EXHIBIT 10.3
THE FRONTIER FUND
ADVISORY AGREEMENT
This advisory agreement (the "Agreement") dated as of the ___ day of
_____________, 2004, by and among The Frontier Fund, a Delaware statutory trust
(the "Trust"), [Name of Trading Company], a Delaware limited liability company
(the "Trading Company"), Equinox Fund Management, LLC, a Delaware limited
liability company (the "Managing Owner") and [Name of Trading Advisor], a [ ]
(the "Trading Advisor"). Capitalized and other defined terms used and not
expressly defined herein shall have the same respective meanings as set forth in
the Prospectus (as hereinafter defined) of the Trust.
W I T N E S S E T H :
WHEREAS, the Trading Company has been organized primarily for the purpose of
trading, buying, selling, spreading or otherwise acquiring, holding or disposing
of futures, forward and options contracts and other derivative instruments, not
held as inventory, on behalf of the proceeds allocable to the sale of one or
more Series of Units of the Trust. The foregoing commodities and other
transactions are collectively referred to as "Commodities"; and
WHEREAS, the Managing Owner is authorized to utilize the services of one or more
commodity trading advisors in connection with the Commodities trading activities
of the various Series of Units of the Trust; and
WHEREAS, the Trust proposes to make an initial public offering (the "Offering")
of the Units in different Series through the Selling Agents, and in connection
therewith, the Trust intends to file with the United States Securities and
Exchange Commission (the "SEC"), pursuant to the United States Securities Act of
1933, as amended (the "1933 Act"), a registration statement on Form S-1 to
register the Units, and as part thereof a prospectus (which registration
statement, together with all amendments thereto, shall be referred to herein as
the "Registration Statement" and which prospectus, in final form, shall be
referred to herein as the "Prospectus"); and
WHEREAS, the Trust will prepare and file applications for registration of the
Units under the securities or Blue Sky laws of such jurisdictions as the
Managing Owner deems appropriate; and
WHEREAS, the Trading Advisor's present business includes the management of
Commodities accounts for its clients; and
WHEREAS, the Trading Advisor is registered as a commodity trading advisor under
the United States Commodity Exchange Act, as amended (the "CE Act"), and is a
member of the National Futures Association (the "NFA") in such capacity and will
maintain such registration and membership for the term of this Agreement; and
WHEREAS, the Trust, the Trading Company and the Trading Advisor desire to enter
into this Agreement in order to set forth the terms and conditions upon which
the Trading Advisor will render and implement commodity advisory services on
behalf of the Trust during the term of this Agreement;
NOW, THEREFORE, the parties agree as follows:
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1. Duties of the Trading Advisor.
(a) Appointment. The Trading Company and the Managing Owner hereby
appoint the Trading Advisor, and the Trading Advisor hereby accepts appointment,
as the Trading Company's limited attorney-in-fact to exercise discretion to
invest and reinvest in Commodities during the term of this Agreement the amount
of assets allocated to the Trading Advisor by the Managing Owner as set forth on
Exhibit A hereto, as such Exhibit A may be amended from time to time (the
"Allocated Assets") on the terms and conditions and for the purposes set forth
herein. The Managing Owner may adjust the amount of Allocated Assets once a week
during each calendar month. In addition, the Managing Owner also may adjust the
Allocated Assets on any Business Day in the event that the Trust receives
cumulative subscriptions, exchanges or redemptions of Units during any month in
an amount equal to 20% or greater of the Net Asset Value of the Series of which
the proceeds are being invested in the Trading Company as of the most recent
calendar month end. This limited power-of attorney is a continuing power and
shall continue in effect with respect to the Trading Advisor until terminated
hereunder. The Trading Advisor shall have sole authority and responsibility for
independently directing the investment and reinvestment in Commodities of the
Allocated Assets for the term of this Agreement pursuant to the trading
programs, methods, systems, strategies which the Trust and the Managing Owner
have selected to be utilized by the Trading Advisor in trading the Allocated
Assets as set forth on Exhibit A attached here to (the "Trading Approach"),
subject to the trading policies and limitations as set forth in the Prospectus
and attached hereto as Exhibit B (the "Trading Policies and Limitations"), as
the same may be modified from time to time and provided in writing to the
Trading Advisor. The portion of the Allocated Assets to be allocated by the
Trading Advisor at any point in time to one or more of the various trading
strategies comprising the Trading Approach will be determined as set forth in
the Prospectus or as otherwise agreed to with the Managing Owner, it being
understood that trading gains and losses automatically will alter the agreed
upon allocations. Upon receipt of a new allocation, the Trading Advisor will
determine and, if required, adjust its trading in light of the new allocation.
(b) Allocation of Responsibilities. The Managing Owner will have the
responsibility for the management of any portion of the Allocated Assets that
are not invested in Commodities. The Trading Advisor will use its good faith
best efforts in determining the investment and reinvestment in Commodities of
the Allocated Assets in compliance with the Trading Policies and Limitations,
and in accordance with the Trading Approach. In the event that the Managing
Owner shall, in its sole and absolute discretion, determine in good faith
following consultation appropriate under the circumstances with the Trading
Advisor that any trading instruction issued by the Trading Advisor violates the
Trust's Trading Policies and Limitations, then the Managing Owner, following
reasonable notice to the Trading Advisor appropriate under the circumstances,
may override such trading instruction. Nothing herein shall be construed to
prevent the Managing Owner from imposing any limitation(s) on the trading
activities of the Trading Company beyond those enumerated in the Prospectus if
the Managing Owner determines that such limitation(s) are necessary or in the
best interests of the Trust or the Trading Company, in which case the Trading
Advisor will adhere to such limitations following written notification thereof.
(c) Certain Agreements of the Trading Advisor. The Trading Advisor
agrees that at least 90% of the annual gross income and gain, if any, generated
by its Trading Approach for the Allocated Assets will be "qualifying income"
within the meaning of Section 7704(d) of the Code (it being understood that such
income will largely result from buying and selling Commodities).
(d) Modification of Trading Approach. In the event the Trading
Advisor requests to use, or the Managing Owner requests the Trading Advisor to
use, a trading program, system, method or
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strategy other than or in addition to the trading programs, systems, methods or
strategies comprising the Trading Approach in connection with trading for the
Trading Company (including, without limitation, the deletion or addition of an
agreed upon trading program, system, method or strategy to the then agreed upon
Trading Approach), either in whole or in part, the Trading Advisor may not do so
and/or shall not be required to do so, as appropriate, unless both the Managing
Owner and the Trading Advisor consent thereto in writing.
(e) (1) Notification of Material Changes. The Trading Advisor also
agrees to give the Managing Owner prior written notice of any proposed material
change in its Trading Approach, and agrees not to make any material change in
such Trading Approach (as applied to the Trading Company) over the objection of
the Managing Owner, it being understood that the Trading Advisor shall be free
to institute non-material changes in its Trading Approach (as applied to the
Trading Company) without prior written notification. Without limiting the
generality of the foregoing, refinements to the Trading Approach, the deletion
of Commodities (and addition of Commodities then being traded (i) on organized
domestic commodities exchanges, (ii) on foreign commodities exchanges recognized
by the Commodity Futures Trading Commission (the "CFTC") as providing customer
protections comparable to those provided on domestic exchanges, or (iii) in the
interbank foreign currency market) to or from the Trading Approach shall not be
deemed a material change in the Trading Approach, and prior approval of the
Managing Owner shall not be required therefor. The only forward markets that
will be permitted to be utilized are the interbank foreign currency markets and
the London Metal Exchange.
(2) Subject to adequate assurances of confidentiality, the Trading
Advisor agrees that it will discuss with the Managing Owner upon request any
trading methods, programs, systems or strategies used by it for trading customer
accounts which differ from the Trading Approach used for the Trading Company,
provided, that nothing contained in this Agreement shall require the Trading
Advisor to disclose what it deems to be proprietary or confidential information.
(f) Request for Information. The Trading Advisor agrees to provide
the Managing Owner with any reasonable information concerning the Trading
Advisor that the Trust or the Trading Company may reasonably request (other than
the identity of its customers or proprietary or confidential information
concerning the Trading Approach, subject to receipt of adequate assurances of
confidentiality by the Managing Owner, including, but not limited to,
information regarding any change in control, key personnel, Trading Approach and
financial condition which the Trust or the Trading Company reasonably deems to
be material to the Trust or the Trading Company. The Trading Advisor also shall
notify the Managing Owner of any such matters the Trading Advisor, in its
reasonable judgment, believes may be material to the Trust or the Trading
Company relating to the Trading Advisor and the Trading Approach. During the
term of this Agreement, the Trading Advisor agrees to provide the Managing Owner
with updated monthly information related to the Trading Advisor's performance
results within a reasonable period of time after the end of the month to which
it relates.
(g) Notice of Errors. The Trading Advisor is responsible for promptly
reviewing all oral and written confirmations it receives to determine that the
Commodities trades were made in accordance with the Trading Advisor's
instructions. If the Trading Advisor determines that an error was made in
connection with a trade or that a trade was made other than in accordance with
the Trading Advisor's instructions, the Trading Advisor shall promptly notify
the Managing Owner of this fact, and shall utilize its reasonable best efforts
to cause the error or discrepancy to be corrected.
