TRADING AGREEMENT
This TRADING AGREEMENT (the "Agreement") is made this day
of , 2016, by and between EnTrustPermal Management LLC (the
"Manager"), the investment manager to Permal Alternative Select Fund
("Fund"), a series of the Xxxx Xxxxx Partners Equity Trust (the "Trust"), a
Maryland statutory trust registered as a management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"), and XX-XX
Systematic Trading LLP, an English limited liability partnership (the
"Trader").
WHEREAS, the Manager has been retained by the Trust to provide trading,
investment advisory, management, and administrative services to the Trust
with respect to the Fund, whether directly or through the services of one or
more subadvisers or commodity trading advisors;
WHEREAS, the Manager wishes to engage the Trader to provide certain
commodity trading advisory services to the Trust with respect to such portion
of the assets of the Fund as shall be allocated to the Trader from time to
time (the "Allocated Portion") and the Trader is willing to furnish such
services on the terms and conditions hereinafter set forth; and
WHEREAS, the Trader is registered as a Commodity Trading Advisor ("CTA")
with the Commodity Futures Trading Commission ("CFTC") and is a member of the
National Futures Association ("NFA"); and
WHEREAS, the Trader will serve as CTA for the Fund with respect to the
Allocated Portion;
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. In accordance with and subject to the Management Agreement between the
Trust and the Manager with respect to the Fund (the "Management Agreement"),
the Manager hereby appoints the Trader to act as CTA with respect to the
Allocated Portion of the Fund for the period and on the terms set forth in
this Agreement. The Trader accepts such appointment and agrees to render the
services herein set forth, for the compensation herein provided.
2. The Manager shall cause the Trader to be kept fully informed at all
times with regard to the Commodity Interests (as defined below) or other
permissible investments owned by the Fund in respect of the Allocated
Portion, its funds available, or to become available, for investment, and
generally as to the condition of the affairs of the Fund in respect of the
Allocated Portion. The Manager shall furnish the Trader with such other
documents and information with regard to the Fund's affairs as the Trader may
from time to time reasonably request.
3. The Manager shall have the right at any time to reallocate any or all
of the Fund assets to or away from the Trader pursuant to this Agreement if
the Manager deems such allocation or reallocation appropriate.
4. Duties, Responsibilities and Authorizations of the Trader. (a) Subject
to the oversight of the Trust's Board of Trustees (the "Board") and the
Manager, the Trader shall regularly provide the Fund, with respect to the
Allocated Portion, with advice, management and
supervision with respect to commodity interests, including futures contracts,
options on futures contracts, forward contracts, other foreign exchange
commodity interests (including futures or spot transactions) or commodities,
swaps and swaptions ("Commodity Interests"), cash or U.S. government
securities, as permitted, and shall furnish a continuous investment program
for the Allocated Portion consistent with the Fund's investment objectives,
strategies, policies and restrictions, as stated in the Fund's current
Prospectus and Statement of Additional Information (the "SAI"). The Trader
shall, with respect to the Allocated Portion, determine from time to time
what Commodity Interests or other permissible investments will be purchased,
retained, sold or exchanged by the Fund and what portion of the Allocated
Portion will be held in the various Commodity Interests or other permissible
investments in which the Fund invests, and shall implement those decisions
(including the execution of investment documentation), all subject to the
provisions of the Trust's Declaration of Trust and By-Laws as provided to the
Trader (collectively, the "Governing Documents"), the 1940 Act, the Commodity
Exchange Act ("CEA"), any 1940 Act exemptive order applicable to the Fund,
and the applicable rules and regulations promulgated thereunder by the
Securities and Exchange Commission (the "SEC") and the CFTC and interpretive
guidance issued thereunder by the SEC staff and the CFTC staff, and any other
applicable federal and state law, the investment objectives, policies and
restrictions of the Fund referred to above as provided to the Trader, and any
other specific policies adopted by the Board or the Manager and disclosed to
the Trader, as well as the instructions and directions of the Manager. The
Trader is authorized as the agent of the Trust to give instructions with
respect to the Allocated Portion to the Fund's custodian (the "Custodian")
and any Fund sub-custodian or prime broker as to deliveries of Commodity
Interests or other permissible investments and payments of cash in respect of
transactions or cash margin calls for the account of the Fund. The Trader
will place orders on behalf of the Fund pursuant to the Trader's investment
determinations for the Fund either directly with the issuer or with any
broker or dealer, foreign currency dealer, futures commission merchant or
others selected by it. The Fund will act as a principal in such transactions.
The Board may adopt policies and procedures that modify and restrict the
Trader's authority regarding the execution of the Fund's portfolio
transactions provided herein. The Trader may execute on behalf of the Fund
certain agreements, instruments and documents in connection with the services
performed by it under this Agreement. These may include, without limitation,
brokerage agreements, clearing agreements, account documentation, futures and
options agreements, swap agreements, other investment-related agreements, and
any other agreements, documents or instruments the Trader believes are
appropriate or desirable in performing its duties under this Agreement.
Notwithstanding the foregoing, the Manager or Trust shall be responsible for
establishing the Fund's prime brokerage and Custodian arrangements. Until
such time as notified by the Manager, the Trader will be responsible for
managing any collateral and margin requirements required by applicable
counterparties and associated with investments made for the Allocated
Portion, if any, and will perform reconciliation procedures on such custodial
accounts with respect to the Allocated Portion in accordance with the
Custodian's standard practices, and provide information regarding such
reconciliations to the Manager upon request in a form to be agreed between
the Trader and the Manager. The Trader will be an independent contractor and
will have no authority to act for or represent the Trust, the Fund or the
Manager in any way or otherwise be deemed an agent of the Trust, the Fund or
the Manager except as expressly authorized in this Agreement or another
writing by the Trust, the Manager and the Trader. The Trust may, from time to
time, provide Board resolutions to the Trader related to the foregoing.
