Exhibit 3.02(a)
ML SELECT FUTURES I L.P.
SIXTH AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
This Sixth Amended and Restated Limited Partnership Agreement
(the "Limited Partnership Agreement") is made as of September 1, 2001, by and
between Xxxxxxx Xxxxx Alternative Investments LLC, a Delaware limited liability
company, as general partner (the "General Partner") of the Fund, and each other
party who shall execute a counterpart of this Limited Partnership Agreement as a
limited partner of the Fund or who becomes a party to this Limited Partnership
Agreement as a limited partner by execution of a signature page or other
instrument or otherwise and who is shown in the books and records of the Fund as
a limited partner of the Fund (individually, a "Limited Partner" or,
collectively, the "Limited Partners") (the General Partner and the Limited
Partners being collectively referred to herein as "Partners").
WITNESSETH:
WHEREAS, the parties hereto desire to continue the limited
partnership heretofore formed for the purpose of trading in commodity interests;
NOW THEREFORE, the parties hereto agree as follows:
1. Formation and Name.
The parties hereto do hereby continue the limited partnership
heretofore formed under the Delaware Revised Uniform Limited Partnership Act, as
amended and in effect on the date hereof (6 Del. C. Sections 17-101, et seq.)
(the "Act"). The name of the limited partnership is ML SELECT FUTURES I L.P.
(the "Fund"). The General Partner may, without the approval of the Limited
Partners, change the name of the Fund, or cause the Fund to transact business
under another name. The General Partner may take all steps which the General
Partner may deem necessary or advisable to allow the Fund to conduct business in
any jurisdiction where the Fund conducts business and to otherwise provide that
Limited Partners will have limited liability with respect to the activities of
the Fund in all such jurisdictions.
2. Principal Office; Admission of Limited Partners.
The address of the principal office of the Fund shall be c/x
Xxxxxxx Xxxxx Alternative Investments LLC, Princeton Corporate Campus, 000
Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X, Xxxxxxxxxx, Xxx Xxxxxx 00000; telephone:
0-000-000-0000.
The address of the registered office of the Fund in the State
of Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000, and the name and
address of the registered agent for service of process on the Fund in the State
of Delaware is The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000.
The General Partner may change the registered office and
registered agent of the Fund upon notice to the Limited Partners.
3. Business.
The Fund's business and purpose is to invest, trade, buy, sell
or otherwise acquire, hold or dispose of futures and forward contracts for
commodities, securities, financial instruments, repurchase and reverse
repurchase agreements, deposit accounts and currencies, any rights pertaining
thereto and any options thereon or on physical commodities and to engage in all
activities incident thereto. The objective of the Fund's business is to achieve
substantial capital appreciation through speculative trading. The Fund may
engage in the foregoing activities either directly or through joint ventures or
similar arrangements with third parties, provided that such arrangements do not
subject the Limited Partners to any liability in excess of the limited liability
provided for herein and contemplated by the Act. This provision does not limit
the authority of the General Partner to cause the Fund to trade any and all
financial products, whether now or hereafter existing, in any and all markets
whether now or hereafter existing. The Fund also may do every act necessary,
convenient, incidental, suitable or proper for the accomplishment of any of such
purposes or objectives.
The names and addresses of the Limited Partners shall be set
forth in the books and records of the Fund. A party shall be deemed admitted as
a Limited Partner at the time such party (i) executes this Limited Partnership
Agreement (by separate instrument or otherwise), and (ii) is named as a Limited
Partner on the books and records of the Fund. Additional Limited Partners may
only be admitted upon the consent of the General Partner.
4. Term, Dissolution, Fiscal and Net Assets.
(a) Term. The term of the Fund commenced on the day on
which the Certificate of Limited Partnership was filed with the Secretary of
State of the State of Delaware pursuant to the provision of the Act and shall
end upon the first to occur of the following: (1) December 31, 2020; (2) receipt
by the General Partner of an approval to dissolve the Fund at a specified time
by Limited Partners owning units of limited partnership interest ("Units")
representing more than 50% in Net Asset Value of the outstanding Units then
owned by Limited Partners, notice of which is sent by registered mail to the
General Partner not less than 90 days prior to the effective date of such
dissolution; (3) an event of withdrawal of the General Partner (or any successor
or additional general partner) within the meaning of Section 17-402 of the Act,
unless (i) at the time of such event there is at least one remaining general
partner of the Fund who carries on the business of the Fund (and each remaining
general partner of the Fund is hereby authorized to carry on the business of the
Fund in such an event), or (ii) within ninety days after such event all Partners
agree in writing to continue the business of the Fund and to the appointment,
effective as of the date of such event, of one or more general partners of the
Fund; or (4) any event which shall make it unlawful for the existence of the
Fund to be continued or requiring termination of the Fund.
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(b) Dissolution. Upon the occurrence of an event causing
the dissolution of the Fund, the Fund shall be dissolved and its affairs shall
be wound up. Dissolution, payment of creditors and distribution of the Fund's
assets shall be effected as soon as practicable in accordance with the Act, and
the General Partner and each Limited Partner shall share in the assets of the
Fund pro rata in accordance with its or his respective interests in the Fund,
less any amount owing by such Partner to the Fund.