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2. Standard of Liability; Indemnification.
(a)(i) The Trading Advisor shall not be liable to the Managing Owner,
the Trust, the Trustee, the Trading Company or the owners of Units (the "Limited
Owners"), or any of their respective successors or assigns under this Agreement
for any act or failure to act taken or omitted in good faith in a manner
reasonably believed to be in or not opposed to the best interests of the Trust
and the Trading Company if such act or failure to act did not constitute a
breach of this Agreement, misconduct or negligence on the part of the Trading
Advisor. In any threatened, pending or completed action, arbitration, claim,
demand, dispute, lawsuit or other proceeding (each a, "Proceeding") to which the
Trading 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 Trust's or
Trading Company's assets by the Trading Advisor or the offering and sale of
Units, the Managing Owner and the Trading Company shall, subject to subsection
(a)(iii) of this Section 2, indemnify and hold harmless the Trading Advisor and
its principals, officers, directors, members, managers, shareholders, partners,
employees and affiliates ("Principals and Affiliates") against any loss,
liability, damage, cost, expense (including, without limitation, reasonable
attorneys' and accountants' fees), judgments and amounts paid in settlement
("Losses") actually and reasonably incurred by them in connection with such
Proceeding if the Trading Advisor acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the Trust and the
Trading Company and provided that its conduct did not constitute negligence,
misconduct, or a breach of this Agreement; provided, however, that no
indemnification shall be available from the Managing Owner if such
indemnification is prohibited by Section 4.6(c) of the Trust Agreement. The
termination of any Proceeding by judgment, order or settlement shall not, of
itself, create a presumption that the Trading 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 Trust.
(ii) Without limiting sub-section (i) above, to the extent that the
Trading Advisor has been successful on the merits or otherwise in defense of any
Proceeding referred to in subsection (i) above, or in defense of any claim,
issue or matter therein, the Managing Owner shall indemnify the Trading Advisor
and its Principals and Affiliates against the expenses (including, without
limitation, reasonable attorneys' and accountants' fees) actually and reasonably
incurred by them in connection therewith.
(iii) Any indemnification under subsection (i) above, unless ordered
by a court or administrative forum, shall be made by the Managing Owner 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 Trading Advisor has met the applicable standard of
conduct set forth in subsection (i) above; provided however, that no opinion
shall be required to the extent that the Trading Advisor incurs any Losses
arising directly out of (A) an untrue statement of a material fact or any
omission to state a material fact required to be stated in the Prospectus or
necessary to make the statements in the Prospectus, in light of the
circumstances in which they were made not misleading, except for such statements
or omissions based upon information furnished by the Trading Advisor for
inclusion in the Prospectus or(B) any Selling Agent's selling activities. Such
independent legal counsel shall be selected jointly by the Managing Owner and
the Trading Advisor in a timely manner. The Trading Advisor will be deemed to
have approved the Managing Owner's selection unless the Trading Advisor notifies
the Managing Owner in writing, received by Managing Owner within five days of
Managing Owner's telecopying to the Trading Advisor of the notice of Managing
Owner's selection, that the Trading Advisor does not approve the selection.
(iv) In the event the Trading Advisor is made a party to any
Proceeding or otherwise incurs any Losses as a result of, or in connection with
the activities or claimed activities of the Trust, the Trading Company or the
Managing Owner or its principals, officers, directors, members, managers,
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shareholders, partners or employees unrelated to the Trading Advisor, the
Managing Owner shall indemnify, defend and hold harmless the Trading Advisor and
its Principals and Affiliates against any Losses incurred in connection
therewith.
(b)(i) The Trading Advisor shall indemnify and hold harmless the
Managing Owner, the Trust, the Trustee, the Trading Company and each of their
respective Principals and Affiliates against any Losses actually and reasonably
incurred by them (A) as a result of a breach of any representation, warranty or
agreement of the Trading Advisor made in this Agreement or (B) as a result of
act or omission of the Trading Advisor relating to the Trust or the Trading
Company if there has been a final judicial or regulatory determination that such
act or failure to act constitued a breach of this Agreement misconduct or
negligence on the part of the trading Advisor; provided, however that such final
judicial or regulatory determination shall not be required in the event of a
settlement of any Proceeding with the prior written consent of the Trading
Advisor.
(ii) In the event the Managing Owner, the Trust, the Trustee or the
Trading Company is made a party to any Proceeding or otherwise incurs any Losses
as a result of, or in connection with, the activities or claimed activities of
the Trading Advisor or its Principals or Affiliates unrelated to the Managing
Owner or the Trading Company's business, the Trading Advisor shall indemnify,
defend and hold harmless the Managing Owner, the Trust, the Trading Company and
their respective Principals and Affiliates against any Losses incurred in
connection therewith.
(c) Promptly after receipt by any of the indemnified parties under
this Agreement of notice of any Proceeding, the party seeking indemnification
(the "Indemnitee") shall notify the party from which indemnification is sought
(the "Indemnitor") in writing of the commencement thereof if a claim with
respect thereof is to be made under this Agreement. To the extent that the
Indemnitor has actual knowledge of the commencement of such Proceeding, the
failure to notify the Indemnitor shall not relieve such Indemnitor from any
indemnification liability which it may have to such Indemnitee pursuant to this
Section 2, and the omission to notify the Indemnitor shall not relieve the
Indemnitor from any obligation or liability which it may have to any such
Indemnitee otherwise than under this Section 2. The Indemnitor shall be entitled
to participate in the defense of any such Proceeding and to assume the defense
thereof with the assistance of counsel reasonably satisfactory to the
Indemnitee. In any such Proceeding, the Indemnitee shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the Indemnitee's own expense unless (i) otherwise agreed by the Indemnitor and
Indemnitee or (ii) the named parties to any such Proceeding (including any
impleaded parties) include both the Indemnitor and the Indemnitee, and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them or the existence of
different or additional defenses (it being understood, however, that the
Indemnitor shall not be liable for legal fees or other expenses of more than one
separate firm of attorneys for all such Indemnitees, which firm shall be
designated in writing by such Indemnitees and be reasonably acceptable to the
Indemnitor). The Indemnitee shall cooperate with the Indemnitor in connection
with any such Proceeding and shall make all personnel, books and records
relevant to the Proceeding available to the Indemnitor and grant such
authorizations or powers of attorney to the agents, representatives and counsel
of the Indemnitor as the Indemnitor may reasonably consider desirable in
connection with the defense of any such Proceeding.
(d) In the event that a person entitled to indemnification under this
Section 2 is made a party to any 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 Proceeding which
relates to the matters for which indemnification can be made.
(e) None of the indemnifications contained in this Section 2 shall be
applicable with respect to default judgments, confessions of judgment or
settlements entered into by the party claiming
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indemnification without the prior written consent, which shall not be
unreasonably withheld, or the party obligated to indemnify such party.
(f) The provisions of this Section 2 shall survive the termination of
this Agreement.
3. Limits on Claims.
(a) Prohibited Acts. The Trading Advisor agrees that it will not take
any of the following actions against the Trust: (i) seek a decree or order by a
court having jurisdiction in the premises (A) for relief in respect of the Trust
in an involuntary case or proceeding under the Federal Bankruptcy Code or any
other federal or state bankruptcy, insolvency, reorganization, rehabilitation,
liquidation or similar law or (B) adjudging the Trust a bankrupt or insolvent,
or seeking reorganization, rehabilitation, liquidation, arrangement, adjustment
or composition of or in respect of the Trust under the Federal Bankruptcy Code
or any other applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Trust or of any substantial part of any of its properties, or
ordering the winding up or liquidation of any of its affairs, or (ii) seek a
petition for relief, reorganization or to take advantage of any law referred to
in the preceding clause or (iii) file an involuntary petition for bankruptcy
(collectively, "Bankruptcy or Insolvency Action").
(b) Limited Assets Available. In addition, the Trading Advisor agrees
that for any obligations due and owing to it by the Trust, the Trading Advisor
will look solely and exclusively to the assets of the Trading Company or to the
assets of the Managing Owner, if it has liability in its capacity as Managing
Owner, to satisfy its claims and will not seek to attach or otherwise assert a
claim against the other assets of the Trust, whether there is a Bankruptcy or
Insolvency Action taken or otherwise. The parties agree that this provision will
survive the termination of this Agreement, whether terminated in a Bankruptcy or
Insolvency Action or otherwise.
(c) No Limited Owner Liability. This Agreement has been made and
executed by and on behalf of the Trust, the Trading Company and the Managing
Owner for the benefit of the Units of the applicable Series of the Trust and the
obligations of the Trust, the Trading Company and/or the Managing Owner set
forth herein are not binding upon any of the Limited Owners individually but are
binding only upon the assets and property identified above and no resort shall
be had to the assets of other Series issued by the Trust or the Limited Owners'
personal property for the satisfaction of any obligation or claim hereunder.
