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FORM OF
MANAGEMENT CONTRACT
THIS MANAGEMENT CONTRACT ("Agreement"), is made and entered into
effective as of ___________, 199__, by and between Xxxxxxx General Partnership
Account __, an Illinois general partnership (the "Partnership"), and __________
(the "Trading Advisor").
WITNESSETH:
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WHEREAS, the Partnership is one of a series of general partnerships
(the "Account Partnership") whose terms are identical other than in respect of
their trading being managed by different "commodity trading advisors" ("CTAs"),
and which have been formed in order to permit various commodity pools (the
"General Partners"), of each of which Xxxxxxx Asset Management, Inc. ("HAMI")
is the sole general partner, to commingle their assets for management by
various different CTAs. Each Account Partnership is to be managed by a single
CTA implementing a single trading program, and all General Partners capital
accounts in the Partnership will trade on a fully-funded (actual committed
funds) equally leveraged basis.
WHEREAS, the objective of the Partnership is to seek capital
appreciation by trading speculatively in futures contracts, commodities and
commodity options and forward contracts, and any other items which are
currently, or may later become, the subject of futures, forward or options
trading, and other related investments (sometimes hereinafter referred to as
"Contracts") on United States and non-United States exchanges and markets, under
the direction of a single CTA, initially the Trading Advisor, implementing a
single trading program; and
WHEREAS, the Partnership and the Trading Advisor each desire the
Trading Advisor to make all trading decisions for the Partnership pursuant to
the Trading Advisor's ___________ trading program (the "Trading Approach") on
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and
agreements set forth herein, the parties hereto do agree as follows:
1. Duties of the Trading Advisor.
(a) The Partnership hereby appoints the Trading Advisor, and the
Trading Advisor hereby accepts appointment, as the sole CTA of the Partnership
utilizing the Trading Approach.
(b) Upon the Trading Advisor's commencing trading operations for the
Partnership and for the period and on the terms and conditions set forth in
this Agreement, the Trading Advisor shall have sole authority and
responsibility, as the Partnership's agent and attorney-in-fact, for trading
the Partnership assets in Contracts and in accordance with the Trading Approach
as described in the disclosure notice dated April 1996 relating to the
appointment of the Trading Advisor as a commodity trading advisor of the
Partnership (the #Disclosure Notice#), subject to the trading policies of the
Partnership furnished to the Trading
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Advisor in writing ("Trading Policies"). For purposes of this Agreement, the
term "Contracts" shall not include securities and options thereon, which the
Partnership is prohibited from trading.
(c) The Trading Advisor agrees to describe to any General Partner,
upon request, the Trading Advisor's practices with respect to the leverage used
by the Trading Advisor in managing the Partnership's account relative to other
accounts managed by the Trading Advisor using the Trading Approach so as to
enable such General Partner to determine whether the "trading level" at which
the Trading Advisor is currently managing the Partnership's account is the
level currently designated by the General Partners.
(d) The General Partners and the Partnership acknowledge receipt of
the Trading Advisor's Disclosure Document dated ________________, 1996 (the
"Disclosure Document"). The Trading Advisor shall promptly furnish the
Partnership with a copy of each amended, supplemented or updated Disclosure
Document of the Trading Advisor filed with the Commodity Futures Trading
Commission (the "CFTC") and the National Futures Association ("NFA") upon
acceptance thereof by the CFTC. Prior to the commencement of trading on behalf
of the Partnership, the Partnership shall deliver to the Trading Advisor, and
renew when necessary, a Commodity Trading Authorization, in the form attached
hereto as Exhibit 1 and executed by each of the General Partners, appointing
the Trading Advisor as the Partnership's agent and attorney-in-fact for such
purpose. All trades for the account of the Partnership shall be made through
such banks, brokers and dealers as the General Partners shall direct by
unanimous consent, and the Trading Advisor shall have no authority or
responsibility for selecting any such banks, brokers or dealers in connection
with the execution of transactions for the Partnership or for the negotiation
of commission rates charged therefor; provided, however, that the Partnership
shall notify the Trading Advisor of any applicable changes in the commission
rates charged by the Partnership's banks, brokers and dealers with respect to
transactions entered into with respect to the Partnership.