(c) Fiscal Year. The fiscal year of the Fund shall begin
on January 1 of each year and end on the following December 31.
(d) Net Assets. Net Assets of the Fund are defined to
include all cash, U.S. Treasury bills and other securities (valued in such
manner as the General Partner may deem fair and reasonable), the liquidating
value of all commodity futures, forward and options positions and the fair
market value of all other assets of the Fund, less all liabilities of the Fund,
determined in accordance with the accounting principles specified below and,
where no principle is specified, in accordance with generally accepted
accounting principles under the accrual method of accounting. If a contract
traded on a United States exchange could not be liquidated on the day with
respect to which Net Assets are being determined, due to the operation of daily
limits or other rules of commodity exchanges or otherwise, the settlement price
on the first subsequent day on which the contract could be liquidated shall be
the basis for determining the liquidating value of such contract for such day,
or such other value as the General Partner may deem fair and reasonable. The
liquidating value of a commodity futures, forward or option contract not traded
on a United States exchange shall mean its liquidating value as determined by
the General Partner on a basis consistently applied for each different variety
of contract. The General Partner may establish such reserves for contingent
liabilities or expenses as the General Partner deems appropriate and such
reserves shall reduce Net Assets.
The accrued liability for reimbursement of the organizational
and initial offering costs to the General Partner will not reduce Net Asset
Value for any purpose including calculating brokerage commissions or the value
of the Units. Such partial reimbursement payments will reduce Net Asset Value
for all such purposes only as actually paid out in twenty-four equal monthly
installments. Accrued profit shares (as described in the Fund's Confidential
Private Placement Memorandum, as supplemented or amended from time to time (the
"Offering Memorandum")) shall reduce Net Asset Value, even though such profit
shares may never, in fact, be paid. Accrued profit shares shall be calculated on
a basis which reflects the aggregate New Trading Profits (as defined in the
Offering Memorandum) accrued in respect of all outstanding Units.
5. Net Worth of General Partner.
The General Partner agrees that at all times so long as it
remains General Partner of the Fund, it will maintain its net worth at an amount
sufficient, in the opinion of counsel for the Fund, for the Fund to be taxed as
a partnership rather than as an association taxable as a corporation.
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6. Capital Contribution of General Partner.
The General Partner, so long as it is a general partner of the
Fund, or any substitute general partner, shall invest in the Fund, as a general
partnership interest, sufficient capital so that the General Partner will have
at all times a capital account equal to 1% of the total capital accounts of the
Fund (including the General Partner's). The General Partner may withdraw any
interest it may have as a general partner in excess of such requirement, and may
redeem as of any month-end any interest which it may acquire on the same terms
as any Limited Partner; provided that it must maintain the minimum interest
described in the preceding sentence.
7. Allocation of Profits and Losses.
(a) Capital Accounts and Allocations. A capital account
shall be established for each Unit, and for the General Partner on a
Unit-equivalent basis. The initial balance of each Unit's capital account shall
be the amount contributed to the Fund with respect to such Unit, which amount
shall be equal to the Net Asset Value per Unit on the date each Unit is
purchased after all accrued fees and expenses (other than organizational and
initial offering cost reimbursement payments, which shall be taken into account
only on a cash basis), including profit share accruals which may, in fact, never
be paid. As of the close of business (as determined by the General Partner) on
the last day of each month, any increase or decrease in the Fund's Net Assets as
compared to the last such determination of Net Assets shall be credited or
charged equally to the capital accounts of all Units then outstanding; provided
that for purposes of maintaining such capital accounts, amounts paid or payable
to the General Partner for items such as reimbursement of organizational and
initial offering costs and service fees shall be treated as if paid or payable
to a third party and shall not be credited to the capital account or the
interest held by the General Partner.
For purposes of this Section 7, unless specified to the
contrary, Units redeemed as of the end of any month shall be considered
outstanding as of the end of such month.
(b) Allocation of Profit and Loss for Federal Income Tax
Purposes. As of the end of each fiscal year, the Fund's income and expense and
capital gain or loss shall be allocated among the Partners pursuant to the
following provisions of this Section 7(b) for federal income tax purposes. For
purposes of this Section 7(b), capital gain and capital loss shall be allocated
separately and not netted.
(1) First, items of ordinary income and expense (other
than expenses attributable to profit shares which shall be allocated as set
forth in Section 7(b)(2)) shall be allocated pro rata among the Units
outstanding as of the end of each month in which the items of ordinary income
and expense accrue.
(2) Second, expenses attributable to profit shares paid
to the Advisor shall be allocated among the Units outstanding at any time during
the fiscal year based upon the ratio that each such Unit's net profit share (the
excess, if any, of the aggregate of all profit shares allocated to the capital
account relating to such Unit over the aggregate of all "reversals" of profit
shares allocated to such Unit) bears to the net profit share of all Units.
