ADVISORY AGREEMENT among SURYA GLOBAL HORIZONS, LLC, BLACKROCK INVESTMENT MANAGEMENT, LLC and SOLAISE CAPITAL MANAGEMENT LLP Dated as of August 1, 2011
Exhibit 10.01
among
SURYA GLOBAL HORIZONS, LLC,
BLACKROCK INVESTMENT MANAGEMENT, LLC
and
SOLAISE CAPITAL MANAGEMENT LLP
Dated as of August 1, 2011
Table of Contents
|
|
|
Page |
|
|
|
|
|
1. |
Regulatory Status |
1 |
|
2. |
Undertakings in Connection with Offering of Units |
2 |
|
3. |
Duties of the Trading Advisor |
3 |
|
4. |
Trading Advisor Independent |
4 |
|
5. |
Commodity Broker; Floor Brokers |
4 |
|
6. |
Allocation of Company Assets to Trading Advisor; Allocation of Receipts and Charges |
5 |
|
7. |
Fees |
6 |
|
8. |
Term and Termination |
7 |
|
9. |
Right to Advise Others; Uniformity of Acts and Practices |
8 |
|
10. |
Speculative Position Limits |
9 |
|
11. |
Additional Undertakings by the Trading Advisor |
9 |
|
12. |
Representations and Warranties |
9 |
|
13. |
Entire Agreement |
12 |
|
14. |
Indemnification |
12 |
|
15. |
Assignment |
14 |
|
16. |
Amendment; Waiver |
14 |
|
17. |
Severability |
14 |
|
18. |
Notices |
14 |
|
19. |
Governing Law |
15 |
|
20. |
Consent to Jurisdiction |
15 |
|
21. |
Remedies |
15 |
|
22. |
Promotional Material |
16 |
|
23. |
Confidentiality |
16 |
|
24. |
Survival |
16 |
|
25. |
Counterparts |
16 |
|
26. |
Headings |
16 |
|
|
|
|
|
Appendix A - List of Authorized Traders |
X-0 | |
|
|
| |
|
Xxxxxxxx X — List of Commodity Interests Traded by Trading Advisor |
B-1 | |
|
|
| |
|
Appendix C - Commodity Trading Authority |
C-1 | |
|
|
| |
|
Appendix D - Acknowledgment of Receipt of Disclosure Document |
D-1 | |
|
|
| |
|
Appendix E — FSA Rules Provisions |
E-1 | |
THIS ADVISORY AGREEMENT (the “Agreement”), made as of this 1 day of August 2011, among SURYA GLOBAL HORIZONS, LLC, a Delaware limited liability company (the “Company”), BLACKROCK INVESTMENT MANAGEMENT LLC, a Delaware limited liability company and the manager of the Company (the “Manager”), and SOLAISE CAPITAL MANAGEMENT LLP, a limited liability partnership incorporated in England and Wales (the “Trading Advisor”);
W I T N E S S E T H:
WHEREAS, the Company trades, buys, sells or otherwise acquires, holds or disposes of forward contracts, futures contracts for commodities, financial instruments and currencies on United States and foreign exchanges, any rights pertaining thereto and any options thereon or on physical commodities and engages in all activities incident thereto (the foregoing forms of investment being collectively referred to herein as “commodity interests”);
WHEREAS, the sole holder of interests in the Company as of the date hereof, BlackRock Global Horizons I, LP (the “Fund”), is now offering Units of Limited Partnership Interest in the Fund (“Units”) for sale to investors in an offering exempt from registration under the Securities Act of 1933, as amended (the “1933 Act”), pursuant to Section 4(2) thereof and Rule 506 under Regulation D promulgated thereunder, as described in the Fund’s Confidential Private Placement Memorandum (the “Memorandum”) that has been filed with the Commodity Futures Trading Commission (the “CFTC”) and the National Futures Association (the “NFA”) pursuant to the Commodity Exchange Act, as amended (the “CEA”), the commodity pool operator and commodity trading advisor regulations promulgated under the CEA by the CFTC (the “Commodity Regulations”), and NFA rules promulgated under the CEA (the “NFA Rules”);
WHEREAS, the Fund had previously sold Units publicly pursuant to an effective registration under the 1933 Act. Such public offering was discontinued in 1998, and the Units now being offered are the same class of equity securities as the outstanding Units;
WHEREAS, the Trading Advisor is engaged in the business of, among other things, making trading decisions on behalf of investors in the purchase and sale of certain commodity interests; and
WHEREAS, the Company desires the Trading Advisor, upon the terms and conditions set forth herein, to act as a trading advisor for the Company and to make commodity interests investment decisions for the Company with respect to the Company’s assets from time to time, and the Trading Advisor desires to so act;
NOW, THEREFORE, the parties hereto do hereby agree as follows:
1. Regulatory Status
The Trading Advisor is authorized and regulated by the FSA and agrees to be bound by and comply with Appendix E (including its Schedules) which sets out certain regulatory provisions in relation solely to the Trading Advisor.
2. Undertakings in Connection with Offering of Units.
(a) Undertakings by the Trading Advisor. The Trading Advisor agrees to use its best efforts to cooperate with the Fund and the Manager in amending the Memorandum, including without limitation by providing, as promptly as may be reasonably practicable, all information (if any) regarding the Trading Advisor and its principals which the Manager reasonably believes to be necessary or advisable to include in the Memorandum, as the same may be amended from time to time; provided, that nothing herein shall require the Trading Advisor to disclose any proprietary or confidential information related to its trading programs, systems or strategies or to its clients.
(b) Certain Defined Terms. As used in this Agreement, the term “principal” shall have the same meaning given to such term in Section 4.10(e) of the Commodity Regulations, and the term “affiliate” shall mean an individual or entity (including a stockholder, director, officer, employee, agent, or principal) that directly or indirectly controls, is controlled by, or is under common control with any other individual or entity.
(c) Use of Memorandum and Other Solicitation Material. Neither the Trading Advisor, its principals nor any of its employees, affiliates or agents, the employees, affiliates or agents of such affiliates, or their respective successors or assigns shall use, publish, circulate or distribute the Memorandum (including any amendment or supplement thereto) or any related solicitation material nor shall any of the foregoing engage in any marketing, sales or promotional activities in connection with the offering of Units, except as may be requested by the Manager and agreed to by the Trading Advisor.
(d) Updated Performance Information. At any time while Units continue to be offered and sold, at the written request of the Fund or the Manager, the Trading Advisor, at its own expense, shall promptly provide the Fund and the Manager with complete and accurate performance information (in form and substance consistent with Section 4.35 of the Commodity Regulations and the NFA Rules) reflecting the actual performance of the accounts directed by the Trading Advisor up to the latest practicable date (consistent with Section 4.35 of the Commodity Regulations) prior to the date of the Memorandum as amended or supplemented, together with any reports or letters relating to such performance data received from accountants and in the possession of the Trading Advisor.