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(b) The Trader agrees that, in rendering consulting, advisory and
management services to other Commodity Interest trading accounts and
entities, it will use its best efforts to achieve an equitable treatment of
all accounts and will use a fair and reasonable system of order entry for all
accounts, taking into consideration any legal and regulatory limitations
applicable to the Fund, in addition to the Trader's policies and procedures
and the Fund's or Manager's policies, procedures and instructions. The Trader
further agrees to be aware of the position limits imposed on certain
Commodity Interest contracts by the CFTC or applicable contract market. If,
at any time during the term of this Agreement, the Trader is required to
aggregate the Fund's Commodity Interest positions with the positions of any
other person for the purposes of applying the CFTC or exchange imposed
speculative position limits, the Trader will promptly notify the Manager if
the Allocated Portion positions are included in an aggregate amount which
exceeds the applicable speculative position limit. If the speculative
position limits are reached in any Commodity Interest contract, the Trader
will modify the trading instructions to the Fund's account and its other
accounts in a reasonable and good faith effort to achieve an equitable
treatment of all accounts.
(c) The Trader acknowledges that the Fund may establish one or more
wholly-owned subsidiaries of the Fund through which it may conduct all or a
significant portion of its commodities investing activities or for other
investment purposes.
(d) Notwithstanding any other provision of this Agreement, it is
agreed that the Trader shall have no responsibility for: (a) monitoring any
limitations or restrictions in respect of the Fund as a whole (it being
agreed that all such monitoring shall be the responsibility of the Manager);
or (b) the segregation requirement of the 1940 Act or other applicable law of
the Fund as a whole (it being agreed that any such segregation shall be the
responsibility of the Manager); provided that, in respect of the Allocated
Portion only, the Trader shall (i) conduct its trading activities in a manner
consistent with the segregation and coverage requirements of the 1940 Act and
the CEA or any instructions, restrictions or policies of the Manager in
relation thereto (as described above) and (ii) share with the Manager, upon
request, such information as the Manager shall require to demonstrate
compliance with item (i) above and shall provide assistance upon request to
the Manager in identifying assets to address segregation requirements. For
the avoidance of doubt, the Trader shall not be required to provide
instructions for any physical segregation of assets related to Section 18 of
the 1940 Act to the Custodian.
(e) When the Manager provides policies, procedures, restrictions or
Governing Documents, or amendments or revisions thereto, to the Trader that
relate to the Trader's management of the Allocated Portion, the Manager will
provide the relevant documents in advance of their implementation. The
Manager will use reasonable endeavors under the circumstances to consult with
the Trader in good faith in advance of their adoption as to the Allocated
Portion.
5. Delegation. The Trader may delegate some or all of its duties under
this Agreement to affiliated parties (each a "Delegatee"); provided, however,
that (i) the Trader provides written notice to the Manager and the Manager
consents in writing, (ii) any such services will not be advisory services
under the 1940 Act or Investment Advisers Act of 1940, as amended, or any
delegation of advisory duties is subject to and conditioned on the Fund
Board's
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and/or Fund shareholders' approval as may be required pursuant to Section 15
of the 1940 Act and is otherwise consistent with the 1940 Act, (iii) the
entity performing the function is either registered as a CTA under the CEA
and a member of the NFA, or is exempt or excluded from registration as a CTA
(or does not provide commodity trading advice); (iv) no additional charges,
fees or other compensation will be paid for such services and neither the
Fund nor the Manager will incur any expenses as a result of such delegation,
(v) the Trader hereby agrees to advise the Manager of any changes required to
be made to the disclosure in the Fund's registration statement relating to
the Fund's portfolio managers provided by the Trader or any Delegatee, and
(vi) the Trader at all times remains liable and responsible to the Manager,
the Trust and the Fund for the Trader's duties, obligations,
responsibilities, representations, warranties, agreements and indemnification
hereunder regardless of whether services hereunder are provided by the Trader
or any Delegatee.
6. Records. The Trader agrees that it will keep and preserve records
relating to its services hereunder in accordance with all applicable laws and
resolutions, including compliance with the requirements of Rule 31a-1 and
31a-2 under the 1940 Act and CFTC Rule 4.7(c)(2). The Trader hereby agrees
that any such records that it maintains for the Fund are the property of the
Fund, and further agrees to surrender promptly to the Fund any of such
records upon the Fund's request; provided that the Trader may retain
duplicate copies of all such books and records subject to the confidentiality
provisions of this Agreement.
7. Valuation. The Trader shall, in accordance with procedures established
by the Board and provided to the Trader in advance, which may be amended from
time to time, provide assistance to the Trust, Manager or the Custodian for
the Fund in determining or confirming the value of any investments of the
Allocated Portion for which the Trust, Manager or Custodian seeks assistance
from the Trader or identifies for review by the Trader. This assistance
includes (but is not limited to): (i) designating and providing access to one
or more employees of the Trader who are knowledgeable about the investments,
trading and/or any relevant factors for valuation, which employees shall be
available for consultation when the Valuation Committee of the Trust, the
Manager or its affiliates convenes; (ii) with respect to the investments held
by the Allocated Portion, upon the reasonable request of the Trust, Manager
or Custodian, assisting the Trust, the Manager or the Custodian in obtaining
bids and offers or quotes from broker/dealers, market makers, valuation
agents, evaluators or counterparties, each independent of the Trader; (iii)
upon the request of the Trust, Manager or Custodian, confirming pricing and
providing recommendations for fair valuations; and (iv) maintaining adequate
records and written backup information with respect to the valuation
assistance provided hereunder, and providing such information to the Trust,
the Manager or the Fund upon request, with such records being deemed Fund
records (subject to the Trader's retention of a duplicate copy). The parties
acknowledge that the Trader, on the one hand, and the Custodian or
recordkeeping agent of the Fund, on the other hand, may use different pricing
vendors, which may result in valuation discrepancies.