(d) Subordination Agreement. The Trading Advisor agrees and consents
(the "Consent") to look solely to the Managing Owner and each Series for which
trading advisory services are being performed by the Trading Advisor (the
"Contracting Series") and assets (the "Contracting Series Assets") of the
Contracting Series and the Managing Owner for payment of any advisory fees. The
Contracting Series Assets include only those funds and other assets that are
paid, held or distributed to the Trust on account of and for the benefit of the
Contracting Series, including, without limitation, funds delivered to the Trust
for the purchase of Units in a Series. In furtherance of the Consent, the
Trading Advisor agrees that any debts, liabilities, obligations, indebtedness,
expenses and claims of any nature and of all kinds and descriptions
(collectively, "Claims") incurred, contracted for or otherwise existing arising
from, related to or in connection with the Trust and its assets and the
Contracting Series and the Contracting Series Assets, shall be subject to the
following limitations:
(1) Subordination of certain claims and rights.
(i) except as set forth below, the Claims, if any, of the
Trading Advisor (the "Subordinated Claims") shall be expressly
subordinate and junior in right of payment to any and all other Claims
against the Trust and any Series thereof, and any of
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their respective assets, which may arise as a matter of law or
pursuant to any contract; provided, however, that the Trading
Advisor's Claims (if any) against the Contracting Series shall not be
considered Subordinated Claims with respect to enforcement against and
distribution and repayment from the Contracting Series, the
Contracting Series Assets and the Managing Owner and its assets; and
provided further that the Trading Advisor's valid Claims, if any,
against the Contracting Series shall be pari passu and equal in right
of repayment and distribution with all other valid Claims against the
Contracting Series and (ii) the Trading Advisor will not take, demand
or receive from any Series or the Trust or any of their respective
assets (other than the Contracting Series, the Contracting Series
Assets and the Managing Owner and its assets) any payment for the
Subordinated Claims;
(2) the Claims of the Trading Advisor with respect to the
Contracting Series shall only be asserted and enforceable against the
Contracting Series, the Contracting Series Assets and the Managing Owner
and its assets; and such Claims shall not be asserted or enforceable for
any reason whatsoever against any other Series, the Trust generally or any
of their respective assets;
(3) if the Claims of the Trading Advisor against the Contracting
Series or the Trust are secured in whole or in part, the Trading Advisor
hereby waives (under section 1111(b) of the Bankruptcy Code (11 U.S.C. S
1111(b)) any right to have any deficiency Claims (which deficiency Claims
may arise in the event such security is inadequate to satisfy such Claims)
treated as unsecured Claims against the Trust or any Series (other than the
Contracting Series), as the case may be;
(4) in furtherance of the foregoing, if and to the extent that
the Trading Advisor receives monies in connection with the Subordinated
Claims from a Series or the Trust (or their respective assets), other than
the Contracting Series, the Contracting Series Assets and the Managing
Owner and its assets, the Trading Advisor shall be deemed to hold such
monies in trust and shall promptly remit such monies to the Series or the
Trust that paid such amounts for distribution by the Series or the Trust in
accordance with the terms hereof; and
(5) the foregoing Consent shall apply at all times
notwithstanding that the Claims are satisfied, and notwithstanding that the
agreements in respect of such Claims are terminated, rescinded or canceled.
4. Obligations of the Trust, the Managing Owner, the Trading Company and the
Trading Advisor.
(a) The Registration Statement and Prospectus. Each of the Trust and
the Managing Owner agrees to cooperate and use its good faith best efforts in
connection with (i) the preparation by the Trust of the Registration Statement
and the Prospectus (and any amendments or supplements thereto); (ii) the filing
of the Registration Statement and the Prospectus (and any amendments or
supplements thereto) with such governmental and self-regulatory authorities as
the Managing Owner deems appropriate for the registration and sale of the Units
and the taking of such other actions not inconsistent with this Agreement as the
Managing Owner may determine to be necessary or advisable in order to make the
proposed offer and sale of Units lawful in any jurisdiction; and (iii) causing
the Registration Statement (and any amendment thereto) to become effective under
the 1933 Act and the Blue Sky securities laws of such jurisdictions as the
Managing Owner may deem appropriate. The Trading Advisor agrees to make all
necessary disclosures regarding itself, its principals, trading performance,
Trading Approach, customer accounts (other than the names of customers, unless
such disclosure is required by law or regulation) and otherwise as may be
required, in the reasonable judgment of the Managing Owner, to be made in the
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Registration Statement and Prospectus and in applications to any such
jurisdictions. No description of, or other information relating to, the Trading
Advisor may be distributed by the Managing Owner without the prior written
consent of the Trading Advisor, which consent shall not be unreasonably withheld
or delayed. If any event or circumstance occurs as a result of which it becomes
necessary, in the judgment of the Managing Owner to amend the Registration
Statement in order to make the Registration Statement not materially misleading
or to amend or to supplement the Prospectus in order to make the Prospectus not
materially misleading in light of the circumstances existing at the time it is
delivered to a subscriber, or if it is otherwise necessary in order to permit
the Trust to continue to offer its Units subsequent to the Initial Offering
Period subject to the limitations set forth in this Agreement, the Trading
Advisor will furnish such information with respect to itself and its principals,
as well as its Trading Approach and Past Performance History as the Managing
Owner may reasonably request, and will cooperate to the extent reasonably
necessary in the preparation of any required amendments or supplements to the
Registration Statement and/or the Prospectus.
(b) Trading Advisor Not A Promoter. The parties acknowledge that the
Trading Advisor has not been, either alone or in conjunction with the Selling
Agents or their affiliates, an organizer or promoter of the Trust.
(c) Filings. The Trust may at any time determine not to file the
Registration Statement with the SEC or withdraw the Registration Statement from
the SEC or any other governmental or self-regulatory authority with which it is
filed or otherwise terminate the Registration Statement or the offering of
Units. Upon any such withdrawal or termination, or if the "minimum" Units of the
applicable Series required to be sold pursuant to the Prospectus is not sold,
this Agreement shall terminate and, except for the obligations set forth in
Section 2, neither the Trust, the Trading Company nor the Managing Owner shall
have any obligations to the Trading Advisor with respect to this Agreement; nor
shall the Trading Advisor have any obligations to the Trust, the Trading Company
or the Managing Owner with respect to this Agreement.
5. Trading Advisor's Closing Obligations.
On or prior to the Closing Date (as hereinafter defined) with respect to the
initial offering of the Trust with respect to the applicable Series of Units
(the "Initial Closing Date"), and thereafter, only if requested by the Managing
Owner, on or prior to each closing date during the continuous offering of the
applicable Series of Units (each a "Subsequent Closing Date"), the Trading
Advisor shall deliver or cause to be delivered, at the expense of the Trading
Advisor, to the Selling Agents, the Trust, the Trading Company and the Managing
Owner, the reports, certificates and documents described below addressed to them
and, except as may be set forth below, dated the Initial Closing Date or the
Subsequent Closing Date, as appropriate. Unless the context otherwise requires,
the Initial Closing Date and each Subsequent Closing Date shall each be referred
to as a "Closing Date:"
(a) a report from the Trading Advisor which shall present, for the
period from the date after the last day covered by the Trading Advisor's Past
Performance History as set forth under "Past Performance Information" in the
Prospectus to the latest practicable month-end before the Closing Date, figures
which shall show the actual past performance of the Trading Advisor (or, if such
actual past performance information is unavailable, then the estimated past
performance) for such period, and which shall certify that, to the best of its
knowledge, such figures are complete and accurate in all material respects;
(b) a certificate of the Trading Advisor in the form proposed prior
to the Closing Date by counsel to the Trust and the Managing Owner, with such
changes in such form as are proposed by the Trading Advisor or its counsel and
are acceptable to the Trust and the Managing Owner and their
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counsel so as to make such form mutually acceptable to the Trust, the Managing
Owner, the Trading Advisor, and their respective counsel, to the effect that:
(1) the representations and warranties of the Trading
Advisor contained in this Agreement are true and correct in all material
respects on the date of the certificate as though made on such date;
(2) nothing has come to the Trading Advisor's attention
which would cause the Trading Advisor to believe that, at any time from
the time the Registration Statement initially became effective to the
Closing Date, the Registration Statement, as amended from time to time,
or the Prospectus, as amended or supplemented from time to time, with
respect to the Trading Advisor, or the affiliates, controlling persons,
shareholders, directors, officers or employees of any of the foregoing,
or with respect to the Trading Approach or Past Performance History,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein (with respect to the Prospectus, in light of the
circumstances in which they were made) not misleading; and
(3) the Trading Advisor has performed all covenants and
agreements herein contained to be performed on its part at or prior to
the Closing Date;
(c) a certificate of the Trading Advisor (together with such
supporting documents as are set forth in the certificate), in the form proposed
prior to the Closing Date by counsel to the Trust and the Managing Owner, with
such changes in such form as are proposed by the Trading Advisor or its counsel
and are acceptable to the Trust and the Managing Owner and their counsel so as
to make such form mutually acceptable to the Trust, the Managing Owner, the
Trading Advisor, and their respective counsel, with respect to, (1) the
continued effectiveness of the organizational documents of the Trading Advisor,
(2) the continued effectiveness of the Trading Advisor's registration as a
commodity trading advisor under the CE Act and membership as a commodity trading
advisor with the NFA and (3) the incumbency and genuine signature of the
President and Secretary of the Trading Advisor;
(d) a certificate from the state of formation of the Trading Advisor,
to be dated at, on or around the Closing Date, as to its formation and good
standing, provided that no certificate of formation shall be required at any
Subsequent Closing Date.
