EXHIBIT 1.01
FORM OF
AMENDED AND RESTATED SELLING AGREEMENT
Dated as of ______ __, 2002
Xxxxxx Xxxxxxx XX Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx Xxxxxxx Charter Xxxxxx X.X. ("Charter Xxxxxx"), Xxxxxx
Xxxxxxx Charter Millburn L.P. ("Charter Millburn"), and Xxxxxx Xxxxxxx Charter
Xxxxxx X.X. ("Charter Xxxxxx"), each a limited partnership organized pursuant to
a certificate of limited partnership filed on July 15, 1998, as amended, and an
amended and restated limited partnership agreement dated as of __________ __,
2002 under the Delaware Revised Uniform Limited Partnership Act (the "DRULPA"),
Xxxxxx Xxxxxxx Charter MSFCM L.P. ("Charter MSFCM") a limited partnership
organized pursuant to a certificate of limited partnership filed October 22,
1993, as amended, and an amended and restated limited partnership agreement
dated as of ________ __, 2002 under DRULPA and Xxxxxx Xxxxxxx Charter Xxxxxxxx
X.X. ("Charter Xxxxxxxx"; collectively with Charter Xxxxxx, Charter Millburn,
Charter Xxxxxx and Charter MSFCM, the "Partnerships" and each individually, a
"Partnership"), a limited partnership organized pursuant to a certificate of
limited partnership filed on March 26, 2002 and a limited partnership agreement
dated as of _____ __, 2002 under DRULPA (the certificates of limited partnership
of Charter Xxxxxx, Charter Millburn, Charter Xxxxxx, Charter MSFCM and Charter
Xxxxxxxx are each hereinafter referred to as a "Certificate of Limited
Partnership," and the limited partnership agreements of Charter Xxxxxx, Charter
Millburn, Charter Xxxxxx, Charter MSFCM, and Charter Xxxxxxxx are each
hereinafter referred to as a "Limited Partnership Agreement" and, collectively,
the "Limited Partnership Agreements"), each propose, subject to the terms and
conditions set forth in this Agreement, to concurrently offer, sell, and issue
up to 11,000,000, 9,000,000, 9,000,000, 4,750,000 and 3,000,000 units of limited
partnership interest ("Units"), of Charter Xxxxxx, Charter Millburn, Charter
Xxxxxx, Charter MSFCM and Charter Xxxxxxxx, respectively.
Demeter Management Corporation, a Delaware corporation, is the
sole general partner of each Partnership (the "General Partner"). A single
registered commodity trading advisor (each, a "Trading Advisor") for each
Partnership is acting as the trading advisor with respect to the management of
each Partnership's trading activities pursuant to the respective management
agreements among the Trading Advisor for each Partnership, each Partnership, and
the General Partner (each, a "Management Agreement" and collectively, the
"Management Agreements").
Xxxxxx Xxxxxxx XX Inc., a Delaware corporation ("Xxxxxx
Xxxxxxx XX"), acts as selling agent pursuant to this Agreement and acts as the
non-clearing commodity broker pursuant to the respective customer agreements
between the Non-Clearing Broker and each of the Partnerships (collectively, the
"Xxxxxx Xxxxxxx XX Customer Agreements"). Xxxxxx Xxxxxxx & Co. Incorporated, a
Delaware corporation ("MS & Co."), acts as the clearing commodity broker for
each Partnership pursuant to the respective customer agreements among MS & Co.,
the Non-Clearing Broker, and each of the Partnerships (the "MS & Co. Clearing
Broker Customer Agreements"), except that Xxxxxx Xxxxxxx & Co. International
Limited ("MSIL") acts as the clearing commodity broker for trades on the London
Metal Exchange for each Partnership pursuant to the respective customer
Agreements between the Partnership and MSIL (the "MSIL Clearing Broker Customer
Agreements," together with the MS & Co. Clearing Broker Customer Agreements, the
"Clearing Broker Customer Agreements"). MS & Co. and MSIL are collectively
referred to as the "Clearing Commodity Brokers." The Non-Clearing Broker and the
Clearing Broker are collectively referred to herein as the "Commodity Brokers."
Subscriptions for Units will be held by The Chase Manhattan Bank, as escrow
agent (the "Escrow Agent"), pursuant to an amended and restated escrow agreement
among the Partnerships, the Escrow Agent and Xxxxxx Xxxxxxx XX, dated as of
_______ __, 2002 (the "Escrow Agreement").
This Agreement amends and restates the Amended and Restated
Selling Agreement, dated as of October 11, 2000, among Charter Xxxxxx, Charter
Millburn, Charter Xxxxxx, Charter MSFCM, the General Partner and Xxxxxx Xxxxxxx
XX.
1. Representations and Warranties of the General Partner and
the Partnerships. The General Partner represents and warrants to each of the
other parties hereto as to each Partnership and itself, and each Partnership,
severally and not jointly, represents and warrants to Xxxxxx Xxxxxxx XX as to
itself with respect to the agreements to which it is a party and with respect to
the other applicable documents, as follows:
(a) The Partnerships have provided to Xxxxxx Xxxxxxx XX, and
filed with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "1933 Act"), and the rules and
regulations promulgated by the SEC thereunder (the "SEC Regulations"):
(i) on July 29, 1998, registration statements on Form S-1, as
amended by Post-Effective Amendments No. 1 thereto filed on September
21, 1998, and as further amended by Post-Effective Amendments No. 2
thereto filed on October 23, 1998 (SEC File Nos. 333-60115, 333-60103,
and 333-60097), for the registration of 3,000,000 Units of Charter
Xxxxxx, 3,000,000 Units of Charter Millburn, and 3,000,000 Units of
Charter Xxxxxx, respectively, which were declared effective by the SEC
on November 6, 2000 (the "1998 Registration Statements");
(ii) on July 22, 1999, Post-Effective Amendments No. 1 to the
1998 Registration Statements, which were declared effective by the SEC
on August 13, 1999;
(iii) on November 23, 1999, registration statements on Form
S-1, as amended by Pre-Effective Amendments No. 1 thereto, filed on
March 17, 2000 (SEC File Nos. 333-91563, 333-91569, and 333-91567),
which were declared effective by the SEC on March 27, 2000 (the "2000
Registration Statements");
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(iv) on July 18, 2000, (A) Post-Effective Amendments No. 1 to
the 2000 Registration Statements, as amended by Post-Effective
Amendments No. 2 to the 2000 Registration Statements filed on September
22, 2000; and (B) a registration statement on Form S-1 (SEC File No.
333-41684) relating to the registration of 1,750,000 Units of Charter
MSFCM, as amended by Pre-Effective Amendment No. 1 thereto filed on
September 22, 2000 (the "MSFCM Registration Statement"), each of which
registration statements was declared effective by the SEC on October
11, 2000;
(v) on March 30, 2001, Post-Effective Amendment No. 3 to the
2000 Registration Statements and Post-Effective Amendment No. 1 to the
MSFCM Registration Statement, each of which was declared effective by
the SEC on April 12, 2001;
(vi) on December 5, 2001, Post-Effective Amendment No. 4 to
the 2000 Registration Statements and Post-Effective Amendment No. 2 to
the MSFCM Registration Statement, each of which was declared effective
by the SEC on December 19, 2001; and
(vii) on March __, 2002, (A) Post-Effective Amendment No. 5 to
the 2000 Registration Statements of Charter Millburn and Charter Xxxxxx
(SEC File Nos. 333-91569 and 333-91567); and (B) registration
statements on Form S-1 (SEC File Nos. 333-_____, 333-_____ and
333-_____), for the registration of 2,000,000 Units of Charter Xxxxxx,
3,000,000 Units of Charter MSFCM and 3,000,000 Units of Charter
Xxxxxxxx, each of which was declared effective on _____ __, 2002.
(b) Copies of the preliminary prospectus contained in each of
the Registration Statement referred to in Sections 1(a)(i) - (vii) and copies of
the final prospectus have also been, or will be, filed with (i) the Commodity
Futures Trading Commission (the "CFTC") under the Commodity Exchange Act (the
"CEAct") and the rules and regulations promulgated thereunder by the CFTC (the
"CFTC Rules"); and (ii) the National Futures Association (the "NFA") in
accordance with NFA Compliance Rule 2-13. Copies of each of the Registration
Statements referred to in Sections 1(a)(i) - (vii) have also been filed with
NASD Regulation, Inc. (the "NASD") pursuant to its Conduct Rules.
(c) Each registration statement referred to in Sections
1(a)(i)-(vii) and each prospectus included therein are hereinafter called the
"Registration Statement" and the "Prospectus," respectively, except that if any
Partnership files a post-effective amendment to its registration statement, then
the term "Registration Statement" shall, from and after the filing of each such
amendment, refer to the applicable Registration Statement, as amended by such
amendment, and the term "Prospectus" shall refer to the amended prospectus then
on file with the SEC as part of the applicable Registration Statement; and if a
prospectus as first issued in compliance with the SEC Regulations shall differ
from the prospectus on file at the time the applicable Registration Statement or
any amendment thereto shall have become effective, the term "Prospectus" shall
refer to the prospectus most recently so issued from and after the date on which
it shall have been issued, including any amendment or supplement thereto. The
Partnerships will not file any amendment to their respective Registration
Statements or any amendment or supplement to the Prospectus unless Xxxxxx
Xxxxxxx XX has received reasonable prior notice of and a copy of such amendments
or supplements and has not reasonably objected thereto in writing.
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(d) The Limited Partnership Agreements provide for the
subscription for and sale of the Units; all action required to be taken by the
General Partner and the Partnerships as a condition to the sale of the Units to
qualified subscribers therefor has been, or prior to Charter Xxxxxxxx'x Initial
Closing and each Monthly Closing (as defined in Section 5(b) hereof) (the
Initial Closing or any Monthly Closing, a "Closing") will have been, taken; and,
upon payment of the consideration therefor specified in each accepted
Subscription and Exchange Agreement and Power of Attorney, in the form included
in the Prospectus (the "Subscription Agreement"), the Units will constitute
valid limited partnership interests in the Partnership for which Units were
subscribed.
