Exhibit 10.04
CONSULTING AGREEMENT
BETWEEN
XXXXXXX XXXXX FUTURES INC.
AND
SUNRISE CAPITAL PARTNERS, LLC
Dated as of July 1, 1998
CONSULTING AGREEMENT
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This Consulting Agreement dated as of July 1, 1998 is between
Xxxxxxx Xxxxx Futures Inc. ("Xxxxxxx Xxxxx Futures") and Sunrise Capital
Partners, LLC ("Consultant").
W I T N E S S E T H:
WHEREAS, Xxxxxxx Xxxxx Futures or its designee acts as
commodity broker for ML Select Futures I L.P. (the "Fund");
WHEREAS, Consultant is willing to consult with Xxxxxxx Xxxxx
Futures or its designee concerning Xxxxxxx Xxxxx Futures' or its designee's
provision of brokerage services (including forward trading services) for the
Fund (and other commodity pools, as contemplated hereby);
WHEREAS, Consultant is willing to undertake certain other
obligations to Xxxxxxx Xxxxx Futures to assist Xxxxxxx Xxxxx Futures in its
dealings with the Fund and in certain other aspects of the commodities markets
as herein set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. Payment of Consulting Fee.
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For the services contemplated by this Agreement, Xxxxxxx Xxxxx
Futures shall, at no additional cost to the Fund, remit to the Consultant a
monthly Consulting Fee equal to 0.0833 of 1% of the Fund's month-end assets
(before any subscriptions, redemptions and distributions) a 1% annual rate. For
purposes of such calculation assets are reduced by the product of the brokerage
commission rate plus the administrative fee rate less the Consulting Fee rate
multiplied by the month-end assets (before any subscriptions, redemptions and
distributions).
Xxxxxxx Xxxxx Futures will remit the Consulting Fees due to
the Consultant within ten (10) business days of the month-end as of which they
are due. At such time as Xxxxxxx Xxxxx Futures remits each monthly Consulting
Fee payment hereunder to the Consultant, Xxxxxxx Xxxxx Futures shall also
provide information sufficient for the Consultant to verify Xxxxxxx Xxxxx
Futures' calculations in respect of such month. If the Consultant does not
object to such statement within ten (10) business days of the receipt thereof,
such statement shall for all purposes be deemed to be conclusively correct.
The description of Net Asset Value set forth in the Fund's
Confidential Private Placement Memorandum (the "Memorandum") provided to the
Consultant together herewith is hereby confirmed in all respects.
Consultant recognizes and agrees that Xxxxxxx Xxxxx Investment
Partners Inc., the Fund's general partner ("the General Partner"), has the
authority to reallocate assets away from Consultant's Fund account at any time
and that the Consulting Fees due hereunder shall reflect any such reallocation
as of its effective date.
2. Registration of Consultant.
--------------------------
Consultant represents and warrants that it has all necessary
registrations or memberships with or in the Commodity Futures Trading
Commission, the National Futures Association and any other federal or state
governmental body or agency (if any) required to receive the consulting fee from
Xxxxxxx Xxxxx Futures contemplated hereby and understands and agrees that
Xxxxxxx Xxxxx Futures' obligations to make any such payments shall be suspended
(without any obligation whatsoever to make compensating payments in the future)
during any period as to which Xxxxxxx Xxxxx Futures is advised by counsel that
Consultant does not have all such registrations and memberships. The Consultant
need not provide any services which it believes, in its discretion, might
subject it to any provision of the Investment Advisers Act of 1940 or similar
state securities laws.
3. Prorating of Consulting Fee in the Case of Partial Months.
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The Consulting Fee due to Consultant hereunder shall be
prorated for any partial month during which this Agreement is in effect, or for
any reallocations during a month, such proration to be made on the basis of the
number of business days during such month for which this Agreement is in effect
and Consultant is capable of providing consulting service hereunder, as compared
to the total number of business days in such month.
4. Consulting Services to Be Rendered by Consultant.
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Consultant agrees to consult with Xxxxxxx Xxxxx Futures, at
the reasonable request of Xxxxxxx Xxxxx Futures, from time to time during the
term of this Agreement, concerning the commodity markets and the desirability of
various different trading approaches, as well as the possibility of Consultant,
or other trading advisors designated by Xxxxxxx Xxxxx Futures, participating in
other pool offerings sponsored by Xxxxxxx Xxxxx entities. To the extent that
computer services are necessary in the context of such consulting services,
Consultant agrees to utilize its own computer facilities at no cost to Xxxxxxx
Xxxxx Futures, to the extent that Consultant is able to do so without any
interference with its regular business operations. In particular, and not by way
of limitation, Consultant agrees, at the reasonable request of the General
Partner, to review and critique proposed trading method descriptions submitted
to Xxxxxxx Xxxxx Futures by prospective trading advisors.
Consultant need not disclose any information deemed by it to
be confidential in the course of any consultations as contemplated by this
Section 4, unless Consultant, in its sole discretion, deems that it has received
adequate assurances of confidentiality.
5. Reports.
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During the term of this Agreement, Consultant shall assist
Xxxxxxx Xxxxx Futures in the preparation of any reports and other documents
which Xxxxxxx Xxxxx Futures or any of its affiliates desires to transmit to its
futures fund customers, including investors in commodity pools in which Xxxxxxx
Xxxxx Futures or one of its affiliates participates, to the extent that Xxxxxxx
Xxxxx Futures may reasonably request.