(e) In the event the Trading Advisor and its principals (as that
term is defined in Regulation 4.10(e) promulgated by the CFTC under the
Commodity Exchange Act, as amended (the "Act")), shareholders, partners,
employees and affiliates or any person who controls the foregoing
(collectively, "Principals and Affiliates"), wish to use trading programs,
systems or strategies other than the Trading Approach in connection with its
trading for the Partnership, it may not do so unless the Trading Advisor gives
the Partnership 15 days' prior written notice of its intention to utilize such
different trading programs, systems or strategies and the Partnership consents
thereto, by unanimous consent of the General Partners in writing. Non-material
changes in the Trading Approach may be instituted without prior written
approval.
(f) The Trading Advisor agrees to make all material disclosures to
the Partnership regarding itself and its Principals and Affiliates, their
trading performance and general trading methods, their accounts (but not the
identities of customers) and otherwise as are required in the reasonable
judgment of any General Partner or the Partnership to be made in any filings
required by any governmental body or by any applicable law, regulation, rule or
order. Nothing contained in this Agreement shall be construed or deemed to
require the Trading Advisor to disclose the confidential or proprietary details
of its trading strategies.
(g) The General Partners shall have the right to make additions to,
or withdrawals from, their capital accounts in the Partnership (including any
"notional" funds comprising part of the Partnership Assets) at any time. Each
General Partner shall, however, use
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its best efforts to make such additions or withdrawals at month-end. Each
General Partner agrees that the Trading Advisor may refuse any additional
allocation of funds for any reason. The Partnership, acting by direction of
the unanimous instructions of the General Partners, in its sole discretion, may
at any time remove some or all of its assets from the management of the Trading
Advisor and may require the Trading Advisor to liquidate existing positions.
(h) Upon receipt of instructions from the Partnership, the Trading
Advisor shall immediately cease its trading activities with respect to the
Partnership Assets, close out all existing positions in an orderly manner and
not initiate any new positions unless otherwise instructed by the Partnership.
(i) The Trading Advisor shall review on a daily basis the positions
held by the Partnership Assets and shall immediately notify the Partnership of
any errors committed by the Trading Advisor or of any trade not executed in
accordance with the Trading Advisor's instructions.
2. Other Accounts and Activities of the Trading Advisor.
(a) The services provided by the Trading Advisor hereunder are not
to be deemed exclusive. Subject to the terms of this Agreement, the Trading
Advisor and its Principals and Affiliates shall be free to trade for their own
accounts and to advise other persons and manage other accounts during the term
of this Agreement and to use the same or different degrees of leverage,
information, computer programs and trading strategies or formulas which they
obtain, produce or utilize in the performance of services for the Partnership.
However, the Trading Advisor represents, warrants and agrees that the rendering
of such consulting, advisory and management services to others will not require
any material change in the Trading Approach and will not materially adversely
affect the capacity of the Trading Advisor to continue to render services to
the Partnership of the quality and nature contemplated by this Agreement.
(b) If, at any time during the term of this Agreement, the Trading
Advisor is required to aggregate the Partnership's Contract positions with the
positions of any other person or entity for purposes of applying CFTC- or
exchange-imposed position limits, the Trading Advisor agrees that it will
promptly notify the Partnership if the Partnership's positions are included in
an aggregate amount which equals or exceeds ninety percent (90%) of the
applicable limit. The Trading Advisor agrees that, if its trading
recommendations are altered because of the application of any position limit,
it will not modify the trading instructions with respect to the Partnership's
account in such manner as to affect the Partnership substantially
disproportionately as compared with the Trading Advisor's other accounts. The
Trading Advisor presently believes and represents that existing speculative
position limits will not materially adversely affect its ability to manage the
Partnership's account given the potential size of the Partnership's account and
the Trading Advisor's and its Principals' and Affiliates' current accounts and
all proposed accounts for which they have contracted to act as trading advisor.
The Trading Advisor further represents, warrants and agrees that under no
circumstances will it knowingly or deliberately use trading strategies or
systems for the Partnership that are inferior to trading strategies or systems
employed for any other client or account and that it will not knowingly or
deliberately favor any client or account managed by it over any other client or
account, it being acknowledged, however, that different trading strategies,
methods or degrees of leverage may be utilized for differing sizes of accounts,
accounts with different trading policies, accounts experiencing differing
inflows or outflows of equity, accounts which commence trading at different
times, accounts which have
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different portfolios or different fiscal years and accounts with other
differences, and that such differences may cause divergent trading results.
