GRANT PARK FUTURES FUND LIMITED PARTNERSHIP ADVISORY CONTRACT
EXHIBIT
10.7
GRANT
PARK FUTURES FUND
LIMITED
PARTNERSHIP
This
Advisory Contract (the “Agreement”) is made as of the 22nd day of February,
2006, among Grant Park Futures Fund Limited Partnership, an Illinois limited
partnership (the “Partnership”), Dearborn Capital Management, L.L.C., an
Illinois limited liability company (the “General Partner”) and Xxxxxx Investment
Corporation, a Delaware corporation (“Advisor”), on the following premises,
terms and conditions:
RECITALS
WHEREAS,
the Partnership has been organized to trade in commodity interests, including
futures contracts, forward contracts, options on futures contracts, forward
contracts and on commodities, spot contracts and swap contracts (“Commodity
Interests”); and
WHEREAS,
the General Partner is, pursuant to the Partnership’s Limited Partnership
Agreement, as amended from time to time (the “Partnership Agreement”),
authorized to utilize the services of one or more commodity trading advisors
in
connection with the commodity trading activities of the Partnership;
and
WHEREAS,
the Partnership currently offers its units of limited partnership interest
(“Units”) to the public and has registered the Units for sale with the
Securities and Exchange Commission and certain of the states; and
WHEREAS,
Advisor’s current business is advising and making trading decisions with respect
to the purchase and sale of Commodity Interests; and
WHEREAS,
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 will maintain that registration and membership for the term of this
Agreement; and
WHEREAS,
the Partnership and Advisor wish to enter into this Agreement in order to
set
forth the terms and conditions upon which Advisor will render and implement
commodity trading advisory services on behalf of the Partnership on and after
the date hereof until this Agreement is terminated;
NOW,
THEREFORE, the parties hereto agree as follows:
AGREEMENTS
1. Preparation
of Materials. Advisor will cooperate with the Partnership in the
Partnership’s endeavors to prepare and update, or cause to be prepared and
updated, a registration statement on Form S-1, or such other form as may
then be
available (“Registration Statement”), and prospectus and disclosure document
included therein (“Prospectus”), promotional brochures or other marketing
materials as well as any other materials reasonably requested or required
by the
General Partner in connection with the organization, operation, or
marketing
of the Partnership or the registration or renewal of registration of the
Units
for sale to the public in all applicable jurisdictions (collectively, with
the
Registration Statement and Prospectus, the “Materials”). In this regard, Advisor
will furnish to the General Partner such information as may be reasonably
requested for inclusion in such Materials. Moreover, Advisor agrees to make
all
necessary disclosures regarding itself, its principals, its trading performance,
customer accounts and otherwise as are required in the judgment of the
Partnership to be made in such Materials.
2. Certain
Representations and Warranties of Advisor. Advisor represents and
warrants to the Partnership and the General Partner and agrees as
follows:
(a) The
Disclosure Document of Advisor and any other information relating to Advisor,
its businesses, principals, and past performance record that has been requested
by the General Partner, has been delivered to the General Partner and is
current, accurate and complete in all material respects and is in compliance
with all applicable laws, rules and regulations, including Part 4 of the
CFTC
regulations promulgated under the Commodity Exchange Act, as amended (the
“CE
Act”), and Advisor will provide the General Partner with updated or amended
copies of any such materials when and if such materials are updated or
amended.
(b) To
the
extent reasonably available to it, Advisor has supplied or will supply, and
has
made available or will make available, for review by the General Partner
or its
agents substantially all documents, statements, agreements, confirmations
and
workpapers relating to all accounts managed by Advisor and any other persons
or
entities controlled by Advisor for the period covered in any Materials and
the
General Partner shall keep such information confidential; provided, however,
that Advisor may, in its discretion, withhold from any such materials the
name
of the client for whom such account is maintained and any materials containing
proprietary information relating to Advisor’s trading
methodologies.
(c) Advisor
is registered as a commodity trading advisor and commodity pool operator
with
the CFTC and is a member of the NFA.
