account of the Partnership
shall be made through such commodity broker or brokers as SBFM shall direct, and
the Advisor shall have no authority or responsibility for selecting or
supervising any such broker in connection with the execution, clearance or
confirmation of transactions for the Partnership or for the negotiation of
brokerage rates charged therefor. However, the Advisor, with the prior written
permission (by either original or fax copy) of SBFM , may direct all trades in
commodity futures and options to a futures commission merchant or independent
floor broker it chooses for execution with instructions to give-up the trades to
the broker designated by SBFM, provided that the futures commission merchant or
independent floor broker and any give-up or floor brokerage fees are approved in
advance by SBFM . All give-up or similar fees relating to the foregoing shall be
paid by the Partnership after all parties have executed the relevant give-up
agreements (by either original or fax copy).
(c) The initial allocation of the Partnership's assets to the
Advisor will be made to the Advisor's Diversified Program. In the event the
Advisor wishes to use a trading system or methodology other than or in addition
to the system or methodology outlined in the description of the Diversified
Program in the Disclosure Document in connection with its
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trading for the Partnership, either in whole or in part, it may not do so unless
the Advisor gives SBFM prior written notice of its intention to utilize such
different trading system or methodology and SBFM consents thereto in writing. In
addition, the Advisor will provide five days' prior written notice to SBFM of
any change in the trading system or methodology to be utilized for the
Partnership which the Advisor deems material. If the Advisor deems such change
in system or methodology or in markets traded to be material, the changed system
or methodology or markets traded will not be utilized for the Partnership
without the prior written consent of SBFM. In addition, the Advisor will notify
SBFM of any changes to the trading system or methodology that would require a
change in the description of the trading strategy or methods described in the
Disclosure Document. Further, the Advisor will provide the Partnership with a
current list of all commodity interests to be traded for the Partnership's
account and will not trade any additional commodity interests for such account
without providing notice thereof to SBFM and receiving SBFM's written approval.
The Advisor also agrees to provide SBFM, on a monthly basis, with a written
report of the assets under the Advisor's management together with all other
matters deemed by the Advisor to be material changes to its business not
previously reported to SBFM. The Advisor further agrees that it will convert
foreign currency balances (not required to margin positions denominated in a
foreign currency) to U.S. dollars no less frequently than monthly. U.S. dollar
equivalents in individual foreign currencies of more than $100,000 will be
converted to U.S. dollars within one business day after such funds are no longer
needed to margin foreign positions.
(d) The Advisor agrees to make all material disclosures to the Partnership
regarding itself and its principals as defined in Part 4 of the CFTC's
regulations ("principals"), shareholders, directors, officers and employees,
their trading performance and general trading methods, its customer accounts
(but not the identities of or identifying information with respect to its
customers) and otherwise as are required in the reasonable judgment of SBFM to
be made in any filings required by Federal or state law or NFA rule or order.
Notwithstanding Sections 1(d) and 4(d) of this Agreement, the Advisor shall not
be required to disclose the actual trading results of proprietary accounts of
the Advisor or its principals unless SBFM reasonably determines that such
disclosure is required in order to fulfill its fiduciary obligations to the
Partnership or the reporting, filing or other obligations imposed on it by
Federal or state law or NFA rule or order. The Partnership and SBFM acknowledge
that the trading advice to be
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provided by the Advisor is a property right belonging to the Advisor and that
they will keep all such advice confidential. Further, SBFM agrees to treat as
confidential any results of proprietary accounts and /or proprietary information
with respect to trading systems obtained from the Advisor.
(e) The Advisor understands and agrees that SBFM may designate other
trading advisors for the Partnership and apportion or reapportion to such other
trading advisors the management of an amount of Net Assets (as defined in
Section 3(b) hereof) as it shall determine in its absolute discretion. The
designation of other trading advisors and the apportionment or reapportionment
of Net Assets to any such trading advisors pursuant to this Section 1 shall
neither terminate this Agreement nor modify in any regard the respective rights
and obligations of the parties hereunder.
(f) SBFM may, from time to time, in its absolute discretion, select
additional trading advisors and reapportion funds among the trading advisors for
the Partnership as it deems appropriate. SBFM shall use its best efforts to make
reapportionments, if any, as of the first day of a month. The Advisor agrees
that it may be called upon at any time promptly to liquidate positions in SBFM's
sole discretion so that SBFM may reallocate the Partnership's assets, meet
margin calls on the Partnership's account, fund redemptions, or for any other
reason, except that SBFM will not require the liquidation of specific positions
by the Advisor. SBFM will use its best efforts to give two days' prior notice to
the Advisor of any reallocations or liquidations.
