ADVISORY CONTRACT
Exhibit
10.1
APM
XXXXXXXX FUTURES FUND, L.P.
This
advisory contract (Agreement) made as of this 28th day of May, 2009 between APM
Xxxxxxxx Futures Fund, L.P. (the Partnership), Altegris Portfolio Management,
Inc. (the General Partner) and Xxxxxxxx Trading Company (the Advisor) is made on
the following premises, terms and conditions:
RECITALS
WHEREAS,
the Partnership has been organized to trade speculatively in commodities, spot
and forward foreign exchange, futures, options, forwards, swaps, exchange of
futures for physical transactions and exchange of physical for futures
transactions (“EFPs”) and other derivative instruments traded on markets and
exchanges worldwide, both regulated and over-the-counter (Commodity Interests);
and
WHEREAS,
the General Partner is, pursuant to the Partnership's Agreement of Limited
Partnership, authorized to utilize the services of an advisor in connection with
the Commodity Interest trading activities of the Partnership; and
WHEREAS,
the Advisor’s current business is advising and making trading decisions with
respect to the purchase and sale of Commodity Interests; and
WHEREAS,
the Partnership, the General Partner and the Advisor wish to enter into this
Agreement in order to set forth the terms and conditions upon which the Advisor
will render and implement advisory and management services in connection with
the conduct by the Partnership of certain of its Commodity Interest trading
activities during the term of this Agreement;
NOW,
THEREFORE, the parties hereto agree as follows:
AGREEMENTS
1. Preparation of Offering
Memorandum. The Advisor will cooperate with the Partnership in
the Partnership’s endeavors (a) to prepare or cause to be prepared an Offering
Memorandum relating to the offer and sale by the Partnership of Limited
Partnership Interests (the Interests) and to prepare or cause to be prepared
such amendments or supplements to the Offering Memorandum as are deemed
necessary by the Partnership and the General Partner, each such amended
disclosure document being deemed an Offering Memorandum as that term is used in
this Agreement; and (b) to furnish any supplemental information as may be
reasonably requested by the Securities & Exchange Commission (SEC), the
Commodity Futures Trading Commission (CFTC) , any self regulatory body or by any
securities division or examiner thereof in any state where sales of the
Interests are contemplated.
The
Advisor agrees to make all necessary disclosures regarding itself, its
principals, its trading performance, customer accounts and otherwise as are
required to be made for registration or exemption of the Interests under federal
and state securities laws.
The
parties agree that the Advisor shall have no liability or responsibility for any
statistics prepared or utilized by the General Partner or the Partnership based
upon or deriving from the monthly returns provided by the Advisor to the General
Partner and the Partnership or based upon or deriving from the monthly returns
of the Partnership following its commencement of operations. The
parties agree that the General Partner is solely responsible for the preparation
of the break-even table included in the Offering Memorandum and that the Advisor
shall have no responsibility or liability therefor.
2. Termination. Notwithstanding
the foregoing, the Partnership or the General Partner on its behalf may withdraw
the Offering Memorandum or terminate the offering of the Interests at any
time. Upon any such withdrawal or termination, this Agreement shall
terminate and except for the obligations set forth in
Section
10 neither the Partnership nor the General Partner shall have any obligation to
the Advisor under this Agreement.
3. Certain Representations and
Warranties.
a. The
Advisor represents and warrants to the Partnership and the General Partner and
agrees that:
(i) The
Advisor will use its Standard Plus trading program (the Program) to trade the
Partnership’s account until otherwise instructed by the General
Partner. The Advisor has supplied, and has made available for review
by the General Partner or its agents substantially all documents, statements,
agreements, confirmations and workpapers relating to all accounts managed by the
Advisor and any other persons or entities controlled by the Advisor which have
heretofore been requested by the General Partner including data necessary for
the General Partner to create a pro forma table for the Program reflecting the
fees and expenses the Partnership will pay. The Advisor agrees to
make available to the Partnership’s certified public accountants such
information as is necessary to update its past performance tables, subject to
receipt of adequate written assurances of confidentiality.
(ii) The
Advisor is duly organized and validly existing under the laws of the
jurisdiction of its incorporation, in good standing with full power and
authority to enter into this Agreement and to conduct its business as described
in the Offering Memorandum. This Agreement has been duly and validly
authorized, executed and delivered on behalf of the Advisor and is a binding
agreement of the Advisor, enforceable in accordance with its terms.