(e) Each Partnership is a limited partnership duly organized
pursuant to a Certificate of Limited Partnership, a Limited Partnership
Agreement and the DRULPA, and is validly existing under the laws of the State of
Delaware with full power and authority to engage in the trading of futures,
forwards, and options and to engage in its other contemplated activities as
described in the Prospectus; each Partnership has received a certificate of
authority to do business in the State of New York as provided by Section 121-902
of the New York Revised Limited Partnership Act and is qualified to do business
in each jurisdiction in which the nature or conduct of its business requires
such qualification and where the failure to be so qualified could materially
adversely affect the Partnership's ability to perform its obligations hereunder
or under its Limited Partnership Agreement, its Management Agreement, its Xxxxxx
Xxxxxxx XX Customer Agreement, its Clearing Broker, Customer Agreement, or the
Escrow Agreement, as applicable.
(f) The General Partner is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware,
and is qualified to do business and is in good standing as a foreign corporation
under the laws of the State of New York and in each other jurisdiction in which
the nature or conduct of its business requires such qualification and where the
failure to be so qualified could materially adversely affect the General
Partner's ability to perform its obligations hereunder or under the Limited
Partnership Agreements, the Management Agreements, or as described in the
Prospectus.
(g) Each Partnership and the General Partner has full
partnership and corporate power and authority, as applicable, under applicable
law to conduct its business and perform its respective obligations, as
applicable, under the Limited Partnership Agreements, the Management Agreements,
the Xxxxxx Xxxxxxx XX Customer Agreements, the Clearing Broker Customer
Agreements, the Escrow Agreement, and this Agreement.
(h) The Registration Statements and the Prospectus contain all
statements and information required to be included therein by the CEAct and the
CFTC Rules. When each of the Registration Statements becomes effective under the
1933 Act and at all times subsequent thereto up to and including each Closing,
the Registration Statements and the Prospectus will comply in all material
respects with the requirements of the 1933 Act, the SEC Regulations, the CEAct,
the CFTC Rules, and the rules of the NASD and the NFA. As of their respective
effective dates, the Registration Statements will not contain any untrue
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statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. The
Prospectus, as of its date of issue and as of each Closing, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which such
statements were made, not misleading. Any supplemental sales literature employed
in offering the Units ("Sales Literature"), when read in conjunction with the
Prospectus, as of its date of issue and as of each Closing, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which such
statements were made, not misleading. The Sales Literature will comply with the
1933 Act, the SEC Regulations, the CEAct, the CFTC Rules, and the rules of the
NASD and the NFA. This representation and warranty shall not, however, apply to
any statement or omission in the Registration Statements, Prospectus or Sales
Literature relating to Xxxxxx Xxxxxxx XX or any Trading Advisor or made in
reliance upon and in conformity with information furnished by Xxxxxx Xxxxxxx XX
or any Trading Advisor.
(i) The accountants who certified the financial statements
filed with the SEC as part of the Registration Statements are, with respect to
the General Partner and the Partnerships, independent public accountants as
required by the 1933 Act and the SEC Regulations.
(j) The financial statements filed as part of the Registration
Statements and those included in the Prospectus present fairly the financial
position of each Partnership and of the General Partner as of the dates
indicated; and said financial statements have been prepared in conformity with
generally accepted accounting principles (as described therein).
(k) Since the respective dates as of which information is
given in the Registration Statements and the Prospectus, except as may otherwise
be stated in or contemplated by the Registration Statements and the Prospectus,
there has not been any material adverse change in the condition, financial or
otherwise, business or prospects of the General Partner or any Partnership,
whether or not arising in any ordinary course of business.
(l) The General Partner will have a net worth at each Closing
sufficient in amount and satisfactory in form to meet the net worth requirements
set forth in each of the Limited Partnership Agreements.
(m) The Limited Partnership Agreements, the Management
Agreements and this Agreement have each been duly and validly authorized,
executed, and delivered by the General Partner on behalf of the Partnerships and
the General Partner, and each constitutes a valid and binding agreement of the
Partnerships and of the General Partner, enforceable in accordance with their
terms. The Xxxxxx Xxxxxxx XX Customer Agreements, the Clearing Broker Customer
Agreements and the Escrow Agreement have each been duly and validly authorized,
executed, and delivered by the General Partner on behalf of the Partnerships,
and each constitutes a valid and binding agreement of the Partnerships,
enforceable in accordance with their terms.
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(n) The execution and delivery of the Limited Partnership
Agreements, the Management Agreements, the Xxxxxx Xxxxxxx XX Customer
Agreements, the Clearing Broker Customer Agreements, the Escrow Agreement, and
this Agreement, the incurrence of the obligations set forth in each of such
agreements, and the consummation of the transactions contemplated therein and in
the Registration Statements and the Prospectus, will not violate, or constitute
a breach of, or default under, the certificate of incorporation or bylaws of the
General Partner, the Certificates of Limited Partnership or the Limited
Partnership Agreements of the Partnerships, or any other agreement or instrument
by which either the General Partner or the Partnerships, as the case may be, is
bound or any law, order, rule, or regulation applicable to the General Partner
or the Partnerships of any court, governmental body, administrative agency,
panel, or self-regulatory organization having jurisdiction over the General
Partner or the Partnerships.
(o) Except as set forth in the Registration Statements or the
Prospectus, there has not been in the five years preceding the date of the
Prospectus and there is not pending or, to the best of the General Partner's
knowledge, threatened, any action, suit, or proceeding at law or in equity
before or by any court, governmental body, administrative agency, panel, or
self-regulatory organization to which the General Partner, any of the
"principals" of the General Partner, as defined in CFTC Rule 4.10(e) ("General
Partner Principals"), or any of the Partnerships is or was a party, or to which
any of the assets of the General Partner or any of the Partnerships is or was
subject; and neither the General Partner nor any General Partner Principal has
received any notice of an investigation by the SEC, CFTC, NASD, or NFA regarding
non-compliance by the General Partner, the General Partner Principals, or the
Partnerships with the 1933 Act, the SEC Regulations, the Securities Exchange Act
of 1934, as amended (the "1934 Act"), any other federal securities laws, rules
or regulations, the CEAct, the CFTC Rules, or the rules of the NASD or the NFA,
which action, suit, proceeding, or investigation resulted or might reasonably be
expected to result in any material adverse change in the condition, financial or
otherwise, business or prospects of the General Partner or any of the
Partnerships, or which could be material to an investor's decision to invest in
any of the Partnerships.
(p) The General Partner and each "principal" of the General
Partner, as defined in CFTC Rule 3.1(a), have all federal, state, and foreign
governmental, regulatory, self-regulatory, and exchange approvals, licenses,
registrations, and memberships, and have effected all filings with federal,
state, and foreign governmental regulators, self-regulatory organizations, and
exchanges required to conduct their business and to act as described in the
Registration Statements and the Prospectus, or required to perform their
obligations under the Limited Partnership Agreements, the Xxxxxx Xxxxxxx XX
Customer Agreements, the Clearing Broker Customer Agreements, the Escrow
Agreement, the Management Agreements and this Agreement. The General Partner is
registered as a commodity pool operator under the CEAct and is a member of the
NFA as a commodity pool operator. The General Partner's principals identified in
the Prospectus are all of the General Partner Principals.
(q) To the extent required under CFTC Rules and applicable
CFTC staff no-action letters, the actual performance of all pools "operated"
within the meaning of the CEAct by the General Partner and of the General
Partner Principals is disclosed in the Prospectus.
2. Covenants of the Partnerships and the General Partner. Each
Partnership as to itself, severally and not jointly, and the General Partner as
to itself and each Partnership covenants and agrees as follows:
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(a) The Partnerships will prepare and file with the SEC, CFTC,
NASD, and NFA, promptly upon Xxxxxx Xxxxxxx DW's request, any amendments to the
applicable Registration Statement, and any amendments and supplements to the
Prospectus, which may be necessary or advisable in connection with the offering
and sale of Units, and will use its best efforts to cause the same to become
effective as promptly as possible.
(b) As soon as any Partnership is advised or obtains knowledge
thereof, such Partnership will advise Xxxxxx Xxxxxxx XX of any requests made by
the SEC, CFTC, NASD, or NFA to amend the applicable Registration Statement, to
amend or supplement the Prospectus, or for additional information, or of the
issuance by the SEC of any stop order suspending the effectiveness of any
Registration Statement, of any order by the SEC, CFTC, NASD or NFA preventing or
suspending the use of the Prospectus, or of the institution of any proceedings
for any such purpose, and will use its best efforts to prevent the issuance of
any such order and, if any such order is issued, to obtain the lifting thereof
as promptly as possible.
(c) If, at any time after the effective date of any
Registration Statement and any amendment thereto, any event occurs involving any
of the Partnerships, the General Partner, or any General Partner Principal, or
of which any of the Partnerships, the General Partner, or any General Partner
Principal is aware, as a result of which any Registration Statement or the
Prospectus, as then amended and supplemented, would include any untrue statement
of a material fact or any omission to state a material fact required to be
stated therein or necessary to make the statements therein (and, with respect to
the Prospectus, in light of the circumstances under which they were made) not
misleading, or if it becomes necessary or desirable at any time to amend or
supplement any Registration Statement or the Prospectus to comply with the 1933
Act, the SEC Regulations, the CEAct, the CFTC Rules, or the rules of the NASD or
the NFA, the Partnerships will promptly notify Xxxxxx Xxxxxxx XX thereof and
will prepare and file with the SEC, CFTC, NASD, and NFA an amendment or
supplement that will correct such statement or omission or that will effect such
compliance.