6. Trust's, Trading Company's and Managing Owner's Closing Obligations.
On or prior to the Initial Closing Date, and thereafter on or prior to each
Subsequent Closing Date, if the Trust, the Trading Company and the Managing
Owner have requested that the Trading Advisor provide certificates and
documents, the Trust, the Trading Company and the Managing Owner shall deliver
or cause to be delivered to the Trading Advisor, the certificates and documents
to the Trading Advisor and, except as may be set forth below, dated each such
Closing Date:
(a) certificates of the Trust, the Trading Company and the Managing
Owner, addressed to the Trading Advisor, in the form proposed prior to the
Closing Date by counsel to the Trust, the Trading Company and the Managing Owner
with such changes in such form as are proposed by the Trading Advisor or its
counsel and are acceptable to the Trust, the Trading Company, the Managing Owner
and their counsel so as to make such form mutually acceptable to the Trust, the
Trading Company, the Managing Owner, the Trading Advisor, and their respective
counsel, with respect to, as applicable, (1) the continued effectiveness of the
Trust Agreement and the Certificate of Trust of the Trust, the limited liability
company agreement of the Trading Company and the limited liability company
agreement of the Managing Owner, (2) the continued effectiveness of the
registration of the Managing Owner as a
9
commodity pool operator under the CE Act and membership with the NFA in such
capacity and (3) the incumbency and genuine signature of the managing member of
the Managing Owner; and
(b) certificates from the State of Delaware with respect to each of
the Trust, the Trading Company and the Managing Owner to be dated at, on or
around the Closing Date as to the formation and good standing of the Trust, the
Trading Company and the Managing Owner.
7. Trading Advisor Independence.
(a) Independent Contractor. The Trading Advisor shall for all
purposes herein be deemed to be an independent contractor with respect to the
Trust, the Managing Owner, the Trading Company and each other commodity trading
advisor that may in the future provide commodity trading advisory services to
the Trust, other trading companies and the Selling Agents, and shall, unless
otherwise expressly authorized, have no authority to act for or to represent the
Trust, the Trading Company, the Managing Owner, any other commodity trading
advisor or the Selling Agents in any way or otherwise be deemed to be a general
agent, joint venturer or partner of the Trust, the Trading Company, the Managing
Owner, any other commodity trading advisor or the Selling Agents, or in any way
be responsible for the acts or omissions of the Trust, the Trading Company, the
Managing Owner, any other commodity trading advisor or the Selling Agents as
long as it is acting independently of such persons.
(b) Unauthorized Activities. Without limiting the obligations of the
Trust set forth under this Agreement, nothing herein contained shall be deemed
to require the Trust to take any action contrary to its Trust Agreement or
Certificate of Trust or any applicable statute, regulation or rule of any
exchange or self-regulatory organization.
(c) Purchase of Units. Any of the Trading Advisor, its principals,
and employees may, in its discretion, purchase Units in the Trust.
(d) Confidentiality. The Trust, the Trading Company and the Managing
Owner acknowledge that the Trading Approach of the Trading Advisor is the
confidential property of the Trading Advisor. Nothing in this Agreement shall
require the Trading Advisor to disclose the confidential or proprietary details
of its Trading Approach. The Trust, the Trading Company and the Managing Owner
further agree that they will keep confidential and will not disseminate the
Trading Advisor's trading advice to the Trading Company, except as, and to the
extent that, it may be determined by the Managing Owner to be (i) necessary for
the monitoring of the business of the Trading Company and the Trust, including
the performance of brokerage services by the Trading Company's commodity
broker(s) or (ii) expressly required by any law, statute, rule, regulation or
order, the request of any governmental, regulatory or self-regulatory agency,
organization, exchange or other body or valid legal process. The Trust, the
Trading Company and the Managing Owner further agrees that they shall not copy,
disclose, misuse, misappropriate or reverse engineer or otherwise appropriate or
make use of in any manner the investment and trading strategies, systems,
algorithms, models, techniques, methods, policies, programs and analyses
previously, currently or hereafter used by the Trading Advisor in the conduct of
its business including all data, details, components, specifications, codes,
formulae, know-how (technical or otherwise), electronic data processing systems,
computer software programs and computer hardware systems relating to the
foregoing, and all embodiments, articulations, applications, expressions and
reproductions of any of the foregoing including, without limitation, documents,
notes, print-outs, work papers, charts, diskettes, tapes and manuals. The
provisions of this Section 7(d) shall survive the termination or the expiration
of this Agreement.
10
8. Commodity Broker.
All Commodities trades for the accounts of the Trading Company and the Trust
shall be made through such commodity broker or brokers as the Managing Owner
directs or otherwise as may be agreed upon in accordance with such order
execution procedures as are agreed upon between the Trading Advisor and the
Managing Owner. The Trading Advisor shall not be responsible for determining
that any such bank or broker used in connection with any Commodities
transactions meets the financial requirements or standards imposed by the
Trust's Trading Policies and Limitations. At the present time it is contemplated
that the Trust and the Trading Company will execute and clear all Commodities
trades through the Clearing Brokers. The Trading Advisor may, however, with the
consent of the Managing Owner which consent shall not be unreasonably withheld,
execute transactions at such other broker(s), and upon such terms and
conditions, as the Trading Advisor and the Managing Owner agree if such
broker(s) agree to "give up" all such transactions to the Clearing Brokers for
clearance. To the extent that the Trading Company determines to utilize a broker
or brokers other than the Clearing Brokers, it will notify the Trading Advisor.
9. Fees.
(a) In consideration of and in compensation for the performance of the Trading
Advisor's services under this Agreement, the Trading Advisor shall receive from
the Managing Owner a monthly management fee (the "Management Fee") and an
incentive fee (the "Incentive Fee") as set forth on Exhibit D hereto.
(b) Timing of Payment. Management Fees and Incentive Fees shall be
paid within twenty (20) Business Days following the end of the period for which
they are payable. If an Incentive Fee shall have been paid by the Managing Owner
to the Trading Advisor in respect of any calendar quarter and the Trading
Advisor shall incur subsequent losses in trading on behalf of the Trading
Company, the Trading Advisor shall nevertheless be entitled to retain amounts
previously paid to it in respect of New High Net Trading Profits.
(c) Fee Data. The Trading Advisor will be provided by the Managing
Owner with the data used by the Managing Owner to compute the foregoing fees
within twenty (20) Business Days of the end of the relevant period.
(d) Third Party Payments. Neither the Trading Advisor, nor any of its
Principals or Affiliates shall receive any commissions, compensation,
remuneration or payments whatsoever from any Clearing Broker with which the
Trading Company carries an account for transactions executed in the Trading
Company's account.
10. Term and Termination.
(a) Term. This Agreement shall commence on the date hereof and,
unless sooner terminated, shall continue in effect until the close of business
on the later of the last day of the month ending twelve full months following
the commencement of the Trust's trading activities or December 31, 2004 (the
"Initial Term"). After the expiration of the Initial Term, unless this Agreement
is terminated pursuant to sections (b), (c) or (d) of this Section 10, this
Agreement shall be renewed automatically on the same terms and conditions set
forth herein for successive additional one-year terms, each of which shall
commence on the first day of the month subsequent to the conclusion of the
preceding twelve (12) month term. The automatic renewal(s) set forth in the
preceding sentence hereof shall not be affected by (i) any reallocation of the
Allocated Assets away from the Trading Advisor pursuant to this Agreement, or
(ii) the retention of Other Advisors following a reallocation, or otherwise.
11
(b) Automatic Termination. This Agreement shall terminate
automatically in the event that the Trust is terminated. In addition, this
Agreement shall terminate automatically in the event that the Allocated Assets
declines as of the end of any Business Day by 50% or more from the Allocated
Assets (i) as of the first day of this Agreement, or (ii) as of the first day of
any calendar year, as adjusted on an on-going basis by (A) any decline(s) in the
Allocated Assets caused by distributions, exchanges, redemptions, permitted
reallocations, and withdrawals, and (B) additions to the Allocated Assets caused
by additional allocations of the Trust Estate to the Trading Advisor's
management based on sales of additional Units of the applicable Series.