(c) The Partnership and the General Partners each acknowledge and
agree that the Trading Advisor and/or its Principals and Affiliates presently
act and that they may continue to act as advisors for other accounts managed by
them and may continue to receive compensation with respect to services for such
accounts in amounts which may be more or less than the amounts received from
the Partnership. The Trading Advisor agrees that in the management of such
other accounts by it and its Principals and Affiliates, it will act in good
faith to seek to achieve an equitable treatment of all accounts under
management including the Partnership's account with respect to, among other
things, priorities of order entry and position limits.
(d) The Trading Advisor agrees that it shall make such information
available to any General Partner concerning the performance of the Partnership
as compared to the performance of all other accounts managed by the Trading
Advisor and its Principals and Affiliates as shall be reasonably requested by
such General Partner; provided that the Trading Advisor shall not be required
to disclose the identity of its clients.
3. Trading Assets. The Partnership's initial trading account shall
be a total of approximately $_______ of which $______ shall be "committed" (not
"notional") funding. Notional funding of the Partnership's account is
prohibited.
4. Fees. The Partnership will pay no fees to the Advisor; rather
each General Partner shall pay such fees to the Advisor as have been negotiated
between such General Partner and the Advisor.
5. Trading Advisor Independent. The Trading Advisor shall for all
purposes herein be deemed to be an independent contractor to the Partnership
and the General Partners and shall, except as otherwise expressly provided
herein, have no authority to act for or represent the Partnership or any
General Partner in any way or otherwise be deemed a sponsor of the Partnership
or an agent, joint venturer or partner of the Partnership, or any General
Partner.
6. Broker.
(a) The Trading Advisor agrees to enter all Contract orders through
E.D. & F. Man International Inc. ("Man"). The Partnership must consent in
writing to the use of other floor brokers who will give up such trades to Man
in accordance with exchange rules and the give-up procedures established by the
Partnership from time to time. The Trading Advisor shall be responsible for
any errors committed by any executing broker who gives-up to Man on behalf of
the Partnership. In placing trades for the Partnership's account, the Trading
Advisor agrees that it shall use its standard procedures for allocating orders
among the Trading Advisor's various accounts and not knowingly favor any other
such account over the Partnership's account.
(b) All forward contract and other trades for the Partnership will
be executed through the forward trading and other facilities of such affiliates
of Man or other entities as the Partnership may designate from time to time.
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(c) The Partnership will pay no brokerage commissions or fees. All
such charges will be paid by the respective General Partners pursuant to their
individual negotiations with Man.
7. Standard of Liability; Indemnifications.
(a) Standard of Liability. Neither the Trading Advisor nor any of
its Principals and Affiliates shall be liable to the Partnership, any General
Partner or any of their respective successors or assigns under this Agreement
except by reason of (i) acts or omissions to act which constitute bad faith,
negligence or misconduct or (ii) a breach of any of the representations,
warranties, covenants or agreements of the Trading Advisor set forth in this
Agreement.
(b) Indemnity. (i) The Partnership agrees to indemnify and hold
harmless the Trading Advisor and each of its Principals and Affiliates from and
against any and all losses, claims, damages, liabilities, costs and expenses
(including, without limitation, attorneys' and accountants' fees and
disbursements), judgments and amounts paid in settlement (collectively,
"Losses") to which an indemnified person may become subject arising out of this
Agreement, the transactions contemplated hereby or the fact that the Trading
Advisor is or was a trading advisor to the Partnership, unless any such Losses
arise out of, relate to, or are based upon the Trading Advisor's failure to
meet the standard of liability applicable to it under Section 7(a). The
Partnership, the General Partner and the Trading Advisor agree that any
indemnity payments due hereunder shall be deducted pro rata from the capital
account of the respective General Partners in proportion to the balance in each
such capital account.
(ii) The Trading Advisor agrees to indemnify and hold harmless the
Partnership, each General Partner and each of such General Partner's Principals
and Affiliates from and against any and all Losses to which they may become
subject, if any such Losses arise out of, relate to, or are based upon the
Trading Advisor's failure to meet the standard of liability applicable to it
under Section 7(a).