(d) The Partnerships will furnish to Xxxxxx Xxxxxxx XX copies
of the Registration Statements, the Prospectus, and all amendments and
supplements thereto, in each case as soon as available and, in the case of the
Prospectus, in such quantities as Xxxxxx Xxxxxxx XX may reasonably request for
delivery to it.
3. Representations and Warranties of the Non-Clearing Broker.
The Non-Clearing Broker represents and warrants to each of the other parties
hereto, as follows:
(a) The Non-Clearing Broker is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware,
and is qualified to do business and is in good standing as a foreign corporation
in the State of New York and in each other jurisdiction in which the nature or
conduct of its business requires such qualification and where the failure to be
so qualified could materially adversely affect the Non-Clearing Broker's ability
to perform its obligations hereunder or under the Xxxxxx Xxxxxxx XX Customer
Agreements, or as described in the Prospectus. The Non-Clearing Broker has full
corporate power and authority to perform its obligations under each of the
Xxxxxx Xxxxxxx XX Customer Agreements and this Agreement, and to conduct its
business as described in the Registration Statements and the Prospectus.
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(b) As to the Non-Clearing Broker, (i) the Registration
Statements and the Prospectus are accurate and complete in all material respects
and contain all statements and information required to be included therein under
the 1933 Act, the SEC Regulations, the CEAct, the CFTC Rules, and the rules of
the NFA; (ii) as of their effective dates, the Registration Statements will not
contain any untrue statement of a material fact or omit to state a material fact
which is required to be stated therein or necessary to make the statements
therein not misleading; and (iii) the Prospectus, as of its date of issue and as
of each Closing, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which such statements were made, not misleading.
(c) The Non-Clearing Broker and each "principal" of the
Non-Clearing Broker, as defined in CFTC Rule 3.1(a), have all federal, state,
and foreign governmental, regulatory, self-regulatory, and exchange approvals,
licenses, registrations, and memberships, and have effected all filings with
federal, state, and foreign governmental regulators, self-regulatory
organizations, and exchanges required to conduct their business and to act as
described in the Registration Statements and the Prospectus, or required to
perform their obligations under each Xxxxxx Xxxxxxx XX Customer Agreement and
this Agreement, as applicable. The Non-Clearing Broker is registered as a
futures commission merchant under the CEAct and is a member of the NFA as a
futures commission merchant.
(d) The Xxxxxx Xxxxxxx XX Customer Agreements and this
Agreement have been duly and validly authorized, executed, and delivered by the
Non-Clearing Broker, and each constitutes a valid and binding agreement of the
Non-Clearing Broker, enforceable in accordance with its terms.
(e) Since the respective dates as of which information is
given in the Registration Statements and the Prospectus, except as may otherwise
be stated in or contemplated by the Registration Statements and the Prospectus,
there has not been any material adverse change in the condition, financial or
otherwise, business or prospects of the Non-Clearing Broker, whether or not
arising in the ordinary course of business.
(f) Except as set forth in the Registration Statements or the
Prospectus, there has not been in the five years preceding the date of the
Prospectus and there is not pending or, to the best of the Non-Clearing Broker's
knowledge, threatened, any action, suit, or proceeding at law or in equity
before or by any court, governmental body, administrative agency, panel, or
self-regulatory organization to which the Non-Clearing Broker is or was a party,
or to which any of the assets of the Non-Clearing Broker is or was subject; and
the Non-Clearing Broker has not received any notice of an investigation by the
NFA or the CFTC regarding non-compliance by the Non-Clearing Broker with the
CEAct, the CFTC Rules, or the rules of the NFA, which action, suit, proceeding
or investigation resulted in or might reasonably be expected to result in any
material adverse change in the condition, financial or otherwise, business or
prospects of the Non-Clearing Broker or which would be material to an investor's
decision to invest in any of the Partnerships.
(g) The execution and delivery of each Xxxxxx Xxxxxxx XX
Customer Agreement and this Agreement, the incurrence of the obligations set
forth herein and in each Xxxxxx Xxxxxxx XX Customer Agreement, and the
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consummation of the transactions contemplated therein and in the Registration
Statements and in the Prospectus, will not violate, or constitute a breach of,
or default under, the certificate of incorporation or bylaws of the Non-Clearing
Broker or any other agreement or instrument by which it is bound, or any law,
order, rule, or regulation applicable to the Non-Clearing Broker of any court,
governmental body, administrative agency, panel, or self-regulatory organization
having jurisdiction over the Non-Clearing Broker.
4. Covenants of the Non-Clearing Broker. The Non-Clearing
Broker covenants and agrees as follows:
(a) The Non-Clearing Broker agrees reasonably to cooperate by
providing information regarding itself in the preparation of any amendments or
supplements to the Registration Statements and the Prospectus.
(b) The Non-Clearing Broker agrees to notify the General
Partner immediately upon discovery of any untrue statement of a material fact in
the Registration Statements or the Prospectus relating to the Non-Clearing
Broker, or an omission to state a material fact relating to the Non-Clearing
Broker, required to be stated therein or necessary to make the statements
therein (and, with respect to the Prospectus, in light of the circumstances
under which they were made) not misleading, or of the occurrence of any event or
change in circumstances which would result in there being any material untrue or
misleading statement or a material omission in the Prospectus or the
Registration Statements regarding the Non-Clearing Broker, or which would result
in the Prospectus not including all material information relating to the
Non-Clearing Broker, required pursuant to the CEAct, the CFTC Rules, or the
rules of the NFA.
5. Appointment of the Selling Agent.
(a) Subject to the terms and conditions set forth in this
Agreement, each Partnership hereby appoints Xxxxxx Xxxxxxx XX as its selling
agent to offer and sell Units on a best efforts basis, without any firm
commitment on the part of Xxxxxx Xxxxxxx XX to purchase any Units. Xxxxxx
Xxxxxxx XX shall offer for sale up to 11,000,000 Units of Charter Xxxxxx,
9,000,000 Units of Charter Millburn, 9,000,000 Units of Charter Xxxxxx,
4,750,000 Units of Charter MSFCM and 3,000,000 Units of Charter Xxxxxxxx and
such additional Units as the General Partner may, in its discretion, register
and offer for sale from time to time.
(b) The term "Initial Offering Period" used in this section
only relates to Charter Xxxxxxxx and is the period commencing o, 2002 and ending
on o, 2002, unless all of the registered Units of Charter Xxxxxxxx have
previously been subscribed for or the General Partner has sooner terminated the
Initial Offering Period, or the General Partner extends the Initial Offering
Period as described below. During the Initial Offering Period, Xxxxxx Xxxxxxx XX
will offer Units of Charter Xxxxxxxx for sale at an "Initial Closing," which
currently is scheduled to be held on o, 2002, at a price equal to $10.00 per
Unit. However, the General Partner may in its discretion hold such Initial
Closing at any time during the Initial Offering Period, and may extend the
Initial Offering Period until o, 2002. The Initial Closing for Charter Xxxxxxxx
shall not take place unless subscriptions have been accepted for at least
500,000 Units of Charter Xxxxxxxx. If the minimum number of Units of Charter
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Xxxxxxxx are not sold during the Initial Offering Period, the offering of Units
of Charter Xxxxxxxx shall terminate, and all subscription amounts (together with
any interest earned thereon) shall be refunded to subscribers, as described
under "Plan of Distribution" in the Prospectus. Units of Charter Xxxxxxxx which
remain unsold following the Initial Closing shall be offered for sale in the
Partnerships' Continuing Offering described below. Except as otherwise provided
above, Units shall be offered for sale in the Partnerships' continuing offering
(the "Continuing Offering"), at monthly closings to be held as of the last day
of each month ("Monthly Closing"), at a price per Unit equal to 100% of the "Net
Asset Value per Unit" (as defined in each Limited Partnership Agreement) as of
the close of business on the date of such Monthly Closing. The minimum
subscription for most subscribers shall be $20,000, except that, in the case of
subscribers purchasing Units pursuant to a Non-Series Exchange (as defined in
the Prospectus), the $20,000 minimum investment will be satisfied if the
proceeds of the redemption of the units redeemed would have equaled at least
$20,000 as of the last day of the month immediately preceding the Closing at
which Units are purchased, irrespective of whether the actual proceeds from such
redemption are less than $20,000 when the units are redeemed. A subscription may
be for Units of one Partnership, or may be divided among two or all three
Partnerships, provided that the minimum subscription for any one Partnership is:
(a) in the case of a cash purchase, $5,000, or (b) in the case of a Non-Series
Exchange, the proceeds from the redemption of (i) five units from commodity
pools other than the Spectrum Series or (ii) 500 units from one, or any
combination, of the Spectrum Series. The minimum subscription per Partnership
for subscribers who already own Units in a Partnership and desire to make an
additional investment in such Partnership is: (a) in the case of a cash
purchase, $1,000, or (b) in the case of a Non-Series Exchange, the proceeds from
the redemption of (i) one Unit from commodity pools other than the Spectrum
Series, (ii) 100 units from one, or any combination of the Spectrum Series. The
number of Units received by a subscriber will be rounded to the third decimal
place.
(c) Notwithstanding any provision to the contrary herein, the
General Partner will have the sole discretion to accept or reject any
subscription for Units in whole or in part at any time prior to acceptance.
(d) No selling commissions will be charged with respect to the
sale of Units. The Partnerships understand, however, that Xxxxxx Xxxxxxx XX may
compensate its employees and certain "Additional Sellers," solely from Xxxxxx
Xxxxxxx DW's own funds, in the manner described in Sections 5(e)-(j).
