MANAGEMENT AGREEMENT
AGREEMENT made as of the 2nd day of January, 1996 among XXXXX XXXXXX
FUTURES MANAGEMENT INC., a Delaware corporation ("SBFM"), XXXXX XXXXXX
INTERNATIONAL ADVISORS CURRENCY FUND L.P., a New York limited partnership (the
"Partnership"), XXXXX XXXXXX INC., a Delaware corporation, and TRENDVIEW
MANAGEMENT INC., a corporation organized under the laws of California (the
"Advisor").
W I T N E S S E T H :
WHEREAS, SBFM is the general partner (the "General Partner") of XXXXX
XXXXXX INTERNATIONAL ADVISORS CURRENCY FUND L.P., a limited partnership
organized for the purpose of engaging in the speculative trading of commodity
interests, including futures contracts, options and forward contracts on foreign
currencies; and
WHEREAS, the Limited Partnership Agreement establishing the
Partnership (the "Limited Partnership Agreement") permits SBFM to delegate to
one or more commodity trading advisors SBFM's authority to make trading
decisions for the Partnership; and
WHEREAS, the Advisor is registered as a commodity trading advisor
with the Commodity Futures Trading Commission ("CFTC") and is a member of the
National Futures Association ("NFA"); and
WHEREAS, SBFM is registered as a commodity pool
operator with the CFTC and is a member of the NFA; and
WHEREAS, SBFM and the Advisor wish to enter into this Agreement in
order to set forth the terms and conditions upon which the Advisor will render
and implement advisory services in connection with the conduct by the
Partnership of its commodity trading activities during the term of this
Agreement;
NOW, THEREFORE, the parties agree as follows:
1. DUTIES OF THE ADVISOR. (a) Upon the commencement of trading
operations by the Advisor for the Partnership and for the period and on the
terms and conditions of this Agreement, the Advisor shall have sole authority
and responsibility, as the Partnership's agent and attorney-in-fact, for
directing the investment and reinvestment of the assets and funds of the
Partnership allocated to it by SBFM in commodity interests, including commodity
futures contracts, options, spot commodities and forward contracts on foreign
currencies. All such trading on behalf of the Partnership shall be in accordance
with the trading policies of the Partnership set forth in the prospectus and
disclosure document of the Partnership, as supplemented (the most recent of
which is hereinafter called the "Prospectus"), and as such trading policies may
be changed from time to time upon receipt by the Advisor of prior written notice
of such change and pursuant to the trading strategy selected by SBFM to be
utilized by the Advisor in managing the Partnership's assets. SBFM has initially
selected the Advisor's World Currency Portfolio to manage the Partnership's
assets allocated to it. Any open positions or other investments at the time of
receipt of such notice shall not be deemed to violate the changed policy and
shall be closed or sold in the ordinary course of trading. The Advisor may not
change the trading policies set forth in the Prospectus without the prior
written consent of the Partnership given by SBFM. The Advisor makes no
representation or warranty that the trading to be directed by it for the
Partnership will be profitable or will not incur losses.
(a)(b) SBFM acknowledges receipt of the Advisor's Disclosure Document
dated July 28, 1995 (the "Disclosure Document"). All trades for the account of
the Partnership made by the Advisor shall be made through such commodity broker
or brokers as SBFM shall direct, and the Advisor shall have no authority or
responsibility for selecting or supervising any such broker in connection with
the execution, clearance or confirmation of transactions for the Partnership or
for the negotiation of brokerage rates charged therefor. However, the Advisor,
with the prior written permission (by either original or fax copy) of SBFM, may
direct all trades in commodity futures and options to a futures commission
merchant or independent floor broker it chooses for execution with instructions
to give-up the trades to the broker designated by SBFM, provided that the
futures commission merchant or independent floor broker and any give-up or floor
brokerage fees are approved in advance by SBFM. All give-up or similar fees
relating to the foregoing shall be paid by the Partnership after all parties
have executed the relevant give-up agreements (by either original or fax copy).