(g) The Advisor will not be liable for trading losses in the Partnership's
account including losses caused by errors; provided, however, that the Advisor
will be liable to the Partnership with respect to losses incurred due to errors
committed or caused by it or any of its principals or employees in communicating
improper trading instructions or orders to any broker on behalf of the
Partnership.
2. INDEPENDENCE OF THE ADVISOR. For all purposes herein, the Advisor shall
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be deemed to be an independent contractor and, unless otherwise expressly
provided or authorized, shall have no authority to act for or represent the
Partnership in any way and shall not be deemed an agent, promoter or sponsor of
the Partnership, SBFM, or any other trading advisor. The Advisor shall not be
responsible to the Partnership, SBFM, any trading advisor or any limited
partners
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for any acts or omissions of any other trading advisor acting as an
advisor to the Partnership.
3. COMPENSATION. (a) In consideration of and as compensation for all of the
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services to be rendered by the Advisor to the Partnership under this Agreement,
the Partnership shall pay the Advisor (i) an incentive fee payable at the end of
each calendar year equal to 20% of New Trading Profits (as such term is defined
below) earned by the Advisor for the Partnership and (ii) a monthly fee for
professional management services equal to 1/12 of 1.25% (1.25% per year) of the
month-end Net Assets of the Partnership allocated to the Advisor. The first
incentive fee, if any, shall be paid as of December 31, 2002.
(b) "Net Assets" shall have the meaning set forth in Paragraph 7(d)(1) of
the Limited Partnership Agreement dated as of August 25, 1999 and without regard
to further amendments thereto, provided that in determining the Net Assets of
the Partnership on any date, no adjustment shall be made to reflect any
distributions, redemptions or incentive fees payable as of the date of such
determination.
(c) "New Trading Profits" shall mean the excess, if any, of Net Assets
managed by the Advisor at the end of the fiscal period over Net Assets managed
by the Advisor at the end of the highest previous fiscal period or Net Assets
allocated to the Advisor at the date trading commences, whichever is higher, and
as further adjusted to eliminate the effect on Net Assets resulting from new
capital contributions, redemptions, reallocations or capital distributions, if
any, made during the fiscal period decreased by interest or other income, not
directly related to trading activity, earned on the Partnership's assets during
the fiscal period, whether the assets are held separately or in margin accounts.
Ongoing expenses will be attributed to the Advisor based on the Advisor's
proportionate share of Net Assets. Ongoing expenses include offering expenses of
the Partnership. Ongoing expenses will not include expenses of litigation not
involving the activities of the Advisor on behalf of the Partnership. Interest
income earned, if any, will not be taken into account in computing New Trading
Profits earned by the Advisor. If Net Assets allocated to the Advisor are
reduced due to redemptions, distributions or reallocations (net of additions),
there will be a corresponding proportional reduction in the related loss
carryforward amount that must be recouped before the Advisor is eligible to
receive another incentive fee.
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(d) Annual incentive fees and monthly management fees shall be paid within
twenty (20) business days following the end of the period, as the case may be,
for which such fee is payable. In the event of the termination of this Agreement
as of any date which shall not be the end of a fiscal year or a calendar month,
as the case may be, the annual incentive fee shall be computed as if the
effective date of termination were the last day of the then current year and the
monthly management fee shall be prorated to the effective date of termination.
If, during any month, the Partnership does not conduct business operations or
the Advisor is unable to provide the services contemplated herein for more than
two successive business days, the monthly management fee shall be prorated by
the ratio which the number of business days during which SBFM conducted the
Partnership's business operations or utilized the Advisor's services bears in
the month to the total number of business days in such month.
(e) The provisions of this Paragraph 3 shall survive the termination of
this Agreement.
4. RIGHT TO ENGAGE IN OTHER ACTIVITIES. (a) The services provided by the
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Advisor hereunder are not to be deemed exclusive. SBFM on its own behalf and on
behalf of the Partnership acknowledges that, subject to the terms of this
Agreement, the Advisor and its officers, directors, employees and
shareholder(s), may render advisory, consulting and management services to other
clients and accounts. The Advisor and its officers, directors, employees and
shareholder(s) shall be free to trade for their own accounts and to advise other
investors and manage other commodity accounts during the term of this Agreement
and to use the same information, computer programs and trading strategies,
programs or formulas which they obtain, produce or utilize in the performance of
services to SBFM for the Partnership. However, the Advisor represents, warrants
and agrees that it believes the rendering of such consulting, advisory and
management services to other accounts and entities, will not require any
material change in the Advisor's basic trading strategies and will not affect
the capacity of the Advisor to continue to render services to SBFM for the
Partnership of the quality and nature contemplated by this Agreement.