(e) Access to Books and Records. Upon at least seven days’ notice to the Trading Advisor, the Company or the Manager shall have the right to have access to the Trading Advisor’s offices in order to inspect and copy such books and records during normal business hours as may enable them to verify the accuracy and completeness of or to supplement as necessary the data furnished by the Trading Advisor pursuant to Section l(d) of this Agreement or to verify compliance with the terms of this Agreement (subject to such restrictions as the Trading Advisor may reasonably deem necessary or advisable so as to preserve the confidentiality of proprietary information concerning such trading systems, methods, models, strategies and formulas and of the identity of the Trading Advisor’s clients).
3. Duties of the Trading Advisor.
(a) Speculative Trading. The Trading Advisor agrees to act as the sole trading advisor for the Company. The Trading Advisor and the Company agree that in managing the assets of the Company, the Trading Advisor shall utilize its Systematic Program (the “Program”) as described under the heading “Investment Objective and Approach” in the prospectus (the “Prospectus”) of Solaise Systematic Fund Limited, as amended from time to time (the “Investment Objective”). The Systematic Program shall target a long range volatility of 14-16%, as measured by annualized standard deviation. The Company agrees and acknowledges that at any given time the annualized standard deviation may fall outside this range. The Trading Advisor may utilize a different program to the Program in respect of the Company only with the prior written consent of the Company. Except as provided otherwise in this Section 3, the Trading Advisor shall have sole and exclusive authority and responsibility for directing the investment and reinvestment of the Company’s assets utilizing the Program in accordance with the “Investment Objective and Approach” section of the Propsectus and as refined and modified from time to time in the future in accordance herewith, for the period and on the terms and conditions set forth herein. Only those individuals currently employed by the Trading Advisor and listed in Appendix A are permitted to implement trades for the Company unless otherwise agreed in writing between the Company and the Trading Advisor. Notwithstanding the foregoing, the Company or the Manager may override the trading instructions of the Trading Advisor to the extent necessary: (i) to fund any distributions or redemptions of Units to be made by the Fund; (ii) to pay the Company’s or the Fund’s expenses; and/or (iii) to comply with speculative position limits; provided that the Company and the Manager shall permit the Trading Advisor three days in which to liquidate positions for the purposes set forth in clauses (i)-(ii) prior to exercising its override authority. The Trading Advisor will have no liability for the results of any of the Manager’s interventions in (i)-(iii), above.
The Company and the Manager both specifically acknowledge that in agreeing to manage the Company, the Trading Advisor is not making any guarantee of profits or of protections against loss.
The Trading Advisor shall give the Company and the Manager prompt written notice of any proposed material change in the Program or the manner in which trading decisions are to be made or implemented and shall not make any such proposed material change with respect to trading for the Company without having given the Company and the Manager at least 7 days’ prior written notice of such change. The addition and/or deletion of commodity interests from the Company’s portfolio managed by the Trading Advisor shall not be deemed a change in the Trading Advisor’s trading approach and prior written notice to the Company or the Manager shall not be required therefor, except as set forth in section 3(b) below; provided that with respect to the Company, the Trading Advisor may trade a different program to the Program in managing the Company only with the prior written consent of the Manager.
(b) List of Commodity Interests Traded by the Trading Advisor. The Trading Advisor shall provide the Company and the Manager with a complete list of commodity interests which it intends to trade on the Company’s behalf. All commodity interests other than regulated futures contracts and options on regulated futures contracts traded on a qualified board or exchange in the United States shall be listed on Appendix B to this Agreement. The addition of commodity interests (other than forward contracts on foreign currencies) to the Company’s
portfolio managed by the Trading Advisor as set forth in Appendix B to this Agreement shall require prior written notice to the Company or the Manager and an amendment to Appendix B.
(c) Investment of Assets Held in Securities and Cash. Notwithstanding any provision of this Agreement to the contrary, the Company and the Manager, and not the Trading Advisor, shall have the sole and exclusive authority and responsibility with regard to the investment, maintenance and management of the Company’s assets other than in respect of the Trading Advisor’s trading of the Company’s assets in commodity interests.
(d) Trading Authorization. Prior to the Company’s acceptance of trading advice from the Trading Advisor in accordance with this Agreement, the Company shall deliver to the Trading Advisor a trading authorization in the form of Appendix C hereto appointing the Trading Advisor as an agent of the Company and attorney-in-fact for such purpose.
(e) Delivery of the Prospectus. The Trading Advisor shall, during the term of this Agreement, deliver to the Company a copy of the Prospectus and any amendments thereto for the Program promptly following preparation, and the Manager on behalf of the Company shall, if requested, sign the Acknowledgment of Receipt of Disclosure Document in the form of Appendix D hereto, for the initial document so delivered.
(f) Trade Reconciliations. The Trading Advisor acknowledges its obligation to review its commodity interest positions on a daily basis and to notify the Company and the Manager promptly of any errors committed by the Trading Advisor or any trade which the Trading Advisor believes was not executed in accordance with its instructions and which cannot be promptly resolved. The Trading Advisor will use its own systems to evaluate trade and portfolio information until it receives the necessary information from the Company, upon which time the Trading Advisor will use the information from the Company to evaluate the trade and portfolio information.
(g) Trade Information. The Trading Advisor shall use commercially reasonable efforts to provide trade information to State Street Bank and Trust Company by electronic file by 4:30 p.m. on the date of any trade made on behalf of the Company.
4. Trading Advisor Independent.
For all purposes of this Agreement, the Trading Advisor shall be deemed to be an independent contractor and shall have no authority to act for or represent the Company in any way and shall not otherwise be deemed to be an agent of the Company. Nothing contained herein shall create or constitute the Trading Advisor and any other trading advisor for the Company, the Fund or the Manager as a member of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, nor shall this Agreement be deemed to confer on any of them any express, implied, or apparent authority to incur any obligation or liability on behalf of any other. The parties acknowledge that the Trading Advisor has not been an organizer or promoter of the Fund.
5. Commodity Broker; Floor Brokers.
(a) Clearing of All Trades. The Trading Advisor shall clear orders for all commodity interest transactions for the Company through such commodity broker or brokers as
the Company shall designate from time to time in its sole discretion (the “Clearing Broker”). The Trading Advisor will not, without the consent of the Manager, trade on a “give up” basis through floor brokers not associated with the Clearing Broker. The Manager will review and approve or disapprove all executing brokers proposed by the Trading Advisor for the Company’s account. The Manager agrees that it will only disapprove a proposed executing broker suggested by the Trading Advisor for cause and that, if an executing broker is approved, the Company will not hold the Trading Advisor liable for any error or breach of contract by any such executing broker, barring negligence, wilful default or fraud on the part of the Trading Advisor. Even if such floor brokers receive the Manager’s consent to execute trades on behalf of the Company, all such trades will be “given-up” to be carried by the Clearing Broker. The Trading Advisor shall receive copies of all daily and monthly brokerage statements for the Company directly from the Clearing Broker.
The parties acknowledge that the Trading Advisor has no authority or responsibility for selecting a commodity broker or dealers or for the negotiation of brokerage commission rates. If necessary for the Trading Advisor to trade pursuant to the Program, the Company shall provide adequate dealing lines of credit for the Trading Advisor to place orders for spot and forward currency contracts on behalf of the Company.