(iii) To
the best of the Advisor’s knowledge and belief all of the information about the
Advisor delivered by the Advisor to the General Partner in writing about the
Advisor is true, accurate, and complete in all material respects and does not
contain any untrue statement of a material fact or any omit to state a material
fact necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading. Except as
otherwise disclosed by the Advisor in writing to the General Partner, the actual
performance of all accounts directed by the Advisor and its principals during
the period of time covered by the Advisor’s performance capsules contained in
the Offering Memorandum and the explanations and footnotes thereto are fairly
presented and are true, correct, and complete in all material
respects.
(iv) The
representations and warranties made in this Agreement by the Advisor shall be
continuing during the term of this Agreement and if at any time any event has
occurred which would make or tend to make any of the representations and
warranties in this Agreement not true, of which the Advisor has knowledge or
should reasonably have knowledge, the Advisor will promptly notify the General
Partner.
b. The
General Partner represents and warrants to the Advisor that:
(i) The
Offering Memorandum does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made therein, in light of the circumstances under which they were made, not
misleading, except that the foregoing representation does not apply to any
statement or omission concerning the Advisor in any Offering Memorandum, made in
reliance upon, and in conformity with information furnished to the Partnership
by or on behalf of the Advisor expressly for use in such Offering
Memorandum.
(ii) It
is a corporation duly organized and validly existing under the laws of the
jurisdiction of its incorporation, is in good standing with full power and
authority to enter into this Agreement and to conduct its business as described
in the Memorandum.
.
(iii) It
has the capacity and authority to enter into this Agreement.
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(iv) This
Agreement has been duly and validly authorized, executed and delivered on its
behalf and is a valid and binding agreement of itself, enforceable in accordance
with its terms.
(v) It
will not, by entering into this Agreement, breach or cause to be breached any
undertaking, agreement, contract, statute, rule or regulation by which it is a
party or by which it is bound which would materially limit or affect the
performance of its duties under this Agreement.
(vi) The
offer, sale and distribution of Interests in the Partnership shall be
made in full compliance with all applicable laws, statutes, rules, regulations,
the requests or orders of any government, court or governmental, regulatory or
self-regulatory authority (the “Laws”) having jurisdiction there
over including but not limited to applicable requirements regarding
identification of indirect investors in the Partnership, if any, and
verification of the source of the funds invested. In connection with the offer
and sale of Interests in the Partnership, the General Partner shall (A) use its
reasonable best efforts to ensure that each placement agreement entered into
with any affiliated and third party placement agents shall contain
representations and warranties from such placement agents that such placement
agents shall comply fully at all times with all federal, state and foreign
securities laws, rules and regulations applicable to the offer and sale of the
Interests in the Partnership; and (B) in the event that the General Partner
becomes aware of any material breach by the placement agent of the
representations and warranties of the placement agent referred to in (A) above,
the General Partner shall terminate such placement agent agreement
immediately.
(vii) It
has received, read and it understands the Advisor’s most recent commodity
trading advisor disclosure document dated February 28, 2009.
(viii) With
respect to the Partnership, the General Partner is registered as a commodity
pool operator under the U.S. Commodity Exchange Act, as amended (CE Act), and is
a member of the NFA in such capacity.
(ix) It
shall not prepare, utilize or distribute any promotional materials (including
the Offering Memorandum, any prospectus or other type of offering document)
which identify the Advisor without obtaining the Advisor’s prior written
approval of such promotional materials.
(x) It
shall not allow any assets of the Partnership to constitute "plan assets" for
purposes of the U.S. Employee Retirement Income Act of 1974, as amended (ERISA)
or Section 4975 of the U.S. Internal Revenue Code of 1986, as amended
(Code).
(xi) The
representations and warranties made in this Agreement by the General Partner
shall be continuing during the term of this Agreement and if at any time any
event has occurred which would make or tend to make any of the representations
and warranties in this Agreement not true, of which the General Partner has
knowledge or should reasonably have knowledge, the General Partner will promptly
notify the Advisor.
c. The
Partnership represents and warrants to the Advisor that:
(i)
The Offering Memorandum does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made therein,
in light of the circumstances under which they were made, not misleading, except
that the foregoing representation does not apply to any statement or omission
concerning the Advisor in any Offering Memorandum, made in reliance upon, and in
conformity with information furnished to the Partnership by or on behalf of the
Advisor expressly for use in such Offering Memorandum,.
(ii) The
Partnership is a limited partnership duly organized under the laws of the State
of Delaware, is in good standing with full power and authority to enter into
this Agreement and to conduct its business as described in the
Memorandum.