(d) Advisor
is a corporation organized under the laws of the state of Delaware, with
full
power and authority to enter into this Agreement.
(e) This
Agreement has been duly and validly authorized, executed and delivered by,
and
is a valid and binding contract of, Advisor enforceable in accordance with
its
terms.
(f) The
representations and warranties made in this Agreement by Advisor shall be
continuing during the term of this Agreement and if at any time any event
has
occurred which would make or tend to make any of the representations and
warranties in this Agreement not true, Advisor will promptly notify the General
Partner.
3. Certain
Representations and Warranties of the Partnership and General Partner.
The General Partner and the Partnership jointly and severally represent and
warrant to Advisor that:
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(a) This
Agreement has been duly and validly authorized, executed and delivered by,
and
is a valid and binding contract of, the General Partner and the Partnership
enforceable in accordance with its terms.
(b) The
Partnership is duly formed and validly existing as an Illinois limited
partnership, with full partnership power to carry out its obligations under
this
Agreement and its Limited Partnership Agreement, as such may be amended from
time to time (the “Partnership Agreement”).
(c) The
Materials will not contain any untrue statement of a material fact or omit
to
state any material fact required to be stated therein or necessary to make
the
statements therein, in light of the circumstances in which they are made,
not
misleading, or omit to state any material information required to be disclosed
therein under the CE Act, the Securities Act of 1933, and the rules promulgated
thereunder; provided,
however,
that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished to the
General Partner by or on behalf of Advisor, as to it, including, without
limitation, all references to Advisor and its affiliates, controlling persons,
shareholders, partners, directors, officers and employees, as well as to
Advisor’s trading approach and past performance history, which has been provided
by Advisor for inclusion in the Materials.
(d) Units
in
the Partnership will be offered and sold in compliance with the requirements
set
forth in the Registration Statement and the Prospectus, the Partnership
Agreement and the Subscription Agreement and Power of Attorney. In connection
with the offer and sale of the Units, the General Partner will, and the General
Partner will use its reasonable efforts to ensure that any third party selling
agents will, comply fully at all times with all federal, state and foreign
securities laws, rules and regulations applicable to the offer and sale of
the
Units to the public.
(e) The
General Partner is duly formed and validly existing as an Illinois limited
liability company with full power and authority to carry out its obligations
under this Agreement and is registered with the CFTC as a commodity pool
operator and is a member of NFA.
(f) The
General Partner has received, on behalf of the Partnership, the current
commodity trading advisor disclosure document of Advisor (the “Disclosure
Document”) and is familiar with the matters set forth therein.
(g) The
representations and warranties made in this Agreement by the Partnership
and the
General Partner shall be continuing during the term of this Agreement and
if at
any time any event has occurred which would make or tend to make any of the
foregoing not true, the General Partner will promptly notify
Advisor.