(c) Promptly after receipt by a party to be indemnified under
Section 7(b), above, of any notice of the commencement of any action or
proceeding, such indemnified party shall, if a claim in respect thereof is to
be made against the indemnified party under such subsection, notify the
indemnifying party in writing of the commencement thereof, but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such subsection. The
requirement that an indemnifying party be given written notice of the
commencement of any action shall be deemed to be satisfied if such indemnifying
party shall have actual knowledge thereof or shall have been given written
notice of the commencement of any action or proceeding within a reasonable time
after the commencement thereof. If any such action shall be brought against
any indemnified party and the indemnified party notifies the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, to assume the defense
thereof with counsel satisfactory to such indemnified party, and shall have the
right to negotiate and consent to a settlement thereof, provided that the
indemnified party shall have consented to the settlement. After notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable
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costs of investigation; provided, however, that the indemnified party shall
have the right to employ counsel to represent it, if, in the indemnified
party's reasonable judgment, it is advisable for such party to be represented
by separate counsel, in which event the fees and expenses of such separate
counsel shall be borne by the indemnified party. No indemnifying party shall
be liable for any settlement of any such action effected without its consent,
but if any such action or proceeding is settled with the consent of any
indemnifying party or if there be a final judgment for the plaintiff in any
such action or proceeding (of which an indemnifying party shall have been
notified), such indemnifying party shall indemnify and hold harmless each
indemnified party from and against any Losses incurred or suffered by reason of
such settlement or judgment.
(d) Any indemnification required by this Section 7, unless ordered
or expressly permitted by a court, shall be made by the indemnifying party only
upon a determination by independent legal counsel in a written opinion that the
conduct which is the subject of the claim, demand, lawsuit, action or
proceeding with respect to which indemnification is sought meets the applicable
standard set forth in this Section 7.
(e) The provisions of this Section 7 shall survive the termination
or other expiration of this Agreement.
8. The Trading Advisor's Representations and Warranties. The
Trading Advisor represents and warrants to the Partnership and each General
Partner as follows:
(a) The Trading Advisor is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization and has
full power and authority to enter into and perform its obligations under this
Agreement and to conduct its business as described in this Agreement and the
Disclosure Notice, and the Trading Advisor is qualified to conduct its business
and is in good standing in every jurisdiction in which the nature or conduct of
its business requires such qualification and failure to so qualify would 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.
(b) 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.
(c) The execution and delivery of this Agreement and the performance
of the obligations and the consummation of the transactions contemplated in
this Agreement and in the Disclosure Notice will not conflict with, violate,
breach or constitute a default under, any term or provision of the Trading
Advisor's certificate of incorporation, by-laws, or other charter documents, or
any indenture, mortgage, deed of trust, loan agreement, or other agreement or
instrument to which the Trading Advisor or any of its Principals and Affiliates
is a party or by which any of them are bound, or to which any of the property
(including, but not limited to, its Trading Approach) or assets of the Trading
Advisor or its Principals and Affiliates are subject, or any order, rule, law,
statute, regulation, or other legal requirement applicable to the Trading
Advisor or any of its Principals or to the property or assets of the Trading
Advisor or its Principals and Affiliates of any court or any governmental or
administrative body or agency or panel or any regulatory or self-regulatory
organization or exchange having jurisdiction over the Trading Advisor or any of
its Principals and Affiliates.
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(d) The Trading Advisor is registered as a commodity trading advisor
under the Act, its Principals are identified on the Trading Advisor's most
recent CFTC Form 7-R filed with the NFA pursuant to the Act, and it is a member
of the NFA in such capacity and such registration and membership has not
expired or been revoked, lapsed, suspended, terminated, or not renewed or
limited or qualified in any respect.
(e) The Trading Advisor is not bankrupt or insolvent.
(f) The Disclosure Document is complete and accurate in all material
respects, does not contain any misstatement of any material fact, does not omit
to state any material fact necessary to be stated therein in order to make the
statements made therein, in light of the circumstances under which they are
made, not misleading, and complies in all material respects with the applicable
requirements of the Act and the rules promulgated thereunder and may be relied
upon by the Partnership and the General Partner in preparing the Disclosure
Notice and allocating assets of the Partnership to the Trading Advisor and
there has not been, since the date of the Disclosure Document's issuance, any
material adverse change in the condition, financial or otherwise, business or
prospects of the Trading Advisor or any of its Principals and Affiliates,
whether or not arising in the ordinary course of business, or relating to the
historical performance and operations of the Trading Advisor.