(b) Forward Trading. All forward trades for the Company shall be executed through the forward dealer(s) (which may be affiliates of the Manager) designated by the Manager, provided that at the request of the Trading Advisor, the Manager may consent to some other forward trading arrangement, which consent shall not be unreasonably withheld. The Trading Advisor shall use such other banks or dealers only for what the Trading Advisor, in good faith, believes to be good cause.
(c) Floor Brokerage. Notwithstanding Section 5(a) of this Agreement, the Trading Advisor may place orders for commodity interest transactions for the Company through floor brokers selected by the Trading Advisor, and approved by the Manager, such approval not to be unreasonably withheld. Such floor brokers shall “give up” all trades on behalf the Company to the Clearing Broker for clearance.
The brokerage and floor commissions, “give-up” fees and other transaction costs charged by any floor broker to effect Company transactions shall be subject to the approval of the Manager, such approval not to be unreasonably withheld provided that such fees and transaction costs are competitive with the Clearing Broker’s standard rates.
6. Allocation of Company Assets to Trading Advisor; Allocation of Receipts and Charges.
(a) The Manager has allocated a portion of the Fund’s assets to the Company to be managed in accordance with the terms of this Agreement. The Manager may, in its sole discretion, reallocate Fund assets by contributing to or withdrawing amounts from the Company as of any month-end.
(b) Gains and receipts (e.g., trading profits and, in some instances, interest income), losses and charges (e.g., trading losses, incentive fees, brokerage commissions) specific to the Company shall be allocated entirely to the Company. Gains and receipts, losses and
charges not specific to (i) the Company or (ii) any other company or account held by the Fund and managed by a specific trading advisor, shall be allocated among all of the companies and accounts of the Fund managed by the different trading advisors, including the Company, pro rata based on the beginning of month value of each such company and account after reduction for account specific charges. The value of the Company after taking into account all realized and unrealized gains and losses is the Company’s “Xxxx-to-Market Value.”
(c) The value of the Company determined by deducting from the Company’s Xxxx-to-Market Value all charges and reserves (including but not limited to the Company’s pro rata share of Fund distribution fees, transfer agent fees, administrator’s fees and the Manager’s Sponsor Fee) except any charges or accruals for the fees provided for in Section 7 is the Company’s “Net Asset Value Before Fees.”
7. Fees.
(a) Management Fee. By approximately ten business days of each calendar month-end, the Company will pay the Trading Advisor a Management Fee equal to [ ]* of the Company’s month-end Net Asset Value Before Fees. The resulting balance after payment of the Management Fee is the Company’s “Post MF Net Asset Value.” The Company’s balance after any further reduction for the Incentive Fee provided for in Section 6(b) is the Company’s “Net Asset Value.”
(b) Incentive Fee.
(i) The Company will pay to the Trading Advisor, on an annual basis (beginning December 31, 2011) (“Incentive Fee Calculation Date”), an Incentive Fee equal to [ ]* of any New Trading Profit recognized by the Company as of such Incentive Fee Calculation Date.
(ii) Subject to the adjustments contemplated below, New Trading Profit equals any increase in the Xxxx-to-Market Value of the Company as of the current Incentive Fee Calculation Date over the High Water Xxxx attributable to the Company. New Trading Profit will be calculated prior to reduction for any accrued Incentive Fees [ ]*.
(iii) The High Water Xxxx attributable to the Company shall be equal to the highest Net Asset Value of the Company (for avoidance of doubt, after reduction for the Incentive Fee then paid), as of any preceding Incentive Fee Calculation Date. The High Water Xxxx shall be increased dollar-for-dollar by any capital allocated to the Company and decreased proportionately when capital is reallocated away from the Company (other than to pay expenses). The proportionate reduction made as a result of a reallocation shall be calculated by multiplying the High Water Xxxx in effect immediately prior to such reallocation by the fraction the numerator of which is the Net Asset Value of the Company immediately following such
reallocation and the denominator of which is the Net Asset Value of the Company immediately before such reallocation.
(iv) If an Incentive Fee is paid as of an Incentive Fee Calculation Date, the High Water Xxxx is reset to the Net Asset Value of the Company immediately following such payment.
(v) When there is an accrued Incentive Fee at the time any reallocation from the Company is made, the Incentive Fee attributable to such reallocation will be paid. Such Incentive Fee shall be determined by multiplying the Incentive Fee that would have been paid had the date of the reallocation been an Incentive Fee Calculation Date by the fraction the numerator of which is the amount of the reallocation and the denominator of which is the Post MF Net Asset Value of the Company immediately prior to the reallocation, in each case prior to reduction for the accrued Incentive Fee. Such Incentive Fee will be paid from and reduce the amount of the reallocation.
(vi) Interest income shall not be included in any of the foregoing calculations. For the avoidance of doubt, no Incentive Fee shall be payable on any interest income earned by the Company.
(vii) Termination of this Agreement shall be treated as an Incentive Fee Calculation Date.
8. Term and Termination.
(a) Term and Renewal. This Agreement shall continue in effect until December 31, 2011. Thereafter, this Agreement shall be automatically renewed for successive one-year periods, on the same terms, unless terminated by either the Trading Advisor or the Company upon 90 days’ notice to the other party.
(b) Termination. Notwithstanding Section 8(a) hereof, this Agreement shall terminate:
(i) immediately if the Company shall terminate and be dissolved in accordance with the Limited Liability Company Agreement or otherwise;
(ii) at the discretion of the Manager as of the end of any month;
(iii) at the discretion of the Trading Advisor, as of the following month-end, should any of the following occur: (1) the assets managed by the Trading Advisor decrease to less than $10,000,000 at the close of business on any day; or (2) the Trading Advisor has determined to cease managing any customer accounts pursuant to the Program;
(iv) at the discretion of the Trading Advisor as of the end of any month upon 90 days’ prior written notice to the Manager; or
(v) immediately if the Trading Advisor ceases to be authorized by the FSA or otherwise ceases to be able to fulfil its obligations hereunder due to any change in applicable laws.
(c) On termination of this Agreement, the Trading Advisor shall be entitled to receive all fees and other monies accrued up to the date of such termination.
(d) Termination of this Agreement shall be without prejudice to the completion of transactions already initiated. Such transactions will be completed by the Trading Advisor as soon as practicable.
(e) Notwithstanding any termination of this Agreement by the Manager pursuant to Section 8b(ii), Sections 14 and 23 shall survive for a period of one year following the date of such termination.
9. Right to Advise Others; Uniformity of Acts and Practices.
(a) During the term of this Agreement, the Trading Advisor and its affiliates shall be free to advise other investors as to the purchase and sale of commodity interests, to manage and trade other investors’ commodity interests accounts and to trade for and on behalf of their own proprietary commodity interests accounts. However, under no circumstances shall the Trading Advisor or any of its affiliates favor any commodity interests account directed by any of them (regardless of the date on which they began or shall begin to direct such account) over the Company’s account, giving due consideration to the trading program which the Manager has requested the Trading Advisor to trade on behalf of the Company. For purposes of this Agreement, the Trading Advisor and its affiliates shall not be deemed to be favoring another commodity interests account over the Company’s account if the Trading Advisor or its affiliates, in accordance with specific instructions of the owner of such account, trade such account at a degree of leverage or in accordance with trading policies which shall be different from that which shall normally be applied to substantially all of the Trading Advisor’s other accounts or if the Trading Advisor or its affiliates, in accordance with the Trading Advisor’s money management principles, shall not trade certain commodity interests contracts for an account based on the amount of equity in such account.