(b) If, at any time during the term of this Agreement, the Advisor is
required to aggregate the Partnership's commodity positions with the positions
of any other person for purposes of applying CFTC- or exchange-imposed
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speculative position limits, the Advisor agrees that it will promptly notify
SBFM if the Partnership's positions are included in an aggregate amount which
exceeds the applicable speculative position limit. The Advisor agrees that, if
its trading recommendations are altered because of the application of any
speculative position limits, it will not modify the trading instructions with
respect to the Partnership's account in such manner as to affect the Partnership
substantially disproportionately as compared with the Advisor's other accounts.
The Advisor further represents, warrants and agrees that under no circumstances
will it knowingly or deliberately use trading strategies or methods for the
Partnership that are inferior to strategies or methods employed for any other
client or account and that it will not knowingly or deliberately favor any
client or account managed by it over any other client or account in any manner,
it being acknowledged, however, that different trading strategies or methods may
be utilized for differing sizes of accounts, accounts with different trading
policies, accounts experiencing differing inflows or outflows of equity,
accounts which commence trading at different times, accounts which have
different portfolios or different fiscal years, accounts utilizing different
executing brokers and accounts with other differences, and that such differences
may cause divergent trading results.
(c) It is acknowledged that the Advisor and/or its officers,
employees, directors and shareholder(s) presently act, and it is agreed that
they may continue to act, as advisor for other accounts managed by them, and may
continue to receive compensation with respect to services for such accounts in
amounts which may be more or less than the amounts received from the
Partnership.
(d) The Advisor agrees that it shall make such information
available to SBFM respecting the performance of the Partnership's account as
compared to the performance of other accounts managed by the Advisor or its
principals as shall be reasonably requested by SBFM. The Advisor presently
believes and represents that existing speculative position limits will not
materially adversely affect its ability to manage the Partnership's account
given the potential size of the Partnership's account and the Advisor's and its
principals' current accounts and all proposed accounts for which they have
contracted to act as trading manager.
5. TERM. (a) This Agreement shall continue in effect until
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June 30, 2002. SBFM may, in its sole discretion, renew this Agreement for
additional one-year periods upon notice to
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the Advisor not less than 30 days prior to the expiration of the previous
period. At any time during the term of this Agreement, SBFM may terminate this
Agreement at any month-end upon 30 days' notice to the Advisor. At any time
during the term of this Agreement, SBFM may elect to immediately terminate this
Agreement upon 30 days' notice to the Advisor if (i) the Net Asset Value per
Unit shall decline as of the close of business on any day to $400 or less; (ii)
the Net Assets allocated to the Advisor (adjusted for redemptions,
distributions, withdrawals or reallocations, if any) decline by 50% or more as
of the end of a trading day from such Net Assets' previous highest value; (iii)
limited partners owning at least 50% of the outstanding Units shall vote to
require SBFM to terminate this Agreement; (iv) the Advisor fails to comply with
the terms of this Agreement; (v) SBFM, in good faith, reasonably determines that
the performance of the Advisor has been such that SBFM's fiduciary duties to the
Partnership require SBFM to terminate this Agreement; or (vi) SBFM reasonably
believes that the application of speculative position limits will substantially
affect the performance of the Partnership. At any time during the term of this
Agreement, SBFM may elect immediately to terminate this Agreement if (i) the
Advisor merges, consolidates with another entity, sells a substantial portion of
its assets, or becomes bankrupt or insolvent, (ii) Xxxxxx X. Xxxxxxx, Xxxxxx X
Xxxxx and Xxxxxxx X. Xxxx all die, become incapacitated, leave the employ of the
Advisor, cease to control the Advisor or are otherwise not managing the trading
programs or systems of the Advisor, or (iii) the Advisor's registration as a
commodity trading advisor with the CFTC or its membership in the NFA or any
other regulatory authority, is terminated or suspended. This Agreement will
immediately terminate upon dissolution of the Partnership or upon cessation of
trading prior to dissolution.