(g) The Trading Advisor and each Principal has complied and will
continue to comply with all orders, rules, laws, statutes, regulations or other
legal requirements applicable to the Trading Advisor or any of its Principals
and Affiliates or to their respective businesses, properties, or assets,
including the Act and the rules promulgated by the CFTC and the NFA, the
violation of which would materially and adversely affect its or their ability
to comply with, and perform its or their obligations under this Agreement, and
there are no actions, suits, proceedings, or notices of investigations or
investigations pending or threatened against the Trading Advisor, or any of its
Principals or Affiliates, by the NFA, the CFTC or any governmental, regulatory
or self-regulatory agency regarding noncompliance by the Trading Advisor or any
of its Principals or Affiliates with any law, statute, rule or regulation, or
at law or in equity or before or by any court, any federal, state, municipal or
other governmental department commission, board, bureau, agency, or
instrumentality, or by any regulatory or self-regulatory organization, or
exchange, in which an adverse decision would materially and adversely affect
its or their ability to comply with or to perform its or their obligations
under this Agreement or that would be required to be disclosed in the
Disclosure Notice, which is not so disclosed, would result in a material
adverse change in the condition, financial or otherwise, business or prospects
of the Trading Advisor.
(h) The Trading Advisor and each Principal has all governmental,
regulatory, self-regulatory and exchange licenses and approvals and has
effected all filings and registrations with all governmental, regulatory and
self-regulatory agencies required to conduct their respective businesses and to
act as described in the Disclosure Notice and to perform its or their
respective obligations under this Agreement.
(i) With respect to information contained in the Disclosure Notice
relating to the Trading Advisor, including, without limitation, the tables and
notes thereto, the Disclosure Notice does not contain any untrue statement of
material fact or omit to state therein a material fact required to be stated
therein or necessary to be stated therein in order to prevent the
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statements made therein, in light of the circumstances under which they are
made, from being misleading.
(j) In the placement of orders and the allocation of executed trades
for the Partnership and for the accounts of any other client, the Trading
Advisor shall utilize a fair and reasonable order entry system and trade
allocation system, which shall be no less favorable to the Partnership than to
any other account managed by the Trading Advisor.
(k) The Trading Advisor shall promptly notify the other parties
hereto of the commencement of any suit, action or proceeding involving it or
its Principals and Affiliates, whether or not any such suit, action or
proceeding also involves any of the other parties hereto.
The foregoing representations and warranties shall be continuing
during the term of this Agreement and any renewal hereof and if at any time any
event shall occur which would make or tend to make any of the foregoing not
true or incomplete, the Trading Advisor shall promptly notify the Partnership
and the General Partner of the occurrence of such event.
9. The Partnership's Representations and Warranties. The
Partnership represents and warrants to the Trading Advisor as follows:
(a) The Partnership is a general partnership organized under the
laws of Illinois. The Partnership has full Partnership power and authority to
perform its obligations under this Agreement and to conduct its business and to
act as described in the Disclosure Notice.
(b) This Agreement has been duly and validly authorized, executed
and delivered on behalf of the Partnership and is a valid and binding agreement
of it enforceable in accordance with its terms.
(c) The Partnership has complied and will continue to comply with
all orders, rules, laws, statutes, regulations or other legal requirements
applicable to it, to its business, properties, and assets, including the Act
and the rules promulgated by the CFTC and the NFA, the violation of which would
materially and adversely affect its ability to comply with, and perform its
obligations under this Agreement, and there are no actions, suits, proceedings,
or notices of investigations or investigations pending or threatened against
it, by the NFA, the CFTC or any governmental, regulatory or self-regulatory
agency regarding noncompliance by it with any law, statute, rule or regulation,
or at law or in equity or before or by any court, any federal, state, municipal
or other governmental department, commission, board, bureau, agency, or
instrumentality, or by any regulatory or self-regulatory organization, or
exchange, in which an adverse decision would materially and adversely affect
its ability to comply with or to perform its obligations under this Agreement
or would result in a material adverse change in the condition, financial or
otherwise, business or prospects of the Partnership.