8. Additional Responsibilities of the Trader. (a) The Trader shall, as
reasonably requested by the Trust or the Manager and in accordance with the
scope of the Trader's obligations and responsibilities contained in this
Agreement (i.e., with respect to the Allocated Portion and the Trader's
provision of portfolio management services hereunder), provide reasonable
assistance to the Trust and the Manager in connection with the Trust's
compliance with the Xxxxxxxx-Xxxxx Act and the rules and regulations
promulgated by the SEC thereunder,
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and Rule 38a-1 under the 1940 Act or any similar requirement under the CEA.
Specifically, the Trader agrees to (i) certify periodically, upon the
reasonable request of the Trust, that with respect to the Allocated Portion
and the Trader's provision of portfolio management services hereunder, the
Allocated Portion is in compliance with all "federal securities laws"
applicable to the Fund, as required by Rule 38a-l under the 1940 Act; (ii) as
requested by the Trust or Manager: (a) review draft reports to shareholders,
proxy statements, marketing materials, Board materials, registration
statements or portions thereof and other documents provided to the Trader,
which relate to the Fund or the Trader, (b) provide comments on such drafts
on a timely basis, and (c) provide certifications or sub-certifications on a
timely basis as to the accuracy of the information pertaining to the Trader
or the Allocated Portion contained in such reports or other documents, (iii)
with respect to the Trader or the Allocated Portion, provide reasonable
assistance as needed in the preparation of all periodic reports by the Trust
or the Fund to shareholders of the Fund and all reports and filings required
to maintain the registration and qualification of the Fund, or to meet other
regulatory or tax requirements applicable to the Fund, under federal and
state securities and tax laws; (iv) upon request and reasonable prior notice,
cooperate with audits (including compliance audits conducted by the Manager,
its affiliates or the Fund's independent auditors or any of such auditors'
overseas affiliates); (v) upon request and reasonable prior notice, provide
the Trust's chief compliance officer with direct access to its chief
compliance officer (or his/her designee); (vi) upon request, provide the
Trust's chief compliance officer with periodic reports pertaining to the
Trader's services hereunder; and (vii) promptly provide notice of any
material compliance matters of, or related to, the Trader. Except as may be
limited by Section 8(c), the Trader, at its expense, shall supply the Board,
the officers of the Trust and the Manager (and its affiliates) with all
information and reports of the Trader reasonably required by them and
reasonably available to the Trader relating to the services provided by the
Trader hereunder.
(b) The Trader shall prepare and furnish to the Manager, Trust,
and/or the Board such reports, statistical data and other information in such
form and at such intervals as they may reasonably request. The Trader shall
also make available to the Manager and/or the Board at reasonable times, and
with reasonable advance notice under the circumstances, its portfolio
managers and other appropriate personnel as mutually agreed by the Trust, the
Manager and the Trader, either in person (including attendance at Board
meetings) or, at the mutual convenience of the Trust, the Manager, the Board
and the Trader, by telephone or other electronic media, in order to review
the investment policies, performance and other matters relating to the
management of the Allocated Portion.
(c) In furnishing services hereunder, the Trader will not consult
with any subadviser or other trader to (i) the Fund, (ii) any other Fund of
the Trust or (iii) any other investment company under common control with the
Trust concerning transactions of the Fund in Commodity Interests or other
permissible investments. This paragraph shall not be deemed to prohibit the
Trader from consulting with any of its affiliated persons concerning
transactions in Commodity Interests or other permissible investments
(d) The Trader shall bear all expenses, and shall furnish all
necessary services, facilities and personnel, in connection with its
responsibilities under this Agreement. Other than as herein specifically
indicated, the Trader shall not be responsible for the Fund's expenses,
including, without limitation, advisory fees; distribution fees; interest;
taxes; governmental fees;
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voluntary assessments and other expenses incurred in connection with
membership in investment company organizations; organization costs of the
Fund; the cost (including brokerage commissions, transaction fees or charges,
if any) in connection with the purchase or sale of the Fund's Commodity
Interests or other permissible investments and any losses in connection
therewith; fees and expenses of custodians, transfer agents, registrars,
independent pricing vendors or other agents; Fund legal expenses; loan
commitment fees; expenses relating to the issuing and redemption or
repurchase of the Fund's shares and servicing shareholder accounts; expenses
of registering and qualifying the Fund's shares for sale under applicable
federal and state law; the Fund's expenses relating to preparing, setting in
print, printing and distributing prospectuses and statements of additional
information and any supplements thereto, reports, proxy statements, notices
and dividends to the Fund's shareholders; costs of stationery; Fund website
costs; costs of meetings of the Board or any committee thereof, meetings of
shareholders and other meetings of the Fund (other than the costs of the
attendance and travel of the Trader's personnel to Board meetings); Board
fees; Fund audit fees; travel expenses of officers, members of the Board and
employees of the Fund (other than the travel expenses of officers and
employees of the Trader), if any; and the Fund's pro rata portion of premiums
on any fidelity bond and other insurance covering the Fund and its officers,
Board members and employees; litigation expenses of the Fund and any non-
recurring or extraordinary expenses of the Fund as may arise, including,
without limitation, those relating to actions, suits or proceedings to which
the Fund is a party and the legal obligation which the Fund may have to
indemnify the Fund's Board members and officers with respect thereto. Neither
the Trust, the Fund, the Manager or their affiliates or subsidiaries shall be
responsible for the costs associated with any special meetings of the Board
or shareholders convened for the primary benefit of the Trader (including,
but not limited to, the legal fees associated with preparing a proxy
statement or information statement and associated mailing and solicitation
costs) unless agreed-upon in writing.