(c) Optional Termination Right of Trust and Trading Company. This
Agreement may be terminated at any time at the election of the Managing Owner in
its sole discretion upon at least one (1) day's prior written notice to the
Trading Advisor. The Managing Owner will use its best efforts to cause any
termination to occur as of a month-end. This Agreement also may be terminated
upon prior written notice, appropriate under the circumstances, to the Trading
Advisor in the event that: (i) the Managing Owner determines in good faith
following consultation appropriate under the circumstances with the Trading
Advisor that the Trading Advisor is unable to use its agreed upon Trading
Approach to any material extent, as such Trading Approach may be refined or
modified in the future in accordance with the terms of this Agreement for the
benefit of the Trust; (ii) the Trading Advisor's registration as a commodity
trading advisor under the CE Act, or membership as a commodity trading advisor
with the NFA is revoked, suspended, terminated or not renewed; (iii) the
Managing Owner determines in good faith following consultation appropriate under
the circumstances with the Trading Advisor that the Trading Advisor has failed
to conform, and after receipt of written notice, continues to fail to conform in
any material respect, to (A) any of the Trust's Trading Policies and
Limitations, or (B) the Trading Approach; (iv) there is an unauthorized
assignment of this Agreement by the Trading Advisor; (v) the Trading Advisor
dissolves, merges or consolidates with another entity or sells a substantial
portion of its assets, any portion of its Trading Approach utilized by the Trust
or its business goodwill, in each instance without the consent of the Managing
Owner; (vi) any of the key principals listed on Exhibit E is not in control of
the Trading Advisor's trading activities for the Trading Company; (vii) the
Trading Advisor becomes bankrupt (admitted or decreed) or insolvent, (viii) for
any other reason, the Managing Owner determines in good faith that such
termination is essential for the protection of the Trust, the Trading Company
and the applicable Series of Units, including, without limitation a good faith
determination by the Managing Owner that the Trading Advisor has breached a
material obligation to the Trust or the Trading Company under this Agreement
relating to the trading of the Allocated Assets.
(d) Optional Termination Right of Trading Advisor. The Trading
Advisor shall have the right to terminate this Agreement at any time upon ten
(10) written notice to each of the Trust, the Trading Company and the Managing
Owner, appropriate under the circumstances, in the event (i) of the receipt by
the Trading Advisor of an opinion of independent counsel satisfactory to the
Trading Advisor and the Trust that by reason of the Trading Advisor's activities
with respect to the Trust and the Trading Company, it is required to register as
an investment adviser under the Advisers Act or under the laws of any state and
it is not so registered; (ii) that the registration of the Managing Owner as a
commodity pool operator under the CE Act, or its NFA membership in such
capacity, is revoked, suspended, terminated or not renewed; (iii) the Managing
Owner imposes additional trading limitation(s) pursuant to Section 1 of this
Agreement which the Trading Advisor does not agree to follow in its management
of the Allocated Assets, or the Managing Owner overrides trading instructions of
the Trading Advisor or does not consent to a material change to the Trading
Approach requested by the Trading Advisor; (iv) if the amount of the Allocated
Assets decreases to less than $XX million as the result of redemptions,
reallocations or extraordinary expenses, but not trading losses, as of the close
of business on any Business Day; (v) the Managing Owner elects (pursuant to
Section 1 of this Agreement) to have the Trading Advisor use a different Trading
Approach in the Trading Advisor's management of Trust assets from that which the
Trading Advisor is then using to manage such assets and the Trading Advisor
objects to using such different Trading Approach; (vi) there is an unauthorized
12
assignment of this Agreement by the Trust, the Trading Company or the Managing
Owner; (vii) there is a material breach of this Agreement by the Trust, the
Trading Company and/or the Managing Owner after giving written notice to the
Managing Owner which identifies such breach and such material breach has not
been cured within 10 days following receipt of such notice by the Managing
Owner; or (viii) other good cause is shown and the written consent of the
Managing Owner is obtained (which shall not be withheld unreasonably). In
addition, after the expiration of the Initial Term, the Trading Advisor may
terminate this Agreement as of any calendar quarter end upon 90 days' prior
written notice to the Managing Owner.
(e) Termination Fees. In the event that this Agreement is terminated
with respect to, or by, the Trading Advisor pursuant to this Section 10 or the
Managing Owner allocates the Trust's assets to Other Advisors, the Trading
Advisor shall be entitled to, and the Trust shall pay, the Management Fee and
the Incentive Fee, if any, which shall be computed (i) with respect to the
Management Fee, on a pro rata basis, based upon the portion of the month for
which the Trading Advisor had the Allocated Assets under management, and (ii)
with respect to the Incentive Fee, if any, as if the effective date of
termination was the last day of the then current calendar quarter. The rights of
the Trading Advisor to fees earned through the earlier to occur of the date of
expiration or termination shall survive this Agreement until satisfied.
(f) Termination and the Prospectus. In the event of termination of
this Agreement, the Prospectus and marketing materials mentioning the Trading
Advisor shall be amended as promptly as possible.
11. Liquidation of Positions.
The Trading Advisor agrees to liquidate open positions in the amount that the
Managing Owner informs the Trading Advisor, in writing via telecopy or other
equivalent means, that the Managing Owner considers necessary or advisable to
liquidate in order to (i) effect any termination or reallocation pursuant to
Sections 1 or 10, respectively, or (ii) fund its pro rata share of any
redemption, exchange, distribution, Trading Company expense or Trust expense.
The Managing Owner shall not, however, have authority to instruct the Trading
Advisor as to which specific open positions to liquidate, except as provided in
Section 1 hereof. The Managing Owner shall provide the Trading Advisor with such
reasonable prior notice of such liquidation as is practicable under the
circumstances and will endeavor to provide at least one (1) days' prior notice.
In the event that losses incurred by the Trading Advisor exceed the amount of
the Allocated Assets, the Managing Owner agrees to cover such excess losses from
its assets, but in no event from the assets of the other Series issued by the
Trust.
12. Other Accounts of the Trading Advisor.
(a) Management of Other Accounts. Subject to section (c) of this
Section 12, the Trading Advisor shall be free to manage and trade accounts for
other investors (including other public and private commodity pools) during the
term of this Agreement and to use the same or other information and Trading
Approach utilized in the performance of services for the Trading Company and the
Trust for such other accounts so long as the Trading Advisor's ability to carry
out its obligations and duties to the Trust pursuant to this Agreement is not
materially impaired thereby. In addition, the Trading Advisor and its Principals
and Affiliates also will be permitted to trade in Commodities using the Trading
Approach or otherwise for their own accounts, so long as the Trading Advisor's
ability to carry out its obligations and duties to the Trading Company and the
Trust pursuant to this Agreement is not materially impaired thereby.
13
(b) Acceptance of Additional Capital. Furthermore, so long as the
Trading Advisor is performing services for the Trust and the Trading Company, it
agrees that it will not accept additional capital for management in the
Commodities markets if doing so would have a reasonable likelihood of resulting
in the Trading Advisor having to modify materially its agreed upon Trading
Approach being used for the Trust and the Trading Company in a manner which
might reasonably be expected to have a material adverse effect on the Trust or
the Trading Company. Without limiting the generality of the foregoing, it is
understood that this section shall not prohibit the acceptance of additional
capital, which acceptance requires only routine adjustments to trading patterns
in order to comply with speculative position limits or daily trading limits.
(c) Equitable Treatment of Accounts. The Trading Advisor agrees, in
its management of accounts other than the account of the Trading Company and the
Trust, that it will not knowingly or deliberately favor on an overall basis any
other account managed or controlled by it or any of its Principals or Affiliates
(in whole or in part) over the Trading Company or the Trust. The preceding
sentence shall not be interpreted to preclude (i) the Trading Advisor from
charging another client fees which differ from the fees to be paid to it
hereunder, or (ii) an adjustment by the Trading Advisor in the implementation of
any agreed upon Trading Approach in accordance with the procedures set forth in
Section 1 hereof which is undertaken by the Trading Advisor in good faith in
order to accommodate additional accounts. The Trading Advisor, upon reasonable
request and receipt of adequate assurances of confidentiality, shall provide the
Managing Owner with an explanation of the differences, if any, in performance
between the Trading Company and the Trust and any other similar account pursuant
to the same Trading Approach for which the Trading Advisor or any of its
Principals or Affiliates acts as a commodity trading advisor (in whole or in
part).
(d) Inspection of Records. Upon the reasonable request of, and upon
reasonable notice from, the Managing Owner, the Trading Advisor shall permit the
Managing Owner to review at the Trading Advisor's offices during normal business
hours such trading records as it reasonably may request for the purpose of
confirming that the Trading Company and the Trust has been treated equitably on
an overall basis with respect to advice rendered during the term of this
Agreement by the Trading Advisor for other accounts managed by the Trading
Advisor, which the parties acknowledge to mean that the Managing Owner may
inspect, subject to such restrictions as the Trading Advisor may reasonably deem
necessary or advisable so as to preserve the confidentiality of proprietary
information and the identity of its clients, all trading records of the Trading
Advisor as it reasonably may request during normal business hours. The Trading
Advisor may, in its discretion, withhold from any such report or inspection the
identity of the client for whom any such account is maintained and in any event,
the Trust and the Managing Owner shall keep all such information obtained by
them from the Trading Advisor confidential.