(d) The Partnership has all federal and state governmental,
regulatory, self-regulatory and exchange licenses and approvals and has
effected all filings and registrations with all federal and state governmental
and regulatory and self-regulatory agencies required to conduct its business
and to perform its obligations under this Agreement. The Partnership is
compliance with the CFTC Letter attached hereto as Exhibit 2.
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(e) HAMI is registered as a commodity pool operator under the Act
and is a member of the NFA in such capacity and such registration and
membership has not expired or been revoked, lapsed, suspended, terminated, or
not renewed or limited or qualified in any respect.
(g) HAMI has all federal and state governmental, regulatory,
self-regulatory and exchange licenses and approvals and has effected all
filings and registrations with all federal and state governmental and
regulatory and self-regulatory agencies required to conduct its business and to
perform its obligations under this Agreement.
The foregoing representations and warranties shall be continuing
during the term of this Agreement and any renewal hereof and if at any time any
event shall occur which would make or tend to make any of the foregoing not
true or incomplete, the Partnership will promptly notify the Trading Advisor
thereof.
10. Term and Termination; Withdrawal.
(a) This Agreement is terminable at will by either the Partnership
or the Trading Advisor upon five (5) days' notice; provided that each agrees
that it will use best efforts to terminate this Agreement only as of the end of
a calendar month.
(b) Any General Partner may withdraw capital from the Partnership at
any time. The Partnership may withdraw capital at any time. Upon any such
withdrawal, the Partnership shall inform the Trading Advisor as to which
General Partner's capital account in the Partnership such withdrawal is
attributable.
11. Notices. Except as otherwise provided herein, all notices,
demands or requests required to be made or delivered under this Agreement shall
be effective only if in writing and delivered personally or by facsimile or
mail, postage prepaid (airmail if the addressee is in another country), to the
respective addresses below or to such other addresses as may be designated by
the party entitled to receive the same by notice similarly given 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.
If to the Partnership or the General Partner to:
Xxxxxxx Asset Management, Inc.
One Financial Place
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, President
Fax No.: 000-000-0000
If to the Trading Advisor to:
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12. Assignment. No party hereto may transfer, sell, encumber,
appoint agents or assign any of its rights or obligations hereunder in whole or
in part without the express written consent of each of the other parties
hereto.
13. Amendment; Modification. This Agreement may not be amended or
modified, nor any of the provisions hereof waived, except by the written
consent of all of the parties hereto.
14. Complete Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject hereof and
supersedes all prior agreements written or oral, and no other agreement, verbal
or otherwise, shall be binding as between the parties hereto unless in writing
and signed by the party against whom enforcement is sought.
15. Successors. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their successors and permitted assigns. No
other person other than the persons indemnified under Section 7 hereof for
matters relating to that Section shall have any right or obligation under this
Agreement.
16. Headings. Headings to sections herein are for the convenience
of the parties only, and are not intended to be a part of or to affect the
meanings or interpretation of this Agreement.
17. Governing Law: Consent to Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Illinois without giving effect to principles of conflicts of laws.
18. Arbitration. The parties agree that all controversies which
may arise in connection with any transaction contemplated by this Agreement or
the construction, performance or breach of this Agreement shall be determined
by arbitration, to be held in the City of Chicago, State of Illinois unless
otherwise agreed to by the parties hereto, and in accordance with the rules
then obtaining of the NFA, or if no such rules are then in effect or if
jurisdiction is declined, then the rules then obtaining of the American
Arbitration Association; provided, however, that (a) the arbitrator(s) shall be
knowledgeable in industry standards and practices and the matters giving rise
to the dispute, (b) the arbitrator(s) shall not have the power and authority to
award punitive damages, (c) the authority of the arbitrator(s) shall be limited
to construing and enforcing the terms and conditions of this Agreement as
expressly set forth herein, and (d) the arbitrator(s) shall state the reasons
for their award and their legal and factual conclusions underlying the award in
a written opinion. The award of the arbitrator(s), or a majority of them,
shall be final, and judgment upon the award may be confirmed and entered in any
court, state or federal, having jurisdiction.