(iii) The
Partnership has the capacity and authority to enter into this
Agreement.
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(iv) This
Agreement has been duly and validly authorized, executed and delivered on behalf
of the Partnership and is a valid and binding agreement of the Partnership,
enforceable in accordance with its terms.
(v) The
Partnership will not, by entering into this Agreement, breach or cause to be
breached any undertaking, agreement, contract, statute, rule or regulation to
which it is a party or by which it is bound which would materially limit or
affect the performance of its duties under this Agreement.
(vi) The
offer, sale and distribution of Interests in the Partnership shall be
made in full compliance with all applicable Laws having jurisdiction there over
including but not limited to applicable requirements regarding identification of
indirect investors in the Partnership, if any, and verification of the source of
the funds invested. In connection with the offer and sale of
Interests in the Partnership, the Partnership shall: (A) use its reasonable best
efforts to ensure that each placement agreement entered into with any affiliated
and third party placement agents shall contain representations and warranties
from such placement agents that such placement agents shall comply fully at all
times with all federal, state and foreign securities laws, rules and regulations
applicable to the offer and sale of the Interests in the Partnership; and (B) in
the event that the Partnership becomes aware of any material breach by the
placement agent of the representations and warranties of the placement agent
referred to in (A) above, the Partnership shall terminate such placement agent
agreement immediately.
(vii) It
has received, read and it understands the Advisor’s most recent commodity
trading advisor disclosure document dated February 28, 2009.
(viii) It
shall not prepare, utilise or distribute any promotional materials (including
the Offering Memorandum, any prospectus or other type of offering document)
which identify the Advisor without obtaining the Advisor’s prior written
approval of such promotional materials.
(ix)
It shall not allow any assets of the Partnership to constitute "plan assets" for
purposes of ERISA the Code.
(x)
The Partnership will make all disclosures required by law pertaining to the
selection of the Advisor as a trading advisor for the Partnership.
(xi) The
representations and warranties made in this Agreement by the Partnership shall
be continuing during the term of this Agreement and if at any time any event has
occurred which would make or tend to make any of the representations and
warranties in this Agreement not true, of which the Partnership has knowledge or
should reasonably have knowledge, the Partnership will promptly notify the
Advisor.
As used
in this Agreement, the terms “principal” and “direct” shall have the same
meaning given to such terms in Section 4.10(e) and (f) of the Regulations under
the CE Act and the term "affiliate" shall mean an individual or entity
(including a stockholder, director, officer, employee, agent or principal) that
directly or indirectly controls, is controlled by or is under common control
with any other individual entity.
4. Duties of the
Advisor. Upon allocation of assets to the Advisor, the Advisor
shall have sole authority and responsibility for directing the Partnership’s
commodity trading activities for the period set forth in this Agreement and in
accordance with the objectives set forth in the Offering
Memorandum. If the General Partner, in its sole discretion,
determines that any trading instructions issued by the Advisor violate those
objectives, then upon prior notice to the Advisor, the General Partner may cause
any position placed in violation to be reversed. The Advisor will
exercise its reasonable efforts in determining the trades in Commodity Interests
with respect to the Partnership’s assets allocated to it. The Advisor
has advised the Partnership that the past performance of the Advisor and its
principals as set forth in the Offering Memorandum is the result of the
Advisor’s trading methods as modified and refined from time to
time. Material changes in those trading methods will not be made
without prior written notice to the General Partner. Changes in
Commodity Interests traded shall not be deemed material changes in the Advisor’s
trading methods. The Advisor shall use the trading program described in the
Offering Memorandum in trading the
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Partnership’s
account. Until further notice, all trades for the account of the
Partnership shall be cleared through MF Global, Inc. The Advisor may
also place Commodity Interests orders for the Partnership through exchange floor
brokers, give-up brokers, prime brokers, dealers, automated order routing
systems or other executing entities or facilities selected by the Advisor in its
sole and absolute discretion. The Advisor shall have full authority to enter in
its own name but for the account, benefit and risk of the Partnership into any
give-up agreements, EFP agreements, and any automated order routing agreement
for executing orders through an automated order routing system, to make the
necessary representations and warranties set forth in such agreements and to
negotiate the applicable give-up fees and applicable automated order routing
commissions, if any. The parties agree that all orders, entered into pursuant to
this Agreement and pursuant to any automated order routing agreement, are being
entered into by the Advisor as the Partnership’s agent for the account, benefit
and risk of the Partnership. All brokerage commissions, prime
brokerage fees, automated order routing or similar fees, dealer spreads,
xxxx-ups, exchange fees, give up fees, execution fees, National Futures
Association (“NFA”) fees and other related transactional fees and expenses of
such Commodity Interests trading will be paid by the
Partnership.
