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EXHIBIT 10(r)
MANAGEMENT CONTRACT
THIS MANAGEMENT CONTRACT ("Agreement"), is made and entered into
effective as of November 1, 1995, by and between The Futures Dimension Fund, an
Illinois limited partnership (the "Partnership"), and Marathon Capital Growth
Partners, L.L.C. (the "Trading Advisor").
W I T N E S S E T H:
WHEREAS, the purpose and business of the Partnership is to
seek capital appreciation by trading speculatively in futures contracts,
commodities and commodity options and forward contracts, and any other items
which are currently, or may later become, the subject of futures, forward or
options trading, and other related investments (sometimes hereinafter referred
to as "Contracts") on United States and non-United States exchanges and
markets; and
WHEREAS, the Partnership, through Xxxxxxx Asset Management,
Inc., its general partner (the "General Partner"), pursuant to the Limited
Partnership Agreement of the Partnership, is authorized to utilize the services
of professional trading advisors in connection with the trading activities of
the Partnership; and
WHEREAS, the Partnership has heretofore offered units of
limited partnership interest in the Partnership for sale to investors; and
WHEREAS, the Trading Advisor is engaged in the business of
making trading decisions on behalf of itself and others regarding the purchase
and sale of Contracts; and
WHEREAS, the Partnership and the Trading Advisor each desire
the Trading Advisor to make trading decisions for the Partnership with respect
to the assets of the Partnership allocated to be managed by the Trading Advisor
(the "Allocated Assets") on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual premises and
agreements set forth herein, the parties hereto do agree as follows:
1. DUTIES OF THE TRADING ADVISOR.
(a) The Partnership hereby appoints the Trading Advisor,
and the Trading Advisor hereby accepts appointment, as a trading advisor of the
Partnership in connection with the trading activities of the Partnership.
(b) Upon the Trading Advisor's commencing of trading
operations for the Partnership and for the period and on the terms and
conditions set forth in this Agreement, the Trading Advisor shall have sole
authority and responsibility, as the Partnership's agent and
attorney-in-fact, for
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trading the Allocated Assets in Contracts and in accordance with the
Trading Advisor's Diversified System ("Trading Approach"; which term, for
purposes of this Agreement, shall include trading approaches, systems,
instructions, methods, models, strategies, methodologies and formulas) as
described in the disclosure notice dated November 1995 relating to the
appointment of the Trading Advisor as a commodity trading advisor of the
Partnership (the "Disclosure Notice"), subject to the trading policies of the
Partnership furnished to the Trading Advisor in writing ("Trading Policies").
The parties hereto acknowledge that the Trading Advisor will trade Contracts
for the Partnership independently of any other trading advisor retained by the
Partnership. For purposes of this Agreement, the term "Contracts" shall not
include securities and options thereon.
(c) The Trading Advisor agrees to describe to the General
Partner its practices with respect to the leverage used by the Trading Advisor
in managing the Partnership's account relative to other accounts managed by the
Trading Advisor using the Trading Approach to enable the General Partner to
determine whether the "trading level" at which the Trading Advisor is currently
managing the Partnership's account is the level currently designated by the
General Partner.
(d) The General Partner and the Partnership acknowledge
receipt of the Trading Advisor's Disclosure Document dated October 9, 1995 (the
"Disclosure Document"). The Trading Advisor shall promptly furnish the
Partnership with a copy of each amended, supplemented or updated Disclosure
Document of the Trading Advisor filed with the Commodity Futures Trading
Commission (the "CFTC") and the National Futures Association ("NFA") upon
acceptance thereof by the CFTC. Prior to the commencement of trading on behalf
of the Partnership, the Partnership shall deliver to the Trading Advisor, and
renew when necessary, a Commodity Trading Authorization, in the form attached
hereto as Exhibit 1, appointing the Trading Advisor as the Partnership's agent
and attorney-in-fact for such purpose. All trades for the account of the
Partnership shall be made through such banks, brokers and dealers as the
General Partner shall direct, and the Trading Advisor shall have no authority
or responsibility for selecting any such banks, brokers or dealers in
connection with the execution of transactions for the Partnership or for the
negotiation of commission rates charged therefor; provided, however, that the
General Partner shall notify the Trading Advisor of any applicable changes in
the commission rates charged by the Partnership's banks, brokers and dealers
with respect to transactions entered into with respect to the Allocated Assets.