4. Duties
of Advisor. Upon the allocation of assets of the Partnership to
Advisor, Advisor, for that portion of the Partnership’s assets allocated to
Advisor, shall have sole authority and responsibility for directing the
investment and reinvestment in Commodity Interests during the term of this
Agreement and in accordance with the trading policies and trading strategies
set
forth in the Prospectus which has been furnished to Advisor and the
trading
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principles
of the Advisor’s Global Direction Portfolio Program (Global Directional). If the
General Partner shall, in its sole discretion, determine that any trading
instructions issued by Advisor violate those trading policies or strategies,
then the General Partner may cause any position placed in violation to be
reversed. Advisor will exercise its best efforts in determining the trades
in
Commodity Interests. Changes in Commodity Interests traded shall not be deemed
material changes in trading policies. Advisor has advised the Partnership
that
its past performance and the past performance of its principals as provided
to
the General Partner is the result of Advisor’s trading methods as modified and
refined from time to time. The Partnership acknowledges that the trading
strategies of Advisor are confidential and proprietary. If a change in Advisor’s
trading strategies is deemed material in the sole judgment of Advisor, then
Advisor will not change its trading strategies without at least 10 days prior
written notice to the General Partner. All commissions and expenses arising
from
the trading of, or other transactions in the course of the administration
of,
the Partnership’s account shall be charged to the Partnership’s account. The
General Partner of the Partnership shall deliver to Advisor, and renew when
necessary, a Commodity Trading Authorization appointing Advisor as the
Partnership’s agent and attorney-in-fact for the purpose of trading Commodity
Interests. All trades for the account of the Partnership directed by Advisor
shall be made through such clearing broker or brokers as the General Partner
directs (each, a “clearing broker”). Currently, Man Financial Inc. and UBS
Financial Services Inc. are the Partnership’s only clearing brokers for the
assets of the Partnership allocated to Advisor. Notwithstanding the foregoing,
Advisor may place orders for Commodity Interest transactions for the Partnership
through executing brokers or floor brokers selected by Advisor and may execute
on behalf of the Partnership “give-up” agreements with such executing brokers or
floor brokers where necessary; provided that Advisor will from time to time
provide the General Partner with a list of the executing brokers or floor
brokers Advisor is then using and the General Partner may, within 5 days
of
receiving such list after consultation with Advisor, object to the use of
an
executing broker or floor broker and Advisor shall cease using such broker
on
behalf of the Partnership. Advisor will not enter into any soft dollar
commission agreements with any of the clearing brokers or any other broker.
Any
over-the-counter contracts in Commodity Interests transacted for the
Partnership’s trading account will be affected through the clearing broker or
its affiliates, as agreed upon between Advisor and the General Partner. Advisor
also from time to time may select other dealers through which any such contracts
will be traded, with the prior written consent of the General Partner. In
its
trading for the Partnership’s account, Advisor shall not engage in “pyramiding,”
as such term is used in the Prospectus.
5. Independence
of Advisor. Advisor shall for all purposes herein be deemed to be an
independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Partnership in
any way
or otherwise be deemed an agent of the Partnership. Advisor shall not offer
or
sell or solicit any offers to purchase the Units. However, when requested
by the
General Partner at such reasonable times and upon adequate notice as mutually
agreed to, Advisor will assist in the general explanation and presentation
of
Advisor’s trading strategies and methods solely to the employees of the General
Partner and, in Advisor’s discretion, to the Partnership’s selling agents or to
other agents of the General Partner; provided, however, that nothing in this
section will require Advisor to disclose confidential and proprietary
information concerning its trading strategies and methods. The parties
acknowledge that Advisor has, neither alone nor in conjunction with the General
Partner, been an organizer or promoter of the Partnership. Nothing herein
contained shall be deemed to require the
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Partnership
to take any action contrary to its Partnership Agreement, its Certificate
of
Limited Partnership or any applicable statute, regulation or exchange
rule.
6. Compensation.
(a) In
consideration of and in compensation for all of the services to be rendered
by
Advisor to the Partnership under this Agreement, beginning with the first
calendar quarter-end following the date of this Agreement, Advisor shall
receive
compensation from the General Partner or the Partnership, as applicable,
as
follows:
(1) The
General Partner will pay to Advisor a “Consulting Fee” of 1% per year (computed
and accrued monthly on the basis of month-end “Allocated Net Assets,” as defined
in subsection (c) below, and paid quarterly) of such Advisor’s Allocated Net
Assets.
(2) The
Partnership will pay to Advisor a quarterly “Incentive Fee” of 20% of “New
Trading Profits on the Allocated Net Assets of Advisor,” as defined in
subsection (d) below.
(b) Advisor
shall not receive any commissions, compensation, remunerations or payments
whatsoever from any clearing broker with whom the Partnership carries an
account
for any transactions executed in the Partnership’s account, nor shall Advisor at
any time be an “affiliate” of any clearing broker with whom the Partnership
carries an account, as such term is used in the Partnership
Agreement.