(c) The Advisor will trade the Partnership's account pursuant to its
World Currency Portfolio (as described in the Disclosure Document). In the event
the Advisor wishes to use a trading system or methodology other than or in
addition to the system or methodology outlined in the Disclosure Document in
connection with its trading for the Partnership, either in whole or in part, it
may not do so unless the Advisor gives SBFM prior written notice of its
intention to utilize such different trading system or methodology and SBFM
consents thereto in writing. In addition, the Advisor will provide five days'
prior written notice to SBFM of any change in the trading system or methodology
to be utilized for the Partnership which the Advisor deems material. If the
Advisor deems such change in system or methodology or in markets traded to be
material, the changed system or methodology or markets traded will not be
utilized for the Partnership without the prior written consent of SBFM. Further,
the Advisor will provide the Partnership with a current list of all commodity
interests to be traded for the Partnership's account and will not trade any
additional commodity interests for such account without providing notice thereof
to SBFM and receiving SBFM's written approval. The Advisor also agrees to
provide SBFM, on a monthly basis, with a written report of the assets under the
Advisor's management together with all other matters deemed by the Advisor to be
material changes to its business not previously reported to SBFM.
(d) The Advisor agrees to make all material disclosures to the
Partnership regarding itself and its principals as defined in Part 4 of the
CFTC's regulations ("principals"), shareholders, directors, officers and
employees, their trading performance and general trading methods, its customer
accounts (but not the identities of or other identifying information with
respect to its customers) and otherwise as are required in the reasonable
judgment of SBFM to be made in any filings required by Federal or state law or
NFA rule or order. Notwithstanding Sections 1(d) and 4(d) of this Agreement, the
Advisor is not required to disclose the actual trading results of proprietary
accounts of the Advisor or its principals unless SBFM reasonably determines that
such disclosure is required in order to fulfill its fiduciary obligations to the
Partnership or the reporting, filing or other obligations imposed on it by
Federal or state law or NFA rule or order. The Partnership and SBFM acknowledge
that the trading advice to be provided by the Advisor is a property right
belonging to the Advisor and that they will keep all such advice confidential.
Further, SBFM agrees to treat as confidential any results of proprietary
accounts and/or proprietary information with respect to trading systems obtained
from the Advisor.
(e) The Advisor understands and agrees that SBFM may designate other
trading advisors for the Partnership and apportion or reapportion to such other
trading advisors the management of an amount of Net Assets (as defined in
Section 3(b) hereof) as it shall determine in its absolute discretion. The
designation of other trading advisors and the apportionment or reapportionment
of Net Assets to any such trading advisors pursuant to this Section 1 shall
neither terminate this Agreement nor modify in any regard the respective rights
and obligations of the parties hereunder.
(f) SBFM may, from time to time, in its absolute discretion, select
additional trading advisors and reapportion funds among the trading advisors for
the Partnership as it deems appropriate. SBFM shall use its best efforts to make
reapportionments, if any, as of the first day of a month. The Advisor agrees
that it may be called upon at any time promptly to liquidate positions in SBFM's
sole discretion so that SBFM may reallocate the Partnership's assets, meet
margin calls on the Partnership's account, fund redemptions, or for any other
reason, except that SBFM will not require the liquidation of specific positions
by the Advisor. SBFM will give prior notice to the Advisor of any reallocations
or liquidations, if possible. The Advisor may refuse to accept any additional
allocations to its management.
(g) The Advisor will not be liable for trading losses in the
Partnership's account including losses caused by errors committed by any
commodity broker/dealer selected by SBFM; provided, however, that the Advisor
will be liable to the Partnership with respect to losses incurred due to errors
committed or caused by it or any of its principals or employees in communicating
improper trading instructions or orders to any broker on behalf of the
Partnership and will also be liable to the Partnership with respect to losses
incurred due to errors committed or caused by any executing broker (other than
any SBFM affiliate) selected by the Advisor, (it also being understood that
SBFM, with the assistance of the Advisor, will first attempt to recover such
losses from the executing broker). The Advisor will not be responsible for
losses caused by circumstances outside the Advisor's control.
2. INDEPENDENCE OF THE ADVISOR. For all purposes herein, the Advisor
shall be deemed to be an independent contractor and, unless otherwise expressly
provided or authorized, shall have no authority to act for or represent the
Partnership in any way and shall not be deemed an agent, promoter or sponsor of
the Partnership, SBFM or any other trading advisor. The Advisor shall not be
responsible to the Partnership, the General Partner, any trading advisor or any
limited partners for any acts or omissions of any other trading advisor no
longer acting as an advisor to the Partnership.