(e) In the case of Units purchased for cash, qualified
employees of Xxxxxx Xxxxxxx XX have the option to receive from Xxxxxx Xxxxxxx XX
(payable solely from its own funds) a gross sales credit equal to four percent
(4%) of the Net Asset Value per Unit as of the applicable Closing for each Unit
sold by them and issued at such Closing, plus a gross sales credit of up to 71%
of the brokerage fees received by the Non-Clearing Broker from the Partnership
each month that are attributable to such outstanding Units, commencing with the
fifteenth month after the Closing at which a Unit is issued. Alternatively,
qualified employees of Xxxxxx Xxxxxxx XX may forego the initial gross sales
credit of 4% of the Net Asset Value per Unit and immediately commence receiving
a gross sales credit of up to 71% of the brokerage fees received by the
Non-Clearing Broker from the Partnership each month that are attributable to
such outstanding Units.
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(f) In the case of Units purchased pursuant to a Series
Exchange or Non-Series Exchange, qualified employees of Xxxxxx Xxxxxxx XX will
not receive the initial gross sales credit of 4%. However, Xxxxxx Xxxxxxx XX
employees effecting a Series Exchange or Non-Series Exchange will receive a
gross sales credit of up to 71% of the brokerage fees received by the
Non-Clearing Broker from the Partnership each month that are attributable to
such outstanding Units, as follows: (i) in the case of a Series Exchange where
the Xxxxxx Xxxxxxx XX employee elected to receive the initial gross sales credit
of 4% in connection with the initial purchase of the Units redeemed, such Xxxxxx
Xxxxxxx XX employee will receive the monthly gross sales credit commencing with
the fifteenth month after the date the Units being redeemed were purchased; and
(ii) in the case of (A) a Series Exchange where the Xxxxxx Xxxxxxx XX employee
elected not to receive the initial gross sales credit of 4% in connection with
the initial purchase of the Units redeemed or (B) a Non-Series Exchange, such
Xxxxxx Xxxxxxx XX employee will receive the monthly gross sales credit
commencing with the first month after the Units are issued. In all cases,
qualified Xxxxxx Xxxxxxx XX employees will receive continuing compensation until
the applicable Partnership terminates or such Unit is redeemed (whichever comes
first).
(g) In all cases, an employee of Xxxxxx Xxxxxxx XX will
qualify for such continuing compensation only if he is properly registered with
the CFTC and is a member of the NFA, as set forth in Section 5(h). Such
continuing compensation is to be paid in recognition of an employee's continuing
services to Limited Partners of the Partnerships, as set forth in Section 5(j).
No person will receive the continuing compensation described above who is not an
employee of Xxxxxx Xxxxxxx XX at the time of receipt of payment.
(h) Notwithstanding the foregoing, Xxxxxx Xxxxxxx XX will not
pay any such continuing compensation to any of its employees who is not legally
qualified or permitted to receive such continuing compensation. In that regard,
each of Xxxxxx Xxxxxxx DW's employees who receives any such continuing
compensation must have become registered as an "associated person" of Xxxxxx
Xxxxxxx XX with the CFTC and with the NFA in such capacity only after either
having passed the National Commodity Futures Examination (NASD Test Series #3),
the Futures Managed Funds Examination (NASD Test Series #31), or having been
"grandfathered" as an associated person under the CEAct and the Bylaws and rules
of the NFA. Also, such compensation may be paid by Xxxxxx Xxxxxxx XX to its
employees only in respect of outstanding Units sold by such persons and only so
long as the additional services described in Section 5(j) are provided by such
persons to Limited Partners; provided, however, that Xxxxxx Xxxxxxx XX may not
pay any portion of such compensation to any individual no longer employed by it,
and provided, further, that such compensation may be paid to its employees who,
although not responsible for the sale of an outstanding Unit, provide the
services described below in place of the individual who was responsible for such
sale. All compensation described in Sections 5(e) and (f), along with any other
underwriting compensation, will not exceed 10% of the proceeds received in
connection with the issuance of the Units.
(i) Xxxxxx Xxxxxxx XX has appointed MS & Co. as its agent to
make offers and sales of Units. Xxxxxx Xxxxxxx XX, with the written approval of
the General Partner, may also appoint, as additional selling agents, one or more
securities brokers or dealers which are members in good standing of the NASD, or
any foreign bank, dealer, institution or person ineligible for membership in the
NASD which agrees to make no offers or sales of Units within the United States
-11-
or its territories, possessions or areas subject to its jurisdiction or to
persons who are citizens thereof or residents therein, as additional selling
agents (MS & Co. and any such selling agent, an "Additional Seller" and
collectively, the "Additional Sellers"), provided that each Additional Seller
shall execute an Additional Seller's Agreement substantially in the form
attached hereto as Exhibit X. Xxxxxx Xxxxxxx XX may compensate any Additional
Seller by paying such Additional Seller, solely from Xxxxxx Xxxxxxx DW's own
funds, a commission, not to exceed four percent (4%) of the Net Asset Value per
Unit as of the date of the applicable Closing, for each Unit sold by such
Additional Seller and issued at such Closing. Xxxxxx Xxxxxxx XX may pay any
Additional Seller continuing compensation of up to 35% annually of the brokerage
fees received by the Non-Clearing Broker from the Partnerships each month that
are attributable to outstanding Units sold by such Additional Seller (except MS
& Co., which will be compensated at the same rate as Xxxxxx Xxxxxxx DW's
employees), in recognition of such Additional Seller's continuing services to
limited partners of the Partnerships, as set forth in Section 5(j); provided,
however, that: (A) no continuing compensation shall be paid to an Additional
Seller unless it is properly registered with the CFTC as a "futures commission
merchant" or "introducing broker," and is a member of the NFA in one of such
capacities, and (B) no Additional Seller which is registered as a futures
commission merchant or introducing broker may pay any portion of such continuing
compensation to an employee thereof unless such employee meets the same
qualifications as Xxxxxx Xxxxxxx DW's employees, as set forth in Section 5(h).
(j) The additional services that employees of Xxxxxx Xxxxxxx
XX and Additional Sellers will provide on an ongoing basis to limited partners
at no charge will include, but not be limited to: (i) inquiring of the General
Partner from time to time, at the request of limited partners, as to the Net
Asset Value of a Unit; (ii) inquiring of the General Partner from time to time,
at the request of limited partners, as to the futures, forwards and options
markets and the activities of the Partnerships; (iii) responding to questions of
limited partners from time to time with respect to monthly account statements,
annual reports, financial statements, and annual tax information furnished
periodically to limited partners; (iv) providing advice to limited partners from
time to time as to when and whether to make additional investments or to redeem
or exchange Units; (v) assisting limited partners from time to time in the
redemption or exchange of Units; and (vi) providing such other services as
limited partners from time to time may reasonably request.
(k) The Partnerships and Xxxxxx Xxxxxxx XX acknowledge that:
(i) the Partnerships shall have no liability to Xxxxxx Xxxxxxx XX, its
employees, any Additional Seller, or any employee of an Additional Seller with
regard to any selling compensation described above; and (ii) Xxxxxx Xxxxxxx XX
will be paid any and all redemption charges imposed on limited partners in
accordance with Section 10(b) of each Limited Partnership Agreement.
6. Undertakings of Xxxxxx Xxxxxxx XX.
(a) Xxxxxx Xxxxxxx XX agrees to use its best efforts to offer
and sell Units on the terms set forth in this Agreement, the Registration
Statements, and the Prospectus. It is understood that Xxxxxx Xxxxxxx XX has no
commitment to offer and sell Units or to purchase Units, other than to use its
best efforts to offer and sell Units.
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(b) Xxxxxx Xxxxxxx XX will make the public offering of Units
at the offering price and on the other terms and conditions set forth in the
Registration Statements, the Prospectus, and this Agreement. Xxxxxx Xxxxxxx XX
will offer and sell Units only to persons who satisfy the suitability and/or
minimum investment requirements set forth in the Prospectus and the Subscription
Agreement and who, to the General Partner's satisfaction, complete a
Subscription Agreement. Xxxxxx Xxxxxxx XX will conduct a thorough review of the
suitability of each subscriber for Units, of each Subscription Agreement
authorizing the General Partner and Xxxxxx Xxxxxxx XX to transfer the full
subscription price from the subscriber's customer account with Xxxxxx Xxxxxxx XX
to the escrow account established with the Escrow Agent pursuant to the Escrow
Agreement (the "Escrow Account"), and of each Subscription Agreement requesting
a Series Exchange or a Non-Series Exchange as described under "Summary--Who May
Subscribe" and "Exchange Right" in the Prospectus.
(c) All of Xxxxxx Xxxxxxx DW's branch offices will be required
to forward subscriptions to the General Partner's office in New York, New York
no later than noon of the first business day following their receipt of an
acceptable Subscription Agreement from a subscriber for Units. Subsequent to its
review of each Subscription Agreement, the General Partner will notify Xxxxxx
Xxxxxxx XX, and Xxxxxx Xxxxxxx XX shall notify each subscriber by the business
day following its receipt of notice from the General Partner, of the General
Partner's acceptance of all, a portion, or none of the subscriber's
subscription.
(d) All funds from subscriptions received by Xxxxxx Xxxxxxx XX
during the Initial Offering and the Continuing Offering of the Partnerships and
not rejected by the General Partner will be promptly deposited by Xxxxxx Xxxxxxx
XX in the Escrow Account as described below. A subscriber whose Subscription
Agreement is received by Xxxxxx Xxxxxxx XX and whose subscription is not
immediately rejected by the General Partner must have the full subscription
amount in his customer account with Xxxxxx Xxxxxxx XX on the first business day
following the date that his Subscription Agreement is received by Xxxxxx Xxxxxxx
XX, and Xxxxxx Xxxxxxx XX will transfer such subscription funds to the Escrow
Agent on that date. Xxxxxx Xxxxxxx XX will notify the General Partner of the
subscription amount deposited with the Escrow Agent on behalf of each subscriber
for Units and the name and residence address of each such subscriber.