(c) “Allocated
Net Assets” means that portion of the Partnership’s Net Assets allocated to
Advisor by the General Partner and subject to Advisor’s trading discretion
(including any notional funds), together with any appreciation or depreciation
in such Allocated Net Assets. “Net Assets” is defined as the total assets of the
Partnership including all cash and cash equivalents plus the market value
of all
open Commodity Interest positions and U.S. Treasury bills, but minus all
accrued
liabilities of the Partnership. The market value of a Commodity Interest
position shall be that price quoted on the exchange on which each such contract
is traded as of the close of each trading day, or if any such contract is
not so
traded, the fair market value of each contract, as determined by the General
Partner.
(d) “New
Trading Profits on the Allocated Net Assets of Advisor” shall mean the sum of
(A) the net of any profits (excluding interest income) and losses realized
on all trades closed out during the period on such Allocated Net Assets,
plus
(B) the net of any unrealized profits and losses on open positions as of
the end of such period (after deduction for accrued brokerage commissions
and
all other transaction fees and costs) on such Allocated Net Assets, minus
(C) (i) the net of any unrealized profits or losses on open positions
as of the end of the preceding period (after deduction for accrued brokerage
commissions and all other transaction fees and costs) on such Allocated Net
Assets, and (ii) cumulative net realized or unrealized trading losses on
such Allocated Net Assets (reduced by a proportionate share of realized and
unrealized trading losses on such Allocated Net Assets attributable to redeemed
Units or reallocated amounts as of any redemption or reallocation date),
if any,
carried forward from all preceding periods since the last period for which
an
Incentive Fee was payable to Advisor.
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7. Right
to Advise Others. Advisor’s present business is advising with respect
to the purchase and sale of Commodity Interests. The services provided by
Advisor under this Agreement are not to be deemed exclusive. The General
Partner
acknowledges that, subject to the terms of this Agreement, Advisor may render
advisory, consulting and management services to other clients. Advisor shall
be
free to advise others and manage other Commodity Interest trading accounts,
including accounts owned by it or its principals, during the term of this
Agreement and to use the same information, computer programs and trading
strategy which it obtains, produces or utilizes in the performance of services
for the Partnership. In that connection, however, Advisor represents and
warrants that: (i) 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; and (ii) it
will not deliberately use any trading strategies for the Partnership which
it or
its principals know are inferior to those currently offered by Advisor and
employed by Advisor for other accounts. Advisor agrees to be aware of the
position limits imposed on certain Commodity Interest contracts by the CFTC
or
applicable contract market. Advisor will be entitled to use that portion
of the
applicable position limits that bears the same relationship that the
Partnership’s assets allocated to it bears to all of the Partnership’s assets.
If, at any time during the term of this Agreement, Advisor is required to
aggregate the Partnership’s Commodity Interest positions with the positions of
any other person for purposes of applying the CFTC or exchange imposed
speculative position limits, Advisor will promptly notify the General Partner
if
the Partnership’s positions are included in an aggregate amount which exceeds
the applicable speculative position limit. Advisor represents that, if
speculative positions limits are reached in any Commodity Interest contract,
it
will modify the trading instructions to the Partnership’s account and its other
accounts in a reasonable and good faith effort to achieve an equitable treatment
of all accounts. Advisor currently believes and represents that such speculative
limits will not materially affect its trading recommendations or strategy
for
the Partnership given Advisor’s current accounts and all proposed accounts for
which each Advisor has a contract to act as a commodity trading
advisor.
8. Records
of the Partnership. The General Partner will instruct the clearing
brokers to furnish copies of all trade confirmations and monthly trading
reports
to Advisor. Advisor will maintain a record of all trading orders for the
Partnership’s account that have been filled and will monitor the Partnership’s
open positions. Upon the request of the General Partner, Advisor shall permit
the General Partner or its agent to inspect such information as the General
Partner may reasonably request for the purpose of confirming that the
Partnership has been treated equitably with respect to trading engaged in
during
the term of this Agreement by all accounts controlled by Advisor or its
principals. Advisor shall permit the General Partner to inspect the trading
records of Advisor, its principals and their other clients for the purpose
of
confirming that the Partnership is being treated equitably by Advisor, including
with respect to any modifications of trading strategies resulting from
speculative position limits and with respect to the assignment of priorities
of
order entry to Advisor’s accounts, and the General Partner shall keep such
information confidential; provided, however, that Advisor may, in its
discretion, withhold from any such inspection the name of the client for
whom
such account is maintained.