5. Independence of the
Advisor. The Advisor shall for all purposes herein
be deemed
to be an independent contractor and shall, unless otherwise expressly provided
or authorized, have no authority to act for or represent the Partnership in any
way or otherwise be deemed an agent of the Partnership or the General
Partner. Nothing contained herein shall create or constitute any of
the Partnership and the General Partner on the one hand and the Advisor on the
other hand as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity. The Advisor
shall not offer or sell or solicit any offers to purchase Partnership
Interests. The parties acknowledge that the Advisor has not, either
alone or in conjunction with the General Partner, been an organizer or promoter
of the Partnership. Nothing herein contained shall be deemed to
require the Partnership to take any action contrary to its Agreement of Limited
Partnership, its Certificate of Limited Partnership or any applicable statute,
regulation or exchange rule.
6. Compensation. In
consideration of and in compensation for all of the services to be
rendered by the Advisor to the Partnership under this Agreement, the Partnership
agrees that it will pay to the Advisor a management fee, payable monthly in
arrears, in an amount equal to 0.833% (1% annually) of the Net Asset Value (as
defined below) of the Partnership as of the close of business on the last
business day of each calendar month and a calendar quarterly incentive fee of
24% of Trading Profits (as defined below) attributable to each outstanding
Interest.
Net Asset Value means the Partnership's
total assets less total liabilities, to be determined on the basis of U.S.
generally accepted accounting principles, consistently applied, unless otherwise
specified below. Net Asset Value will include the sum of all cash, U.S.
Government obligations or other securities at market value, accrued interest
receivable, and the current market value of all open Commodity Interest
positions, as indicated by the settlement prices determined by the exchanges on
which such positions are maintained and any other funds which the Partnership
has stated are subject to the Advisor's trading discretion but have not been
deposited in the Partnership’s account, e.g. committed funds or notional
equity.
Trading Profits (for purposes
of calculating the Advisor’s incentive fees only) during a calendar quarter
means each Interest’s pro-rata share of the Partnership’s cumulative realized
and change in unrealized profits and losses during the quarter which result from
the Advisor’s trading (over and above the aggregate of previous period profits
as of the end of any prior quarter) less brokerage commissions and related
brokerage fees, the management fees payable to the Advisor and the General
Partner but not reduced by other expenses of the Partnership, including, but not
limited to the broker dealer trailing compensation, administrative and
operational expenses Interest income shall not be included in calculating
Trading Profits.
Incentive fees are calculated
separately for each Partner’s Interest. If trading profits for a
calendar quarter as to an Interest are negative, such losses shall constitute a
“Carryforward Loss” for the beginning of the next quarter. No
incentive fees are payable as to any Interest until future trading profits, as
to that Interest, for the following quarters exceed any Carryforward
Loss. Therefore, the Advisor will not receive an incentive fee unless
it generates new profits for an Interest. In the event that a Partner redeems
all or a
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portion
of its Interest when such Interest has a Carryforward Loss in effect, the
Carryforward Loss shall be reduced on a pro-rata basis to reflect such
redemption. Any Carryforward Loss reductions shall not be subject to
re-instatement in the event that a Partner subscribes for an additional Interest
following a Carryforward Loss reduction. In the event a Partner
subscribes for its Interest as of different dates, it will have a separate
capital account with respect to each Interest and will pay incentive fees to the
Advisor on an Interest by Interest basis and not on a net basis.
The Partnership shall pay the Advisor
all management fees and incentive fees within fourteen (14) calendar days from
the date they become due.
The
Advisor shall not receive any commissions, compensation, remunerations or
payments whatsoever from any broker with whom the Partnership carries an account
for any transactions executed in the Partnership's account.