13. Speculative Position Limits.
If, at any time during the term of this Agreement, it appears to the Trading
Advisor that it may be required to aggregate the Trading Company's Commodities
positions with the positions of any other accounts it or its principals own or
control for purposes of applying the speculative position limits of the CFTC,
any exchange, self-regulatory body, or governmental authority, the Trading
Advisor promptly will notify the Managing Owner if the Trading Company's
positions under its management are included in an aggregate amount which equals
or exceeds the applicable speculative limit. The Trading Advisor agrees that, if
its trading recommendations pursuant to its agreed upon Trading Approach are
altered because of the potential application of speculative position limits, the
Trading Advisor will modify its trading instructions to the Trading Company and
its other accounts in a good faith effort to achieve an equitable treatment of
all accounts; to wit, the Trading Advisor will liquidate Commodities positions
and/or limit the taking of new positions in all accounts it manages, including
the Trading Company, as nearly as
14
possible in proportion to the assets available for trading of the respective
accounts to the extent necessary to comply with applicable speculative position
limits. The Trading Advisor presently believes that its Trading Approach for the
management of the Trading Company's account can be implemented for the benefit
of the Trading Company notwithstanding the possibility that, from time to time,
speculative position limits may become applicable.
14. Redemptions, Distributions, Reallocations and Additional Allocations.
(a) Notice. The Managing Owner will use its best efforts to give the
Trading Advisor at least one (1) Business Day's prior notice of any proposed
redemptions, exchanges, distributions, reallocations, additional allocations, or
withdrawals.
(b) Allocations. Redemptions, exchanges, withdrawals, and
distributions of Units of the applicable Series shall be charged against
Allocated Assets.
15. Brokerage Confirmations and Reports.
The Managing Owner will instruct the Clearing Brokers to furnish the Trading
Advisor with copies of all trade confirmations, daily equity runs, and monthly
trading statements relating to the Allocated Assets. The Trading Advisor will
maintain records and will monitor all open positions relating thereto; provided,
however, that the Trading Advisor shall not be responsible for any errors by the
Clearing Brokers or any other brokers appointed pursuant to Section 8. The
Managing Owner also will furnish the Trading Advisor with a copy of the form of
all reports, including but not limited to, monthly, quarterly and annual
reports, sent to the Limited Owners, and copies of all reports filed with the
SEC, the CFTC and the NFA. The Trading Advisor shall, at the Managing Owner's
request, make a good faith effort to provide the Managing Owner with copies of
all trade confirmations, daily equity runs, monthly trading reports or other
reports sent to the Trading Advisor by the Clearing Brokers regarding the Trust
and the Trading Company, and in the Trading Advisor's possession or control, as
the Managing Owner deems appropriate, if the Managing Owner cannot obtain such
copies on its own behalf. Upon request, the Managing Owner will provide the
Trading Advisor with accurate information with respect to the Allocated Assets.
16. The Trading Advisor's Representations and Warranties.
The Trading Advisor represents and warrants to the Trust, the Trustee, the
Managing Owner and the Trading Company that:
(a) All references to the Trading Advisor and its principals in the
Prospectus are complete and accurate in all material respects and as to them the
Prospectus 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 with respect to Table X in the Prospectus, this
representation and warranty extends only to the underlying data made available
by the Trading Advisor for the preparation thereof and not to any hypothetical
or pro forma adjustments.
(b) The information with respect to the Trading Advisor set forth in
the actual performance tables in the Prospectus have been prepared in accordance
with the "Fully-Funded Subset" method or such other methods approved by the CFTC
as described in the Trading Advisor's current Disclosure Document delivered to
the Managing Owner (the "Disclosure Document"). The Disclosure Document complies
in all material respects with the applicable regulations promulgated under the
CE Act by the CFTC and the NFA's rules.
15
(c) The Trading Advisor is duly registered under the CE Act as a
commodity trading advisor, is a member of the NFA in such capacity, 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.
(d) The Trading Advisor has complied, and will continue to comply, in
all material respects with all laws, statutes, rules, regulations and orders
having application to its business, properties and assets, the violation of
which might reasonably be expected, in the Trading Advisor's best knowledge and
belief, to materially and adversely affect its ability to comply with and
perform its obligations under this Agreement and in connection with the offering
of Units. As of the date hereof, there are no Proceedings, notices of
investigation or investigations pending or, to the best knowledge and belief of
the Trading Advisor, threatened against the Trading Advisor or any of its
Principals or Affiliates regarding noncompliance with any applicable laws,
statutes, rules, regulations or orders, or at law or in equity, or before or by
any court, any foreign, federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, or any
governmental, regulatory or self-regulatory agency, organization, exchange or
other body, in which an adverse decision might reasonably be expected, in the
Trading Advisor's best knowledge and belief, to materially and adversely affect
its ability to comply with or perform its obligations under this Agreement or
result in a material adverse change in the condition, financial or otherwise,
business or prospects of the Trading Advisor.
(e) The Trading Advisor is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation and has full
power and authority to enter into this Agreement and to provide the services
required of it hereunder. The Trading Advisor is qualified to conduct business
and is in good standing in every jurisdiction in which the nature or conduct of
its business requires such qualification and the failure to qualify might
reasonably be expected to have a materially adverse effect on its ability to
comply with or perform its obligations under this Agreement (it being understood
that any decision as to the jurisdiction or jurisdictions in which the Trading
Advisor shall conduct its business is within the sole discretion of the Trading
Advisor).
(f) The execution and delivery of this Agreement and the incurrence
and performance of the obligations contemplated in this Agreement by the Trading
Advisor will not conflict with, violate, breach or constitute a default under
any term or provision of its certificate of incorporation, by-laws or other
charter or governing documents, or any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Trading Advisor is a
party, or by which it is bound, or to which any of the property or assets of the
Trading Advisor is subject, or any laws, statutes, rules, regulations, orders or
other legal requirement applicable to the Trading Advisor or to the property or
assets of the Trading Advisor of any court or any regulatory authority having
jurisdiction over the Trading Advisor.
(g) This Agreement has been duly and validly authorized, executed and
delivered by the Trading Advisor and is a valid and binding agreement of the
Trading Advisor enforceable in accordance with its terms.
(h) 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 Trading Advisor agrees upon the request of the Managing
Owner to provide the Managing Owner with such information as shall be necessary
so that, as to the Trading Advisor and its principals, such prospectus is
complete and accurate in all material respects.
(i) The Trading Advisor is not bankrupt or insolvent.
16
All representations, warranties and covenants contained in this Agreement shall
be continuing during the term of this Agreement and shall survive the
termination of this Agreement with respect to any matter arising while this
Agreement was in effect. The Trading Advisor hereby agrees that as of the date
of this Agreement it is, and during its term shall be, in compliance with its
representations, warranties and covenants herein contained. In addition, if at
any time any event occurs which would make such representations, warranties or
covenants not true, the Trading Advisor promptly will notify the other parties
of such facts in the manner provided below. All representations, warranties and
covenants herein contained shall inure to the benefit of the party to whom it is
addressed and its respective heirs, executors, administrators, legal
representatives, successors and permitted assigns.
17. The Managing Owner's Representations and Warranties.
The Managing Owner represents and warrants to the Trading Advisor for itself and
the Trust that:
(a) The Prospectus as from time to time amended or supplemented is
complete and 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, except that the foregoing
representation does not apply to any statement or omission concerning any
Trading Advisor in the Prospectus, made in reliance upon, and in conformity with
information furnished to the Managing Owner by or on behalf of any Trading
Advisor expressly for use in the Prospectus.
(b) 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 power and authority to perform its obligations under this Agreement. The
Managing Owner is qualified to conduct business and is in good standing in every
jurisdiction in which the nature or conduct of its business requires such
qualification and the failure to qualify might reasonably be expected to have a
materially adverse effect on its ability to comply with or perform its
obligations under this Agreement (it being understood that any decision as to
the jurisdiction or jurisdictions in which the Managing Owner shall conduct its
business is within the sole discretion of the Managing Owner).
(c) The Managing Owner and the Trust have the capacity and authority
to enter into this Agreement on behalf of the Trust.
(d) This Agreement has been duly and validly authorized, executed and
delivered on the Managing Owner's and the Trust's behalf and is a valid and
binding agreement of the Managing Owner and the Trust enforceable in accordance
with its terms.
(e) The execution and delivery of this Agreement and the incurrence
and performance of the obligations contemplated in this Agreement by the
Managing Owner will not conflict with, violate, breach or constitute a default
under any term or provision of its certificate of incorporation, by-laws or
other charter or governing documents, or any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Managing Owner is a
party, or by which it is bound, or to which any of the property or assets of the
Managing Owner is subject, or any law, statute, rule, regulation, order or other
legal requirement applicable to the Managing Owner or to the property or assets
of the Managing Owner of any court or any regulatory authority having
jurisdiction over the Managing Owner.
(f) 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.
17
(g) The Trust is a statutory trust duly organized and validly
existing under the laws of the State of Delaware and has full power and
authority to enter into this Agreement and to perform its obligations under this
Agreement.
(h) The Managing Owner has complied, and will continue to comply in
all material respects with all laws, statutes, rules, regulations and orders
having application to its business, properties and assets, the violation of
which might reasonably be expected, in the Managing Owner's best knowledge and
belief, to materially and adversely affect its ability to comply with and
perform its obligations under this Agreement and in connection with the offering
of Units. As of the date hereof, there are no Proceedings, notices of
investigation or investigations pending or, to the best knowledge and belief of
the Managing Owner, threatened against the Managing Owner or any of its
Principals or Affiliates regarding noncompliance with any applicable laws,
statutes, rules, regulations or orders, or at law or in equity, or before or by
any court, any foreign, federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, or any
governmental, regulatory or self-regulatory agency, organization, exchange or
other body, in which an adverse decision might reasonably be expected, in the
Managing Owner's best knowledge and belief, to materially and adversely affect
its ability to comply with or perform its obligations under this Agreement or
result in a material adverse change in the condition, financial or otherwise,
business or prospects of the Managing Owner.