(b) The Advisor may terminate this Agreement by giving not
less than 30 days' notice to SBFM (i) in the event that the trading policies of
the Partnership as set forth in the Prospectus are changed in such manner that
the Advisor reasonably believes will adversely affect the performance of its
trading strategies; (ii) after June 30, 2002; (iii) in the event that SBFM or
Partnership fails to comply with the terms of this Agreement. The Advisor may
immediately terminate this Agreement if SBFM's registration as a commodity pool
operator or its membership in the NFA is terminated or suspended.
(c) Except as otherwise provided in this Agreement, any
termination of this Agreement in accordance with this Paragraph 5 or Paragraph
1(e) shall be without penalty or
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liability to any party, except for any fees due to the Advisor pursuant to
Section 3 hereof.
6. INDEMNIFICATION. (a)(i) In any threatened, pending or
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completed action, suit, or proceeding to which the Advisor was or is a party or
is threatened to be made a party arising out of or in connection with this
Agreement or the management of the Partnership's assets by the Advisor or the
offering and sale of units in the Partnership, SBFM shall, subject to
subparagraph (a)(iii) of this Paragraph 6, indemnify and hold harmless the
Advisor against any loss, liability, damage, cost, expense (including, without
limitation, attorneys' and accountants' fees), judgments and amounts paid in
settlement actually and reasonably incurred by it in connection with such
action, suit, or proceeding if the Advisor acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Partnership, and provided that its conduct did not constitute negligence,
intentional misconduct, or a breach of its fiduciary obligations to the
Partnership as a commodity trading advisor, unless and only to the extent that
the court or administrative forum in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all circumstances of the case, the Advisor is fairly and reasonably
entitled to indemnity for such expenses which such court or administrative forum
shall deem proper; and further provided that no indemnification shall be
available from the Partnership if such indemnification is prohibited by Section
16 of the Partnership Agreement. The termination of any action, suit or
proceeding by judgment, order or settlement shall not, of itself, create a
presumption that the Advisor did not act in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Partnership.
(ii) To the extent that the Advisor has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in subparagraph (i) above, or in defense of any claim, issue or matter therein,
SBFM shall indemnify the Advisor against the expenses (including, without
limitation, attorneys' and accountants' fees) actually and reasonably incurred
by it in connection therewith.
(iii) Any indemnification under subparagraph (i) above,
unless ordered by a court or administrative forum, shall be made by SBFM only as
authorized in the specific case and only upon a determination by independent
legal counsel in a written opinion that such indemnification is proper in the
circumstances because the Advisor has met the applicable standard of conduct
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set forth in subparagraph (i) above. Such independent legal counsel shall be
selected by SBFM in a timely manner, subject to the Advisor's approval, which
approval shall not be unreasonably withheld. The Advisor will be deemed to have
approved SBFM's selection unless the Advisor notifies SBFM in writing, received
by SBFM within five days of SBFM's telecopying to the Advisor of the notice of
SBFM's selection, that the Advisor does not approve the selection.
(iv) In the event the Advisor is made a party to any claim,
dispute or litigation or otherwise incurs any loss or expense as a result of, or
in connection with, the Partnership's or SBFM's activities or claimed activities
unrelated to the Advisor, SBFM shall indemnify, defend and hold harmless the
Advisor against any loss, liability, damage, cost or expense (including, without
limitation, attorneys' and accountants' fees) incurred in connection therewith.
(v) As used in this Paragraph 6(a), the terms "Advisor" shall
include the Advisor, its principals, officers, partners, directors, stockholders
and employees and the term "SBFM" shall include the Partnership.
(b)(i) The Advisor agrees to indemnify, defend and hold
harmless SBFM, the Partnership and their affiliates against any loss, liability,
damage, cost or expense (including, without limitation, attorneys' and
accountants' fees), judgments and amounts paid in settlement actually and
reasonably incurred by them (A) as a result of the material breach of any
material representations and warranties made by the Advisor in this Agreement,
or (B) as a result of any act or omission of the Advisor relating to the
Partnership if there has been a final judicial or regulatory determination or,
in the event of a settlement of any action or proceeding with the prior written
consent of the Advisor, a written opinion of an arbitrator pursuant to Paragraph
14 hereof, to the effect that such acts or omissions violated the terms of this
Agreement in any material respect or involved negligence, bad faith,
recklessness or intentional misconduct on the part of the Advisor (except as
otherwise provided in Section 1(g)).
(ii) In the event SBFM, the Partnership or any of their
affiliates is made a party to any claim, dispute or litigation or otherwise
incurs any loss or expense as a result of, or in connection with, the activities
or claimed activities of the Advisor or its principals, officers, directors,
shareholder(s) or employees unrelated to SBFM's or the Partnership's business,
the Advisor shall indemnify, defend and
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hold harmless SBFM, the Partnership or any of their affiliates against any loss,
liability, damage, cost or expense (including, without limitation, attorneys'
and accountants' fees) incurred in connection therewith.