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9. Term
and Termination; Automatic Renewal Provision.
(a) THE
INITIAL TERM OF THIS AGREEMENT SHALL COMMENCE ON THE DATE HEREOF AND SHALL
CONTINUE UNTIL THE ONE YEAR ANNIVERSARY OF THE DATE HEREOF. THEREAFTER, THE
TERM
OF THIS AGREEMENT WILL AUTOMATICALLY BE EXTENDED FOR ONE YEAR TERMS FROM
YEAR TO
YEAR, UNLESS TERMINATED BY EITHER PARTY PURSUANT TO THE TERMS OF
SUBSECTION (b) BELOW. As used in this Agreement, the term “term”
shall mean the period commencing on the date hereof through the
effective date
of the termination of this Agreement, unless the context requires
otherwise.
(b) The
General Partner and the Partnership or Advisor may terminate this Agreement
at
any time upon no less than 60 days’ written notice to the other. Notwithstanding
the foregoing, this Agreement also may be terminated on written notice at
any
time upon: (i) the General Partner’s withdrawal as General Partner of the
Partnership, as provided in the Partnership Agreement; (ii) the death,
disability or loss of services of Xxxxxxx Xxxxxx or upon Xxxxxxx Xxxxxx no
longer taking an active role in the business of Advisor; (iii) the sale of
or disposition of Advisor; (iv) the inability of Advisor to use its trading
strategies for the Partnership’s benefit; (v) the suspension, revocation or
withdrawal of Advisor’s registration as a commodity trading advisor or
withdrawal of the General Partner’s registration as a commodity pool operator or
the suspension or termination of any parties’ NFA membership; (vi) a
material breach of this Agreement by Advisor or the General Partner;
(vii) a violation by Advisor of the Partnership’s trading policies; or
(viii) the General Partner’s objection after consultation with Advisor to
any executing broker used by Advisor. In the event of the termination of
this
Agreement by Advisor, Advisor shall be entitled to and the Partnership or
the
General Partner, as the case may be as provided in Section 6 above, shall
pay the quarterly Incentive Fee and quarterly Consulting Fee, computed as
if the
effective date of termination were the last day of the then current calendar
quarter.
10. Indemnity.
(a) In
any
threatened, pending or completed action, suit, or proceeding to which Advisor,
its shareholders, officers, directors, employees or associated persons
(collectively, “its affiliates”) was or is a party or is threatened to be made a
party by reason of the fact that Advisor is or was a commodity trading advisor
of the Partnership or otherwise, the Partnership and the General Partner
jointly
and severally shall indemnify and hold harmless, subject to subsection (b)
below, Advisor and its affiliates against any loss, liability, damage, cost,
expenses (including attorneys’ fees and accountants’ fees), judgments and
amounts paid in settlement actually and reasonably incurred by it or its
affiliates in connection with any action, suit or proceeding if Advisor acted
in
good faith and in a manner it reasonably believed to be in or not opposed
to the
best interests of the Partnership, and provided that its conduct does not
constitute negligence or a breach of its fiduciary obligations. The termination
of any action, suit or proceeding by judgment, order or settlement shall
not, of
itself, create a presumption that Advisor did not act in good faith and in
a
manner which it reasonably believed to be in or not opposed to the best
interests of the Partnership.
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(b) Any
indemnification under subsection (a) above, unless ordered by a court or
administrative forum, shall be made only as authorized in the specific case
and
only upon a determination by independent legal counsel in a written opinion
that
indemnification is proper in the circumstances because Advisor has met the
applicable standard of conduct set forth in subsection (a) above.