9. Compensation of Board Members and Officers. No member of the Board,
officer or employee of the Trust or Fund shall receive from the Trust or Fund
any salary or other compensation as such member of the Board, officer or
employee while he is at the same time a director, officer, or employee of the
Trader or any affiliated company of the Trader, except as the Board may
decide. This paragraph shall not apply to Board members, executive committee
members, consultants and other persons who are not regular members of the
Trader's or any affiliated company's staff.
10. Compensation. As compensation for the services performed by the
Trader, the Manager shall pay the Trader, within twenty (20) days after the
last day of each month, a fee, computed daily at an annual rate set forth on
Schedule A annexed hereto. The first payment of the fee shall be made within
twenty (20) days after the end of the month succeeding the effective date of
this Agreement. If this Agreement is terminated as of any date not the last
day of a month, such fee shall be paid within twenty (20) days after the end
of the month of termination, and the fee for such month will be based on the
average daily net assets of the days in that month, up to and including the
last day for which this Agreement is in effect. The average daily net assets
of the Fund shall in all cases be based only on business days and be computed
as of the time of the regular close of business of the New York Stock
Exchange, or such other time as may be determined by the Board.
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11. Representations, Warranties and Agreements of the Trader. (a) The
Trader represents and warrants that it: (i) is not prohibited by the 1940
Act, the Investment Advisers Act of 1940 (the "Advisers Act") or other law,
regulation or order from performing the services contemplated by this
Agreement; (ii) is registered as a CTA and a member of the NFA; (iii) has met
and will seek to continue to meet for so long as this Agreement remains in
effect, any other applicable federal or state requirements, or the applicable
requirements of any regulatory or industry self-regulatory agency necessary
to be met in order to perform the services contemplated by this Agreement
(including without limitation the adoption of written policies and procedures
with respect to the Allocated Portion, that are reasonably designed to
prevent violations of the federal securities laws, as defined in Rule 38a-1,
by the Trader, its employees, officers, and agents) and will comply in all
material respects with the policies and procedures of the Manager, Trust and
the Fund with respect to the Allocated Portion as provided to them; (iv) has
the authority to enter into and perform the services contemplated by this
Agreement; (v) has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement; and (vi) and has duly
executed and delivered this Agreement.
(b) The Trader will promptly notify the Trust and the Manager: (i) of
the occurrence of any event that would disqualify the Trader from serving as
an investment adviser of an investment company pursuant to Section 9(a) of
the 1940 Act or other applicable law, rule or regulation; (ii) if the Trader
is served or otherwise receives notice of any action, suit, proceeding,
inquiry or investigation, at law or in equity, before or by any court, public
board or body ("Action"), involving the affairs of the Fund, or the Trader is
involved in any pending litigation or administrative proceeding brought
against the Trader or any of its senior management persons or other personnel
of the Trader involved in the management or operations of the Allocated
Portion, other than frivolous or vexatious litigation (such frivolous or
vexatious litigation, for the avoidance of doubt, would not include
litigation under securities or other financial law or regulation or brought
by any government authority or regulator) and except where Trader's provision
of notice of such Action to the Manager is forbidden by applicable law; (iii)
of any material fact known to the Trader respecting or relating to the Trader
or the investment strategies of the Trader's Allocated Portion that is not
contained in the Fund's prospectus and/or SAI, as amended and supplemented
from time to time, regarding the Fund, or any amendment or supplement
thereto, but that is required to be disclosed therein, and of any statement
respecting or relating to the Trader, the Trader's investment strategies or
the Trader's Allocated Portion contained therein that becomes untrue in any
material respect; (iv) of any change in the Trader's financial condition
which would reasonably be expected to materially impact its abilities to
perform its duties hereunder and of any reduction in the amount of coverage
under the Trader's errors and omissions or professional liability insurance
coverage; and (v) of any change in its status as a registered CTA or member
of the NFA.
(c) The Trader represents and warrants that it has adopted a written
code of ethics complying with the requirements of Rule 17j-1 under the 1940
Act, will provide the Manager and the Board with a copy of such code of
ethics, together with evidence of its adoption, and will provide copies of
any future amendments thereto. Upon request within forty-five days of the end
of the last calendar quarter of each year that this Agreement is in effect,
and as otherwise requested, the Chief Compliance Officer of the Trader or
his/her designee shall certify to the Manager that the Trader has complied
with the requirements of Rule 17j-1 during the previous year and that there
has been no material violation of the Trader's code of ethics or,
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if such a material violation has occurred, that appropriate action was taken
in response to such violation. Upon the reasonable written request of the
Manager and subject to applicable law, the Trader shall permit the Manager,
its employees or officers or their agents to examine the reports required to
be made to the Trader by Rule 17j-1(c)(1) and all other records relevant to
the Trader's code of ethics. The Trader shall use its best efforts to obtain
consents from those individuals subject to its code of ethics to permit the
Manager, its employees or officers or their agents to examine the reports
required to be made to the Trader by Rule 17j-1(c)(1) and all other records
relevant to the Trader's code of ethics. By entering into this Agreement, the
Trader consents to the filing of its code of ethics as an exhibit to the
Trust's registration statement, as may be required by law or regulation.
