ELEVENTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
EXHIBIT
A
ML
SELECT FUTURES I L.P.
ELEVENTH
AMENDED AND RESTATED
This
Eleventh Amended and Restated Limited Partnership Agreement (the “Limited
Partnership Agreement”) is made as of September 1, 2007, 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.§§ 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, Xxxxxxx Xxxxx Alternative Investments LLC, Hopewell
Building No. 2, 1200 Xxxxxxx Xxxxx Xxxxx - Xxxxx Xxxxx, 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.
EXA-3
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.
EXA-4
(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.
EXA-5
(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
EXA-6
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
EXA-7
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.
EXA-8
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. The General Partner
will consent to the assignment, transfer or disposal of Units upon receipt
of
notice in accordance with the foregoing, provided that such assignment, transfer
or disposal would not violate any applicable federal or state securities
laws
and would not cause the Fund to lose its status as a partnership for federal
income tax purposes.
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 at or prior to the twelth full month following the
Units
purchase date, will be assessed a redemption charge equal to 4% of the Net Asset
Value of the redeemed Units as of the date of redemption; 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 $10,000 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.
EXA-9
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 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.
EXA-10
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.
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
EXA-11
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 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
EXA-12
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 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.
EXA-13
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
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
and Removal of the General Partner.
(a) 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
EXA-14
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 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. Except as set forth in
Paragraph 16 (b), this Limited Partnership Agreement may only be amended
with
the consent of the General Partner.
(b) Any
Limited Partner may obtain a list of the names, addresses and number of Units
held by each Limited Partner from the General Partner, provided that reasonable
copying and mailing costs are paid in advance. Such list will be
mailed by the General Partner within 10 days of the receipt of the request;
provided, that the General Partner shall require any Limited Partner requesting
such information to submit written confirmation that such information will
only
be used for the purpose of calling a meeting of the Partnership to consider
removal and replacement of the General Partner. Upon receipt of a written
proposal, signed by Limited Partners owning at least 10% of the Units (excluding
any Units held by the General Partner or an affiliate), that a meeting of
the
Partnership be called to vote on the removal and replacement of the General
Partner, the General Partner shall, by written notice to each Limited Partner
of
record sent by certified mail within 15 days after such receipt, call such
a
meeting. Such meeting shall be held at least 30 days but not more
than 60 days after the mailing of such notice, and such notice shall specify
the
date, a reasonable place and time for such meeting, as well as its purpose.
In
any vote called pursuant to this Paragraph 16(b), upon the affirmative vote
of
holders of a majority of the Units, the General Partner shall be subject
to
removal and replacement.
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).
EXA-15
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.
(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 Eleventh Amended and
Restated Limited Partnership Agreement as of the date first
above-written.
|
General
Partner:
|
Limited
Partner:
|
|
XXXXXXX
XXXXX ALTERNATIVE
INVESTMENTS
LLC
|
All
Limited Partners now and hereafter 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. Xxxxxxxxxx
Xxxxxx
X. Xxxxxxxxxx
Chief
Executive Officer and President
|
XXXXXXX
XXXXX ALTERNATIVE INVESTMENTS LLC
By:
/s/ Xxxxxx X. Xxxxxxxxxx
Xxxxxx
X. Xxxxxxxxxx
Chief
Executive Officer and President
|
EXA-16