(c) To
the
extent that Advisor or its affiliates has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in subsection
(a) above, or in defense of any claim, issue or matter therein, the
provisions of subsection (b) above shall not apply and the Partnership and
the General Partner jointly and severally shall indemnify it or its affiliates
against the expenses, including attorneys’ and accountants’ fees, actually and
reasonably incurred by it or its affiliates in connection
therewith.
(d) Expenses
incurred in defending a threatened or pending civil, administrative or criminal
action, suit or proceeding against Advisor or its affiliates may in the sole
discretion of the General Partner, be paid by the Partnership and the General
Partner jointly and severally in advance of the final disposition of such
action, suit or proceeding, if and to the extent that the person on whose
behalf
such expenses are paid shall agree to reimburse the Partnership and/or the
General Partner, as applicable, in the event indemnification is not permitted
under this Section 10.
(e) Advisor
agrees to indemnify, defend and hold harmless the Partnership, the General
Partner and the General Partner’s shareholders, officers, directors, employees
or associated persons (collectively, “its affiliates”) against all liabilities
incurred by them by reason of any act or omission of Advisor relating to
the
Partnership (including costs and expenses of investigating and defending
any
claims, demand or suit and attorneys’ and accountants’ fees) if there has been a
final judicial or regulatory determination that such act or omission materially
violated the terms of this Agreement or involved gross negligence, fraud,
recklessness or intentional misconduct on the part of Advisor.
(f) In
the
event that any claim, dispute or litigation arises between Advisor and any
party
other than the Partnership or the General Partner, which claim, dispute or
litigation is unrelated to the Partnership’s business, and if the Partnership or
the General Partner are made a party to such claim, dispute or litigation
by
such other party, Advisor shall defend any actions brought in connection
therewith on behalf of the Partnership and/or the General Partner each of
whom
agree to cooperate in such defense and Advisor shall indemnify and hold harmless
the Partnership and the General Partner from and with respect to any amounts
awarded to such other party. If any claim, dispute or litigation arises between
the Partnership and/or the General Partner and any party other than Advisor
which claim, dispute or litigation is unrelated to Advisor’s business, and if
Advisor is made a party to such claim, dispute or litigation by such other
party, the Partnership and the General Partner jointly and severally shall
defend any actions brought in connection therewith on behalf of Advisor or
its
principals, each of whom agree to cooperate in such defense and the Partnership
and the General Partner jointly and severally shall indemnify and hold harmless
Advisor and its affiliates from and with respect to any amounts awarded to
such
other party. Notwithstanding any other provision of this subsection (f),
if, in
any claim as to which indemnity is or may be available, any indemnified party
reasonably determines that its interests are or may be, in whole or in part,
adverse to the interests of the
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indemnifying
party, the indemnified party may retain its own counsel in connection with
such
claim and shall be indemnified by the indemnifying party for any legal or
any
other expenses reasonably incurred in connection with investigating or defending
such claim.
(g) None
of
the foregoing provisions for indemnification shall be applicable with respect
to
default judgments, confessions of judgment or settlements entered into by
the
party claiming indemnification (“Indemnitee”) without the prior consent of the
party obligated to indemnify the other party (“Indemnitor”); provided, however,
that should the Indemnitor refuse to consent to a settlement approved by
the
Indemnitee, the Indemnitee may affect such settlement, pay such amount in
settlement as it shall deem reasonable and seek a judicial or regulatory
determination with respect to reimbursement by the Indemnitor of any loss,
liability, damage, cost or expenses (including reasonable attorneys’ and
accountants’ fees) incurred by the Indemnitee in connection with such settlement
to the extent such loss, liability, damage, cost or expense (including
reasonable attorneys’ and accountants’ fees) was caused by or resulted from a
material violation of this Agreement by the Indemnitor or violation of the
standard of conduct set forth herein. Notwithstanding the foregoing, the
Indemnitor shall, at all times, have the right to offer to settle any matters
and if the Indemnitor successfully negotiates a settlement and tenders payment
therefore to the Indemnitee, the Indemnitee must either use its best efforts
to
dispose of the matter in accordance with the terms and conditions of the
proposed settlement or the Indemnitee may refuse to settle the matter and
continue its defense in which latter event the maximum liability of the
Indemnitor to the Indemnitee shall be the amount of said proposed
settlement.