3. COMPENSATION. (a) In consideration of and as compensation for all
of the services to be rendered by the Advisor to the Partnership under this
Agreement, the Partnership shall pay the Advisor an incentive fee payable
quarterly equal to 20% of the New Trading Profits (as such term is defined
below) earned by the Advisor for the Partnership. From the brokerage fee it
receives from the Partnership, SB will pay the Advisor a monthly fee for
professional management services equal to 1/6 of 1% of the Net Assets of the
Partnership allocated to the Advisor as of the end of each month (2% per year).
(a)(b) "Net Assets" shall have the meaning set forth in Paragraph
7(d)(1) of the Limited Partnership Agreement dated as of May 29, 1991 and
without regard to amendments thereto, provided that in determining the Net
Assets of the Partnership on any date, no adjustment shall be made to reflect
any distributions, redemptions or incentive fees payable as of the date of such
determination.
(c) "New Trading Profits" shall mean the excess, if any, of Net
Assets managed by the Advisor at the end of the fiscal period over Net Assets
managed by the Advisor at the end of the highest previous fiscal period or Net
Assets allocated to the Advisor at the date trading commences, whichever is
higher, and as further adjusted to eliminate the effect on Net Assets resulting
from new capital contributions, redemptions, reallocations or capital
distributions, if any, made during the fiscal period decreased by interest or
other income, not directly related to trading activity, earned on the
Partnership's assets during the fiscal period, whether the assets are held
separately or in margin account. Ongoing expenses will be attributed to the
Advisor based on the Advisor's proportionate share of Net Assets. Ongoing
expenses will not include expenses of litigation not involving the activities of
the Advisor on behalf of the Partnership. Ongoing expenses include offering and
organizational expenses of the Partnership. No incentive fee shall be paid until
the end of the first calendar quarter of trading, which fee shall be based on
New Trading Profits earned from the commencement of trading operations by the
Advisor for the Partnership through the end of the first calendar quarter.
Interest income earned, if any, will not be taken into account in computing New
Trading Profits earned by the Advisor. If Net Assets allocated to the Advisor
are reduced due to redemptions, distributions or reallocations (net of
additions), there will be a corresponding proportional reduction in the related
loss carryforward amount that must be recouped before the Advisor is eligible to
receive another incentive fee.
(d) Quarterly incentive fees and monthly management fees shall be
paid within twenty (20) business days following the end of the period for which
such fee is payable. In the event of the termination of this Agreement as of any
date which shall not be the end of a month or a fiscal quarter, the quarterly
incentive fee shall be computed as if the effective date of termination were the
last day of the then current quarter and the monthly management fee shall be
prorated to the effective date of termination. If, during any month, the
Partnership does not conduct business operations or the Advisor is unable to
provide the services contemplated herein for more than two successive business
days, the monthly management fee shall be prorated by the ratio which the number
of business days during which SBFM conducted the Partnership's business
operations or utilized the Advisor's services bears to the total number of
business days in the month; it being acknowledged that under the Advisor's
trading strategies, there may be periods when no open positions will be
maintained for the Partnership. No incentive fee shall be paid to the Advisor
until the end of the first full calendar quarter of the Advisor's trading for
the Partnership, which incentive fee shall be based on New Trading Profits (if
any) from the commencement of trading for the Partnership by the Advisor through
the end of the first full calendar quarter.
(e) Obligations incurred under this Paragraph 3 prior to termination
of this Agreement shall survive the termination of this Agreement.
4. RIGHT TO ENGAGE IN OTHER ACTIVITIES. (a) The services provided by
the Advisor hereunder are not to be deemed exclusive. SBFM on its own behalf and
on behalf of the Partnership acknowledges that, subject to the terms of this
Agreement, the Advisor and its principals, officers, directors, employees,
shareholder(s) and affiliates, may render advisory, consulting and management
and brokerage services to other clients and accounts (including other commodity
pools). The Advisor and its principals, officers, directors, employees,
shareholder(s) and affiliates shall be free to trade for their own accounts and
to advise other investors and manage other commodity accounts during the term of
this Agreement and to use the same or different information, computer programs
and trading strategies, programs or formulas which they obtain, produce or
utilize in the performance of services to SBFM for the Partnership. However, the
Advisor represents, warrants and agrees that it believes the rendering of such
consulting, advisory and management services to other accounts and entities will
not require any material change in the Advisor's basic trading strategies and
will not affect the capacity of the Advisor to continue to render services for
the Partnership of the quality and nature contemplated by this Agreement.