(c) In the event that a person entitled to indemnification
under this Paragraph 6 is made a party to an action, suit or proceeding alleging
both matters for which indemnification can be made hereunder and matters for
which indemnification may not be made hereunder, such person shall be
indemnified only for that portion of the loss, liability, damage, cost or
expense incurred in such action, suit or proceeding which relates to the matters
for which indemnification can be made.
(d) None of the indemnifications contained in this Paragraph
6 shall be applicable with respect to default judgments, confessions of judgment
or settlements entered into by the party claiming indemnification without the
prior written consent, which shall not be unreasonably withheld, of the party
obligated to indemnify such party.
(e) The provisions of this Paragraph 6 shall survive the
termination of this Agreement.
7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
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(a) The Advisor represents and warrants that:
(i) The Disclosure Document is in full compliance with the
Commodity Exchange Act and the rules and regulations promulgated thereunder and
is accurate in all material respects and does not contain any untrue statement
of a material fact or omit to state a material fact which is necessary to make
the statements therein not misleading. References to the Advisor and its
principals, if any, in any future prospectus of the Partnership will, after
review and approval of such references by the Advisor prior to the use of such
prospectus in connection with the offering of the Partnership's units, be
accurate in all material respects. With respect to any `Table B' in the
Prospectus this representation and warranty extends only to the underlying data
made available by the Advisor for the preparation thereof and not to any
hypothetical or pro forma adjustments made by SBFM.
(ii) The information with respect to the Advisor set forth in
the actual performance tables in the Disclosure Document is based on all of the
customer accounts managed on a
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discretionary basis by the Advisor's principals and/or the Advisor during the
period covered by such tables and required to be disclosed therein. The
Advisor's performance tables have been examined by an independent certified
public accountant and the report thereon has been provided to SBFM. The Advisor
will have its performance tables so examined no less frequently than annually
during the term of this Agreement.
(iii) The Advisor will be acting as a commodity trading
advisor with respect to the Partnership and not as a securities investment
adviser and is duly registered with the CFTC as a commodity trading advisor, is
a member of the NFA, and is in compliance with such other registration and
licensing requirements as shall be necessary to enable it to perform its
obligations hereunder, and agrees to maintain and renew such registrations and
licenses during the term of this Agreement.
(iv) The Advisor is a corporation duly organized, validly
existing and in good standing under the laws of England and Wales and has full
power and authority to enter into this Agreement and to provide the services
required of it hereunder.
(v) The Advisor will not, by acting as a commodity trading
advisor to the Partnership, breach or cause to be breached any undertaking,
agreement, contract, statute, rule or regulation to which it is a party or by
which it is bound.
(vi) This Agreement has been duly and validly authorized,
executed and delivered by the Advisor and is a valid and binding agreement
enforceable in accordance with its terms.
(vii) At any time during the term of this Agreement that a
prospectus relating to the Units is required to be delivered in connection with
the offer and sale thereof, the Advisor agrees upon the request of SBFM to
provide the Partnership with such information as shall be necessary so that, as
to the Advisor and its principals, such prospectus is accurate.
(b) SBFM represents and warrants for itself and the
Partnership that:
(i) The Prospectus (as from time to time amended or
supplemented, which amendment or supplement is approved by the Advisor as to
descriptions of it, if any) does not contain any untrue statement of a material
fact or omit to state a material fact which is necessary to make the statements
therein not misleading, except that the foregoing representation does not
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apply to any statement or omission concerning the Advisor in theProspectus, made
in reliance upon, and in conformity with, information furnished to SBFM by or on
behalf of the Advisor expressly for use in the Prospectus (it being understood
that hypothetical and pro forma adjustments in any Table B are made by SBFM and
not the Advisor).
(ii) It is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full corporate power and authority to perform its obligations under this
Agreement.
(iii) SBFM and the Partnership have the capacity and
authority to enter into this Agreement on behalf of the Partnership.
(iv) This Agreement has been duly and validly authorized,
executed and delivered on SBFM's and the Partnership's behalf and is a valid and
binding agreement of SBFM and the Partnership enforceable in accordance with its
terms.
(v) SBFM will not, by acting as General Partner to the
Partnership and the Partnership will not, breach or cause to be breached any
undertaking, agreement, contract, statute, rule or regulation to which it is a
party or by which it is bound which would materially limit or affect the
performance of its duties under this Agreement.