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(3) Third, capital gain or loss shall be allocated as
follows:
(A) There shall be established a tax account
with respect to each outstanding Unit. The initial balance of each tax
account shall be the amount paid to the Fund for each Unit. For each of
the first twenty-four months of the Fund, the balance of such tax
account shall be reduced by the Unit's allocable share of the amount
payable in such month by the Fund to the General Partner in respect of
organizational and initial offering costs, as described in the Offering
Memorandum. The adjustment to reflect the reimbursement of
organizational and initial offering costs shall be made prior to the
allocations of capital gain or loss (and shall be taken into account in
making such allocations). For purposes of this Section 7(b)(3), tax
allocations shall be made to the General Partner's general partnership
interest on a Unit-equivalent basis. As of the end of each fiscal year:
(i) Each tax account shall be increased by the
amount of income allocated to each Unit pursuant to Sections
7(b)(1) and 7(b)(3)(C).
(ii) Each tax account shall be decreased by the
amount of expense or loss allocated to each Unit pursuant to
Sections 7(b)(1), 7(b)(2) and 7(b)(3)(E) and by the amount of
any distributions paid out with respect to the Units other
than upon redemption.
(iii) When a Unit is redeemed, the tax account
attributable to such Unit (determined after making all
allocations described in this Section 7(b)) shall be
eliminated.
(B) Each Partner who redeems Units in such year
(including Units redeemed as of the end of the last day of such fiscal
year) shall be allocated Capital Gain, if any, up to the amount of the
excess, if any, of the amount received in respect of the Units so
redeemed (before taking into account any early redemption charges) over
the sum of the tax accounts (determined after making the allocation
described in Sections 7(b)(1) and 7(b)(2), but prior to making the
allocations described in this Section 7(b)(3)(B)) allocable to such
Units (an "Excess"). In the event the aggregate amount of Capital Gain
available to be allocated pursuant to this Section 7(b)(3)(B) is less
than the aggregate amount of Capital Gain required to be so allocated,
the aggregate amount of available Capital Gain shall be allocated among
all such Partners in the ratio which each such Partner's Excess bears
to the aggregate Excess of all such Partners.
(C) Capital Gain remaining after the allocation
described in Section 7(b)(3)(B) shall be allocated among all Partners
who hold Units outstanding as of the end of the applicable fiscal year
(other than Units redeemed as of the end of the last day of such fiscal
year) whose capital accounts with respect to such Units are in excess
of their tax accounts (determined after making the allocations
described in Sections 7(b)(1) and 7(b)(2)) allocable to such Units in
the ratio that each such Partner's excess bears to the aggregate excess
of all such Partners. Capital Gain remaining after the allocation
described in the preceding sentence shall be allocated among all
Partners described in said sentence in proportion to their holdings of
such Units.
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(D) Each Partner who redeems Units in such year
(including Units redeemed as of the end of the last day of such fiscal
year) shall be allocated Capital Loss, if any, up to the amount of the
sum of the excess of the tax accounts (determined after making the
allocations described in Sections 7(b)(1) and 7(b)(2), but prior to
making the allocations described in this Section 7(b)(3)(D)) allocable
to the Units so redeemed over the amount received in respect of such
Units (before taking into account any early redemption charges) (a
"Negative Excess"). In the event the aggregate amount of available
Capital Loss required to be allocated pursuant to this Section
7(b)(3)(D) is less than the aggregate amount required to be so
allocated, the aggregate amount of available Capital Loss shall be
allocated among all such Partners in the ratio that each such Partner's
Negative Excess bears to the aggregate Negative Excess of all such
Partners.
(E) Capital Loss remaining after the allocation
described in Section 7(b)(3)(D) shall be allocated among all Partners
who hold Units outstanding as of the end of the applicable fiscal year
(other than Units redeemed as of the end of the last day of such fiscal
year) whose tax accounts with respect to such Units are in excess of
their capital accounts (determined after making the allocations
described in Sections 7(b)(1) and 7(b)(2)) with respect to such Units
in the ratio that each such Partner's negative excess bears to the
aggregate negative excess of all such Partners. Capital Loss remaining
after the allocation described in the preceding sentence shall be
allocated among all Partners described in such sentence in proportion
to their holdings of such Units.
(F) For purposes of this Section 7(b), "Capital
Gain" or "Capital Loss" shall mean gain or loss characterized as gain
or loss from the sale or exchange of a capital asset, by the Internal
Revenue Code of 1986, as amended (the "Code"), including, but not
limited to, gain or loss required to be taken into account pursuant to
Section 1256 thereof.
(4) The allocation of profit and loss for federal income
tax purposes set forth herein is intended to allocate taxable profit and loss
among Partners generally in the ratio and to the extent that profit and loss are
allocated to such Partners so as to eliminate, to the extent possible, any
disparity between the Partner's capital account and his tax account, consistent
with principles set forth in Section 704 of the Code, including without
limitation a "Qualified Income Offset."
(5) The allocations of profit and loss to the Partners in
respect of the Units shall not exceed the allocations permitted under Subchapter
K of the Code, as determined by the General Partner, whose determination shall
be binding.
(c) Expenses. The General Partner shall pay
organizational and initial offering costs of $50,000 incurred in connection with
the offering of Units, and shall be reimbursed by the Fund in 24 equal monthly
installments of $2,083.33 commencing with the first full month of trading
operations; provided that in the event that the Fund dissolves at any time prior
to the end of such 24-month period, remaining reimbursement obligations of the
Fund with respect to amounts advanced by the General Partner shall be
extinguished. The General Partner shall not be paid any interest on any
organizational and initial offering costs advanced by the General Partner. The
Fund shall pay to the General Partner a flat-rate administrative fee in respect
of its
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routine legal, accounting, printing, computer, postage and other administrative
costs, as described in the Offering Memorandum; provided that the General
Partner shall pay all such costs for any calendar year in excess of such
flat-rate amount. The Fund shall bear all taxes, if any, applicable to it and
any charges incidental to trading. Appropriate reserves may be created, accrued
and charged against Net Assets for contingent liabilities, if any, as of the
date any such contingent liability becomes known to the General Partner. Such
reserves shall reduce the Net Asset Value of Units for all purposes, including
redemptions.