(a)(b) If, at any time during the term of this Agreement, the Advisor
is required to aggregate the Partnership's commodity positions with the
positions of any other person for purposes of applying CFTC- or exchange-imposed
speculative position limits, the Advisor agrees that it will promptly notify
SBFM if the Partnership's positions are included in an aggregate amount which
exceeds the applicable speculative position limit. The Advisor agrees that, if
its trading recommendations are altered because of the application of any
speculative position limits, it will not modify the trading instructions with
respect to the Partnership's account in such manner as to affect the Partnership
substantially disproportionately as compared with the Advisor's other accounts.
The Advisor further represents, warrants and agrees that under no circumstances
will it knowingly or deliberately use trading strategies or methods for the
Partnership that are inferior to strategies or methods employed for any other
client or account and that it will not knowingly or deliberately favor any
client or account managed by it over any other client or account in any manner,
it being acknowledged, however, that different trading strategies or methods may
be utilized for differing sizes of accounts, accounts with different trading
policies, accounts experiencing differing inflows or outflows of equity,
accounts which commence trading at different times, accounts which have
different portfolios or different fiscal years, accounts utilizing different
executing brokers, accounts subject to different fee structures and accounts
with other differences, and that such differences may cause divergent trading
results.
(c) It is acknowledged that the Advisor and/or its principals,
officers, employees, directors, shareholder(s) and affiliates presently act, and
it is agreed that they may continue to act, as advisor and broker for other
accounts managed by them, and may continue to receive compensation with respect
to services for such accounts in amounts which may be more or less than the
amounts received from the Partnership.
(d) The Advisor agrees that it shall make such information available
to SBFM, on a confidential basis, respecting the performance of the
Partnership's account as compared to the performance of other accounts managed
by the Advisor or its principals as shall be reasonably requested by SBFM in
writing. The Advisor presently believes and represents that existing speculative
position limits will not materially adversely affect its ability to manage the
Partnership's account given the potential size of the Partnership's account and
the Advisor's and its principals' current accounts and all proposed accounts for
which they have contracted to act as trading manager.
5. TERM. (a) This Agreement shall continue in effect until June 30,
1996. SBFM may, in its sole discretion, renew this Agreement for additional
one-year periods upon notice to the Advisor not less than 30 days prior to the
expiration of the previous period. At any time during the term of this
Agreement, SBFM may terminate this Agreement upon 30 days' notice to the Advisor
if (i) the Advisor fails to conform to the trading policies set forth in the
Prospectus or as they may be changed from time to time by the Partnership with
notice to the Advisor, (ii) the Net Asset Value per Unit shall decline as of the
close of business on any day to $[400] or less, (iii) limited partners owning
more than 50% of the outstanding Units shall vote to require SBFM to terminate
this Agreement, (iv) the Advisor fails to comply with the terms of this
Agreement, (v) SBFM, acting in good faith, upon due consideration by its Board
of Directors, reasonably determines that the performance of the Advisor has been
such that SBFM's fiduciary duties to the Partnership require SBFM to terminate
this Agreement, or (vi) SBFM reasonably believes that the application of
speculative position limits resulting from the aggregation of the Partnership's
commodity futures positions with those of accounts managed or advised by the
Advisor and its principals will materially adversely affect the performance of
the Partnership's investments. At any time during the term of this Agreement,
SBFM may elect to immediately terminate this Agreement if (i) the Advisor merges
or consolidates with another entity, sells a substantial portion of its assets,
or becomes bankrupt or insolvent, except as provided in Section 10 hereof, (ii)
Xxxxx X. Xxxxx dies, becomes incapacitated, leaves the employ of the Advisor,
ceases to control the Advisor or is otherwise not managing the trading programs
or systems of the Advisor, or (iii) the Advisor's registration as a commodity
trading advisor with the CFTC or its membership in the NFA or any other
regulatory authority is terminated or suspended.