(b) The Trading Advisor understands and agrees that it and its affiliates shall have a fiduciary responsibility to the Company under this Agreement.
(c) At the request of the Company, the Trading Advisor and its affiliates shall promptly make available to the Company (if available to it without unreasonable efforts) copies of the normal daily, monthly, quarterly and annual, as the case may be, written reports reflecting the performance of all commodity pool accounts advised, managed, owned or controlled by the Trading Advisor and similar written information, including monthly account statements, reflecting to the performance of all other commodity interest accounts advised, managed, owned or controlled by the Trading Advisor or its affiliates, with respect to which account reports shall not be required to be delivered to the owners thereof pursuant to the CEA (subject to the need to preserve the confidentiality of proprietary information concerning the Trading Advisor’s trading systems, methods, models, strategies and formulas and the identity of the Trading Advisor’s clients). At the request of the Company, the Trading Advisor or its affiliates shall promptly deliver to the Company a satisfactory written explanation, in the judgment of the Company, of the differences, if any, in the performance between the Company’s account and such other commodity interest accounts traded utilizing the same program or portfolio (subject to the need to preserve the confidentiality of proprietary information concerning the Trading Advisor’s
trading systems, methods, models, strategies and formulas and the identity of the Trading Advisor’s clients).
10. Speculative Position Limits.
If the Trading Advisor (either alone or aggregated with the positions of any other person if such aggregation shall be required by the CEA, the CFTC or any other regulatory authority having jurisdiction) shall exceed or be about to exceed any applicable regulatory limits or any limits imposed by law in any commodity interest traded for the Company, the Trading Advisor shall promptly take such action as the Trading Advisor may deem fair and equitable to comply with the limits, and shall promptly deliver to the Company a written explanation of the action taken to comply with such limits. If such limits are exceeded by the Company, the Manager may require the Trading Advisor to liquidate positions as required.
11. Additional Undertakings by the Trading Advisor.
Neither the Trading Advisor nor its employees, affiliates or agents, the stockholders, directors, officers, employees, principals, affiliates or agents of such affiliates, or their respective successors or assigns shall: (a) use or distribute for any purpose whatsoever any list containing the names and/or residential addresses of and/or other information about the Limited Partners of the Fund; nor (b) directly solicit any Limited Partner of the Fund for any business purpose whatsoever (unless such Limited Partner is already a client of the Trading Advisor).
12. Representations and Warranties.
(a) The Trading Advisor hereby represents and warrants to the other parties as follows:
(i) The Trading Advisor is an entity duly organized and validly existing and in good standing under the laws of the jurisdiction of its organization and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially affect the Trading Advisor’s ability to perform its obligations under this Agreement. The Trading Advisor has full corporate, partnership or limited liability company (as the case may be) power and authority to perform its obligations under this Agreement.
(ii) This Agreement has been duly and validly authorized, executed and delivered on behalf of the Trading Advisor and constitutes a valid, binding and enforceable agreement of the Trading Advisor in accordance with its terms.
(iii) The Trading Advisor has all applicable governmental, regulatory and commodity exchange licenses and approvals and has effected all filings and registrations with governmental and regulatory agencies required to conduct its business and to act as described herein or required to perform its obligations hereunder and the performance of such obligation will not violate or result in a breach of any provision of the Trading Advisor’s certificate of incorporation, by-laws or any agreement, instrument, order, law or regulation binding on the Trading Advisor.
(iv) To the best of the Trading Advisor’s knowledge, after due and careful inquiry, the Trading Advisor’s implementation of its trading program on behalf of the Company will not infringe any other person’s copyrights, trademark or other property rights.
(v) The execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not constitute a breach of, or default under, any instrument by which the Trading Advisor is bound or any order, rule or regulation application to the Trading Advisor of any court or any governmental body or administrative agency having jurisdiction over the Trading Advisor.
(vi) Other than as may have been disclosed in writing to the Manager by the Trading Advisor, there is not pending, or to the best of the Trading Advisor’s knowledge threatened, any action, suit or proceeding before or by any court or other governmental body to which the Trading Advisor is a party, or to which any of the assets of the Trading Advisor is subject, which might reasonably be expected to result in any material adverse change in the condition, financial or otherwise, business or prospects of the Trading Advisor. The Trading Advisor has not received any notice of an investigation or warning letter from NFA or CFTC regarding non-compliance by the Trading Advisor with the CEA or the regulations thereunder.
(vii) Assuming the accuracy of the Manager’s representation in subsection 12(b)(vii) below, management by the Trading Advisor of an account for the Company in accordance with the terms hereof will not require any registration under (except where applicable under any available exemption), or violate any of the provisions of, the Investment Advisers Act of 1940 (assuming that the Company is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Company Act”)).
(b) The Manager hereby represents and warrants to the other parties as follows:
(i) The Manager is duly organized and validly existing and in good standing under the laws of its jurisdiction of formation and in good standing under the laws of each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify would materially adversely affect the Manager’s ability to perform its obligations hereunder.
(ii) The Manager has the power and authority under applicable law to perform its obligations hereunder.
(iii) This Agreement has been duly and validly authorized, executed and delivered by the Manager and constitutes a legal, valid and binding agreement of the Manager enforceable in accordance with its terms.
(iv) The execution and delivery of this Agreement, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not constitute a breach of, or default under, any instrument by which the Manager is bound or any order, rule or regulation applicable to the Manager of any court or any governmental body or administrative agency having jurisdiction over the Manager.
(v) There is not pending, or, to the best of the Manager’s knowledge threatened, any action, suit or proceeding before or by any court or other governmental body to which the Manager is a party, or to which any of the assets of the Manager is subject, which might reasonably be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Manager or is required to be disclosed pursuant to applicable CFTC regulations.
(vi) The Manager has all governmental, regulatory and commodity exchange approvals and licenses, and has effected all filings and registrations with governmental agencies required to conduct its business and to act as described herein or required to perform its obligations hereunder (including, without limitation, registration as a commodity pool operator under the CEA and membership in NFA as a commodity pool operator), and the performance of such obligations will not contravene or result in a breach of any provision of its certificate of incorporation, by-laws or any agreement, order, law or regulation binding upon it. The principals of the Manager are duly registered as such on the Manager’s commodity pool operator Form 7-R registration.
(vii) The Company is not an “investment company” within the meaning of the Company Act.
(c) The Company represents and warrants to the other parties as follows:
(i) The Company is duly organized and validly existing and in good standing as a limited liability company under the laws of the State of Delaware and in good standing under the laws of each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify would materially adversely affect the Company’s ability to perform its obligations hereunder.
(ii) The Company has the limited liability company power and authority under applicable law to perform its obligations hereunder.
(iii) This Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable in accordance with its terms.