(d) Limited Liability of Limited Partners. Each Unit,
when purchased in accordance with the terms and conditions set forth in the
Offering Memorandum and this Limited Partnership Agreement, shall, except as
otherwise provided by law, be fully paid and nonassessable. Any provisions of
this Limited Partnership Agreement to the contrary notwithstanding, except as
otherwise provided by law, no Limited Partner shall be liable for Fund
obligations in excess of the capital contributed by such Limited Partner, plus
his share of undistributed profits and assets, including his obligation, as
required by law, under certain circumstances, to return to the Fund
distributions and returns of contributions.
(e) Return of Capital Contributions. No Partner or
subsequent assignee shall have any right to demand the return of his capital
contribution or any profits added thereto, except through redemption or upon
termination and dissolution of the Fund, in each case as provided herein. In no
event shall a Partner or subsequent assignee be entitled to demand or receive
property other than cash.
8. Management of the Fund.
The General Partner, to the exclusion of all Limited Partners,
shall control, conduct and manage the business of the Fund. No Limited Partner
shall have the power to represent, act for, sign for or bind the General Partner
or the Fund. No Limited Partner shall be entitled to any salary, draw or other
compensation from the Fund on account of his investment in the Fund. The General
Partner shall have sole discretion in determining what distributions of profits
and income, if any, shall be made to the Partners (subject to the allocation
provisions hereof), shall execute various documents on behalf of the Fund and
the Partners pursuant to powers of attorney and supervise the liquidation of the
Fund if an event causing dissolution of the Fund occurs. In the event that the
General Partner has been removed or becomes bankrupt or insolvent, unless the
business of the Fund is continued pursuant to the terms hereof or the Act, the
majority in interest of the Limited Partners may propose and approve a
representative to supervise the liquidation of the Fund.
The General Partner may in furtherance of the business of the
Fund cause the Fund to buy, sell, hold, otherwise acquire or dispose of
commodities, futures contracts and forward contracts and options traded on
exchanges or otherwise, repurchase agreements, interest-bearing securities,
deposit accounts and similar instruments and other assets, and cause the Fund's
trading to be limited to only certain of the foregoing instruments and to be
hedged pursuant to whatever technique the General Partner deems most
appropriate.
The General Partner is hereby authorized to perform all other
duties imposed by Sections 6221 through 6232 of the Code, on the General Partner
as "tax matters partner" of the
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Fund, including (but not limited to) the following: (a) the power to conduct all
audits and other administrative proceedings with respect to the Fund's tax
items; (b) the power to extend the statute of limitations for all Limited
Partners with respect to the Fund's tax items; (c) the power to file a petition
with an appropriate federal court for review of a final administrative
adjustment; (d) the power to enter into a settlement with the Internal Revenue
Service on behalf of, and binding upon, each Limited Partner unless such Limited
Partner notifies the Internal Revenue Service and the General Partner that the
General Partner may not act on his behalf.
The General Partner may, in its sole discretion, make or
refrain from making the election contemplated by Section 754 of the Code, on
behalf of the Fund, and determine how to classify items of income, gain, expense
or profit for federal or state income tax purposes on the Fund's tax returns and
the Form K-1s (or any successor form) transmitted to the Limited Partners.
The General Partner may take such other actions on behalf of
the Fund as it deems necessary, desirable, appropriate, convenient or incidental
to manage the business of the Fund. The General Partner shall, at its option, be
entitled to supervise the liquidation of the Fund, unless the General Partner
has been removed or becomes bankrupt or insolvent.
The General Partner is engaged, and may in the future engage,
in other business activities and, subject to Paragraphs 5 and 6 hereof, shall
not be required to refrain from any other activity nor forego any profits from
any such activity, including without limitation, whether as general partner,
commodity broker or advisor of additional partnerships for investment in the
commodity markets or otherwise and whether or not in competition with the Fund.
Limited Partners may similarly engage in any such other business activities. The
General Partner shall devote to the Fund such time as the General Partner may
deem advisable to conduct the Fund's business and affairs.
No person dealing with the General Partner shall be required
to determine its authority to make any undertaking on behalf of the Fund, nor to
determine any fact or circumstance bearing upon the existence of its authority.
9. Audits and Reports to Limited Partners.
The Fund's books shall be audited annually by an independent
certified public accountant. The Fund will use its best efforts to cause each
Limited Partner to receive (i) within 90 days after the close of each fiscal
year certified financial statements (including a balance sheet and statement of
income) of the Fund for the fiscal year then ended, (ii) within 90 days of the
end of each fiscal year (but in no event later than March 15 of each year) such
tax information as is necessary for a Limited Partner to complete his federal
income tax return and (iii) such other annual and monthly information as the
Commodity Futures Trading Commission may by regulation require. Limited Partners
or their duly authorized representatives may inspect the Fund's books and
records during normal business hours for purposes reasonably related to its
interest as a Limited Partner upon reasonable written notice to the General
Partner. Copies of such records may be made upon payment of reasonable
reproduction costs.