(h) The
foregoing provisions for indemnification shall survive the termination of
this
Agreement.
(i) Advisor
acknowledges as to it that the indemnities provided in this Agreement by
the
General Partner and the Partnership to Advisor shall be inapplicable in the
event of any liability accruing to the extent, if any, caused by or based
upon
Advisor’s misrepresentations, omissions or breach of any warranty in this
Agreement.
11. Reallocation
of Assets. The General Partner in its sole and absolute discretion may
allocate assets away from or, with Advisor’s consent to, Advisor as of the first
day of any month on 10 days’ prior written notice. Any refusal by Advisor to
accept an allocation of additional assets must be communicated by Advisor
to the
General Partner within 8 days prior to the proposed allocation date after
having
received the required notice of the proposed allocation from the General
Partner, or on such shorter notice as is acceptable to the General Partner.
Notwithstanding the foregoing, the General Partner may reallocate assets
away
from Advisor at any time, if the purpose of the reallocation is to meet a
margin
call from the Partnership’s clearing brokers resulting from the trading
activities of another commodity trading advisor engaged by the Partnership,
but
only to the extent that such other commodity trading advisor, whose trading
has
resulted in the margin call, has no Partnership assets not committed to
Commodity Interest positions. The General Partner shall immediately notify
Advisor and all other affected commodity trading advisors engaged by the
Partnership of any reallocation.
12. Complete
Agreement. This Agreement among Advisor, the Partnership and the
General Partner shall constitute all agreements between Advisor and the
Partnership, shall
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supersede
any prior agreements among Advisor, the Partnership and the General Partner,
and
no other agreements, verbal or otherwise, shall be binding upon the parties
to
this Agreement.
13. Assignment
and Successors. This Agreement may not be assigned nor the duties
hereunder delegated by either party without the express written consent of
the
other party. This Agreement is made solely for the benefit of, and shall
be
binding upon, the parties and their respective successors and assigns, and
no
other person shall have any right or obligation under it.
14. Amendment.
This Agreement may not be amended except by a written instrument signed by
the
parties.
15. Notices.
All notices required to be delivered under this Agreement shall be delivered
personally or by registered or certified mail, postage prepaid, return receipt
requested, to (i) Advisor at X.X. Xxx 0000, Xxxxxx, Xxxxxxxxxx
00000-0000, Attn: Xxxxxxx Xxxxxx; (ii) to the Partnership and the General
Partner at Dearborn Capital Management, L.L.C., 000 Xxxx Xxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxx, 00000, Attn: Xxxxx X. Xxxxxxxx;
(iii) with a copy to Xxxxxxxx Xxxxxx King, Esq., Vedder, Price,
Xxxxxxx & Kammholz, P.C., 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000; or (iv) to any other address designated by the
party to receive the same by written notice similarly given.
16. Notice
of Threatened, Pending or Completed Actions, Suits or
Proceedings.
(a) The
General Partner will immediately give written notice to Advisor of (i) any
threatened, pending or completed action, suit or proceedings (including without
limitation any reparations proceedings or administrative proceeding threatened
or instituted under the CE Act) to which the Partnership was or is a party
or is
threatened to be a party; and (ii) any judgments or amounts paid by the
Partnership in settlement in connection with any such threatened, pending
or
completed action, suit or proceeding.
(b) Advisor
will immediately give written notice to the General Partner of (i) any
threatened, pending or completed action, suit or proceeding (including without
limitation any reparations proceeding or administrative proceeding threatened
or
instituted under the CE Act) to which Advisor was or is a party or is threatened
to be a party; and (ii) any judgments or amounts paid by Advisor in
settlement in connection with any such threatened, pending or completed action,
suit or proceeding.