(iv) The execution and delivery of this Agreement, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not constitute a breach of, or default under, any instrument by which the Company is bound or any order, rule or regulation applicable to the Company of any court or any governmental body or administrative agency having jurisdiction over the Company.
(v) There is not pending, or, to the best of the Company’s knowledge, threatened, any action, suit or proceeding before or by any court or other governmental body to which the Company is a party, or to which any of the assets of the Company is subject, which might reasonably be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Company or which is required to be disclosed pursuant to applicable CFTC regulations.
(vi) The Company has all governmental, regulatory and commodity exchange approvals and licenses, and has effected all filings and registrations with governmental agencies required to conduct its business and to act as described herein or required to perform its obligations hereunder and the performance of such obligations will not contravene or result in a breach of any provision of its certificate of formation, limited liability company agreement or any other agreement, order, law or regulation binding upon it.
(d) The foregoing representations and warranties shall be continuing during the entire term of this Agreement and, if at any time, any event shall occur which would make any of the foregoing representations and warranties of any party no longer true and accurate, such party shall promptly notify the other parties.
13. Entire Agreement.
This Agreement constitutes the entire agreement between the parties hereto with respect to the matters referred to herein, and no other agreement, verbal or otherwise, shall be binding as between the parties unless it shall be in writing and signed by the party against whom enforcement is sought.
14. Indemnification.
(a) The Company shall indemnify, defend and hold harmless the Trading Advisor and its affiliates and their respective directors, officers, shareholders, employees and controlling persons from and against any and all losses, claims, damages, liabilities (joint and several), costs and expenses (including any investigatory, legal and other expenses incurred in connection with, and any amounts paid in, any settlement; provided that the Company shall have approved such settlement) resulting from a demand, claim, lawsuit, action or proceeding relating to any of such person’s actions or capacities relating to the business or activities of the Company pursuant to this Agreement; provided that the conduct of such person which was the subject of the demand, claim, lawsuit, action or proceeding did not constitute negligence, willful default or fraud. The termination of any demand, claim, lawsuit, action or proceeding by settlement shall not, in itself, create a presumption that the conduct in question was not undertaken in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of the Company.
(b) The Trading Advisor shall indemnify, defend and hold harmless the Company, the Manager, their respective affiliates and their respective directors, officers, shareholders, employees and controlling persons from and against any and all losses, claims, damages, liabilities (joint and several), costs and expenses (including any reasonable investigatory, legal and other expenses incurred in connection with, and any amounts paid in, any settlement; provided that the Trading Advisor shall have approved such settlement) resulting from a demand, claim, lawsuit, action or proceeding of the Trading Advisor or any of its respective officers, directors or employees relating to the business or activities of such person under this Agreement provided: the action or omission of such person which was the subject of the demand, claim, lawsuit, action or proceeding constituted negligence willful default or fraud.
(c) The Trading Advisor, its officers, employees and members shall not be liable to the Company and its officers, directors or members or to any of their successors or assigns for:
(i) any reduction in the value of the Company, or any costs liabilities and expenses suffered by the Company save to the extent that such losses arise from or in connection with the negligence, willful default or fraud of the Trading Advisor; or
(ii) any act or omission of any person, firm or company through whom transactions are affected for the Company’s account, any placement agent, any clearing broker and/or custodian or any other party having custody or possession of the Company’s assets from time to time, or any clearance or settlement system save to the extent that such act or omission arise from or in connection with the negligence, willful default or fraud of the Trading Advisor.
(d) The foregoing agreements of indemnity shall be in addition to, and shall in no respect limit or restrict, any other remedies which may be available to an indemnified party.
(e) Notwithstanding the foregoing, no party shall be liable to indemnify any other person with respect to special, indirect, consequential, punitive or exemplatory damages, loss profits or loss of business.
(f) Any indemnification required by this Section 14 unless ordered or expressly permitted by a court, shall be made by the indemnifying party only upon a determination by independent legal counsel mutually agreeable to the parties hereto 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 14.
(g) In the event that a person entitled to indemnification under this Section 14 is made a party to an action, suit or proceeding alleging both matters for which indemnification may be due hereunder and matters for which indemnification may not be due hereunder, such person shall be indemnified only in respect of the former matters.
(h) Promptly after receipt by any of the indemnified parties under this Agreement of notice of any demand, claim, lawsuit, action or proceeding, the indemnified party shall notify the indemnifying party in writing of the commencement thereof if a claim for indemnification in respect thereof is to be made under this Agreement. Except to the extent that the indemnifying party is not materially prejudiced thereby, the omission so to notify shall relieve the indemnifying party from any obligation or liability which it may have to any such indemnified party under this section. In the event that such demand, claim, lawsuit, action or proceeding is brought against a person entitled to be indemnified under this Agreement, and the indemnifying party is notified of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that the indemnifying party may wish, to assume the defense thereof, with external counsel selected by the indemnifying party and approved by the indemnified person (provided that approval may not be unreasonably withheld), and after notice from the indemnifying party to such indemnified person of the indemnifying party’s election so as to assume the defense thereof, the indemnifying party shall not be liable to such person under this section for any legal or other expenses subsequently incurred by such person in
connection with the defense thereof, unless the indemnifying party approves the employment of separate counsel by such person (it being understood, however, that the indemnifying party shall not be liable for legal or other expenses of more than one separate firm of attorneys for all such persons indemnified hereunder, which firm shall be designated in writing by the Trading Advisor or the Company, as the case may be).
15. Assignment.
This Agreement shall not be assigned by any of the parties hereto without the prior express written consent of the other parties hereto; provided, that either party may assign this agreement to an affiliate upon prior notice to the other party.
16. Amendment; Waiver.
This Agreement shall not be amended except by a writing signed by the parties hereto. No waiver of any provision of this Agreement shall be implied from any course of dealing between the parties hereto or from any failure by either party hereto to assert its rights hereunder on any occasion or series of occasions.
17. Severability.
If any provision of this Agreement, or the application of any provision to any person or circumstance, shall be held to be inconsistent with any present or future law, ruling, rule or regulation of any court or governmental or regulatory authority having jurisdiction over the subject matter hereof, such provision shall be deemed to be rescinded or modified in accordance with such law, ruling, rule or regulation, and the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it shall be held inconsistent, shall not be affected thereby.
18. Notices.
Any notice required or desired to be delivered under this Agreement shall be in writing and shall be delivered by courier service, facsimile, postage prepaid mail or other similar means and shall be effective upon actual receipt by the party to which such notice shall be directed, addressed as follows (or to such other address as the party entitled to notice shall hereafter designate in accordance with the terms hereof):
if to the Company or the Manager:
SURYA GLOBAL HORIZONS, LLC
c/o BlackRock Investment Management LLC
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxx
Facsimile: 000-000-0000
with a copy to:
BlackRock Investment Management, LLC
Princeton Corporate Campus
000 Xxxxxxxx Xxxx Xxxx — Xxxxxxx 0X
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx
Facsimile: 000-000-0000
with a further copy to:
BlackRock Alternative Advisors
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxx
Facsimile: 000-000-0000
if to the Trading Advisor:
Solaise Capital Management LLP
Xxxxxxxx Xxxxx
0 Xx. Xxxxx Xxxxxx
Xxxxxx
XX0X0X
Attn: Xxxxx Xxxxxx
Facsimile: 00-000-000-0000
19. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of law.