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The General Partner shall prepare or cause to be prepared and
shall file on or before the due date (or any extension thereof) any federal,
state or local tax returns required to be filed by the Fund. The General Partner
shall cause the Fund to pay any taxes payable by the Fund; provided, however,
that such taxes need not be paid if the General Partner or the Fund is in good
faith and by appropriate legal proceedings contesting the validity,
applicability or amount thereof and such contest does not materially endanger
any right or interest of the Fund.
10. Assignability of Units.
Each Limited Partner expressly agrees that he will not assign,
transfer or dispose of, by gift or otherwise, any of his Units or any part or
all of his right, title and interest in the capital or profits of the Fund in
violation of any applicable federal or state securities laws or without giving
written notice of the assignment, transfer or disposition to the General Partner
and that no assignment, transfer or disposition shall be effective against the
Fund or General Partner until the General Partner receives the written notice
thereof and has consented thereto. Any assignment, transfer or disposition by an
assignee of his Units or of any part of his right, title and interest in the
capital or profits of the Fund shall not be effective against the Fund or the
General Partner until the General Partner has consented thereto, and the General
Partner shall not be required to give any assignee any rights hereunder prior to
the General Partner's consent having been given.
11. Redemptions.
A Limited Partner, the General Partner to the extent that it
owns Units or any permitted assignee of Units, may redeem all or any of his
Units (such redemption being herein referred to as a "redemption"), effective as
of the close of business (as determined by the General Partner) on the last day
of any month, minus any accrued advisory fees and, for any redemption (other
than pursuant to a transfer to another pool in the Managed Account Program, as
described in the Offering Memorandum) occurring within twenty-four months of
investment, a redemption charge equal to a percentage of the Net Asset Value of
the redeemed Units; provided that (i) all liabilities, contingent or otherwise,
of the Fund, except any liability to Partners on account of their capital
contributions, have been paid or there remains property of the Fund sufficient
to pay them, (ii) partial redemptions shall not be permitted if the Net Asset
Value of the redeeming Limited Partner's remaining Units would be less than
$25,000 and (iii) in the case of Limited Partners and assignees, their Xxxxxxx
Xxxxx Financial Advisor (as described in the Offering Memorandum) shall have
timely received notice (in writing where required) requesting redemption. Such
notice must be received by such Xxxxxxx Xxxxx Financial Advisor at least ten
calendar days, or such lesser period as shall be acceptable to the General
Partner, in advance of the requested effective date of redemption. In the event
a Limited Partner makes multiple investments, such investments will be treated
on a first-in, first-out basis in determining whether any redemption charge is
applicable. The General Partner may declare additional redemption dates upon
notice to the Limited Partners and assignees to whom the General Partner has
consented.
If at the close of business on any day, losses which would
have caused the value of an investment made as of the inception of trading to
decline by 50% or more are incurred, the Fund will liquidate all open positions
as expeditiously as possible and suspend trading. Within
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ten business days after the date of suspension of trading, the General Partner
(and any other general partners of the Fund) shall declare a Special Redemption
Date. Such Special Redemption Date shall be a business day within thirty
business days from the date of suspension of trading by the Fund, and the
General Partner shall mail notice of such date to each Limited Partner and
permitted assignee, by first-class mail, postage prepaid, not later than ten
business days prior to such Special Redemption Date, together with instructions
as to the procedure such Limited Partner or permitted assignee must follow to
have his Units (only entire, not partial, interests may be so redeemed unless
otherwise determined by the General Partner) redeemed on such date. Upon
redemption pursuant to a Special Redemption Date, a Partner or permitted
assignee shall receive from the Fund an amount equal to the Net Asset Value of
his interest in the Fund, determined as of the close of business (as determined
by the General Partner) on such Special Redemption Date. No redemption charges
shall be assessed on any such Special Redemption Date. If, after such Special
Redemption Date, the Net Assets of the Fund are at least $250,000, the Fund may,
in the discretion of the General Partner, resume trading. The General Partner
may at any time and in its discretion declare a Special Redemption Date, should
the General Partner determine that it is in the best interests of the Fund to do
so. If the General Partner declares a Special Redemption Date, the General
Partner need not again call a Special Redemption Date (whether or not a Special
Redemption Date would be required to be called as described above); and the
General Partner in its notice of a Special Redemption Date may, in its
discretion, establish the conditions, if any, under which other Special
Redemption Dates must be called, which conditions may be determined in the sole
discretion of the General Partner, irrespective of the provisions of this
paragraph. The General Partner may also, in its discretion, declare additional
regular redemption dates and permit certain Limited Partners to redeem at other
than month-end.
The General Partner may defer redemption if raising the
requisite funds would, in the General Partner's good faith judgment, be unduly
burdensome to the Fund.