(d) The commodity trading advisor disclosure document of the Trader
(where it is legally obligated to produce or has produced such a disclosure
document or is required to deliver such document by law or regulation) and
any other information relating to the Trader, its businesses, principals, and
past performance record (in accordance with paragraph 11(i) below) that has
been requested by the Manager or delivered to the Manager for use in the
Fund's registration statement and other regulatory filings, sales and
advertising materials, Board materials, and to assist the Fund, the Manager
and their affiliates as part of their compliance programs is current,
accurate and complete in all material respects as at the date it is provided
and is in compliance with all applicable laws, rules and regulations,
including Part 4 of the CFTC regulations, and the Trader will provide the
Manager with updated or amended copies of any such materials.
(e) The Trader will promptly notify the Trust and the Manager if
there is, or there is expected to be, any assignment of this Agreement or
change of control of the Trader within the meaning of the 1940 Act, and if
there is, or there is expected to be, any changes in the key personnel who
are either the portfolio manager(s) of the Allocated Portion or senior
management of the Trader. The Trader agrees to bear all reasonable expenses
of the Trust, if any, arising out of an assignment by, or change in control
of, the Trader.
(f) The Trader agrees to maintain a commercially reasonable level of
errors and omissions or professional liability insurance coverage from an
insurance company that has an A.M. Best rating of at least A (VII) or better.
(g) The Trader agrees to the use of its name, trademark, trade
device, service xxxx, symbol or any abbreviation, contraction or simulation
(collectively, "Trademarks") thereof in the Trust's and the Fund's disclosure
documents and shareholder communications. The Manager or its affiliates will
not use Trademarks in advertising, sales literature and similar
communications without the Trader's express consent unless the format of any
of the foregoing has been previously approved by the Trader. The Manager or
its affiliates will not use the name "Xxxxxx Xxxxxx Capital Management L.P."
or "Xxxxxx Xxxxxx group of companies" in advertising, sales literature, and
the Fund's disclosure documents, shareholder communications and similar
communications without the express consent of the Trader on behalf of itself
and its affiliates unless the format of any of the foregoing has previously
been so approved or unless required to do so by applicable law or regulation.
The Trader agrees that neither it, nor any of its affiliates, will knowingly
in any way refer directly or indirectly to its relationship with the Trust,
the Fund, the Manager or any of their respective affiliates or subsidiaries
without the express
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prior written consent of the Manager or its designee, which consent shall not
be unreasonably withheld, except as required by rule, regulation or upon the
request of a governmental authority. However, the Trader may use the
performance of the Allocated Portion in its track record and composite
performance. The Trader is hereby granted the right to identify the Trust,
Fund and Fund subsidiary as a client in the Trader's publicly disclosed
client lists until this Agreement is terminated and may disclose the
aggregate amount of assets under management with respect to the Allocated
Portion. Nevertheless, the Trader may not refer to any other sub-adviser or
trading adviser to the Fund without express written permission.
(h) The Trader shall not use the name or any tradename, trademark,
trade device, service xxxx, symbol or any abbreviation, contraction or
simulation thereof of the Manager, the name "Xxxx Xxxxx," the Trust, the Fund
or any of their affiliates or subsidiaries ("Fund Parties") in Trader's (or
its affiliate's) marketing materials unless it first receives prior written
approval of the appropriate party. It is understood that the name of each
party to this Agreement, and any derivatives thereof or logos associated with
that name, the name "Xxxx Xxxxx," the name of the Fund, the name "Xxxxxx
Xxxxxx" ("Intellectual Property"), is the exclusive and valuable property of
the party or entity in question and their respective affiliates, and that
each other party has the right to use such names pursuant to the relationship
created by, and in accordance with the terms of, this Agreement only so long
as this Agreement shall continue in effect. Upon termination of this
Agreement, Fund Parties and the Trader the shall forthwith cease to use the
other parties' Intellectual Property, except for rights of the Fund Parties
to continue to use the Licensed Marks during a ninety-day adjustment period
after such termination, for one year with respect to the Fund's prospectus
and Statement of Additional Information, as supplemented, and as may be
required by applicable laws, rules and regulations. For the avoidance of
doubt, nothing in this Agreement shall be construed as granting to any party
any right, title or interest in Intellectual Property, other than the right
to use the Intellectual Property in accordance with this Agreement.
(i) The Trader agrees to provide any and all material composite
performance information, records and supporting documentation (which may
exclude the names of individual clients or accounts of the Trader) about
accounts the Trader manages, if appropriate, which are relevant to the
Allocated Portion and that have investment objectives, policies, and
strategies substantially similar to those employed by the Trader in managing
the Allocated Portion that may be reasonably necessary, under applicable
laws, to allow the Fund or its agent to present information concerning the
Trader's prior performance in the Prospectus and the SAI of the Fund and any
permissible reports and materials prepared by the Fund or its agent.