(i) The Managing Owner is not bankrupt or insolvent.
All representations, warranties and covenants contained in this Agreement shall
be continuing during the term of this Agreement and shall survive the
termination of this Agreement with respect to any matter arising while this
Agreement was in effect. The Managing Owner hereby agrees that as of the date of
this Agreement it is, and during its term shall be, in compliance with its
representations, warranties and covenants herein contained. In addition, if at
any time any event occurs which would make such representations, warranties or
covenants not true, the Managing Owner promptly will notify the other parties of
such facts in the manner provided below. All representations, warranties and
covenants herein contained shall inure to the benefit of the party to whom it is
addressed and its respective heirs, executors, administrators, legal
representatives, successors and permitted assigns.
18. Assignment.
This Agreement may not be assigned by any of the parties hereto without the
express prior written consent of the other parties hereto.
19. Successors.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and the successors and permitted assigns of each of them, and no other
person (except as otherwise provided herein) shall have any right or obligation
under this Agreement. The terms "successors" and "assigns" shall not include any
purchasers, as such, of Units.
20. Amendment or Modification or Waiver.
This Agreement may not be amended or modified, nor may any of its provisions be
waived, except upon the prior written consent of the parties hereto.
18
21. Notices.
Except as otherwise provided herein, all notices required to be delivered under
this Agreement shall be effective only if in writing and shall be deemed given
by the party required to provide notice when received by the party to whom
notice is required to be given and shall be delivered personally or by
registered mail, postage prepaid, return receipt requested, or by telecopy, as
follows (or to such other address as the party entitled to notice shall
hereafter designate by written notice to the other parties):
If to the Managing Owner: If to the Trust:
Equinox Fund Management, LLC The Frontier Fund- Series [ ]
0000 Xxxxxxx Xxxxxx, Xxxxx 000 c/o Equinox Fund Management, LLC
Xxxxxx, Xxxxxxxx 00000 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx: Xx. Xxxxxxx X. Xxxxxxxx Xxxxxx, Xxxxxxxx 00000
Facsimile: [ ] Attention: Xx. Xxxxxxx X. Xxxxxxxx
Facsimile: [ ]
If to the Trading Advisor:
and in either case with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
22. Governing Law.
Each party agrees that this Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to conflict of
laws principles.
23. Survival.
All representations, warranties and covenants in this Agreement, or contained in
certificates required to be delivered hereunder shall survive the termination of
this Agreement, with respect to any matter arising while this Agreement was in
effect. Furthermore, all representations, warranties and covenants hereunder
shall inure to the benefit of each of the parties to this Agreement and their
respective successors and permitted assigns.
24. Disclosure Document Modifications.
The Trading Advisor shall promptly furnish the Managing Owner with a copy of all
modifications to its Disclosure Document when available for distribution. Upon
receipt of any modified Disclosure Document by the Managing Owner, the Managing
Owner will provide the Trading Advisor with an acknowledgement of receipt
thereof.
19
25. Promotional Literature.
Each party agrees that prior to using any promotional literature in which
reference to the other parties hereto is made, they shall furnish a copy of such
information to the other parties and will not make use of any promotional
literature containing references to such other parties to which such other
parties object, except as otherwise required by law or regulation.
26. No Waiver.
No failure or delay on the part of any party hereto in exercising any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
Any waiver granted hereunder must be in writing and shall be valid only in the
specific instance in which given.
27. No Liability of Limited Owners.
This Agreement has been made and executed by and on behalf of the Trust, and the
obligations of the Trust and/or the Managing Owner set forth herein are not
binding upon any of the Limited Owners individually, but rather, are binding
only upon the assets and property of the Trust, and, to the extent provided
herein, upon the assets and property of the Managing Owner.
28. Third-Party Beneficiaries.
Wilmington Trust Company, the trustee of the Trust, shall be a third-party
beneficiary of the applicable provisions of this Agreement. The Principals and
Affiliates of each of the Trading Advisor and the Managing Owner shall be
third-party beneficiaries of the applicable provisions of this Agreement.
29. Headings.
Headings to Sections herein are for the convenience of the parties only, and are
not intended to be or to affect the meaning or interpretation of this Agreement.
30. Complete Agreement.
This Agreement constitutes the entire agreement between the parties with respect
to the matters referred to herein, and no other agreement, verbal or otherwise,
shall be binding upon the parties hereto.
31. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument. Signatures on this Agreement may be communicated by facsimile
transmission and shall be binding upon the parties so transmitting their
signatures. Counterparts with original signatures shall be provided to the other
parties following the applicable facsimile transmission; provided, that the
failure to provide the original counterpart shall have no effect on the validity
or the binding nature of this Agreement.
32. Series Disclaimer.
The parties hereto acknowledge and agree that the Trust is organized in series
pursuant to Sections 3804(a) and 3806(b)(2) of the Delaware Statutory Trust Act.
As such, the debts, liabilities, obligations
20
and expenses incurred, contracted for or otherwise existing with respect to each
series of the Trust shall be enforceable against the assets of such series of
the Trust only, and not against the assets of the Trust generally or the assets
of any other series of the Trust or against the Trustee of the Trust. There may
be several series of the Trust created pursuant to the Declaration of Trust and
Trust Agreement of the Trust.
21
IN WITNESS WHEREOF, this Agreement has been executed for and on behalf of the
undersigned as of the day and year first above written.
THE FRONTIER FUND, with respect to Series [_]
By: EQUINOX FUND MANAGEMENT, LLC.
Its: Managing Owner
By:
------------------------------------
Name
Title
[NAME OF TRADING COMPANY]
By: EQUINOX FUND MANAGEMENT, LLC.
Its: Managing Owner
By:
------------------------------------
Name
Title
EQUINOX FUND MANAGEMENT, LLC
By:
------------------------------------
Name
Title
[NAME OF TRADING ADVISOR]
By:
------------------------------------
Name
Title
22
EXHIBIT A
ALLOCATED ASSETS AND TRADING APPROACH
Allocated Assets:
The Allocated assets shall equal $XX,XXX,XXX.
Trading Approach:
The initial trading program to be used by the Trading Advisor shall be ________.
23
EXHIBIT B
TRADING LIMITATIONS AND POLICIES
The following limitations and policies are applicable to assets representing the
Allocated Assets of the Trust as a whole and at the outset to the Trading
Advisor individually; since the Trading Advisor initially will manage 100% of
the Allocated Assets, such application of the limitations and policies is
identical initially for the Allocated Assets of the Trust and the Trading
Advisor. The Trading Advisor sometimes may be prohibited from taking positions
for the Allocated Assets which it would otherwise acquire due to the need to
comply with these limitations and policies. The Managing Owner will monitor
compliance with the trading limitations and policies set forth below, and it may
impose additional restrictions (through modification of such limitations and
policies) upon the trading activities of the Trading Advisor, as it, in good
faith, deems appropriate in the best interests of the applicable Series of Units
of the Trust, subject to the terms of this Agreement.
The Managing Owner will not approve a material change in the following trading
limitations and policies without obtaining the prior written approval of Limited
Owners owning more than 50% of the applicable Series of Units. The Managing
Owner may, however, impose additional trading limitations on the trading
activities of the applicable Series of Units of the Trust without obtaining such
approval if the Managing Owner determines such additional limitations to be
necessary in the best interests of the applicable Series of Units of the Trust.
Trading Limitations
The Series [_] Units of the Trust will not: (i) engage in pyramiding its
Commodities positions (i.e., use unrealized profits on existing positions to
provide margin for the acquisition of additional positions in the same or a
related Commodity), but may take into account open trading equity on existing
positions in determining generally whether to acquire additional Commodities
positions; (ii) borrow or loan money (except with respect to the initiation or
maintenance of Commodities positions or obtaining lines of credit for the
trading of forward currency contracts; provided, however, that the Series [_]
Units of the Trust is prohibited from incurring any indebtedness on a
non-recourse basis); (iii) permit rebates to be received by the Managing Owner
or its affiliates, or permit the Managing Owner or any affiliate to engage in
any reciprocal business arrangements which would circumvent the foregoing
prohibition; (iv) permit the Trading Advisor to share in any portion of the
commodity brokerage fees paid by the Series [_] Units of the Trust; (v)
commingle its assets, except as permitted by law; or (vi) permit the churning of
its Commodity accounts.
The Series [_] Units of the Trust will conform in all respects to the rules,
regulations and guidelines of the markets on which its trades are executed.
Trading Policies
Subject to the foregoing limitations, the Trading Advisor has agreed to abide by
the trading policies of the Series [_] Units of the Trust, which currently are
as follows:
(1) The Allocated Assets will generally be invested in contracts which
are traded in sufficient volume which, at the time such trades are initiated,
are reasonably expected to permit entering and liquidating positions.