19. Consent to Jurisdiction. Each party hereto expressly and
irrevocably agrees (a) that it waives any objection, and specifically consents,
to venue in the United States federal or state courts located in the City of
Chicago, State of Illinois, United States of America, so that any action at law
or in equity may be brought and maintained in any such court, and (b) that
service of process in any such action may be effected against such party by
certified or registered mail or in any other manner permitted by applicable
United States Federal Rules of
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Civil Procedure or Rules of the Courts of the State of Illinois. In addition,
each party hereto expressly and irrevocably waives, in respect of any action
brought in any United States federal or state court located in the City of
Chicago, State of Illinois or any resulting judgment, any objection, and hereby
specifically consents, to the jurisdiction of any such court, and agrees not to
seek to change the situs of such action or to assert that any other court in
any other jurisdiction is a more suitable forum for the hearing and
adjudication of any claim or dispute raised in such action.
20. Survival. The indemnity provisions of this Agreement shall
survive the termination or expiration of this Agreement with respect to any
matter existing prior to such termination; the payment obligations under this
Agreement shall continue until satisfied; and the other provisions of the
Agreement shall survive the termination of this Agreement with respect to any
matter arising while this Agreement was in effect.
21. Waiver of Breach. The waiver by a party of a breach of any
provisions of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by a party. The failure of a party to insist upon strict
adherence to any provision of this Agreement shall not constitute a waiver or
thereafter deprive such party of the right to insist upon a strict adherence.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been executed as of the day
and year first above written.
Xxxxxxx General Partnership Account __
By: The General Partners named on
the attached Schedule
By: Xxxxxxx Asset Management, Inc.,
General Partner
By: ___________________________
Xxxxxx X. Xxxxx
President
Trading Advisor
By: ____________________________
Name:
Title:
12
13
Schedule
of
General Partners
The Future Fund
The Future Fund II
The Futures Advantage Fund
The Futures Dimension Fund
The Horizon Futures Fund
The Horizon World Futures Fund
The Jefferson Futures Fund
Landmark Fund I, A Limited Partnership
Landmark Fund II, A Limited Partnership
New Century Currency & Financial Fund L.P.
Patriot Futures Fund I
Patriot Futures Fund II
Renaissance Futures Fund
The Resource Fund
Sycamore Futures Fund
13
14
EXHIBIT 1
______________, 1996
-------------------------
-------------------------
-------------------------
-------------------------
Re: Commodity Trading Authorization
Gentlemen:
Xxxxxxx General Partnership Account I, an Illinois general
partnership (the "Partnership"), does hereby make, constitute, and appoint you
as its Attorney-in-Fact to purchase and sell futures contracts, commodities and
commodity options and forward contracts, and any other items which are
currently, or may later become, the subject of futures, forward or options
trading, and other related investments on domestic and international exchanges,
through E.D. & F. Man International Inc., or such other brokers and forward
contract dealers as may be designated, from time to time, in writing by the
Partnership, as brokers, in accordance with the between us dated ________,
1996.
Very truly yours,
Xxxxxxx General Partnership Account __
By: The General Partners named on the
attached Schedule
By: Xxxxxxx Asset Management, Inc.,
General Partner
By: ______________________________
Xxxxxx X. Xxxxx
President
15
Schedule
of
General Partners
The Future Fund
The Future Fund II
The Futures Advantage Fund
The Futures Dimension Fund
The Horizon Futures Fund
The Horizon World Futures Fund
The Jefferson Futures Fund
Landmark Fund I, A Limited Partnership
Landmark Fund II, A Limited Partnership
New Century Currency & Financial Fund L.P.
Patriot Futures Fund I
Patriot Futures Fund II
Renaissance Futures Fund
The Resource Fund
Sycamore Futures Fund
16
ACKNOWLEDGMENT OF RECEIPT
OF DISCLOSURE DOCUMENT
The undersigned hereby acknowledges receipt of [Advisor]'s Disclosure
Document dated ____________, 1996.
Xxxxxxx General Partnership Account
By: _________________________________
The General Partners named
on the attached Schedule
By: _________________________________
Xxxxxxx Asset Management, Inc.
General Partner
By: _________________________________
Xxxxxx X. Xxxxx
President