12. Representations and Warranties of the Manager. The Manager represents
and warrants that it: (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this
Agreement remains in effect; (ii) is not prohibited by the 1940 Act, the
Advisers Act or other law, regulation or order from performing the services
contemplated by this Agreement; (iii) the Trust is an "accredited investor"
as that term is defined in Rule 501 of Regulation D promulgated under the
Securities Act of 1933, as amended, and a "qualified eligible person" as that
term is defined in CFTC Regulation 4.7(a); (iv) the Fund is an eligible
contract participant as that term is defined in Section 1(a)(18) of the CEA;
(v) has reviewed the requirements for registration as a "commodity pool
operator" (a "CPO") under the CEA and is either registered as a CPO and a
member of the NFA or is relying on an exemption
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or exclusion from registration as a commodity pool operator or has made a
permissible delegation of its duties and responsibilities as a CPO to another
entity; (vi) has the authority to enter into and perform the services
contemplated by this Agreement; (vii) has taken all necessary corporate
action to authorize the execution, delivery and performance of this
Agreement; (viii) has duly executed and delivered this Agreement and this
Agreement has been approved in accordance with the requirements of the 1940
Act.
13. Confidentiality. No party to this Agreement will disclose or use any
records or information obtained pursuant to this Agreement in any manner
whatsoever except as expressly authorized in this Agreement or, with respect
to the Trader, as may reasonably be required to execute transactions on
behalf of the Fund or, with respect to the Manager (or its affiliates), as
may reasonably be required to provide its services to the Fund. The parties
will keep confidential any non-public information obtained directly as a
result of this service relationship; provided that (a) the Manager may make
any disclosure to its affiliates, the Trust, the Fund, the disinterested
Board members or their legal advisors or auditors or other service providers
to the Fund (including, without limitation, any prospective or current prime
broker, broker-dealer, accounting agent, compliance services provider,
administrator or sub-administrator and the agents, employees, brokers,
dealers or banks selling Fund shares, service providers, subsidiaries,
parents, affiliates or divisions of the foregoing), as the Manager may
reasonably determine necessary in its sole discretion for the purposes of the
management or operation of the Fund provided those recipients of information
are subject to customary confidentiality duties or obligations for their
respective relationships to U.S. registered investment companies (which
obligations, without limitation, may be fiduciary or professional in nature),
and (b) the Trader may make disclosures to its affiliates, Xxxxxx Xxxxxx
Asset Management LLP, Xxxxxx Xxxxxx Investment Holdings Limited, Xxxxxx
Xxxxxx (Hong Kong) Limited any other member of the Xxxxxx Xxxxxx group and
London Diversified Fund Management LLP, as the Trader may reasonably
determine necessary to perform the services contemplated herein in their sole
discretion; provided that no such information may be used for any trading or
investment purpose unrelated to management of the Fund. Notwithstanding the
foregoing, any party may disclose such non-public information if (a) such
information is or hereafter otherwise is known by the receiving party or has
been disclosed to the receiving party by a third party not known by the
receiving party to be under an obligation of confidentiality to the party
whose information has been disclosed, or such information has been disclosed
publicly (other than through a breach of this Agreement) or otherwise becomes
ascertainable from public or published information or trade sources, (b) if
such disclosure is required by applicable federal, state or other law or
regulation, (c) if such disclosure is required or requested by regulatory
authorities or judicial process, (d) to the extent such disclosure is
reasonably required by auditors, compliance consultants or attorneys of the
party (or of the Trust, Fund, the disinterested Board members or affiliates
of the Manager) in connection with the performance of their professional
services, or (e) as may otherwise be contemplated by this Agreement. The
Trader shall not disclose information regarding characteristics of the Fund
or Allocated Portion, trading history, portfolio holdings, performance
information or any other related information to any third party, except in
compliance with the Trust's policies on disclosure of portfolio holdings or
as required by applicable law or regulation. Notwithstanding the foregoing,
the Manager shall take all commercially reasonable measures to prevent the
Trust (excluding the disinterested Board members), the Fund and any
subsidiary of the Fund from disclosing any information regarding the
Allocated Portion's portfolio holdings or position information which is not
otherwise publicly available to any third party except: (a)
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where such disclosure is reasonably necessary for the management or operation
of the Fund and such recipients are subject to customary confidentiality
duties or obligations for their respective relationships to U.S. registered
investment companies (which obligations, without limitation, may be fiduciary
or professional in nature provided that, for purposes of this paragraph, the
disinterested Board members shall be considered "recipients" under this
clause (a)); or (b) with respect to: (i) brokers, dealers, futures commission
merchants and prime brokers providing clearing, securities lending, execution
or similar services to the Fund, (ii) banks, brokers, dealers and other
intermediaries selling Fund shares, and (iii) fund ratings organizations,
proxy voting services and fund publication services, provided that for each
of (b)(i), (ii) or (iii) the Trader has given its prior written consent, such
consent not to be unreasonably withheld; or (c) as required by applicable
law, regulation or court order. For the avoidance of doubt, any Delegatee
shall be subject to the same confidentiality obligations as the Trader.