(2) Stop or limit orders may, in the Trading Advisor's discretion, be
given with respect to initiating or liquidating positions in order to attempt to
limit losses or secure profits. If stop or
24
limit orders are used, no assurance can be given, however, that the Clearing
Brokers will be able to liquidate a position at a specified stop or limit order
price, due to either the volatility of the market or the inability to trade
because of market limitations.
(3) The Trading Advisor generally will not initiate an open position
in a futures contract (other than a cash settlement contract) during any
delivery month in that contract, except when required by exchange rules, law or
exigent market circumstances. This policy does not apply to forward and cash
market transactions.
(4) The Trading Advisor, on behalf of the Trading Company, may
occasionally make or accept delivery of a commodity including, without
limitation, currencies. The Trading Advisor also may engage in "EFP"
transactions (i.e., an exchange of futures for physical transaction, as
permitted on the relevant exchange) involving currencies and metals and other
commodities. Provided that the Trading Company constitutes an "eligible contract
participant" (as such term is defined in Section 1(a)(12) of the CE Act), the
Trading Advisor may engage in swap transactions on behalf of the Trading
Company.
(5) The Trading Advisor may, from time to time, employ trading
techniques such as spreads, straddles and conversions.
(6) The Trading Advisor will not initiate open futures or option
positions which would result in net long or short positions requiring as margin
or premium for outstanding positions in excess of 15% of the Allocated Assets
for any one commodity, or in excess of 66 % of the Allocated Assets for all
commodities combined. Under certain market conditions, such as an inability to
liquidate open commodities positions because of daily price fluctuations, the
Managing Owner may be required to commit Allocated Assets as margin in excess of
the foregoing limits and in such case the Managing Owner will cause the Trading
Advisor to reduce its open futures and option positions to comply to these
limits before initiating new commodities positions.
(7) To the extent the Trading Advisor engages in transactions in
forward currency contracts other than with or through the Clearing Brokers, the
Trading Advisor will only engage in such transactions with or through a bank
which as of the end of its last fiscal year had an aggregate balance in its
capital, surplus and related accounts of at least $100,000,000, as shown by its
published financial statements for such year, and through other broker-dealer
firms with an aggregate balance in its capital, surplus and related accounts of
at least $50,000,000. If transactions are effected for the Trading Company in
the forward markets, the only forward markets that will be permitted to be
utilized are the interbank foreign currency markets and the London Metal
Exchange. The utilization of other forward markets requires the consent of the
Managing Owner.
25
EXHIBIT C
[ATTACH LATEST DISCLOSURE DOCUMENT
OF THE TRADING ADVISOR]
EXHIBIT D
FEE SCHEDULE
(a)(1) The Managing Owner shall pay to the Trading Advisor a monthly
Management Fee equal to 1/12/th/ of XX percent of the Net Asset Value of the
Series being managed by the Trading Advisor (approximately, XX% annually). For
purposes of calculating the Management Fee payable to the Trading Advisor, the
Net Asset Value of the Series being managed by the Trading Advisor shall be
determined before reduction for any Management Fees accrued, Incentive Fees
accrued or extraordinary fees and expenses accrued as of such month-end and
before giving effect to any capital contributions made and any distributions or
redemptions accrued during or as of such month-end. In the event that a Limited
Owner redeems some or all of its Units or exchanges some or all of its Units for
Units in another Series, the Trust is dissolved or terminated or this Agreement
is terminated as of any date other than the last day of a calendar month, the
Management Fee for such month shall be paid on a pro-rated basis based on the
ratio that the number of days in the calendar month through the date of such
event bears to the total number of days in the calendar month.
(2) "Net Asset Value of a Series" means the total assets of a Series
including, but not limited to, all cash and cash equivalents (valued at cost
plus accrued interest and amortization of original issue discount) less total
liabilities of the Series, each determined on the basis of generally accepted
accounting principles in the United States, consistently applied under the
accrual method of accounting ("GAAP"), including, but not limited to, the extent
specifically set forth below:
(i) Net Asset Value of a Series shall include any unrealized profit or
loss on open Commodities positions, and any other credit or debit accruing to
the Series but unpaid or not received by the Series.
(ii) All open commodity futures contracts and options traded on a
United States exchange are calculated at their then current market value, which
shall be based upon the settlement price for that particular commodity futures
contract and option traded on the applicable United States exchange on the date
with respect to which Net Asset Value of a Series is being determined; provided,
that if a commodity futures contract or option traded on a United States
exchange could not be liquidated on such day, due to the operation of daily
limits or other rules of the exchange upon which that position is traded or
otherwise, the settlement price on the first subsequent day on which the
position could be liquidated shall be the basis for determining the market value
of such position for such day. The current market value of all open commodity
futures contracts and options traded on a non-United States exchange shall be
based upon the liquidating value for that particular commodity futures contract
and option traded on the applicable non-United States exchange on the date with
respect to which Net Asset Value of a Series is being determined; provided, that
if a commodity futures contract or option traded on a non- United States
exchange could not be liquidated on such day, due to the operation of rules of
the exchange upon which that position is traded or otherwise, the liquidating
value on the first subsequent day on which the position could be liquidated
shall be the basis for determining the market value of such position for such
day. The current market value of all open forward contracts entered into shall
be the mean between the last bid and last asked prices quoted by the bank or
financial institution which is a party to the contract on the date with respect
to which Net Asset Value of a Series is being determined; provided, that if such
quotations are not available on such date, the mean between the last bid and
asked prices on the first subsequent day on which such quotations are available
shall be the basis for determining the market value of such forward contract for
such day. The Managing Owner may in its discretion value any assets pursuant to
such other principles as it may deem fair and equitable so long as such
principles are consistent with normal industry standards.
(iii) Interest earned on a Series commodity brokerage account shall be
accrued at least daily.
(iv) The amount of any distribution made shall be a liability of the
Series from the day when the distribution is declared until it is paid.
27
(b) (1) The Managing Owner shall pay to the Trading Advisor an
Incentive Fee of XX% of "New High Net Trading Profits" (as hereinafter defined)
generated by the Series [ ] Units, including realized and unrealized gains and
losses thereon, as of the close of business on the last day of each calendar
quarter (the "Incentive Measurement Date").
(2) "New High Net Trading Profits" (for purposes of calculating
the Trading Advisor's Incentive Fees) shall be computed as of the
Incentive Measurement Date and shall include such profits (as outlined
below) since the Incentive Measurement Date of the most recent
preceding calendar quarter for which an Incentive Fee was earned (or,
with respect to the first Incentive Fee, as of the commencement of
operations) (the "Incentive Measurement Period"). New High Net Trading
Profits for any Incentive Measurement Period shall be the net profits,
if any, from the Trading Advisor's trading during such period
(including (i) gross realized trading profit (loss) plus or minus (ii)
the change in unrealized trading profit (loss) on open positions,
minus (iii) the fees charged to the Series by the Managing Owner and
the Clearing Brokers for brokerage commissions, exchange fees, NFA
fees, give up fees and other transaction related fees and expenses
charged in connection with the Series' trading activities and on-going
service fees for certain administrative services payable to certain
Selling Agents and shall be calculated after the determination of the
Trading Advisor's Management Fee, but before deduction of any
Incentive Fees payable during the Incentive Measurement Period) minus
(iv) the "Carryforward Loss" (as defined in the next sentence), if
any, as of the beginning of the Incentive Measurement Period. If the
total of items (i) through (iv), above, is negative at the end of an
Incentive Measurement Period, such amount shall be the Carryforward
Loss for the next quarter. Carryforward Losses shall (v) be
proportionately reduced to reflect reductions in Allocated Assets that
have been instructed by the Managing Owner. Such proportional
reduction shall be based upon the ratio that the reduction of assets
allocated away from the Trading Advisor bears to the then current
amount of Allocated Assets which the Trading Advisor is managing prior
to giving effect to such reduction in the Allocated Assets. New High
Net Trading Profits shall not include interest earned or credited. New
High Net Trading Profits shall be generated only to the extent that
cumulative New High Net Trading Profits exceed the highest level of
the Trading Advisor's cumulative New High Net Trading Profits achieved
by such Series as of a previous Incentive Measurement Date. Except as
set forth below, net losses after proportional reduction under clause
(v) above from prior quarters must be recouped before New High Net
Trading Profits can again be generated. If a withdrawal or
distribution occurs at any date that is not an Incentive Measurement
Date, the date of the withdrawal or distribution shall be treated as
if it were an Incentive Measurement Date, but any Incentive Fee
accrued in respect of the withdrawn assets on such date shall not be
paid to the Trading Advisor until the next scheduled Incentive
Measurement Date. New High Net Trading Profits for an Incentive
Measurement Period shall exclude capital contributions to the Series
in an Incentive Measurement Period, distributions or redemptions
payable by the Series during an Incentive Measurement Period, as well
as losses, if any, associated with redemptions during the Incentive
Measurement Period and prior to the Incentive Measurement Date. In
calculating New High Net Trading Profits, Incentive Fees paid for a
previous Incentive Measurement Period shall not reduce cumulative New
High Net Trading Profits in subsequent periods.
28
EXHIBIT E
List of Key Principals
29