7. Right to Advise
Others. The Advisor’s present business is advising with
respect to the
purchase and sale of Commodity Interests. The services provided by
the Advisor under this Agreement are not to be deemed exclusive. The
General Partner acknowledges that, subject to the terms of this Agreement, the
Advisor will continue to render advisory, consulting and management services to
other clients and to trade for proprietary accounts. The Advisor
advises and will continue to advise others and manage other accounts, including
accounts owned by the Advisor, its employees and affiliates, and other publicly
offered and private pools during the term of this Agreement and to use the same
information, computer programs and trading strategy which it obtains, produces
or utilizes in the performance of services for the Partnership. The
Advisor represents and warrants that (i) in rendering consulting, advisory and
management services to other accounts and entities, the Advisor will use its
reasonable efforts to achieve an equitable treatment of all accounts on an
overall basis and will use a fair and reasonable system of order entry for all
accounts on an overall basis and (ii) it will not deliberately use any trading
strategies for the Partnership which it or its principals know are inferior to
those employed by other accounts; it being acknowledged that the Advisor offers
other trading programs than the Standard Plus trading program selected by the
General Partner and the Partnership and that the performance of
such different trading programs may produce different results than
the Standard Plus trading program.
8. Records of the
Partnership. The General Partner will instruct the
Partnership’s broker to furnish copies of all trade confirmations and monthly
trading reports to the Advisor. The Advisor will maintain a record of
all trading orders and will monitor the Partnership’s open
positions. Upon the reasonable request of the General Partner, the
Advisor shall permit the General Partner to inspect the trading
records of the Advisor, at the offices of the Advisor. If the General
Partner believes it is necessary to confirm that the Partnership is being
equitably treated on an overall basis by the Advisor, including with respect to
any modifications of trading strategies resulting from speculative position
limits and with respect to the assignment of priorities of order entry to the
Advisor's accounts, the General Partner may select an independent certified
public accounting firm under a written confidentiality agreement acceptable to
the Advisor at the Partnership’s expense to determine the accuracy of
the Advisor's performance record. Such review of the records of the
Advisor shall take place at the offices of the Advisor during the Advisor’s
normal business hours.
Prior to
the commencement of trading by the Advisor for the Partnership, the General
Partner shall deliver to the Advisor, and renew when necessary, a Trading
Authorization appointing the Advisor the Partnership’s sole agent and
attorney-in-fact to trade Commodity Interests as described herein.
9. Term. Any party may
terminate this Agreement upon written notice to the other parties. If
this Agreement is terminated, the Advisor shall be entitled to, and the
Partnership shall pay, the management fees and incentive fee computed as if the
effective date of termination were the last day of then current calendar month
and quarter.
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10. Standard of Liability;
Indemnity.
(a) The
Advisor shall not be liable to the Partnership or the General Partner under the
terms of this Agreement, except for acts or omissions of the Advisor which
constitute negligence or a breach of fiduciary duty on the part of the
Advisor. In no event shall the Advisor be liable for consequential
damages, special and/or indirect damages and/or lost profits.
(b) In any
threatened, pending or completed action, suit, or proceeding to which the
Advisor or its principals, officers, directors, employees, associated
persons and their affiliates (“Principals and Affiliates”) are
parties or are threatened to be made parties by reason of (i) this Agreement,
(ii) the transactions contemplated hereby or (iii) the fact that the Advisor is
an advisor of the Partnership, the Partnership and the General Partner, jointly
and severally, shall indemnify and hold harmless, subject to a subsection (c) of
this section 10, the Advisor and its Principals and Affiliates against any loss,
liability, damage, cost, expense (including attorneys’ fees and accountants’
fees), judgments and amounts paid in settlement (Losses) actually and reasonably
incurred by them in connection with any action, suit or proceeding if
the Advisor acted in good faith and in a manner it reasonably believed to be in
or not opposed to the best interests of the Partnership, and provided that the
Advisor’s conduct did not constitute negligence or a breach of fiduciary duty on
the part of the Advisor. The termination of any action, suit or
proceeding by judgment, order or settlement shall not, of itself, create a
presumption that the Advisor did not act in good faith and in a manner which it
reasonably believed to be in or not opposed to the best interests of the
Partnership.
(c) Any
indemnification under subsection (b) above, unless ordered by a court or
administrative forum, shall be made by the Partnership and the General Partner
only as authorized in the specific case and only upon a determination by
mutually acceptable independent legal counsel in a written opinion that
indemnification is proper in the circumstances because the Advisor has met the
applicable standard of conduct set forth in subsection (a) above.
(d) If
the Advisor has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsection (b) above, or in defense of
any claim, issue or matter therein, the Partnership and the General Partner,
jointly and severally, shall indemnify the Advisor and its Principals and
Affiliates against the expenses, including attorneys’ and accountants’ fees,
actually and reasonably incurred by them in connection therewith.