(a)(b) The Advisor may terminate this Agreement by giving not less
than 30 days' notice to SBFM in the event that (i) the trading policies of the
Partnership as set forth in the Prospectus are changed in such manner that the
Advisor reasonably believes will adversely affect the performance of its trading
strategies, (ii) at any time after the expiration of one year following the end
of the month in which this Agreement takes effect, (iii) SBFM, the Partnership
or Xxxxx Xxxxxx Inc. fails to comply with the terms of this Agreement, (iv) SBFM
fails to consent to a change in trading system pursuant to Paragraph 1(c), or
(v) SBFM requires the Advisor to liquidate its positions other than in order
that SBFM may reallocate the Partnership's assets, meet margin calls on the
Partnership's account or fund redemptions and the Advisor believes that such
liquidation would adversely affect its performance. The Advisor may immediately
terminate this Agreement if SBFM's registration as a commodity pool operator or
its membership in the NFA is terminated or suspended.
(c) Except as otherwise provided in this Agreement, any termination
of this Agreement in accordance with this Paragraph 5 shall be without penalty
or liability to any party, except for any fees due to the Advisor pursuant to
Section 3 hereof.
6. INDEMNIFICATION. (a)(i) In any threatened, pending or completed
action, suit, or proceeding to which the Advisor was or is a party or is
threatened to be made a party arising out of or in connection with this
Agreement or the management of the Partnership's assets by the Advisor, SBFM
shall, subject to subparagraph (a)(iii) of this Paragraph 6, indemnify and hold
harmless the Advisor against any loss, liability, damage, cost, expense
(including, without limitation, attorneys' and accountants' fees), judgments and
amounts paid in settlement actually and reasonably incurred by it in connection
with such action, suit, or proceeding if the Advisor acted in good faith and in
a manner reasonably believed to be in or not opposed to the best interests of
the Partnership, and provided that its conduct did not constitute negligence,
intentional misconduct, or a breach of its fiduciary obligations to the
Partnership as a commodity trading advisor, unless and only to the extent that
the court or administrative forum in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all circumstances of the case, the Advisor is fairly and reasonably
entitled to indemnity for such expenses which such court or administrative forum
shall deem proper; and further provided that no indemnification shall be
available from the Partnership if such indemnification is prohibited by Section
16 of the Limited Partnership Agreement. The termination of any action, suit or
proceeding by judgment, order or settlement shall not, of itself, create a
presumption that the Advisor did not act in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Partnership.
(ii) Without limiting the provisions of sub-paragraph (i) above, to
the extent that the Advisor has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subparagraph (i) above,
or in defense of any claim, issue or matter therein, SBFM shall indemnify it
against the expenses (including, without limitation, attorneys' and accountants'
fees) actually and reasonably incurred by it in connection therewith.
(iii) Any indemnification under subparagraph (i) above, unless
ordered by a court or administrative forum, shall be made by SBFM only as
authorized in the specific case and only upon a determination by independent
legal counsel in a written opinion that such indemnification is proper in the
circumstances because the Advisor has met the applicable standard of conduct set
forth in subparagraph (i) above. Such independent legal counsel shall be
selected by SBFM in a timely manner, subject to the Advisor's approval, which
approval shall not be unreasonably withheld. The Advisor will be deemed to have
approved SBFM's selection unless the Advisor notifies SBFM in writing, received
by SBFM within five days of SBFM's telecopying to the Advisor of the notice of
SBFM's selection, that the Advisor does not approve the selection.
(iv) In the event the Advisor is made a party to any claim, dispute
or litigation or otherwise incurs any loss or expense as a result of, or in
connection with, the Partnership's or SBFM's activities or claimed activities
unrelated to the Advisor, SBFM shall indemnify, defend and hold harmless the
Advisor against any loss, liability, damage, cost or expense (including, without
limitation, attorneys' and accountants' fees) incurred in connection therewith.
(v) As used in this Paragraph 6(a), the terms "Advisor" shall include
the Advisor, its principals, officers, directors, stockholders, employees and
affiliates and the term "SBFM" shall include the Partnership jointly and
severally.
(a)(i) The Advisor agrees to indemnify, defend and hold harmless
SBFM, the Partnership and their affiliates against any loss, liability, damage,
cost or expense (including, without limitation, attorneys' and accountants'
fees), judgments and amounts paid in settlement actually and reasonably incurred
by them (A) as a result of the material breach of any material representations
and warranties made by the Advisor in this Agreement, or (B) as a result of any
act or omission of the Advisor relating to the Partnership if there has been a
final judicial or regulatory determination or, in the event of a settlement of
any action or proceeding with the prior written consent of the Advisor, a
written opinion of an arbitrator pursuant to Paragraph 14 hereof, to the effect
that such acts or omissions violated the terms of this Agreement in any material
respect or involved negligence, bad faith, recklessness or intentional
misconduct on the part of the Advisor (except as otherwise provided in Section
1(g)).