(c) Written
notices required to be given pursuant to this Section 16 shall contain all
pertinent information concerning the threatened, pending or completed action,
suit or proceeding and, in the case of any pending or completed action suit
or
proceeding, shall include a copy of the complaint, petition or similar documents
asserting a claim.
(d) The
General Partner and Advisor agree to use their best efforts to maintain the
confidentiality of notices received pursuant to this Section 16 and agree
not to disclose the contents of such notices to persons other than their
affiliates, or except as may be required, in their good faith judgment, by
any
applicable law or regulation.
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17. Governing
Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois applicable to contracts made in that
State without reference to its conflicts of laws provisions.
18. Notional
Funds Disclosure. The CFTC requires Advisor to make the following
disclosure to the Partnership:
(a) You
should request your commodity trading advisor to advise you of the amount
of
cash or other assets (Actual Funds) which should be deposited to the advisor’s
trading program for your account to be considered “Fully Funded.” This is the
amount upon which the commodity trading advisor will determine the number
of
contracts traded in your account and should be an amount sufficient to make
it
unlikely that any further cash deposits would be required from you over the
course of your participation in the commodity trading advisor’s
program;
(b) You
are
reminded that the account size you have agreed to in writing (the “nominal” or
“notional” account size) is not the maximum possible loss that your account may
experience; and
(c) You
should consult the account statements received from your futures commission
merchant in order to determine the actual activity in your account, including
profits, losses and current cash equity balance. To the extent that the equity
in your account is at any time less than the nominal account size, you should
be
aware of the following:
(i) Although
your gains and losses, fees and commissions measured in dollars will be the
same, they will be greater when expressed as a percentage of account
equity.
(ii) You
may
receive more frequent and larger margin calls.
(iii) The
disclosures which accompany the performance table may be used to convert
the
rates of return (“RORs”) in the performance table to the corresponding RORs for
particular partial funding levels.
19. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but such counterparts shall, together,
constitute only one instrument.
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This
Agreement has been executed for and on behalf of the undersigned as of the
date
first set forth above.
NOTICE:
THIS AGREEMENT CONTAINS AN AUTOMATIC RENEWAL PROVISION IN SECTION 9
HEREIN.
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By: Dearborn
Capital Management, L.L.C.
By: Dearborn
Capital Management, Ltd.,
its
Managing Member
|
|
|
By: /s/
Xxxxx X.
Xxxxxxxx
Xxxxx
X. Xxxxxxxx,
its
President
|
|
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DEARBORN
CAPITAL MANAGEMENT, L.L.C.
By: Dearborn
Capital Management, Ltd.,
its
Managing Member
|
|
|
By: /s/
Xxxxx X.
Xxxxxxxx
Xxxxx
X. Xxxxxxxx,
its
President
|
|
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XXXXXX
INVESTMENT CORPORATION
By: /s/
Xxxxxxx Xxxxxx
Xxxxxxx
Xxxxxx,
Chief
Executive Officer
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COMMODITY
TRADING AUTHORIZATION
___________,
2006
Xxxxxx
Investment Corporation
X.X.
Xxx
0000
Xxxxxx,
Xxxxxxxxxx 00000-0000
Attn:
Xxxxxxx Xxxxxx
Dear
Xxxxxx Investment Corporation:
Grant
Park Futures Fund Limited Partnership (the “Partnership”) does hereby make,
constitute and appoint you as its attorney-in-fact to purchase and sell
commodity interests, including futures contracts, forward contracts, options
on
futures contracts, forward contracts and on commodities, spot contracts and
swap
contracts, through Man Financial Inc., and/or UBS Financial Services Inc.,
as
clearing brokers in accordance with the Advisory Contract dated as of
__________, 2006 among you, the Partnership and the Partnership’s general
partner, Dearborn Capital Management, L.L.C.
|
Very
truly yours,
By: DEARBORN
CAPITAL MANAGEMENT, L.L.C.,
its
General Partner
By: Dearborn
Capital Management, Ltd.,
its
Managing Member
By:_______________________________________
Xxxxx
X. Xxxxxxxx,
its
President
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