(e) In
any threatened, pending or completed action, suit, or proceeding to which the
General Partner or the Partnership are parties or are threatened to be made
parties, the Advisor agrees to indemnify and hold harmless the Partnership and
the General Partner and its Principals and Affiliates against all Losses
actually and reasonably incurred by them in connection with any action, suit or
proceeding which are the direct result of the Advisor’s negligence or breach of
fiduciary duty on the part of the Advisor.
(f) Any
indemnification under subsection (e) above, unless ordered by a court or
administrative forum, shall be made by the Advisor only as authorized in the
specific case and only upon a determination by mutually acceptable independent
legal counsel in a written opinion that indemnification is proper in the
circumstances because the Advisor has not met the applicable standard of conduct
set forth in subsection (a) above.
(g) If
the Partnership or the General Partner has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in subsection
(e) above, or in defense of any claim, issue or matter therein, the Advisor
shall indemnify the Partnership and the General Partner and its Principals and
Affiliates against the expenses, including attorneys’ and accountants’ fees,
actually and reasonably incurred by them in connection therewith.
(h) If
any claim, dispute or litigation arises between the Advisor and any party other
than the Partnership or the General Partner, which claim, dispute or litigation
is unrelated to the Partnership's business, and if the Partnership or
the General Partner are made a party to the claim, dispute or litigation by the
other party, the Advisor shall defend any actions brought in connection
therewith on behalf of the Partnership and/or the General Partner who agrees to
cooperate in the defense thereof and the Advisor shall
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indemnify
and hold harmless the Partnership, the General Partner and its
Principals and Affiliates from and with respect to any amounts awarded to any
party. If any claim, dispute or litigation arises between the
Partnership and/or the General Partner and any party other than the Advisor
which claim, dispute or litigation is unrelated to the Advisor’s business, and
if the Advisor is made a party to the claim, dispute or litigation by the other
party, the Partnership and the General Partner, jointly and severally, shall
defend any actions brought in connection therewith on behalf of the Advisor or
its Principals and Affiliates, each of whom agree to cooperate in the defense
thereof and the Partnership and the General Partner, jointly and severally,
shall indemnify and hold harmless the Advisor and its Principals and Affiliates
from and with respect to any amounts awarded to such other
party. Notwithstanding any other provision of this subsection, if, in
any claim as to which indemnity is or may be available, any indemnified party
reasonably determines that its interests are or may be, in whole or in part,
adverse to the interests of the indemnifying party, the indemnified party may
retain its own counsel in connection with such claim and shall be indemnified by
the indemnifying party for any legal or any other expenses reasonably incurred
in connection with investigating or defending such claim.
(i) None
of the foregoing provisions for indemnification shall be applicable with respect
to default judgments, confessions of judgment or settlements entered into by the
party claiming indemnification (Indemnitee) without the prior consent of the
party obligated to indemnify the other party (Indemnitor); provided, however,
that should the Indemnitor refuse to consent to a settlement approved by the
Indemnitee, the Indemnitee may effect such settlement, pay the amount in
settlement as it shall deem reasonable and seek a judicial or regulatory
determination with respect to reimbursement by the Indemnitor of any loss,
liability, damage, cost or expense (including reasonable attorneys' and
accountants' fees) incurred by the Indemnitee in connection with the settlement
to the extent the loss, liability, damage, cost or expense (including reasonable
attorneys' and accountants' fees) was caused by or based upon violation of this
Agreement by the Indemnitor or violation of the standard of conduct set forth
herein. Notwithstanding the foregoing, the Indemnitor shall, at all
times, have the right to offer to settle any matters and if the Indemnitor
successfully negotiates a settlement with the third party claimant and tenders
payment therefore to the Indemnitee, the Indemnitee must either use its best
efforts to dispose of the matter in accordance with the terms and conditions of
the proposed settlement or the Indemnitee may refuse to settle the matter and
continue its defense in which latter event the maximum liability of the
Indemnitor to the Indemnitee shall be the amount of said proposed
settlement.
(j) The
foregoing provisions for indemnification shall survive the termination of this
Agreement.
(k) If,
at the time of a proposed dissolution, liquidation or termination of the
Partnership or the termination of this Agreement, there exists, is pending or is
threatened in writing an action, lawsuit or other proceeding against the Advisor
which arises out of or is based upon this Agreement, then the General Partner
and the Advisor shall, acting in good faith and with due regard to what is
commercially reasonable, agree the amount of assets and length of time that such
assets need to be left in the Partnership to satisfy the Advisor’s
indemnification rights under this Section 10.