Subscription funds held in the Escrow Account shall earn interest and
subscribers shall be credited with interest, as described under "Plan of
Distribution--Escrow Arrangements" in the Prospectus.
(e) Xxxxxx Xxxxxxx XX will offer and sell Units in compliance
with the requirements set forth in the Registration Statements, the Prospectus
(particularly under the captions "Summary--Who May Subscribe" and "--The
Offering of Units," "Plan of Distribution," "Subscription Procedure," and
"Purchases by Employee Benefit Plans--ERISA Considerations"), the Subscription
Agreement, and this Agreement. In connection with Xxxxxx Xxxxxxx DW's acting as
selling agent, Xxxxxx Xxxxxxx XX will comply fully at all times with all
applicable federal, state, and foreign securities and commodities laws
(including, without limitation, the 1933 Act, the 1934 Act, the CEAct, and the
securities ("Blue Sky") laws of the jurisdictions in which Xxxxxx Xxxxxxx XX
solicits subscriptions), and all requirements of the NASD (particularly Conduct
Rule 2810), the Board of Governors of the Federal Reserve System, and the
securities and commodities exchanges and other governmental regulators and
self-regulatory authorities and organizations having jurisdiction over Xxxxxx
Xxxxxxx XX. Specifically, (i) Xxxxxx Xxxxxxx XX will not permit the purchase of
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any Units by a customer account over which Xxxxxx Xxxxxxx XX has discretionary
authority without the prior written approval by the customer owning such
account; (ii) Xxxxxx Xxxxxxx XX confirms that it has reasonable grounds to
believe that all material facts are adequately and accurately disclosed in the
Prospectus, which provides a basis for evaluating the Partnerships; (iii) Xxxxxx
Xxxxxxx XX confirms that in determining the adequacy of disclosed facts pursuant
to clause (ii), it has obtained information on material facts relating to: (A)
items of compensation, (B) tax aspects, (C) financial stability and experience
of the General Partner, and (D) the Partnerships' conflicts and risk factors;
(iv) in recommending to a subscriber the purchase or redemption of Units, a
Series Exchange or a Non-Series Exchange, Xxxxxx Xxxxxxx XX shall take such
measures as are reasonably necessary to assure itself that (A) its financial
advisors have informed such subscriber of all pertinent facts relating to the
liquidity and marketability of the Units, and (B) its financial advisors have
reasonable grounds to believe, on the basis of information obtained from such
subscriber concerning his investment objectives, other investments, financial
situation and needs, and any other information known by such financial advisors,
that: (1) such subscriber is or will be in a financial position appropriate to
enable him to realize to a significant extent the benefits described in the
Prospectus, (2) such subscriber has a fair market net worth sufficient to
sustain the risks inherent in the purchase of Units, including loss of
investment and lack of liquidity, and (3) the purchase of Units is otherwise
suitable for such subscriber; and (v) Xxxxxx Xxxxxxx XX shall take such measures
as are reasonably necessary to assure itself that each subscriber has received a
Prospectus at least five business days prior to the applicable Closing. The
General Partner will maintain in its files, located c/o Morgan Xxxxxxx XX Inc.,
000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, each subscriber's
Subscription Agreement for not less than six years, and Xxxxxx Xxxxxxx XX will
maintain, at its respective branch offices, any other documents disclosing the
basis upon which the determination of suitability was reached for each such
subscriber.
(f) All subscriptions received and accepted by the General
Partner will, upon the satisfaction at each Closing of the conditions set forth
in Sections 9 and 10 hereof, be delivered to the respective Partnerships at each
Closing, and any interest earned on a subscriber's subscription funds while held
in escrow will be promptly returned to Xxxxxx Xxxxxxx XX in accordance with the
Escrow Agreement for prompt credit to the subscriber's customer account with
Xxxxxx Xxxxxxx XX. Interest earned on any subscriptions deposited into the
Escrow Account and thereafter rejected by the General Partner will be credited
to the subscriber's customer account with Xxxxxx Xxxxxxx XX.
(g) Any amounts credited to a subscriber's customer account
with Xxxxxx Xxxxxxx XX for a returned subscription and/or for interest earned
will be immediately available for investment or withdrawal from such account. In
the event a subscriber's customer account with Xxxxxx Xxxxxxx XX has been
closed, any subscription returned and/or interest earned will be paid by check.
7. Blue Sky Filings. The Partnerships will use their best
efforts to qualify Units for offer and sale under the Blue Sky laws of such
jurisdictions as Xxxxxx Xxxxxxx XX may reasonably request, to make applications,
file documents, and furnish information as may be reasonably required for that
purpose, and to comply with such laws so as to permit the continuance of sales
and dealings in such jurisdictions for as long as may be necessary to complete
-14-
the offer and sale of Units; provided, however, that neither the Partnerships
nor the General Partner will be required to qualify as or be subject to taxation
as a foreign partnership or corporation or to execute a general consent to
service of process in any jurisdiction. The Partnerships further agree that
their counsel will prepare and deliver to Xxxxxx Xxxxxxx XX Blue Sky surveys
which will set forth, for Xxxxxx Xxxxxxx DW's guidance, in what manner, at what
time, in what amounts, and by whom Units may be offered and sold in
jurisdictions requested by Xxxxxx Xxxxxxx XX as provided above.
8. Organizational and Offering Expenses. Xxxxxx Xxxxxxx XX
shall pay all of the costs incurred in connection with the organization of the
Partnerships and the Initial Offering of Charter Xxxxxxxx. Xxxxxx Xxxxxxx XX
will also pay all of the costs incurred in connection with the offering of Units
during the Continuing Offering (collectively, the "Offering Expenses"),
including all legal, accounting, and auditing fees and expenses of outside firms
and all costs, disbursements, filing fees, fees and expenses of the Escrow
Agent, printing and duplication costs, marketing costs and expenses, and other
related costs and expenses. Legal, accounting, and auditing fees and expenses of
outside firms shall include the legal, accounting, and auditing expenses of
Xxxxxx Xxxxxxx XX, the Partnerships and the General Partner relating to the
offering of Units. Marketing costs and expenses shall include, but not be
limited to, the printing and preparation of Sales Literature, the production of
audio and video tapes for use in sales presentations, and the staging of sales
seminars and the travel of Xxxxxx Xxxxxxx XX and General Partner personnel
associated therewith. Xxxxxx Xxxxxxx XX shall not be reimbursed for such
expenses by the Partnerships. Such expenses will not include the travel, legal,
and other expenses of the Trading Advisors, including such expenses incurred in
connection with the marketing of Units, which expenses shall be borne by the
Trading Advisor (unless Xxxxxx Xxxxxxx XX agrees to pay same from its own
funds).
9. Closings.
(a) The Initial Closing, if any, for the acceptance of
subscriptions for Units of Charter Xxxxxxxx is currently scheduled to be held on
o, 2002. Thereafter, Monthly Closings in the Continuing Offering for Units of
Charter Xxxxxx, Charter Millburn, Charter Xxxxxx and Charter MSFCM and after its
Initial Closing, Charter Xxxxxxxx shall be held as of the last day of each
month. Each Monthly Closing will be held at such time, and at such location or
locations as the General Partner and Xxxxxx Xxxxxxx XX may mutually agree upon.
(b) Subject to its right to reject any subscription in its
sole discretion in whole or in part at any time prior to acceptance, the General
Partner, on behalf of each Partnership, will accept subscriptions for Units
properly made and cause proper entry to be made in the Unit register to be
maintained by the General Partner. No certificate evidencing Units shall be
issued to any subscriber; rather, Xxxxxx Xxxxxxx XX will deliver confirmations
in its customary form to subscribers whose subscriptions have been accepted by
the General Partner at each Closing.
(c) At each Closing, the delivery, receipt, and acceptance of
subscriptions for Units will be subject to the terms and conditions set forth in
this Agreement, including the following: (i) payment of the full subscription
price for Units and delivery of a properly completed Subscription Agreement by
each subscriber; and (ii) compliance with Section 10 hereof. Upon the
satisfaction of such terms and conditions, the aggregate subscription price for
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Units (exclusive of any interest earned on such subscriptions while held in
escrow and payable to the subscribers in accordance with the Escrow Agreement)
will be paid and delivered to the applicable Partnership at each Closing.
10. Conditions of Xxxxxx Xxxxxxx DW's Obligations.
(a) Xxxxxx Xxxxxxx DW's obligations to proceed with the
offering and sale of Units and each Closing will be subject to: (i) the accuracy
of the representations and warranties by the Partnerships and the General
Partner in this Agreement as of the date hereof and as of the date of such
Closing as if such representations and warranties had been made on and as of the
date thereof; (ii) the performance by the Partnerships and the General Partner
of their respective covenants and agreements herein; and (iii) the additional
conditions precedent set forth below. (b) At each Closing, the additional
conditions precedent are as follows:
(i) The Registration Statements will have become effective. No
stop order suspending the effectiveness of any of the Registration
Statements will have been issued and no proceedings for that purpose
will have been instituted or are pending or, to the knowledge of the
Partnerships or Xxxxxx Xxxxxxx XX, are contemplated or threatened by
the SEC. No order preventing or suspending the use of the Prospectus
will have been issued and no proceedings for that purpose will have
been instituted or are pending or, to the knowledge of the Partnerships
or Xxxxxx Xxxxxxx XX, are contemplated or threatened by the SEC, CFTC,
NASD, or NFA. Any requests of the SEC, CFTC, NASD, or NFA for
additional information (to be included in any of the Registration
Statements or the Prospectus or otherwise) will have been complied with
to Xxxxxx Xxxxxxx DW's satisfaction.