Payment will be made within ten business days after the
effective date of redemption, except that under special circumstances,
including, but not limited to, inability to liquidate commodity positions as of
a redemption date (including a Special Redemption Date) or default or delay in
payments due the Fund (or entities in which the Fund invests) from commodity
brokers, banks or other persons, the Fund may in turn delay payment to Partners
or assignees requesting redemption of their Units of the proportionate part of
such interest equal to that proportionate part of the Fund's aggregate Net
Assets represented by the sums which are the subject of such default or delay.
The General Partner is hereby authorized, in its discretion,
mandatorily to redeem the Units (or subsequent assignment) held by any account
subject to the provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or Section 4975 of the Code in the event that the
General Partner deems there to be a substantial likelihood that an investment by
such account in the Fund constitutes an investment in the Fund's underlying
assets for purposes of ERISA, the Code or the rules promulgated thereunder.
The General Partner shall also have the right, in its sole
discretion and at any time and for any reason, to mandatorily redeem any Units.
Such redemption may be effected upon ten days' notice.
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Notwithstanding the foregoing or any provision of this Limited
Partnership Agreement to the contrary, the Fund, and the General Partner on
behalf of the Fund, shall not redeem any Units of a Limited Partner or permitted
assignee or make a distribution to any Partner on account of its interest in the
Fund if doing so would violate Section 17-607 of the Act or other applicable
law.
12. Offering of Units.
The General Partner is authorized to take such action and make
such arrangements for the sale of the Units as it deems appropriate.
The General Partner may, in its discretion, continue the
ongoing offering of Units contemplated by the Offering Memorandum as well as
make additional public or private offerings of Units, provided that doing so
does not dilute existing Limited Partners' economic interest in the Fund. No
Limited Partner shall have any preemptive, preferential or other rights with
respect to the issuance or sale of any additional Units, other than as set forth
in the preceding sentence.
The General Partner may terminate (subject to the General
Partner's discretion to reopen) the offering of the Units.
The Fund may offer different series or classes of Units having
different economic terms than previously offered series or classes of Units;
provided that the issuance of such a new series or class of Units shall in no
respect adversely affect the holders of outstanding Units.
13. Special Power of Attorney.
Each Limited Partner, by becoming party to this Limited
Partnership Agreement through purchasing Units, does hereby irrevocably
constitute and appoint the General Partner and each officer of the General
Partner, with power of substitution, as his true and lawful attorney-in-fact, in
his name, place and xxxxx (as may in the reasonable judgment of the General
Partner be required by law): (i) to execute, acknowledge, swear to (and deliver
as may be appropriate) on his behalf and file and record in the appropriate
public offices and publish any amendments to this Limited Partnership Agreement
duly adopted as provided herein; (ii) to execute, acknowledge, swear to (and
deliver as may be appropriate) on his behalf and file and record in the
appropriate public offices and publish certificates of limited partnership in
various jurisdictions, and amendments thereto, and of assumed name or of doing
business under a fictitious name with respect to the Fund; (iii) to execute,
acknowledge, swear to (and deliver as may be appropriate) on his behalf and file
and record in the appropriate public offices and publish all conveyances and
other instruments which the General Partner deems appropriate to qualify or
continue the Fund in the State of Delaware and the jurisdictions in which the
Fund may conduct business, or which may be required to be filed by the Fund or
the Partners under the laws of any jurisdiction or under any amendments or
successor statutes to the Act, to reflect the dissolution or termination of the
Fund or the Fund being governed by any amendments or successor statutes to the
Act or to reorganize or refile the Fund in a different jurisdiction, provided
that such reorganization or refiling does not result in a material change in the
rights of the Partners; (iv) to admit additional Limited Partners and, to the
extent that it is necessary under
11
the laws of any jurisdiction to file amended certificates or agreements of
limited partnership or other instruments to reflect such admission, to execute,
file and deliver such certificates, agreements and instruments; and (v) to file,
prosecute, defend, settle or compromise litigation, claims and arbitrations on
behalf of the Fund. The Power of Attorney granted herein shall be irrevocable
and deemed to be a power coupled with an interest and shall survive and shall
not be affected by the subsequent incapacity, disability or death of a Limited
Partner. Each Limited Partner agrees to be bound by any representation made by
the General Partner and by any successor thereto, acting in good faith pursuant
to such Power of Attorney. In addition to the Power of Attorney granted hereby,
each Limited Partner agrees, upon the request of the General Partner, to execute
one or more special Powers of Attorney to the foregoing effect, in form and
substance satisfactory to the General Partner, on documents separate from this
Limited Partnership Agreement.
14. Withdrawal of a Partner.
The General Partner (or any other general partner of the Fund)
may withdraw from the Fund, without any breach of this Limited Partnership
Agreement, at any time upon 90 days' written notice by first-class mail, postage
prepaid, to each Limited Partner and assignee of whom the General Partner has
notice.
The death, incompetency, withdrawal, insolvency or dissolution
of a Limited Partner shall not terminate or dissolve the Fund, and a Limited
Partner, his estate, custodian or personal representative shall have no right to
withdraw or value such Limited Partner's interest in the Fund except as provided
in Paragraph 11 hereof. Each Limited Partner expressly agrees, to the fullest
extent permitted by law, that in the event of his death, he waives on behalf of
himself and his estate, and directs the legal representatives of his estate and
any person interested therein to waive, the furnishings of any inventory,
accounting or appraisal of the assets of the Fund and any right to an audit or
examination of the books of the Fund.