(e) In the event the Trading Advisor and its principals
[as that term is defined in Regulation Section 4.10(e) promulgated by the CFTC
under the Commodity Exchange Act, as amended (the "Act")], shareholders,
partners, employees and affiliates or any person who controls the foregoing
(collectively, "Principals and Affiliates"), wish to use trading programs,
systems or strategies other than or in addition to the Trading Approach in
connection with its trading for the Partnership, either in whole or in part, it
may not do so unless the Trading Advisor gives the General Partner 15 days'
prior written notice of its intention to utilize such different trading
programs, systems or strategies and the General Partner consents thereto in
writing. Non-material changes in the Trading Approach may be instituted
without prior written approval.
(f) The Trading Advisor agrees to make all material
disclosures to the Partnership regarding itself and its Principals and
Affiliates, their trading performance and general trading methods, their
accounts (but not the identities of customers) and otherwise as are required in
the reasonable
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judgment of the General Partner or the Partnership to be made in any
filings required by any governmental body or by any applicable law, regulation,
rule or order. Nothing contained in this Agreement shall be construed or
deemed to require the Trading Advisor to disclose the confidential or
proprietary details of its trading strategies.
(g) The Trading Advisor understands and agrees that the
General Partner intends to designate other trading advisors and to apportion
from time to time to such other trading advisors the management of such portion
of the Partnership's assets as the General Partner shall determine in its
absolute discretion. The designation of other trading advisors and
apportionment and reapportionment of a portion of the Partnership's assets to
such trading advisors shall neither terminate this Agreement nor modify in any
regard the respective rights and obligations of the parties hereto.
(h) The General Partner shall have the right to make
additions to, or withdrawals from, the Allocated Assets (including any
"notional" funds comprising part of the Allocated Assets) at any time. The
General Partner shall, however, use its best efforts to make such additions or
withdrawals at month-end. The General Partner agrees that the Trading Advisor
may refuse any additional allocation of funds for any reason. The General
Partner, in its sole discretion, may at any time remove all assets from the
management of the Trading Advisor and may require the Trading Advisor to
liquidate existing positions.
(i) Upon receipt of instructions from the General
Partner, the Trading Advisor shall immediately cease its trading activities
with respect to the Allocated Assets, close out all existing positions in an
orderly manner and not initiate any new positions unless otherwise instructed
by the General Partner or the Partnership.
(j) The Trading Advisor shall review on a daily basis the
positions held by the Allocated Assets and shall immediately notify the General
Partner of any errors committed by the Trading Advisor or of any trade not
executed in accordance with the Trading Advisor's instructions.
2. OTHER ACCOUNTS AND ACTIVITIES OF THE TRADING ADVISOR.
(a) The services provided by the Trading Advisor
hereunder are not to be deemed exclusive. Subject to the terms of this
Agreement, the Trading Advisor and its Principals and Affiliates shall be free
to trade for their own accounts and to advise other persons and manage other
accounts during the term of this Agreement and to use the same or different
degrees of leverage, information, computer programs and trading strategies or
formulas which they obtain, produce or utilize in the performance of services
for the Partnership. However, the Trading Advisor represents, warrants and
agrees that the rendering of such consulting, advisory and management services
to others will not require any material change in the Trading Approach and will
not materially adversely affect the capacity of the Trading Advisor to continue
to render services to the Partnership of the quality and nature contemplated by
this Agreement.