(ii) Neither Xxxxxx Xxxxxxx XX nor any Trading Advisor will
have advised the Partnerships or the General Partner that, in its
opinion, any of the Registration Statements or the Prospectus contains
any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading.
(iii) At the request of Xxxxxx Xxxxxxx XX, the General Partner
will have furnished to Xxxxxx Xxxxxxx XX a certificate, dated the date
of the Closing and in form and substance satisfactory to Xxxxxx Xxxxxxx
XX, to the effect that:
(A) The representations and warranties by the
Partnerships and the General Partner in this Agreement are true,
accurate, and complete on and as of the date of the Closing as if
made on the date of the Closing.
(B) No stop order suspending the effectiveness of any of
the Registration Statements has been issued by the SEC and no
proceedings for that purpose have been instituted or are pending
or, to the knowledge of the General Partner, are contemplated or
threatened under the 1933 Act. No order preventing or suspending
the use of the Prospectus has been issued by the SEC, CFTC, NASD,
or NFA and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the General Partner, are
contemplated or threatened under the 1933 Act or the CEAct.
-16-
(C) The Partnerships and the General Partner have
performed all of their obligations and satisfied all of the
conditions on their part to be performed or satisfied under this
Agreement, the Management Agreements, the Escrow Agreement, the
Xxxxxx Xxxxxxx XX Customer Agreements, and the CFI Customer
Agreements at or prior to the date of the Closing.
(D) The General Partner has made its capital
contribution to each Partnership and has met the net worth
standard required of it by each Limited Partnership Agreement.
(iv) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General
Partner and the Partnerships, shall deliver its opinion to the parties
hereto at such Closing, as requested by Xxxxxx Xxxxxxx XX, in form and
substance satisfactory to the parties hereto, to the effect that:
(A) Each Limited Partnership Agreement provides for the
subscription for and sale of the Units; all action required to be
taken by the General Partner and each Partnership as a condition
to the subscription for and sale of the Units to qualified
subscribers therefor has been taken; and, upon payment of the
consideration therefor specified in the accepted Subscription
Agreements, the Units will constitute valid limited partnership
interests in the applicable Partnership and each subscriber who
purchases Units will become a Limited Partner, subject to the
requirements that each such purchaser shall have duly completed,
executed, and delivered to the applicable Partnership a
Subscription Agreement relating to the Units purchased by such
purchaser, that such purchaser meets all applicable suitability
standards, and that the representations and warranties of such
purchaser in the Subscription Agreement are true and correct and
that such purchaser is included as a Limited Partner in the
applicable Partnership's records. Such counsel need not
independently verify compliance with such requirements.
(B) Each Partnership is a limited partnership duly
formed pursuant to its Certificate of Limited Partnership, its
Limited Partnership Agreement and the DRULPA and is validly
existing under the laws of the State of Delaware with partnership
power and authority to conduct the business in which it proposes
to engage as described in the applicable Registration Statement
and the Prospectus and to perform its obligations under its
Limited Partnership Agreement, its Management Agreement, its
Xxxxxx Xxxxxxx XX Customer Agreement, its Clearing Broker
Customer Agreement, the Escrow Agreement, and this Agreement; and
each Partnership has received a Certificate of Authority to do
business in the State of New York as contemplated under Article
8-A of the New York Revised Limited Partnership Act and is
qualified to do business in New York.
(C) The General Partner is a corporation validly
existing and in good standing as a corporation under the laws of
the State of Delaware and is duly qualified as a foreign
-17-
corporation to do business and is in good standing in the State
of New York and in each other jurisdiction in which the nature or
conduct of its business requires such qualification and where the
failure to be so qualified might reasonably be expected to result
in material adverse consequences to any Partnership or might
materially adversely affect the General Partner's ability to
perform its obligations as described in the Registration
Statements and the Prospectus. The General Partner has corporate
power and authority to conduct its business as described in the
Registration Statements and the Prospectus and to perform its
obligations under each Limited Partnership Agreement, each
Management Agreement, each Xxxxxx Xxxxxxx XX Customer Agreement,
each Clearing Broker Customer Agreement, the Escrow Agreement,
and this Agreement, as applicable.
(D) The General Partner and its "principals," as defined
in CFTC Rule 3.1(a), and each Partnership have all federal and
state governmental, regulatory, self-regulatory and exchange
approvals, licenses, registrations, and memberships, and have
effected all filings with federal and state governmental
regulators, self-regulatory organizations and exchanges required
to conduct their business and to act as described in the
Registration Statements and the Prospectus, or required for the
General Partner and each Partnership to perform their obligations
under each Limited Partnership Agreement, each Management
Agreement, each Xxxxxx Xxxxxxx XX Customer Agreement, each
Clearing Broker Customer Agreement, the Escrow Agreement, and
this Agreement, except for such approvals, licenses,
registrations, memberships, and filings the absence of which
would not have a material adverse effect on their ability of the
Partnerships or the General Partner to act as described in the
Registration Statements and the Prospectus, or to perform their
obligations under such agreements, and, to the best of such
counsel's knowledge, after due investigation, none of such
approvals, licenses, registrations, memberships, or filings has
been rescinded, revoked, or suspended.
(E) Each Limited Partnership Agreement, each Management
Agreement, each Xxxxxx Xxxxxxx XX Customer Agreement, each
Clearing Broker Customer Agreement, the Escrow Agreement, and
this Agreement has been duly authorized, executed, and delivered
by or on behalf of the General Partner and/or each Partnership,
as the case may be, and each Limited Partnership Agreement
constitutes a legal, valid and binding agreement of the General
Partner, each Management Agreement constitutes a legal, valid and
binding agreement of the General Partner and the applicable
Partnership, the Escrow Agreement constitutes a legal, valid and
binding agreement of each Partnership and Xxxxxx Xxxxxxx XX, and
this Agreement constitutes a legal, valid and binding agreement
of each Partnership, the General Partner and Xxxxxx Xxxxxxx XX,
and, in the case of each legal, valid and binding agreement
above, the agreement is enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, receivership or other
laws relating to or affecting creditors' rights generally, and to
general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity), and except that
the enforcement of rights with respect to indemnification and
contribution obligations and provisions (a) purporting to waive
or limit rights to trial by jury, oral amendments to written
-18-
agreements or rights of set off or (b) relating to submission to
jurisdiction, venue or service of process, may be limited by
applicable law or considerations of public policy.
(F) The execution and delivery of the respective Limited
Partnership Agreements, the respective Management Agreements, the
respective Xxxxxx Xxxxxxx XX Customer Agreements, the respective
Clearing Broker Customer Agreements, the Escrow Agreement, and
this Agreement, as applicable, the offer and sale of the Units by
each Partnership, the incurrence of the obligations herein and
therein set forth, and the consummation of the transactions
contemplated herein, therein, and in the Prospectus, (a) will not
require any governmental approval to be obtained on the part of
the General Partner or any Partnership, except those that have
been obtained and, to such counsel's knowledge, are in effect,
(b) will not result in a violation of any provision of the
General Partner's certificate of incorporation or bylaws, any of
the Partnerships' Certificate of Limited Partnership or Limited
Partnership Agreement or any applicable laws applicable to the
General Partner or any Partnership, and (c) will not breach or
result in a violation of, or default under, (i) any instrument or
agreement known to such counsel which the General Partner or any
Partnership is bound or to which any of the property or assets of
the General Partner or any Partnership is subject, or (ii) any
judgment, decree or order known to such counsel which is
applicable to the General Partner or any Partnership and,
pursuant to any applicable laws, is issued by any governmental
authority having jurisdiction over the General Partner or any
Partnership having jurisdiction over the General Partner or any
Partnership or their properties.
(G) To such counsel's knowledge, based upon due inquiry
of certain officers of the General Partner, except as disclosed
in the Prospectus, there are no actions, suits or proceedings at
law or in equity pending or threatened against the General
Partner and the Partnerships before or by any court, governmental
body, administrative agency, panel or self-regulatory
organization, nor have there been any such actions, suits or
proceedings within the five years preceding the date of the
Prospectus against the General Partner or the Partnerships, which
are required to be disclosed in the Registration Statements or
Prospectus.
(H) The information in the Prospectus under the captions
"Summary--Tax Considerations," "Risk Factors--Taxation Risks,"
"Purchases by Employee Benefit Plans--ERISA Considerations,"
"Material Federal Income Tax Considerations," "State and Local
Income Tax Aspects," and "The Limited Partnership Agreements," to
the extent that such information constitutes matters of law or
legal conclusions, has been reviewed by such counsel and is
correct.
(I) The Registration Statements are effective under the
1933 Act and, to the best of such counsel's knowledge, no
proceedings for a stop order are pending or threatened under
Section 8(d) of the 1933 Act or any Blue Sky laws.
(J) At the time the Registration Statements became
effective, the Registration Statements, and at the time the
Prospectus was issued and as of the Closing, the Prospectus,
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complied as to form in all material respects with the
requirements of the 1933 Act, the SEC Regulations, the CEAct, the
CFTC Rules, and the rules of the NASD and NFA.
(K) Based upon reliance on certain SEC "no-action"
letters, as of the Closing, none of the Partnerships needs
register as an "investment company" under the Investment Company
Act of 1940, as amended.
(L) Nothing has come to such counsel's attention that
would lead them to believe that the Registration Statements at
the time they became effective contained any untrue statement of
a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus at the time it was issued or
at the Closing contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that such
counsel need express no opinion or belief (a) as to the
information in the Registration Statements or the Prospectus
regarding the Trading Advisors, the Commodity Brokers, or their
respective principals, (b) as to the financial statements, notes
thereto and other financial or statistical data set forth in the
Registration Statements and the Prospectus, or (c) as to the
performance data and notes or descriptions thereto set forth in
the Registration Statements and the Prospectus.