20. Consent to Jurisdiction.
The parties hereto agree that any action or proceeding arising directly, indirectly or otherwise in connection with, out of, related to or from this Agreement, any breach hereof or any transaction covered hereby, shall be resolved, whether by arbitration or otherwise, within the County of New York, City of New York, and State of New York. Accordingly, the parties consent and submit to the jurisdiction of the federal and state courts and any applicable arbitral body located within the County of New York, City of New York, and State of New York. The parties further agree that any such action or proceeding brought by any party to enforce any right, assert any claim, or obtain any relief whatsoever in connection with this Agreement shall be brought by such party exclusively in federal or state courts, or if appropriate before any applicable arbitral body, located within the County of New York, City of New York, 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, the Manager and the Company agree that they shall not seek any prejudgment equitable or ancillary relief. Such parties also agree that their sole remedy in any such action or proceeding shall be to seek actual monetary damages for any breach of this Agreement;
provided, however, that the Company agrees that the Trading Advisor and the Manager may seek declaratory judgment with respect to the indemnification provisions of this Agreement.
22. Promotional Material.
None of the parties hereto will make reference to any other such party in officially filed or publicly or privately distributed material without first submitting such material to the party so named for approval a reasonable period of time in advance of the proposed use of such material.
23. Confidentiality.
During the term of this Agreement and following termination of this Agreement, each of the Company and the Manager agrees to keep confidential, and not to divulge to any person or entity other than to those employees of the Company and/or the Manager who need to know the information in connection with performing their duties under this Agreement, it being understood that such persons shall be informed of the confidential nature of such information and be bound by similar confidentiality undertakings; provided, however, that such parties may disclose any such information if required by applicable law or regulation. Notwithstanding the foregoing, neither the Company nor the Manager or any of their affiliates, or any employees, officers or directors will use any information relating to the Trading Advisor or its affiliates (including, without limitation, the investment transactions of the Portfolio, investment positions held by the Portfolio or proprietary research and analysis of the Trading Advisor) for investment purposes nor will investment transactions of the Portfolio be disclosed to its actual or prospective investors and their consultants.
24. Survival.
The provisions of this Agreement shall survive the termination hereof with respect to any matter arising while this Agreement shall be in effect.
25. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
26. Headings.
Headings to sections and subsections in this Agreement are for the convenience of the parties only and are not intended to be a part of or to affect the meaning or interpretation hereof.
* * * * *
IN WITNESS WHEREOF, this Agreement has been executed for and on behalf of the undersigned on the day and year first written above.
|
|
SURYA GLOBAL HORIZONS, LLC | ||
|
|
|
| |
|
|
By: |
BLACKROCK INVESTMENT MANAGEMENT, LLC, | |
|
|
|
its Manager | |
|
|
|
| |
|
|
|
| |
|
|
By: |
| |
|
|
|
Name: Xxxxxx X. Xxxxxxxxx | |
|
|
|
Title: Managing Director | |
|
|
|
| |
|
|
|
| |
|
|
By: |
| |
|
|
|
Name: Xxxxxxxx X. Xxxx | |
|
|
|
Title: Managing Director | |
|
|
|
| |
|
|
BLACKROCK INVESTMENT MANAGEMENT, LLC | ||
|
|
|
| |
|
|
|
| |
|
|
By: |
| |
|
|
|
Name: Xxxxxx X. Xxxxxxxxx | |
|
|
|
Title: Managing Director | |
|
|
|
| |
|
|
|
| |
|
|
By: |
| |
|
|
|
Name: Xxxxxxxx X. Xxxx | |
|
|
|
Title: Managing Director | |
|
|
| ||
|
|
| ||
|
|
By: SOLAISE CAPITAL MANAGEMENT LLP | ||
|
|
| ||
|
|
| ||
|
|
By: |
| |
|
|
|
Name: Xxxxx Xxxxxx | |
|
|
|
Title: Chief Operating Officer | |
APPENDIX A
AUTHORIZED TRADERS
Ali Nejjar
Xxxxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxx
APPENDIX B
COMMODITY INTERESTS TRADED BY SOLAISE CAPITAL MANAGEMENT LLP
The undersigned represents that the following is a complete list of all commodity interests which the undersigned intends to trade on behalf of SURYA GLOBAL HORIZONS, LLC other than regulated futures contracts and options on regulated futures contracts traded on a qualified board of trade or exchange:
|
|
Solaise Capital Management LLP | ||
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
Name: Xxxxx Xxxxxx |
|
|
|
|
Title: Chief Operating Officer |
|
|
|
|
|
|
|
|
|
|
|
Dated as of August 1, 2011 |
|
|
|
APPENDIX C
COMMODITY TRADING AUTHORITY
Solaise Capital Management LLP
Xxxxxxxx Xxxxx
0 Xx. Xxxxx Xxxxxx
Xxxxxx
XX0X0X
Attn: Xxxxx Xxxxxx
Facsimile: 00-000-000-0000
Dear Solaise Capital Management LLP:
SURYA Global Horizons, LLC (the “Company”) does hereby make, constitute and appoint you as its attorney-in-fact to buy and sell commodity futures and forward contracts (including foreign futures and options contracts) in accordance with the Advisory Agreement between us and certain others.
|
|
Very truly yours, | |
|
|
| |
|
|
SURYA GLOBAL HORIZONS, LLC | |
|
|
|
|
|
|
By: |
BLACKROCK INVESTMENT MANAGEMENT, LLC, |
|
|
|
its Manager |
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
Name: Xxxxxx X. Xxxxxxxxx |
|
|
|
Title: Managing Director |
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
Name: Xxxxxxxx X. Xxxx |
|
|
|
Title: Managing Director |
|
|
|
|
|
|
|
|
|
Dated as of August 1, 2011 |
|
|
APPENDIX D
ACKNOWLEDGMENT OF RECEIPT OF DISCLOSURE DOCUMENT
The undersigned hereby acknowledges receipt of Solaise Capital Management LLP’s Disclosure Document dated May 2011.
|
|
SURYA GLOBAL HORIZONS, LLC | |
|
|
|
|
|
|
By: |
BLACKROCK INVESTMENT MANAGEMENT, LLC, |
|
|
|
its Manager |
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
Name: Xxxxxx X. Xxxxxxxxx |
|
|
|
Title: Managing Director |
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
Name: Xxxxxxxx X. Xxxx |
|
|
|
Title: Managing Director |
|
|
|
|
|
|
|
|
|
Dated as of August 1, 2011 |
|
|
APPENDIX E
FSA RULES PROVISIONS
1. Regulatory Status
1.1 The Trading Advisor is authorised and regulated by the FSA.
1.2 The Trading Advisor has categorised the Company and the Manager as professional clients (as defined in the FSA Rules) and the Trading Advisor will provide its services hereunder on that basis.
1.3 The Company and the Manager have the right to request that the Trading Advisor re-categorises it as a retail client (as defined in the FSA Rules) either generally or in specific circumstances. However, it is the Trading Advisor’s policy not to agree to such requests from its clients.