Section
11. Confidentiality. (a) Each
party shall and shall procure that its affiliates shall whilst this Agreement is
in force and at all times thereafter keep secret and confidential the existence
and terms of this Agreement, negotiations relating to this Agreement, and all
information of a confidential nature relating to the business or financial or
other affairs of the other parties or their respective affiliates which becomes
known to them in the course of dealings between the parties arising out of this
Agreement and shall not disclose the same to any person other than such of its
designees and applicable advisers (Permitted Confidants) who have a need to know
such information and who undertake to hold such information strictly
confidential to the same extent set forth herein.
(b) Each
of the Partnership and the General Partner agrees to maintain in strict
confidence any and all trading instructions, position information and
information, materials or other documents of the Advisor, which it obtains
pursuant to or in connection with this Agreement. Each of the Partnership and
the General Partner further agrees that it shall not disclose to any person,
including without limitation any person which trades for itself, or for any
other customer or proprietary account of the Partnership, the General Partner or
their affiliates, or for any other purpose, or in any manner make use of, (i)
the trading instructions and trading
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advice
provided by the Advisor, (ii) any information, materials and other documents of
the Advisor, and (iii) the terms of this Agreement, unless, in each case,
required to do so by any applicable Law or valid legal process. The Partnership
and the General Partner shall promptly provide the Advisor upon its request with
proof of the applicability of such requirement pursuant to any Law. The
Partnership and the General Partner acknowledge that the Advisory Services
constitute proprietary information of the Advisor. Nothing in this Agreement
shall require the Advisor to disclose the details of its trading systems or any
other proprietary or confidential information. Each of the Partnership and the
General Partner further agrees that it shall not, and shall take all such
actions as are necessary and appropriate to ensure that the Partnership’s and
General Partner’s affiliates and Permitted Confidants shall not, directly or
indirectly, copy, disclose, misuse, misappropriate or reverse engineer or
otherwise appropriate or make use of in any manner the investment and trading
strategies, systems, algorithms, models, techniques, methods, policies,
programs, positions, investments and analyses previously, currently or hereafter
used by the Advisor in the conduct of its business including all data, details,
components, specifications, codes, formulae, know-how (technical or otherwise),
electronic data processing systems, computer software programs and computer
hardware systems relating to the foregoing, and all embodiments, articulations,
applications, expressions and reproductions of any of the foregoing including,
without limitation, documents, notes, print-outs, work papers, charts,
diskettes, tapes and manuals. The Partnership and the General Partner shall not,
directly or indirectly, induce, encourage, procure or suggest that any other
person takes any action, or in any manner assist any other person in taking any
action, that the Partnership and the General Partner would be prohibited from
taking pursuant to this Section 11.
(c) The
provisions of this Section 11 shall survive the termination or the expiration of
this Agreement.
12. Complete
Agreement. This Agreement shall constitute the entire
agreement between the Advisor, the General Partner and the Partnership and no
other agreement, verbal or otherwise, shall be binding upon the parties to this
Agreement.
13. Assignment and
Successors. This Agreement may not be assigned nor the duties
hereunder delegated by any party without the express written consent of the
other parties. This Agreement is made solely for the benefit of, and
shall be binding upon, the parties and their respective successors and assigns,
and no other person shall have any right or obligation under it.
14. Amendment. This
Agreement may not be amended except by the written instrument signed by the
parties.
15. Notices. All
notices required to be delivered under this Agreement shall be sent by facsimile
transmission with hard copy then sent by express courier or by registered or
certified mail, postage prepaid, return receipt requested, to (i) the Advisor at
Xxxxxxxx Trading Company 0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxx, Xxxxxxx XX
00000 and (ii) the General Partner or the Partnership c/o Rockwell Futures
Management, Inc., 0000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx Xx 00000, or to any
other address and facsimile designated by the party to receive the same by
written notice similarly given.
16. Notice of Threatened, Pending or
Completed Actions, Suits or Proceedings.
(a) The
General Partner will immediately give written notice to the Advisor of (i) any
threatened, pending or completed action, suit or proceeding to which the
Partnership or the General Partner was or is a party or is threatened to be a
party and (ii) any judgments or amounts paid by the Partnership or the General
Partner in settlement in connection with any such threatened, pending or
completed action, suit or proceeding.
(b) The
Advisor will immediately give written notice to the General Partner of any
material, (i) threatened, pending or completed action, suit or proceeding to
which the Advisor was or is a party or is threatened to be a party and (ii) any
judgments or amounts paid by the Advisor in settlement in connection with any
such threatened, pending or completed action, suit or proceeding.