In rendering its opinion, such counsel may rely on information
obtained from public officials, officers of the General Partner, and other
sources believed by it to be responsible, and may assume that signatures on all
documents examined by it are genuine, and that a Subscription Agreement in the
form referred to in the Prospectus, has been duly authorized, completed, dated,
executed, and delivered and funds representing the full subscription price for
the Units purchased have been delivered by each purchaser of Units in accordance
with the requirements set forth in the Prospectus.
(v) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the Non-Clearing
Broker, shall deliver an opinion to the parties hereto at such Closing
as requested by Xxxxxx Xxxxxxx XX, in form and substance satisfactory
to the parties hereto, to the effect that:
(A) The Non-Clearing Broker is a corporation validly
existing and in good standing as a corporation under the laws of
the State of Delaware and is duly qualified as a foreign
corporation to do business and is in good standing in the State
of New York and in each other jurisdiction in which the nature or
conduct of its business requires such qualification and where the
failure to be so qualified might reasonably be expected to result
in material adverse consequences to the Non-Clearing Broker or
might materially adversely affect the Non-Clearing Broker's
ability to perform its obligations as described in the
Registration Statements and the Prospectus. The Non-Clearing
Broker has corporate power and authority to perform its
obligations as described in the Registration Statements and the
Prospectus and to perform its obligations under the Xxxxxx
Xxxxxxx XX Customer Agreements, the Clearing Broker Customer
Agreements and this Agreement.
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(B) The Xxxxxx Xxxxxxx XX Customer Agreements, the
Clearing Broker Customer Agreements and this Agreement have been
duly authorized, executed, and delivered by the Non-Clearing
Broker, and the Xxxxxx Xxxxxxx XX Customer Agreements, the
Clearing Broker Customer Agreements and this Agreement constitute
legal, valid and binding agreements of the Non-Clearing Broker,
enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, receivership or other laws relating
to or affecting creditors' rights generally, and to general
principles of equity (regardless of whether enforcement is sought
in a proceeding at law or in equity), and except that the
enforcement of rights with respect to indemnification and
contribution obligations and provisions (a) purporting to waive
or limit rights to trial by jury, oral amendments to written
agreements or rights of set off or (b) relating to submission to
jurisdiction, venue or service of process, may be limited by
applicable law or considerations of public policy.
(C) The Non-Clearing Broker has all federal and state
governmental, regulatory, self-regulatory and exchange approvals,
licenses, registrations, and memberships, and has effected all
filings with federal and state governmental regulators,
self-regulatory organizations and exchanges required to conduct
its business and to act as described in the Registration
Statements and the Prospectus, or required to perform its
obligations under the Xxxxxx Xxxxxxx XX Customer Agreements, the
Clearing Broker Customer Agreements and this Agreement, except
for such approvals, licenses, registrations, memberships, and
filings the absence of which would not have a material adverse
effect on its ability to act as described in the Registration
Statements and the Prospectus, or to perform its obligations
under such agreements, and, to the best of such counsel's
knowledge, after due investigation, none of such approvals,
licenses, registrations, memberships, or filings has been
rescinded, revoked or suspended.
(D) The execution and delivery of the Xxxxxx Xxxxxxx XX
Customer Agreements, the Clearing Broker Customer Agreements and
this Agreement, the incurrence of the obligations herein and
therein set forth, and the consummation of the transactions
contemplated herein, therein, and in the Prospectus, (a) will not
require any governmental approval to be obtained on the part of
the Non-Clearing Broker, except those that have been obtained
and, to such counsel's knowledge, are in effect, (b) will not
result in a violation of any provision of the Non-Clearing
Broker's certificate of incorporation or bylaws or any applicable
laws applicable to the Non-Clearing Broker, and (c) will not
breach or result in a violation of, or default under, (i) any
instrument or agreement known to such counsel which the
Non-Clearing Broker is bound or to which any of the property or
assets of the Non-Clearing Broker is subject, or (ii) any
judgment, decree or order known to such counsel which is
applicable to the Non-Clearing Broker and, pursuant to any
applicable laws, is issued by any governmental authority having
jurisdiction over the Non-Clearing Broker having jurisdiction
over the Non-Clearing Broker or its properties.
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(E) To such counsel's knowledge, based upon due inquiry
of certain officers of the Non-Clearing Broker, except as
disclosed in the Prospectus, there are no actions, suits or
proceedings at law or in equity pending or threatened against the
Non-Clearing Broker before or by any court, governmental body,
administrative agency, panel or self-regulatory organization, nor
have there been any such actions, suits or proceedings within the
five years preceding the date of the Prospectus against the
Non-Clearing Broker which are required to be disclosed in the
Registration Statement or Prospectus.
(F) Nothing has come to such counsel's attention to lead
such counsel to believe that, as to the Non-Clearing Broker, (a)
the Registration Statements at the time they became effective
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or (b) the
Prospectus at the time it was issued or at the Closing contained
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein
relating to the Non-Clearing Broker, in light of the
circumstances under which they were made, not misleading.
In rendering its opinion, such counsel may rely on information
obtained from public officials, officers of the Non-Clearing Broker, and other
sources believed by it to be responsible and may assume that signatures on all
documents examined by it are genuine.
(vi) Deloitte & Touche L.L.P., independent certified public
accountants for the Partnerships and the General Partner, will have
furnished to Xxxxxx Xxxxxxx XX a letter, at such Closing as requested
by Xxxxxx Xxxxxxx XX, dated the date of the Closing and in form and
substance satisfactory to Xxxxxx Xxxxxxx XX, to the effect that:
(A) Such accountant is an independent certified public
accountant within the meaning of the 1933 Act, the CEAct, and the
SEC Regulations with respect to the Partnerships and the General
Partner.
(B) In such accountant's opinion, the statements of
financial condition of the Partnerships and the General Partner
and the notes thereto included in the Prospectus and examined by
it comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the CEAct, and the SEC
Regulations.
(C) On the basis of limited procedures not constituting
an audit, including inquiries of officials of the General Partner
having responsibility for financial and accounting matters
pertaining to the Partnerships and such other inquiries and
procedures as may be specified in such letter, nothing has come
to such accountant's attention which causes it to believe that,
as of a specified date not more than five business days prior to
the date of the Closing, there has been any decrease in the Net
Assets of any Partnership as compared to the Net Assets set forth
in the respective statements of financial condition of the
Partnerships included in the Prospectus, except as may be
disclosed in such letter.
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(D) On the basis of limited procedures, not constituting
an audit, including a reading of the latest available financial
statements of the General Partner, inspection of the minute book
of the General Partner since the date of the latest audited
financial statements of the General Partner, inquiries of
officials of the General Partner having responsibility for
financial and accounting matters, and such other inquiries and
procedures as may be specified in such letter, nothing has come
to such accountant's attention that causes it to believe that, as
of a specified date not more than five business days prior to the
date of the Closing, there has been any decrease in the General
Partner's net worth as compared to net worth set forth in the
statement of financial condition of the General Partner included
in the Prospectus, except as may be disclosed in such letter.
(vii) The Non-Clearing Broker shall deliver a certificate to
the parties hereto, in form and substance satisfactory to such parties,
at such Closing as requested by Xxxxxx Xxxxxxx XX, to the effect that
the representations and warranties of the Non-Clearing Broker contained
herein are true and correct with the same effect as though expressly
made at such Closing.
(viii) Each Trading Advisor shall deliver, at such Closing as
requested by Xxxxxx Xxxxxxx XX, such certificate as specified in each
such Trading Advisor's respective Management Agreement.
(ix) Counsel to each Trading Advisor shall deliver, at such
Closing as requested by Xxxxxx Xxxxxxx XX, such legal opinion as
specified in the respective Management Agreement of each Trading
Advisor.
(x) All agreements contemplated herein or in the Registration
Statements or the Prospectus shall have been duly executed and
delivered.
11. Indemnification.
(a) Each Partnership agrees to indemnify, defend, and hold
harmless Xxxxxx Xxxxxxx XX, the General Partner, each Additional Seller and
their respective "affiliates" (as defined in Section 11(c)) from and against any
loss, liability, damage, cost, and expense (including attorneys' and
accountants' fees and expenses incurred in investigating or defending any
demands, claims, or lawsuits), actually and reasonably incurred arising from any
act, omission, activity, or conduct undertaken pursuant to this Agreement by or
on behalf of the Partnership, including, without limitation, any demands,
claims, or lawsuits initiated by a Limited Partner (or assignee thereof),
provided that (1) Xxxxxx Xxxxxxx XX, the General Partner, or the Additional
Seller, as applicable, has determined, in good faith, that the act, omission,
activity, or conduct giving rise to the claim for indemnification was in the
best interests of the Partnership, and (2) the act, omission, activity, or
conduct that was the basis for such loss, liability, damage, cost, or expense
was not the result of misconduct or negligence. The indemnity in this Section
11(a) is in addition to any liability that the Partnership may otherwise have
and will extend, upon the same terms and conditions, to each person, if any, who
controls an indemnified person within the meaning of the 1933 Act.
Notwithstanding anything to the contrary contained in the foregoing, neither
Xxxxxx Xxxxxxx XX, the General Partner, an Additional Seller, nor their
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respective affiliates shall be indemnified by a Partnership 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 laws 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 the particular indemnitee and finds that indemnification of the
settlement and related costs should be made, provided, with regard to such court
approval, the indemnitee must apprise the court of the position of the SEC, and
the positions of the respective securities administrators of Massachusetts,
Missouri, Tennessee, and/or those other states and jurisdictions in which the
plaintiffs claim that they were offered or sold Units, with respect to
indemnification for securities laws violations before seeking court approval for
indemnification. Furthermore, in any action or proceeding brought by a Limited
Partner in the right of a Partnership to which the General Partner, Xxxxxx
Xxxxxxx XX, an Additional Seller, or any affiliate of any of the foregoing is a
party defendant, any such person shall be indemnified only to the extent and
subject to the conditions specified in DRULPA and this Section 11(a). A
Partnership shall make advances to the General Partner, Xxxxxx Xxxxxxx XX, an
Additional Seller, or their respective affiliates hereunder only if: (1) the
demand, claim, or lawsuit relates to the performance of duties or services by
such persons to the Partnership; (2) such demand, claim, or lawsuit is not
initiated by a Limited Partner; and (3) such advances are repaid, with interest
at the legal rate under Delaware law, if the person receiving such advance is
ultimately found not to be entitled to indemnification hereunder.