2. Definitions
For the purposes of this Schedule D, the following terms shall have the following meanings:
“Associate” has the meaning given to it in the FSA Rules;
“Broker” means a broker, dealer or other entity with which the Trading Advisor places, on behalf of the Company, an order relating to one or more investments for execution by that broker, dealer or other entity;
“Execution Factors” has the meaning given to it in the FSA Rules;
“FSA” means the Financial Services Authority of the United Kingdom and any successor body carrying out all or any part of the functions of the FSA applicable to the business of the Trading Advisor;
“FSA Rules” means the rules, guidance, principles and codes comprised in the Handbook of Rules and Guidance issued by the FSA, as amended, extended, consolidated, re-issued or re-enacted from time to time;
“Limit Order” has the meaning given to it in the FSA Rules;
“MTF” has the meaning given to it in the FSA Rules;
“Regulated Market” has the meaning given to it in the FSA Rules.
3. Performance Evaluation
3.1 Under the FSA Rules, the Trading Advisor is required to establish an appropriate method of evaluation and comparison, based on the investment objective and approach and the
types of investments to be included in the assets of the Company, so as to enable the Company to assess the Trading Advisor’s performance. Given the wide investment objective and approach, the intention (underlying the investment approach) to achieve absolute returns and the lack of a meaningful benchmark, The Trading Advisor will evaluate and compare its performance by reference to whether it has achieved absolute returns after deduction of fees.
4. Execution of orders and transactions
4.1 The parties agree that, when executing transactions in investments in relation to the Account, or placing orders on behalf of the Company with Brokers for execution by those Brokers, the Trading Advisor shall (except to the extent that it is following a specific instruction from the Company in relation to the execution of an order) owe to the Company a duty to take all reasonable steps to obtain the best possible result for the Company, taking into account the Execution Factors that are relevant to the execution or placing of that order under the terms of the Trading Advisor’s order execution policy.
4.2 The Trading Advisor’s order execution policy is set out in Annex A to this Schedule E.
4.3 By signing this Agreement, the Company hereby expressly consents to:
(A) the Trading Advisor’s order execution policy as described in the said Annex A; and
(B) the execution outside of a Regulated Market or MTF of orders relating to investments.
4.4 Subject to the FSA Rules, the Trading Advisor may, when executing transactions in investments in relation to the Account, or placing orders on behalf of the Company with Brokers for execution by those Brokers, aggregate those transactions or orders with those of one or more of the Trading Advisor’s other clients. Aggregation may on some occasions operate to the disadvantage of the Company.
4.5 To the extent that the Trading Advisor places a Limit Order for the sale or purchase of equities that the Trading Advisor has placed with a Broker for execution by that Broker, the Company expressly instructs the Trading Advisor not to make public (and to use reasonable endeavours to procure that the Broker does not make public) the details of that Limit Order unless the Trading Advisor considers, in its absolute discretion, that it is appropriate for such details to be made public (which shall, without limitation, be deemed to include where the relevant Broker makes the relevant details of that limit order public in circumstances where the Trading Advisor has given the Broker the discretion to do so).
5. Conflicts of Interest and Material Interests
5.1 The services of the Trading Advisor hereunder are not to be deemed exclusive. The Company acknowledges that the Trading Advisor and its members, officers, employees or Associates may from time to time act as investment manager, Trading Advisor or dealer in relation to, or be otherwise involved in, investment funds or managed accounts other than the Company which have a similar objective to that in relation to the
Company. It is, therefore, possible that any of them may, in the course of business, have potential conflicts of interest with the Company. Each will, at all times, have regard in such event to its obligations to the Company.
5.2 The Trading Advisor has a conflicts of interest policy which specifies the procedures that it follows and the measures that it has adopted in order to avoid such conflicts or to manage such conflicts in a way that ensures fair treatment for its clients.
6. Use of Dealing Commissions
6.1 The Trading Advisor may effect transactions with or through the agency of another person with whom it has an arrangement under which that person will from time to time provide to, procure for it or bear the cost of, the provision of services in relation to:
(A) the execution of transactions on behalf of customers of the Trading Advisor, and
(B) the provision of research services
and for which the Trading Advisor makes no direct payment but instead is provided with such services in consideration of executing such transactions with or through the agency of that person.
6.2 The Trading Advisor’s policy statement relating to such arrangements is set out in Annex B to this Schedule D.
7. Complaints
7.1 The Trading Advisor has in operation a written procedure in accordance with the FSA Rules for the effective consideration and proper handling of complaints from customers.
7.2 Any complaints should be referred to the Compliance Officer of the Trading Advisor.
7.3 The Manager and the Company as professional clients do not have a right of complaint to the Financial Ombudsman Service in respect of any act or omission of the Trading Advisor which is or is alleged to be in breach of the FSA Rules.
8. Compensation
FSA-regulated business conducted by the Trading Advisor pursuant to this Agreement is covered by the Financial Services Compensation Scheme to the extent that the Company is an “eligible claimant” (as defined in the FSA Rules). The Financial Services Compensation Scheme compensates eligible claimants for losses suffered as a result of the inability of an FSA-regulated firm to pay monies due, or satisfy obligations owed, to them (typically as a result of the firm’s insolvency). Most types of designated investment business are covered for 100 per cent of the sum owed, to a maximum compensation of £50,000 per eligible claimant.
9. Liability
Nothing in the Agreement shall exclude or restrict any duty or liability to the Company which the Trading Advisor may have under the Financial Services and Markets Xxx 0000 of the United Kingdom or the FSA Rules.
10. Effect of FSA Rules
Although the conduct of the Trading Advisor is subject to the FSA Rules, this is a matter between the FSA and the Trading Advisor. The Company agrees that the FSA Rules do not form part of, and are not incorporated into, this Agreement.
11. Client Money and Assets
The Trading Advisor shall not hold client money or assets on behalf of the Company.
ANNEX A TO SCHEDULE D
SUMMARY OF THE TRADING ADVISOR’S ORDER EXECUTION POLICY
Introduction
The Trading Advisor endeavours to achieve best execution for its clients and must document its execution arrangements to demonstrate how it complies with the Markets in Financial Instruments Directive’s (“MiFID”) best execution requirements when it executes an order, both when the Trading Advisor places/transmits orders to a broker for execution or when it executes an order through Direct Market Access (“DMA”).
MiFID requires firms to obtain the best possible result (rather than merely the best price) and to take into account the following criteria for determining the relative importance of the execution factors:
· the characteristics of the client including the categorisation of the client as retail or professional;
· the characteristics of the client order (if there is a client order);
· the characteristics of financial instruments that are the subject of that client order; and
· the characteristics of the execution venues/brokers to which that order can be directed.
Execution Factors
A number of other factors can be taken into account when providing best execution to clients such as: price, costs, speed, liquidity, settlement, client objectives, order size and nature, venue and others (as relevant).
The Quality of Execution
When buying and selling financial instruments on its clients’ behalf, the Trading Advisor takes all reasonable steps to achieve the best overall result for its clients or “Best Execution”. This involves considering the nature of the clients’ orders and the market in question.