(ii) In the event SBFM, the Partnership or any of their affiliates is
made a party to any claim, dispute or litigation or otherwise incurs any loss or
expense as a result of, or in connection with, the activities or claimed
activities of the Advisor or its principals, officers, directors, shareholder(s)
or employees unrelated to SBFM's or the Partnership's business, the Advisor
shall indemnify, defend and hold harmless SBFM, the Partnership or any of their
affiliates against any loss, liability, damage, cost or expense (including,
without limitation, attorneys' and accountants' fees) incurred in connection
therewith.
(iii) Xxxxx X. Xxxxx shall have no liability to the Partnership or
SBFM or any of their respective officers, directors, employees, partners or
affiliates under this Agreement or in connection with the transactions
contemplated by this Agreement except in the case of fraud or willful misconduct
by Xxxxx X. Xxxxx.
(b) In the event that a person entitled to indemnification under this
Paragraph 6 is made a party to an action, suit or proceeding alleging both
matters for which indemnification can be made hereunder and matters for which
indemnification may not be made hereunder, such person shall be indemnified only
for that portion of the loss, liability, damage, cost or expense incurred in
such action, suit or proceeding which relates to the matters for which
indemnification can be made.
(c) None of the indemnifications contained in this Paragraph 6 shall
be applicable with respect to default judgments, confessions of judgment or
settlements entered into by the party claiming indemnification without the prior
written consent, which shall not be unreasonably withheld, of the party
obligated to indemnify such party.
(d) The provisions of this Paragraph 6 shall survive the termination
of this Agreement.
7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) The Advisor represents and warrants to the
Partnership, SBFM and SB that:
(i) All references to the Advisor and its principals in any
Prospectus will, after review and approval of such references by the Advisor
prior to the use of such Prospectus in connection with the offering of the
Partnership's units, be accurate in all material respects.
(ii) The Advisor will be acting as a commodity trading advisor with
respect to the Partnership and not as a securities investment adviser and is
duly registered with the CFTC as a commodity trading advisor, is a member of the
NFA, and is in compliance with such other registration and licensing
requirements as shall be necessary to enable it to perform its obligations
hereunder, and agrees to maintain and renew such registrations and licenses
during the term of this Agreement.
(iii) The Advisor is a corporation duly organized, validly existing
and in good standing under the laws of the State of California and has full
power and authority to enter into this Agreement and to provide the services
required of it hereunder.
(iv) The Advisor will not, by acting as commodity trading advisor to
the Partnership, breach or cause to be breached any undertaking, agreement,
contract, statute, rule or regulation to which it is a party or by which it is
bound.
(v) This Agreement has been duly and validly authorized, executed and
delivered by the Advisor and is a valid and binding agreement enforceable in
accordance with its terms.
(vi) At any time during the term of this Agreement that a prospectus
or supplement relating to the Units is required to be delivered in connection
with the offer and sale thereof, the Advisor agrees upon the request of SBFM to
provide the Partnership with such information as shall be necessary so that, as
to the Advisor and its principals, the prospectus is accurate.
(b) SBFM represents and warrants for itself and the
Partnership that:
(i) Any Prospectus (as from time to time amended or supplemented,
which amendment or supplement is approved by the Advisor as to descriptions of
itself and its actual performance) will not contain any untrue statement of a
material fact or omit to state a material fact which is necessary to make the
statements therein not misleading, except that the foregoing warranty does not
apply to any statement or omission concerning the Advisor in the Prospectus,
made in reliance upon, and in conformity with, information furnished to SBFM by
or on behalf of the Advisor expressly for use in the Prospectus.
(ii) It is a corporation duly organized, validly existing and in good
standing under the laws of Delaware and has full corporate power and authority
to perform its obligations under this Agreement.
(iii) SBFM and the Partnership have the capacity and authority to
enter into this Agreement on behalf of SBFM and the Partnership.
(iv) This Agreement has been duly and validly authorized, executed
and delivered on SBFM's and the Partnership's behalf and is a valid and binding
agreement of SBFM and the Partnership enforceable in accordance with its terms.