(b) Xxxxxx Xxxxxxx XX agrees to indemnify, hold harmless, and
defend each Partnership, the General Partner, their respective "affiliates" (as
defined in Section 11(c)), and their respective successors and assigns, from and
against any loss, claim, damage, liability, cost, and expense, joint or several
(including attorneys' and accountants' fees and expenses incurred in
investigating or defending any demands, claims, or lawsuits), to which any
indemnified party may become subject under the 1933 Act, the 1934 Act, the
CEAct, the Blue Sky law of any jurisdiction, or otherwise (including in
connection with the settlement of claims approved in advance by Xxxxxx Xxxxxxx
XX and in connection with any administrative proceedings), in respect of the
offer or sale of Units, insofar as such loss, claim, damage, liability, cost, or
expense arises out of, or is based upon: (i) a breach by Xxxxxx Xxxxxxx XX of
any representation, warranty, or agreement in this Agreement or any certificate
delivered pursuant to this Agreement, or the failure by Xxxxxx Xxxxxxx XX to
perform any covenant made by Xxxxxx Xxxxxxx XX herein; or (ii) a misleading or
untrue statement of a material fact made in any of the Registration Statements,
the Prospectus or any Sales Literature, or an omission to state a material fact
therein which is required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus and any Sales Literature, in
light of the circumstances under which they were made) not misleading, provided
such statement or omission relates specifically to Xxxxxx Xxxxxxx XX, or was
made in reliance upon, and in conformity with, written information or
instructions furnished by or on behalf of Xxxxxx Xxxxxxx XX or Xxxxxx Xxxxxxx
DW's agents. The indemnity in this Section 11(b) is in addition to any liability
that Xxxxxx Xxxxxxx XX may otherwise have and will extend, upon the same terms
and conditions, to each person, if any, who controls an indemnified person
within the meaning of the 1933 Act.
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(c) As used in this Section 11 the term "affiliate" of a
person shall mean: (i) any natural person, partnership, corporation,
association, or other legal entity directly or indirectly owning, controlling,
or holding with power to vote 10% or more of the outstanding voting securities
of such person; (ii) any partnership, corporation, association, or other legal
entity 10% or more of whose outstanding voting securities are directly or
indirectly owned, controlled, or held with power to vote by such person; (iii)
any natural person, partnership, corporation, association, or other legal entity
directly or indirectly controlling, controlled by, or under common control with,
such person; or (iv) any officer, director, or partner of such person.
Notwithstanding the foregoing, solely for purposes of determining eligibility
for indemnification under Section 11(a), the term "affiliate" shall include only
those persons performing services for the applicable Partnership.
(d) Promptly after receipt by an indemnified party under
Section 11(a) or (b) hereof of notice of the commencement of any action, claim,
or proceeding to which any of such subsections may apply, the indemnified party
will notify the indemnifying party in writing of the commencement thereof if a
claim in respect thereof is to be made against the indemnifying party under any
of such subsections; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which the indemnifying
party may have to the indemnified party otherwise than under any of such
subsections, except where such omission has materially prejudiced the
indemnifying party. In case any action, claim, or proceeding is brought against
an indemnified party and the indemnified party notifies the indemnifying party
of the commencement thereof as provided above, the indemnifying party will be
entitled to participate therein and, to the extent that the indemnifying party
desires, to assume the defense thereof with counsel selected by the indemnifying
party and not unreasonably disapproved by the indemnified party. After notice
from the indemnifying party to the indemnified party of the indemnifying party's
election so to assume the defense thereof as provided above, the indemnifying
party will not be liable to the indemnified party under any of such subsections
for any legal and other expenses subsequently incurred by the indemnified party
in connection with the defense thereof, other than reasonable costs of
investigation.
(e) Notwithstanding Section 11(d), if, in any action, claim,
or proceeding as to which indemnification is or may be available under Section
11(a) or (b) hereof, an indemnified party reasonably determines that its
interests are or may be adverse, in whole or in part, to the indemnifying
party's interests or that there may be legal defenses available to the
indemnified party which are different from, in addition to, or inconsistent
with, the defenses available to the indemnifying party, the indemnified party
may retain its own counsel in connection with such action, claim, or proceeding,
and will be indemnified by the indemnifying party for any legal and other
expenses reasonably incurred in connection with investigating or defending such
action, claim, or proceeding.
(f) In no event will the indemnifying party be liable for the
fees and expenses of more than one counsel for all indemnified parties in
connection with any one action, claim, or proceeding, or in connection with
separate but similar or related actions, claims, or proceedings, in the same
jurisdiction arising out of the same general allegations. The indemnifying party
will not be liable for any settlement of any action, claim, or proceeding
effected without the indemnifying party's express written consent, but if any
action, claim, or proceeding is settled with the indemnifying party's express
written consent or if there is a final judgment for the plaintiff in any such
action, claim, or proceeding, the indemnifying party will indemnify, defend, and
hold harmless an indemnified party as provided in Section 11(a) or (b) hereof,
as applicable.
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(g) The exculpation provisions in each Xxxxxx Xxxxxxx XX
Customer Agreement, and each Limited Partnership Agreement shall not relieve any
party thereto from any liability it may have or incur to any party under this
Agreement; nor shall any party thereto be entitled to be indemnified by any
party thereto pursuant to the indemnification provisions contained in such
agreements, against any loss, liability, damage, cost, or expense it may incur
under this Agreement.
12. Termination. Each of the parties shall have the right to
terminate this Agreement as to itself at any time prior to a Closing by giving
written notice of such termination to the other parties.
13. Survival. The respective indemnities, agreements,
obligations, representations, warranties, and other statements of the parties
hereto set forth in this Agreement or in any certificates delivered pursuant
hereto will remain in full force and effect (regardless of any investigation or
any statement as to the results thereof made by, or on behalf of, Xxxxxx Xxxxxxx
XX, any Partnership, the General Partner or any officer, director, controlling
person, or agent of any of the foregoing) and will survive the delivery of and
payment for Units and the termination or expiration of this Agreement, and each
Closing.
14. Notices. All notices required or desired to be given under
this Agreement must be in writing and will be effective when given personally on
the date delivered or, when given by mail, on the date of receipt, addressed as
follows (or to such other address as the party entitled to notice hereafter
designates in accordance with the terms hereof):
if to a Partnership:
c/o Demeter Management Corporation
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
President
if to the General Partner:
Demeter Management Corporation
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
President
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if to Xxxxxx Xxxxxxx XX:
Xxxxxx Xxxxxxx XX
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Senior Vice President
15. Successors. This Agreement will be binding upon and inure
solely to the benefit of Xxxxxx Xxxxxxx XX, each Partnership and the General
Partner (and to the extent provided in Section 11 hereof, any Additional
Sellers, the "affiliates" of each Partnership, the General Partner, Xxxxxx
Xxxxxxx XX, any Additional Sellers, and the respective heirs, executors,
administrators, successors, and assigns of such persons), and no other person
will acquire or have any rights under or by virtue of this Agreement. No
purchaser of Units will be deemed to be a successor or assign to any party
hereto merely by reason of such purchase.
16. Assignment; Amendment. This Agreement may not be assigned
by any party hereto without the prior express written consent of all other
parties. This Agreement may not be amended except by the express written consent
of all parties hereto.
17. GOVERNING LAW; VENUE. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. IF ANY ACTION OR PROCEEDING SHALL BE
BROUGHT BY A PARTY TO THIS AGREEMENT TO ENFORCE ANY RIGHT OR REMEDY UNDER THIS
AGREEMENT, EACH PARTY HERETO HEREBY CONSENTS AND WILL SUBMIT TO THE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE
COUNTY, CITY AND STATE OF NEW YORK. ANY ACTION OR PROCEEDING BROUGHT BY ANY
PARTY TO THIS AGREEMENT TO ENFORCE ANY RIGHT, ASSERT ANY CLAIM OR OBTAIN ANY
RELIEF WHATSOEVER IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT BY SUCH
PARTY EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE COUNTY, CITY AND STATE OF NEW YORK.
18. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
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If the foregoing Agreement is satisfactory to you, please so
indicate by signing at the place provided below.
Accepted and Agreed: XXXXXX XXXXXXX CHARTER XXXXXX X.X.
XXXXXX XXXXXXX XX INC. By: Demeter Management Corporation, General
Partner
By: ______________________ By: _______________________________________
Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx
Senior Vice President President
XXXXXX XXXXXXX CHARTER MILLBURN L.P.
By: Demeter Management Corporation, General
Partner
By: _______________________________________
Xxxxxx X. Xxxxxx
President
XXXXXX XXXXXXX CHARTER XXXXXX X.X.
By: Demeter Management Corporation, General
Partner
By: _______________________________________
Xxxxxx X. Xxxxxx
President
XXXXXX XXXXXXX CHARTER MSFCM L.P.
By: Demeter Management Corporation, General
Partner
By: _______________________________________
Xxxxxx X. Xxxxxx
President
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XXXXXX XXXXXXX CHARTER XXXXXXXX X.X.
By: Demeter Management Corporation, General
Partner
By: _______________________________________
Xxxxxx X. Xxxxxx
President
DEMETER MANAGEMENT CORPORATION
By: _______________________________________
Xxxxxx X. Xxxxxx
President
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