15. Standard of Liability: Indemnification.
(a) Standard of Liability for the General Partner. The
General Partner and its Affiliates, as defined below, shall have no liability to
the Fund or to any Partner for any loss suffered by the Fund which arises out of
any action or inaction of the General Partner or its Affiliates if the General
Partner or its Affiliates, in good faith, determined that such course of conduct
was in the best interest of the Fund and such course of conduct did not
constitute negligence or misconduct of the General Partner or its Affiliates.
(b) Indemnification of the General Partner by the Fund.
The General Partner and its Affiliates shall be indemnified by the Fund against
any losses, judgments, liabilities, expenses and amounts paid in settlement of
any claims sustained by them based on their conduct relating to the Fund;
provided that the conduct resulting in the same did not constitute negligence or
misconduct or breach any fiduciary obligation to the Fund and was done in good
faith and in a manner reasonably believed to be in, or not opposed to, the best
interests of the Fund; and provided further that Affiliates of the General
Partner shall be entitled to indemnification only for losses resulting from
claims against such Affiliates due solely to their relationship to the
12
General Partner or for losses incurred by such Affiliates in performing the
duties of the General Partner and acting wholly within the scope of the
authority of the General Partner.
Notwithstanding the above, the General Partner and its
Affiliates and any person acting as a selling agent for the Units shall not be
indemnified for any losses, liabilities or expenses arising from or out of an
alleged violation of federal or state securities laws unless (1) there has been
a successful adjudication on the merits of each count involving alleged
securities law violations as to the particular indemnitee, or (2) such claims
have been dismissed with prejudice on the merits by a court of competent
jurisdiction as to the particular indemnitee or (3) a court of competent
jurisdiction approves a settlement of the claims against a particular
indemnitee.
In any claim for indemnification for federal or state
securities law violations, the party seeking indemnification shall place before
the court the position of the Securities and Exchange Commission and the
Massachusetts Securities Division with respect to the issue of indemnification
for securities law violations.
The Fund shall not incur the cost of that portion of any
insurance, other than public liability insurance, which insures any party
against any liability the indemnification of which is herein prohibited.
For the purposes of this Paragraph 15, the term "Affiliates"
shall mean any person performing services on behalf of the Fund who: (1)
directly or indirectly controls, is controlled by, or is under common control
with the General Partner; or (2) owns or controls 10% or more of the outstanding
voting securities of the General Partner; or (3) is an officer or director of
the General Partner; or (4) if the General Partner is an officer, director,
partner or trustee, is any entity for which the General Partner acts in any such
capacity.
Advances of funds from the Fund to a General Partner and its
Affiliates for legal expenses and other costs incurred as a result of any legal
action initiated against the General Partner by a Limited Partner are
prohibited.
Advances of funds from the Fund to the General Partner and its
Affiliates for legal expenses and other costs incurred as a result of a legal
action will be made only if the following three conditions are satisfied: (1)
the legal action relates to the performance of duties or services by the General
Partner or its Affiliates on behalf of the Fund; and (2) the legal action is
initiated by a third party who is not a Limited Partner; and (3) the General
Partner or its Affiliates undertake to repay the advanced funds to the Fund in
cases in which they would not be entitled to indemnification under the first
paragraph of this section (b) of Paragraph 15.
In no event shall any indemnity or exculpation provided for
herein be more favorable to the General Partner or any Affiliate than that
permitted pursuant to Regulation 950 CMR 13.305 of the State of Massachusetts or
contemplated by the "Guidelines for the Registration of Commodity Pool Programs"
promulgated by the North American Securities Administrators Association, Inc. as
in effect on the date of this Limited Partnership Agreement.
In no event shall any indemnification permitted by this
section (b) of Paragraph 15 be made by the Fund unless all provisions of this
Paragraph for the payment of
13
indemnification have been complied with in all respects. Furthermore, it shall
be a precondition of any such indemnification that the Fund receive a
determination of independent legal counsel in a written opinion that the party
which seeks to be indemnified hereunder has met the applicable standard of
conduct set forth herein. Receipt of any such opinion shall not, however, in
itself entitle any such party to indemnification unless indemnification is
otherwise proper hereunder. Any indemnification payable by the Fund hereunder
shall be made only as provided in the specific case.
In no event shall any indemnification obligations of the Fund
under this section (b) of Paragraph 15 subject a Limited Partner to any
liability in excess of that contemplated by section (d) of Paragraph 7 hereof.
In the event the Fund 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 any Partner's activities, obligations or liabilities unrelated
to the Fund's business, such Partner shall indemnify and reimburse the Fund for
all loss and expense incurred, including reasonable attorneys' fees.
16. Amendments.
If at any time during the term of the Fund the General Partner
shall deem it necessary or desirable to amend this Limited Partnership
Agreement, the General Partner may proceed to do so; provided that such
amendment shall be effective only if embodied in an instrument approved by the
General Partner and by Limited Partners holding more than fifty percent (50%) in
Net Asset Value of the outstanding Units then owned by Limited Partners. Such
approval may be obtained by the General Partner by means of written notice to
the Limited Partners requiring them to respond in the negative by a specified
time or to be deemed to have approved of the proposed amendment. Any such
supplemental or amendatory agreement shall be adhered to and have the same
effect from and after its effective date as if the same had originally been
embodied in and formed a part of this Limited Partnership Agreement, provided,
however, that no such supplemental or amendatory agreement shall, without the
consent of all Limited Partners, change or alter this Paragraph 16, extend the
term of the Fund, reduce the capital account of any Partner or modify the
percentage of profits, losses or distributions to which any Partner is entitled.