The Trading Advisor will use its knowledge, experience and judgement to execute trades on its clients’ behalf taking into consideration a range of different factors that include not just price, but also the costs incurred in the transaction, the need for timely execution, the liquidity of the market, the size of the order and the nature of the financial transaction, including whether it is executed on a regulated market or over-the-counter.
The Trading Advisor will use its knowledge of each client’s circumstances and requirements to determine the factors that it needs to take into account for the purpose of providing Best Execution to the relevant client.
The Trading Advisor’s commitment to provide its clients with Best Execution does not mean that it owes its client any fiduciary responsibilities over and above the specific regulatory obligations
placed upon the Trading Advisor or as may be otherwise contracted between the Trading Advisor and its clients.
Order Execution Policy
The Trading Advisor has set out the criteria that determine how it selects the different venues/brokers through which client orders may be executed. The Trading Advisor has identified those venues/brokers on which it will most regularly seek to execute/direct orders and which it believes offer the best prospects for affording its clients Best Execution. The Trading Advisor will also assess, on a regular basis, the quality of execution afforded by those venues/brokers across its client base and whether it needs to change its execution arrangements.
In selecting the most appropriate venues/brokers for the purpose of executing client orders, the Trading Advisor will take into full account the factors relevant to the order, including those set out above:
· what the Trading Advisor reasonably assesses to be in the relevant client’s best interests in terms of executing the relevant orders; and
· such other factors as may be appropriate, including the ability of the venue/broker to manage complex orders, the speed of execution, the creditworthiness of the venue and the quality of any related clearing and settlement facilities.
The Trading Advisor’s policy, in providing its clients with Best Execution, is, so far as possible and subject to the processes set out below, to exercise the same standards and operate the same processes across all the different markets and financial instruments on which its clients’ orders are executed. However, the diversity in those markets and instruments and the kind of orders that clients may place with the Trading Advisor mean that different factors will have to be taken into account when the Trading Advisor assesses the nature of its execution policy in the context of different instruments and different markets. For example, there is no formalised market or settlement infrastructure for over-the-counter transactions. In some markets, price volatility may mean that the timeliness of execution is a priority, whereas, in other markets that have low liquidity, the fact of execution may itself constitute best execution. In other cases, the Trading Advisor’s choice of broker or venue may be limited (even to the fact that there may only be one platform/market upon which the Trading Advisor can execute its clients’ orders) because of the nature of the clients’ orders or requirements.
Monitoring
The Trading Advisor monitors the effectiveness of the execution arrangements for each instrument traded with each broker or venue through an evaluation of the controls and related exceptions or through sample checks. Such monitoring is to be undertaken on the basis of the risk and impact on the client of the Trading Advisor not meeting the relevant execution criteria.
When considered as a result of the above monitoring, the Trading Advisor shall correct any deficiencies noted in execution arrangements.
Annual Review
Annually (or when material change occurs to the ability to obtain the best possible results for its clients) the Trading Advisor formally reviews its execution arrangements considering whether its approved brokers/execution venues are providing the best possible result for the Trading Advisor’s clients.
Disclosure
These arrangements have been summarised in a “Best Execution Disclosure Statement” and a “Best Execution, Acknowledgement of Disclosure” which the Trading Advisor provides to its clients on an annual basis or when it updates this policy.
ANNEX B TO SCHEDULE D
USE OF DEALING COMMISSIONS POLICY STATEMENT
(a) The Trading Advisor may execute transactions on behalf of the Company with a number of selected brokers.
(b) In the normal course of business, the Trading Advisor has entered or may enter into arrangements (“Commission Arrangements”) whereby the broker or dealer agrees to set aside a proportion of the commission earned on transactions and to use this to discharge the cost of certain permitted services related to the execution of transactions on behalf of customers of the Trading Advisor and the provision of investment research received by the Trading Advisor. The services received under such arrangements are directly relevant to and assist in the cost-effective provision of management services generally by the Trading Advisor to its clients and are consistent with practices in the markets in which the Trading Advisor does business.
The Trading Advisor may agree that a broker or dealer shall be paid a commission in excess of the amount another broker or dealer would have charged for effecting the transaction so long as, in the good faith judgement of the Trading Advisor, the amount of the commission is reasonable in relation to the value of the brokerage and other services provided or paid for by such broker or dealer under the Commission Arrangements. The services paid for under Commission Arrangements may be used by the Trading Advisor in connection with transactions in which the Company will not participate.
In accordance with the FSA Rules, the Trading Advisor will not enter into such Commission Arrangements on behalf of the Company unless the types of goods and services provided to the Trading Advisor:
a) are:-
related to the execution of trades on behalf of the Company; or
comprise the provision of research;
b) do not constitute goods or services which the FSA has specified do not satisfy the requirements of the FSA Rules in respect of such arrangements (which are listed in Paragraph (4) below);
c) will reasonably assist the Trading Advisor in the provision of its services to the client on whose behalf orders are being executed and do not, and are not likely to, compromise the ability of the Trading Advisor to comply with its duty to act in the best interests of the Company or its best execution obligations; and
d) the receipt of which, and the payment for which using the Commission Arrangements, would not result in the Trading Advisor being in breach of the FSA Rules relating to the receipt of inducements.
Where the goods and/or services relate to the execution of trades on behalf of the Company, the Trading Advisor shall ensure that the relevant goods and/or services are:
e) linked to the arranging and conclusion of a specific investment transaction (or series of related transactions); and
f) provided between the point at which the Trading Advisor makes an investment or trading decision and the point at which the investment transaction (or series of related transactions) is concluded.
Where such goods and/or services relate to the provision of research, the Trading Advisor shall ensure that the relevant research:
g) is capable of adding value to the investment or trading decisions by providing new insights that inform the Trading Advisor when making such decisions about the Portfolio;
h) whatever form its output takes, represents original thought, in the critical and careful consideration and assessment of new and existing facts and does not merely repeat or repackage what has been presented before;
i) has intellectual rigour and does not merely state what is commonplace or self-evident; and
j) involves analysis or manipulation of data to reach meaningful conclusions.
(c) A list of the Commission Arrangements into which the Trading Advisor has entered from time to time is available from the Trading Advisor.
(d) The Trading Advisor shall not enter into Commission Arrangements for the provision of the following goods and/or services to it:
a) services relating to the valuation or performance measurement of portfolios;
b) computer hardware;
c) connectivity services such as electronic networks and dedicated telephone lines;
d) seminar fees;
e) subscriptions for publications;
f) travel, accommodation or entertainment costs;
g) order and execution and management systems;
h) office administrative computer software, such as word processing or accounting programmes;
i) membership fees to professional associations;
j) purchase or rental of standard office equipment or ancillary facilities;
k) employees’ salaries;
l) direct money payments;
m) publicly available information; and
n) custody services relating to designated investments belonging to, or managed for, customers other than those services that are incidental to the execution of trades.
(e) The Trading Advisor shall provide the Company with an annual statement setting out the details of the goods and services that it has received during the preceding year under Commission Arrangements.
(f) This Schedule constitutes prior disclosure by the Trading Advisor to the Company as required under rule 11.6.12R of the FSA’s Conduct of Business Sourcebook.