14. Indemnification. (a) Except as may otherwise be provided by the 1940
Act, any other federal securities law or the CEA, neither the Trader nor any
of its officers, members or employees (its "Affiliates") shall be liable for
any losses, claims, damages, liabilities or litigation (including reasonable
legal and other expenses) ("Losses") incurred or suffered by the Manager or
the Trust as a result of any act or omission of the Trader or its Affiliates
with respect to the Fund, except that nothing in this Agreement shall operate
or purport to operate in any way to exculpate, waive or limit the liability
of the Trader or its Affiliates for, and the Trader shall indemnify and hold
harmless the Trust, the Manager, all affiliated persons thereof (within the
meaning of Section 2(a)(3) of the 1940 Act, other than persons or other
entities who are affiliates solely by reason of ownership of shares of the
Fund) and all controlling persons (as described in Section 15 of the
Securities Act of 1933, as amended ("1933 Act")) (collectively, "Manager
Indemnitees") against, any and all Losses to which any of the Manager
Indemnitees may become subject under the CEA, the 1933 Act, the 1940 Act, the
Advisers Act, or under any other statute, or common law or otherwise arising
out of or based on (i) any willful misconduct, bad faith, reckless disregard
or gross negligence of the Trader in the performance of any of its duties or
obligations hereunder, (ii) any Losses accruing to the extent, if any, caused
by or based upon the Trader's misrepresentations, omissions or breach of any
representation or warranty in this Agreement or (iii) any untrue statement of
a material fact contained in the Prospectus and/or SAI, proxy materials,
reports, advertisements, sales literature, or other materials pertaining to
the Fund or the omission to state therein a material fact known to the Trader
which was required to be stated therein or necessary to make the statements
therein not misleading, if such statement or omission was made in reliance
upon information furnished to the Manager Indemnitees by the Trader
Indemnitees (as defined below) for use therein through the Trader or its
officers, employees or other persons designated by the
Trader. Notwithstanding the foregoing, the Trader shall not indemnify the
Manager Indemnitees pursuant to (ii) above for any breach by the Trader of
any representation or warranty that it will comply with the policies and
procedures of the Manager, Trust and the Fund with respect to the Allocated
Portion in so far as such policies and procedures relate to trade errors
unless otherwise separately expressly agreed to by the Trader in writing. For
the avoidance of doubt, the foregoing sentence shall not limit any other
remedies that the Manager, the Trust or the Fund may have at law or equity
for such breach.
(b) Except as may otherwise be provided by the 1940 Act, any other
federal securities law or the CEA, the Manager Indemnitees and the Trust
shall not be liable for any Losses incurred or suffered by the Trader as a
result of any act or omission of the Manager with
- 11 -
respect to the Fund, except that nothing in this Agreement shall operate or
purport to operate in any way to exculpate, waive or limit the liability of
the Manager (or the Manager Indemnitees) for, and the Manager shall indemnify
and hold harmless the Trader, all affiliated persons thereof (within the
meaning of Section 2(a)(3) of the 1940 Act, other than persons or other
entities who are affiliates solely by reason of ownership of shares of the
Fund) and all controlling persons (as described in Section 15 of the 1933
Act) (collectively, "Trader Indemnitees") against, any and all Losses to
which any of the Trader Indemnitees may become subject under the CEA, the
1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at
common law or otherwise arising out of or based on (i) any willful
misconduct, bad faith, reckless disregard or gross negligence of the Manager
in the performance of any of its duties or obligations hereunder, (ii) any
Losses accruing to the extent, if any, caused by or based upon the Manager's
misrepresentations, omissions or breach of any representation or warranty in
this Agreement or (iii) any untrue statement of a material fact contained in
the Prospectus and/or SAI, proxy materials, reports, advertisements, sales
literature, or other materials pertaining to the Fund or the omission to
state therein a material fact known to the Manager that was required to be
stated therein or necessary to make the statements therein not misleading,
unless such statement or omission was made in reliance upon information
furnished to the Manager Indemnitees by the Trader Indemnitees.
(c) Promptly after receipt of notice of any action, arbitration,
claim, demand, dispute, investigation, lawsuit or other proceeding (each a
"Proceeding") by a party seeking to be indemnified under Section 14(a) or
14(b) (the "Indemnified Party"), the Indemnified Party will, if a claim in
respect thereof is to be made against a party against whom indemnification is
sought under Section 14(a) or 14(b) (the "Indemnifying Party") notify the
Indemnifying Party in writing of the commencement of such Proceeding;
provided that, the failure to so notify the Indemnifying Party in the absence
of a showing of actual prejudice shall not relieve the Indemnifying Party
from any indemnification liability which it may have to the Indemnified
Party. The Indemnifying Party shall have the right to assume control of the
defense of the Proceeding by giving written notice to the Indemnified Party
within 10 days of receiving notice of the Proceeding (or such shorter period
as is required to respond to the Proceeding), and the Indemnified Party shall
cooperate fully in the defense of the Proceeding. No Indemnifying Party shall
be liable under this section for any settlement of any Proceeding entered
into without its consent with respect to which indemnity may be sought
hereunder, nor shall any Indemnifying Party enter into any settlement (other
than a purely monetary "no admission" settlement) without the consent of the
Indemnified Party.
15. Other Business. Nothing in this Agreement shall limit or restrict the
right of any member, partner (whether limited or general), manager, director,
officer, employee or Delegatee of the Trader to engage in any other business
or to devote his time and attention in part to the management or other
aspects of any other business, whether of a similar nature or a dissimilar
nature, nor to limit or restrict the right of the Trader (or Delegatee) to
engage in any other business or to render services of any kind, including
investment advisory and management services, to any other fund, firm,
individual or association. The Trader may give advice or take action with
respect to other investment entities that it manages that differs from the
advice given with respect to the Allocated Portion.
- 12 -
16. Certain Definitions. For the purposes of this Agreement, the Fund's
"net assets" shall be determined as provided in the Fund's then-current
Prospectus and SAI and the terms "assignment," "interested person," and
"majority of the outstanding voting securities" shall have the meanings given
to them by Section 2(a) of the 1940 Act, subject to such exemptions,
modifications and interpretations as may be granted by the SEC by any rule,
regulation or order.