(v) SBFM will not, by acting as General Partner to the Partnership
and the Partnership will not, breach or cause to be breached any undertaking,
agreement, contract, statute, rule or regulation to which it is a party or by
which it is bound which would materially limit or affect the performance of its
duties under this Agreement.
(vi) It is registered as a commodity pool operator and is a member of
the NFA, and it will maintain and renew such registration and membership during
the term of this Agreement.
(vii) The Partnership is a limited partnership duly organized and
validly existing under the laws of the State of New York and has full power and
authority to enter into this Agreement and to perform its obligations under this
Agreement.
(viii) _____ SBFM and its affiliates will comply with all laws, rules
and regulations applicable to the offer and sale of Units.
8. COVENANTS OF THE ADVISOR, SBFM AND THE PARTNERSHIP.
(a) The Advisor agrees as follows:
(i) In connection with its activities on behalf of the Partnership,
the Advisor will comply with all applicable rules and regulations of the CFTC
and/or the commodity exchange on which any particular transaction is executed.
(ii) The Advisor will promptly notify SBFM of the commencement of any
material suit, action or proceeding involving it, whether or not any such suit,
action or proceeding also involves SBFM.
(iii) In the placement of orders for the Partnership's account and
for the accounts of any other client, the Advisor will utilize a fair and
reasonable order entry system, which shall, on an overall basis, be no less
favorable to the Partnership than to any other account managed by the Advisor.
The Advisor acknowledges its obligation to review the Partnership's positions in
the account managed by the Advisor daily and to notify the broker, the
Partnership's brokers and SBFM of (i) any error committed by the Advisor or its
principals or employees or (ii) any trade which the Advisor believes was not
executed in accordance with its instructions.
(iv) During the term of this Agreement, the Advisor will maintain a
net worth of at least $200,000.
(b) SBFM agrees for itself and the Partnership that:
(i) SBFM and the Partnership will comply with all applicable rules
and regulations of the CFTC and/or the commodity exchange on which any
particular transaction is executed.
(ii) SBFM will promptly notify the Advisor of the commencement of any
material suit, action or proceeding involving it or the Partnership, whether or
not such suit, action or proceeding also involves the Advisor.
9. COMPLETE AGREEMENT. This Agreement constitutes the
entire agreement between the parties pertaining to the subject
matter hereof.
10. ASSIGNMENT. This Agreement may not be assigned by
any party without the express written consent of the other
parties.
11. AMENDMENT. This Agreement may not be amended
except by the written consent of the parties.
12. NOTICES. All notices, demands or requests required to be made or
delivered under this Agreement shall be in writing and delivered personally or
by registered or certified mail, or expedited courier, return receipt requested,
postage prepaid, to the addresses below or to such other addresses as may be
designated by the party entitled to receive the same by notice similarly given:
If to SBFM or the Partnership:
Xxxxx Xxxxxx Futures Management Inc.
000 Xxxxxxxxx Xxxxxx - 1st floor
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
If to the Advisor:
Xx. Xxxxx X. Xxxxx
Trendview Management Inc.
000 Xxxxxx xx xx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
13. GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of New
York without giving effect to principles of conflicts of laws.
14. ARBITRATION. The parties agree that any dispute or controversy
arising out of or relating to this Agreement or the interpretation thereof,
shall be settled by arbitration in accordance with the rules, then in effect, of
the National Futures Association or, if the National Futures Association shall
refuse jurisdiction, then in accordance with the rules, then in effect, of the
American Arbitration Association; provided, however, that the power of the
arbitrator shall be limited to interpreting this Agreement as written and the
arbitrator shall state in writing his reasons for his award. Judgment upon any
award made by the arbitrator may be entered in any court of competent
jurisdiction.
15. NO THIRD PARTY BENEFICIARIES. There are no third
party beneficiaries to this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed for and on
behalf of the undersigned as of the day and year first above written.
XXXXX XXXXXX FUTURES
MANAGEMENT INC.
By ___________________________
Xxxxxx X. Xxxxxxxx
Chief Financial Officer
XXXXX XXXXXX
INTERNATIONAL ADVISORS
CURRENCY FUND L.P.
By: Xxxxx Xxxxxx Futures
Management Inc.
General Partner
By ___________________________
Xxxxxx X. Xxxxxxxx
Chief Financial Officer
XXXXX XXXXXX INC.
By ___________________________
TRENDVIEW MANAGEMENT INC.
By ___________________________
Xxxxx X. Xxxxx
President