9
(c) Written
notices required to be given pursuant to this section shall contain all
pertinent information concerning the threatened, pending or completed action,
suit or proceeding and, in the case of any pending or completed action, suit or
proceeding, shall include a copy of the complaint, petition or similar documents
asserting a claim.
(d) The
General Partner, the Partnership and the Advisor agree to use their best efforts
to maintain the confidentiality of notices received pursuant to this Section 16
and agree not to disclose the contents of such notices to persons other than
their affiliates, or except as may be required, in their good faith judgment, by
any applicable Law.
17. Governing Law. Consent to
Jurisdiction. Each of the parties irrevocably:
(a) consents
to any suit, action or proceeding with respect to this Agreement being brought
in the United States District Court for the District of Illinois in Chicago,
Xxxx County, Illinois;
(b) waives
to the fullest extent permitted by the law governing this Agreement any
objection that it may have now or hereafter to the laying of the venue of any
such suit, action or proceeding under clause (a) above in any such court and any
claim that any such suit, action or proceeding under clause (a) above has been
brought in an inconvenient forum;
(c) acknowledges
the competence of any such court, submits to the jurisdiction of any such court
in any such suit, action or proceeding and agrees that the final judgment in any
such suit, action or proceeding brought in such court shall be conclusive and
binding upon it and may be enforced in the courts of the jurisdiction in which
such entity’s or person’ principal office or residence is located, subject to
any provision of the law of such jurisdictions or general applicability relating
to enforcement proceedings, or in the District Court and that a certified or
exemplified copy of such final judgment shall be conclusive evidence of the fact
and of the amount of its obligation, provided that service of process is
effected upon it in the manner specified below or as otherwise permitted by
law.
(d) to
the extent that it has acquired or hereafter may acquire any immunity from the
jurisdiction of any such court or from any legal process therein, waives such
immunity, to the fullest extent permitted by law, and agrees not to assert, by
way of motion, as a defense, or otherwise, in any such suit, action or
proceeding, any claim that (i) it is not personally subject to the jurisdiction
of the above-named court, (ii) it is immune from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to it or its property or (iii)
this Agreement or the subject matter hereof may not be enforced in or by such
court;
(e) consents
to the service of process in any such suit, action or proceeding in said courts
by the mailing thereof by registered or certified mail, postage prepaid, to it
at the address the parties agree to and specify in writing, or such other
address as to which the server of such process shall have been notified by the
recipient of such process in a written notice which makes reference to this
Agreement; and
(f) agrees
that this Agreement shall be deemed to be made under and construed in accordance
with the law of the State of Illinois and shall be deemed to be made under and
construed in accordance with the law of the State of Illinois without regard to
its conflicts of laws or provisions.
| APM XXXXXXXX FUTURES FUND, X.X. | XXXXXXXX TRADING COMPANY | |||
| By: ALTEGRIS PORTFOLIO MANAGEMENT, INC. | ||||
|
Its
general partner
|
||||
|
By:
/s/ Xxxxxx X.
Xxxxxx
|
By:
/s/ Xxxxxxx
Xxxxxxxx
|
|||
|
Xxxxxx
X. Xxxxxx, Vice-President
|
Xxxxxxx
Xxxxxxxx, Chairman and CEO
|
|||
|
|
|
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| ALTEGRIS PORTFOLIO MANAGEMENT, INC. | ||||
|
By:
/s/ Xxxxxx X.
Xxxxxx
|
|
|||
|
Xxxxxx
X. Xxxxxx, Vice-President
|
|
|||
|
|
|
11
APM
XXXXXXXX FUTURES FUND, L.P.
TRADING
AUTHORIZATION
Xxxxxxxx
Trading Company
0000
Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxx
Xxxxx
Xxxxxxx
XX 00000
Gentlemen:
APM
Xxxxxxxx Futures Fund, L.P. does hereby make, constitute and appoint you as its
attorney-in-fact to purchase and sell Commodity Interests in accordance with the
Advisory Contract between us dated May 28, 2009 through Newedge USA, LLC. or
such other futures commission merchant as designated by the Partnership’s
General Partner.
Very
truly yours,
APM
XXXXXXXX FUTURES FUND, L.P.
By:
Altegris Portfolio Management, Inc.
its
General Partner
By: /s/ Xxxxxx X.
Xxxxxx
Xxxxxx X.
Xxxxxx, Vice President
12