17. Term. This Agreement will become effective with respect to the Fund
on the date set forth opposite the Fund's name on Schedule A annexed hereto,
provided that it shall have been approved by the Trust's Board and, if so
required by the 1940 Act, by the shareholders of the Fund in accordance with
the requirements of the 1940 Act and, unless sooner terminated as provided
herein, will continue in effect through the second anniversary of the date of
effectiveness. Thereafter, if not terminated, this Agreement shall continue
in effect with respect to the Fund, so long as such continuance is
specifically approved at least annually (i) by the Board or (ii) by a vote of
a majority of the outstanding voting securities of the Fund, provided that in
either event the continuance is also approved by a majority of the Board
members who are not interested persons of any party to this Agreement, by
vote cast in person at a meeting called for the purpose of voting on such
approval.
18. Termination. This Agreement may be terminated at any time, without
the payment of any penalty, by (i) the Board of Trustees, including a
majority of the Independent Trustees, by the vote of a majority of the
outstanding voting securities of the Fund, on sixty (60) days' prior written
notice to the Manager and the Trader, (ii) the Manager on sixty (60) days'
prior written notice to the Trader, or (iii) the Trader on ninety (90) days'
prior written notice to the Manager and the Trust. This Agreement will
automatically terminate, without the payment of any penalty, (i) in the event
of its assignment, (ii) in the event the Management Agreement between the
Manager and the Trust is assigned or terminates for any other reason, or
(iii) if the Trader ceases to be authorized and regulated by the UK Financial
Conduct Authority (or any successor body thereto) and is otherwise legally
ineligible to serve as Trader, provided that the Trader has taken all
necessary steps to inform the Manager at the earliest possible date and
Trader has used best efforts to make provisions for transition services as
legally permitted. This Agreement will also terminate upon written notice to
the other party that the other party is in material breach of this Agreement,
unless the other party in material breach of this Agreement cures such breach
to the reasonable satisfaction of the party alleging the breach within thirty
(30) days after written notice. Upon termination in accordance with this
clause 18, the rights and obligations of the parties under this Agreement
shall terminate and be of no future effect, except that paragraphs 13 and 14
and obligations that have accrued and are outstanding as of the termination
shall remain in full force and effect.
19. Statutory Trust Matters. The Trader agrees that for any claim by it
against the Fund in connection with this Agreement or the services rendered
under this Agreement, it shall look only to assets of the Fund for
satisfaction and that it shall have no claim against the assets of any other
series of the Trust.
20. Amendment. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought, and no material amendment of the Agreement shall be
effective until approved, if so required by the 1940 Act, by vote of the
holders of a majority of the Fund's outstanding voting securities.
- 13 -
21. Miscellaneous. This Agreement, and any supplemental terms contained
on Annex I hereto, if applicable, embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings relating to the subject matter hereof. Should any part of
this Agreement be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected thereby.
This Agreement shall be binding on and shall inure to the benefit of the
parties hereto and their respective successors. Paragraph headings herein are
for convenience only and are not a part of this Agreement. This Agreement may
be executed simultaneously in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
22. Choice of Law. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State of New
York.
23. Third Party Beneficiary. The Trust on behalf of the Fund is expressly
made a third party beneficiary of this Agreement with respect to the
obligations of the Trader provided in this Agreement to the same extent as if
the Trust had been a party hereto.
24. Notices. Notices and other communications required or permitted under
this Agreement shall be in writing, shall be deemed to be effectively
delivered when actually received, and may be delivered by US mail (first
class, postage prepaid), by facsimile transmission, electronic mail, by hand
or by commercial overnight delivery service, addressed as follows:
MANAGER:
Xxxxxxxxxxx Xxxxxxxxxxx
SVP, Deputy Chief Investment Officer
Permal Group
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Xxx
SVP, Deputy General Counsel
Permal Group
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
- 14 -
TRADER:
Xxxxxx Xxxxxx
Head of Operations
XX-XX Systematic Trading LLP
3rd Floor, 00 Xxxxxxxxx Xxxxxx
Xxxxxx, X0X 0XX
Xxxxxx Xxxxxxx
Tel: 0000 000 0000
With a copy to:
Legal and Compliance
at the same address as above
TRUST:
Xxxxxx X. Xxxxxxx
c/x Xxxx Xxxxx & Co., LLC
000 Xxxxx Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
[signature page to follow]
- 15 -
PURSUANT TO AN EXEMPTION FROM THE COMMODITY FUTURES TRADING COMMISSION IN
CONNECTION WITH ACCOUNTS OF QUALIFIED ELIGIBLE PERSONS, THIS BROCHURE OR
ACCOUNT DOCUMENT IS NOT REQUIRED TO BE, AND HAS NOT BEEN, FILED WITH THE
COMMISSION. THE COMMODITY FUTURES TRADING COMMISSION DOES NOT PASS UPON THE
MERITS OF PARTICIPATING IN A TRADING PROGRAM OR UPON THE ADEQUACY OR ACCURACY
OF COMMODITY TRADING ADVISOR DISCLOSURE. CONSEQUENTLY, THE COMMODITY FUTURES
TRADING COMMISSION HAS NOT REVIEWED OR APPROVED THIS TRADING PROGRAM OR THIS
BROCHURE OR ACCOUNT DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers thereunto duly authorized.
ENTRUSTPERMAL MANAGEMENT LLC
By:
Name:
Title:
For and on behalf of XX-XX
SYSTEMATIC TRADING LLP
By:
Name:
Title:
The foregoing is acknowledged:
The undersigned officer of the Trust has executed this Agreement not
individually but in his/her capacity as an officer of the Trust. The Trust
does not hereby undertake, on behalf of the Fund or otherwise, any obligation
to the Trader.
XXXX XXXXX PARTNERS EQUITY
TRUST
By:
Name:
Title:
- 16 -