(vi) It is registered as a commodity pool operator and is a
member of the NFA, and it will maintain and renew such registration and
membership during the term of this Agreement.
(vii) The Partnership is a limited partnership duly organized
and validly existing under the laws of the State of New York and has full power
and authority to enter into this Agreement and to perform its obligations under
this Agreement.
8. COVENANTS OF THE ADVISOR, SBFM AND THE PARTNERSHIP.
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(a) The Advisor agrees as follows:
(i) In connection with its activities on behalf of the
Partnership, the Advisor will comply with all applicable rules and regulations
of the CFTC and/or the commodity exchange on which any particular transaction is
executed.
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(ii) The Advisor will promptly notify SBFM of the
commencement of any material suit, action or proceeding involving it, whether or
not any such suit, action or proceeding also involves SBFM.
(iii) In the placement of orders for the Partnership's
account and for the accounts of any other client, the Advisor will utilize a
pre-determined, systematic, fair and reasonable order entry system, which shall,
on an overall basis, be no less favorable to the Partnership than to any other
account managed by the Advisor. The Advisor acknowledges its obligation to
review the Partnership's positions, prices and equity in the account managed by
the Advisor daily and within two business days to notify, in writing, the broker
and SBFM and the Partnership's brokers of (i) any error committed by the Advisor
or its principals or employees; (ii) any trade which the Advisor believes was
not executed in accordance with its instructions; and (iii) any discrepancy with
a value of $10,000 or more (due to differences in the positions, prices or
equity in the account) between its records and the information reported on the
account's daily and monthly broker statements.
(iv) The Advisor will maintain a net worth of not less than
$500,000 during the term of this Agreement.
(b) SBFM agrees for itself and the Partnership that:
(i) SBFM and the Partnership will comply with all applicable
rules and regulations of the CFTC and/or the commodity exchange on which any
particular transaction is executed.
(ii) SBFM will promptly notify the Advisor of the
commencement of any material suit, action or proceeding involving it or the
Partnership, whether or not such suit, action or proceeding also involves the
Advisor.
9. COMPLETE AGREEMENT. This Agreement constitutes the entire
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agreement between the parties pertaining to the subject matter hereof.
10. ASSIGNMENT. This Agreement may not be assigned by any
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party without the express written consent of the other parties.
11. AMENDMENT. This Agreement may not be amended except by
---------
the written consent of the parties.
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12. NOTICES. All notices, demands or requests required to be
-------
made or delivered under this Agreement shall be in writing and delivered
personally or by registered or certified mail or expedited courier, return
receipt requested, postage prepaid, to the addresses below or to such other
addresses as may be designated by the party entitled to receive the same by
notice similarly given:
If to SBFM or the Partnership:
Xxxxx Xxxxxx Futures Management LLC
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 (U.S.A.)
Attention: Xxxxx X. Xxxxx
If to the Advisor:
Aspect Capital Limited
0 Xxxxxxxxxx Xxxxx
Xxxxxx X0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxxxx Xxxxxxx
13. GOVERNING LAW. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York.
14. ARBITRATION. The parties agree that any dispute or
-----------
controversy arising out of or relating to this Agreement or the interpretation
thereof, shall be settled by arbitration in accordance with the rules, then in
effect, of the National Futures Association or, if the National Futures
Association shall refuse jurisdiction, then in accordance with the rules, then
in effect, of the American Arbitration Association; provided, however, that the
-------- -------
power of the arbitrator shall be limited to interpreting this Agreement as
written and the arbitrator shall state in writing his reasons for his award.
Judgment upon any award made by the arbitrator may be entered in any court of
competent jurisdiction.
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15. NO THIRD PARTY BENEFICIARIES. There are no third
----------------------------
party beneficiaries to this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed for and
on behalf of the undersigned as of the day and year first above written.
XXXXX XXXXXX FUTURES
MANAGEMENT LLC
By /s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx
President
XXXXXXX XXXXX XXXXXX
DIVERSIFIED 2000 FUTURES FUND L.P.
By: Xxxxx Xxxxxx
Futures Management LLC
(General Partner)
By /s/ Xxxxx X. Xxxxx
-------------------
Xxxxx X. Xxxxx
President
ASPECT CAPITAL LIMITED
By /s/ Xxxxxxx Xxxxxxx
--------------------
Xxxxxxx Xxxxxxx
Chief Operating Officer
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