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6. Presentations.
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During the term of this Agreement, Consultant agrees that, to
the extent consistent and without interference with Consultant's regular
business operation, its principals and agents shall be available to consult
concerning presentations which Xxxxxxx Xxxxx Futures may wish to organize
relating to futures trading and to attend such presentations, in each case to
the extent that Xxxxxxx Xxxxx Futures may reasonably request.
7. Investment Advice.
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During the term of this Agreement, Consultant agrees that it
will, at the reasonable request of Xxxxxxx Xxxxx Futures, advise Xxxxxxx Xxxxx
Futures concerning the investment of customer funds held by Xxxxxxx Xxxxx
Futures in futures or forward contracts, provided that Consultant need not give
any such advice which might subject it to the registration requirements under
the Investment Advisers Act of 1940.
8. Consultation Concerning Forward Trading.
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During the term of this Agreement, Consultant agrees that it
will, to the extent that Xxxxxxx Xxxxx Futures may reasonably request, cooperate
with and advise Xxxxxxx Xxxxx Futures concerning the operation of the Fund's
affiliated Foreign Exchange Desk.
9. Consultation Concerning Other Commodity Pools.
---------------------------------------------
During the term of this Agreement, Consultant agrees to
discuss with Xxxxxxx Xxxxx Futures and its representatives the structure and
operation of the other commodity pools for which Consultant acts as a trading
advisor (again, however, Consultant need not disclose any information deemed by
it to be confidential in the course of such consultations).
10. Comparison of Brokerage Arrangements.
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As contemplated by the Limited Fund Agreement of the Fund and
the Customer Agreement of the Fund, Xxxxxxx Xxxxx Futures and the General
Partner have agreed to undertake annual reviews of the Fund's futures and
forward trading. Consultant agrees that it will make available to Xxxxxxx Xxxxx
Futures such comparisons as Xxxxxxx Xxxxx Futures may reasonably request of the
terms on which forward trading facilities are made available to Consultant by
third parties. In addition, Consultant agrees it will assist in advising Xxxxxxx
Xxxxx Futures and the General Partner in their efforts to compare the futures
and forward trading services available to the Fund and to other comparable
accounts.
11. General Consulting Services.
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Consultant acknowledges and agrees that this Agreement
contemplates that Consultant will, to the extent not inconsistent with its
responsibilities to third parties and as Xxxxxxx Xxxxx Futures may reasonably
request, advise Xxxxxxx Xxxxx Futures on its commodity brokerage and related
operations. Consultant hereby agrees that it will in good faith cooperate in
assisting Xxxxxxx Xxxxx Futures in that respect, regardless of whether the
specific advice or service requested of Consultant by Xxxxxxx Xxxxx Futures is
explicitly set forth herein, and give
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to Xxxxxxx Xxxxx Futures and such of its officers as may so request the benefit
of Consultant's experience and knowledge of the markets and consult with such
persons in an advisory capacity concerning such markets and related matters.
Consultant agrees, insofar as prior obligations shall permit, to make itself
available to consult and advise with officers and other representatives of
Xxxxxxx Xxxxx Futures on the foregoing and related matters.
12. Term of Agreement.
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This Agreement shall continue in effect for three (3) years
from the date hereof, provided that Xxxxxxx Xxxxx Futures or Consultant may
terminate this Agreement at any time after the termination of the Advisory
Agreement between the Fund, the General Partner and the Consultant dated as of
the date hereof, upon five (5) days' notice.
13. Status of the Parties.
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Nothing herein shall be construed to constitute Consultant and
Xxxxxxx Xxxxx Futures a Fund or association. Nor shall Consultant be deemed an
employee or agent of Xxxxxxx Xxxxx Futures or to have any authority to act for
or represent Xxxxxxx Xxxxx Futures as a consequence hereof.
14. Notices.
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All notices required to be delivered under this Agreement
shall be in writing (including telegraphic communication) or by telephone
confirmed in writing, all such writings to be delivered personally or sent by
first-class mail, postage prepaid, as follows:
if to Consultant:
SUNRISE CAPITAL PARTNERS, LLC
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx
if to Xxxxxxx Xxxxx Futures:
XXXXXXX XXXXX FUTURES INC.
Xxxxxxx Xxxxx World Headquarters
000 Xxxxx Xxxxxx
Xxxxx Tower, 23rd Floor
New York, New York 10281-0188
Attn: Xxxx Xxxxxx, Esq.
15. No Assignment.
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The consulting services hereby contracted for by Xxxxxxx Xxxxx
Futures are personal to Consultant. No party hereto may assign any of its rights
hereunder without the prior
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written consent of each other party. This Agreement shall not be construed to
confer any benefit on any person other than the parties hereto and their
respective successors and assigns.
16. Governing Law.
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This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
17. Entire Agreement; Counterparts.
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This Agreement sets forth the entire agreement of the parties
relating to the subject matter hereof except as otherwise set forth herein.
This Agreement may be executed in two or more counterparts
each of which shall constitute one and the same document.
18. No Waiver.
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No failure or delay on the part of any party hereto in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. Any waiver granted hereunder must be in writing
and shall be valid only in the specific instance in which given.
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