In addition, reduction of the capital account of any assignee or modifications
of the percentage of profits, losses or distributions to which an assignee is
entitled hereunder shall not be effected by any amendment or supplement to this
Limited Partnership Agreement without such assignee's written consent. No
meeting procedure or specified notice period is required in the case of
amendments made with the consent of the General Partner, mere receipt of an
adequate number of unrevoked written consents (or negative approvals as provided
above) being sufficient.
The General Partner may amend this Limited Partnership
Agreement without the consent of the Limited Partners in order (i) to clarify
any clerical inaccuracy or ambiguity or to reconcile any inconsistency, (ii) to
add to the representations, duties or obligations of the General Partner or
surrender any right or power of the General Partner for the benefit of the
Limited Partners, (iii) to amend this Limited Partnership Agreement to effect
the intent of the allocations proposed herein to the maximum extent possible in
the event of a change in the Internal Revenue Code or the interpretations
thereof affecting such allocations, (iv) to attempt to ensure that the
14
Fund is not taxed as an association for federal income tax purposes, (v) so as
to qualify or maintain the qualification of the Fund as a limited partnership in
any jurisdiction, (vi) to delete or add any provision of or to this Limited
Partnership Agreement required to be deleted or added by any federal agency or
any state "Blue Sky" official or similar official or in order to opt to be
governed by any amendment or successor statute to the Act, (vii) to change the
name of the Fund and to make any modifications to this Limited Partnership
Agreement to reflect the admission of an additional or substitute general
partner and to reflect any modification to the Net Worth requirements applicable
to the General Partner and any other general partner, as contemplated by
Paragraph 5 hereof, (viii) to make any amendment to this Limited Partnership
Agreement which the General Partner deems advisable, provided that such
amendment is not materially adverse to the Limited Partners, or (ix) to make any
amendment that is appropriate or necessary, in the opinion of the General
Partner, to prevent the Fund or the General Partner or its directors, officers
or controlling persons from in any manner being subjected (to the extent it is
not already subjected) to the provisions of the Investment Company Act of 1940,
as amended, the Investment Advisers Act of 1940, as amended, or "plan asset"
regulations adopted under ERISA, regardless of whether substantially similar to
plan asset regulations currently applied or proposed by the United States
Department of Labor. This Limited Partnership Agreement may only be amended with
the consent of the General Partner.
17. Governing Law.
The validity and construction of this Limited Partnership
Agreement shall be determined and governed by the laws of the State of Delaware
(without regard to principles of conflicts of law).
18. Miscellaneous.
(a) Priority Among Limited Partners. No Limited Partner
shall be entitled to any priority or preference over any other Limited Partner
in regard to the affairs of the Fund, except to the extent that this Limited
Partnership Agreement (including, without limitation, the provisions relating to
redemption) may be deemed to establish such a priority or preference.
(b) Notices. All notices under this Limited Partnership
Agreement shall be in writing and, except as set forth in the following
sentence, shall be effective upon personal delivery, or if sent by first-class
mail, postage prepaid, addressed to the last known address of the party to whom
such notice is to be given, upon the deposit of such notice in the United States
mails. Requests for redemption and notices of assignment, transfer or
disposition of Units or any interest therein shall be effective upon timely
receipt by the Limited Partner's Xxxxxxx Xxxxx Financial Advisor.
(b) Binding Effect. This Limited Partnership Agreement
shall inure to and be binding upon all of the parties, their successors and
assigns, custodians, estates, heirs and personal representatives. For purposes
of determining the rights of any Partner or assignee hereunder, the Fund and the
General Partner may rely upon the Fund records as to who are Partners and
assignees and all Partners and assignees agree that their rights shall be
determined and they shall be bound thereby.
15
(c) Counterparts. This Limited Partnership Agreement may
be executed in multiple counterparts (and by power of attorney), all of which
shall constitute but one Limited Partnership Agreement.
(d) Defined Terms. Capitalized terms used but not defined
herein shall have the meanings set forth in the Offering Memorandum.
IN WITNESS WHEREOF, the parties hereto have executed this
Sixth Amended and Restated Limited Partnership Agreement as of the date first
above-written.
General Partner: Limited Partner:
XXXXXXX XXXXX ALTERNATIVE All Limited Partners now and hereafter
INVESTMENTS LLC admitted as limited partners of the Fund
pursuant to Powers of Attorney now or
hereafter executed in favor of, and
delivered to, the General
Partner.
By: /s/ XXXXXX X. XXXXX XXXXXXX XXXXX ALTERNATIVE
------------------------ INVESTMENTS LLC
Xxxxxx X. Xxxxx
Vice President, By: /s/ XXXXXX X. XXXXX
Chief Operating ------------------------------
Officer and Manager Xxxxxx X. Xxxxx
Vice President, Chief Operating
Officer and Manager
16