(b) If, at any time during the term of this Agreement,
the Trading Advisor is required to aggregate the Partnership's Contract
positions with the positions of any other person or entity for purposes of
applying CFTC- or exchange-imposed position limits, the Trading Advisor
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agrees that it will promptly notify the General Partner if the
Partnership's positions are included in an aggregate amount which equals or
exceeds ninety percent (90%) of the applicable limit. The Trading Advisor
agrees that, if its trading recommendations are altered because of the
application of any position limit, it will not modify the trading instructions
with respect to the Partnership's account in such manner as to affect the
Partnership substantially disproportionately as compared with the Trading
Advisor's other accounts. The Trading Advisor presently believes and
represents that existing speculative position limits will not materially
adversely affect its ability to manage the Partnership's account given the
potential size of the Partnership's account and the Trading Advisor's and its
Principals' and Affiliates' current accounts and all proposed accounts for
which they have contracted to act as trading advisor. The Trading Advisor
further represents, warrants and agrees that under no circumstances will it
knowingly or deliberately use trading strategies or systems for the Partnership
that are inferior to trading strategies or systems employed for any other
client or account and that it will not knowingly or deliberately favor any
client or account managed by it over any other client or account, it being
acknowledged, however, that different trading strategies, methods or degrees of
leverage may be utilized for differing sizes of accounts, accounts with
different trading policies, accounts experiencing differing inflows or outflows
of equity, accounts which commence trading at different times, accounts which
have different portfolios or different fiscal years and accounts with other
differences, and that such differences may cause divergent trading results.
(c) The Partnership and the General Partner acknowledge
and agree that the Trading Advisor and/or its Principals and Affiliates
presently act and that they may continue to act as advisors for other accounts
managed by them and may continue to receive compensation with respect to
services for such accounts in amounts which may be more or less than the
amounts received from the Partnership. The Trading Advisor agrees that in the
management of such other accounts by it and its Principals and Affiliates, it
will act in good faith to seek to achieve an equitable treatment of all
accounts under management including the Partnership's account with respect to,
among other things, priorities of order entry and position limits.
(d) The Trading Advisor agrees that it shall make such
information available to the General Partner respecting the performance of the
Partnership's account as compared to the performance of all other accounts
managed by the Trading Advisor and its Principals and Affiliates as shall be
reasonably requested by the General Partner or the Partnership. The Trading
Advisor shall not be required to disclose the identity of its clients.
3. ALLOCATION OF ASSETS TO THE TRADING ADVISOR. The
Trading Advisor's Allocated Assets initially shall be a total of approximately
$1,000,000 of which $0 is notional funding.
4. FEES.
(a) Commencing with the commencement of trading by the
Trading Advisor for the Partnership, the Partnership agrees to pay to the
Trading Advisor as follows:
(b) Management Fee. A monthly management fee equal to
0.166% of the Net Asset Value of the Allocated Assets as of the close of
business on the last business day of each calendar month (an approximate 2%
annual rate).
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(i) For purposes of calculating the management fee, Net
Asset Value of the Allocated Assets shall be determined before reduction for
the management fees or incentive fees, if any, accrued or payable with respect
to the Allocated Assets as of such month-end, and before giving effect to any
distributions and redemptions paid or payable at such month-end. In the event
that (A) the Trading Advisor commences trading as of any day other than the
first day of a calendar month, (B) this Agreement is terminated as of any date
other than the last day of a calendar month, or (C) the Partnership reallocates
assets to or from the Trading Advisor as of any day other than the first or
last day of any calendar month, the amount of the management fee shall be
prorated on the basis of the number of business days during such month that the
Allocated Assets (as adjusted in the case of reallocation of assets) were
traded by the Trading Advisor as compared to the total number of business days
in such calendar month. To the extent that the Partnership instructs the
Trading Advisor to trade the Allocated Assets at a "nominal account size" in
excess of the actual assets comprising Allocated Assets, the Trading Advisor's
management fee shall be calculated based upon the "nominal account size" of the
Allocated Assets.
(ii) Incentive Fee. A quarterly incentive fee equal to
20% of any New Trading Profits (as defined below) achieved during each fiscal
quarter. New Trading Profits during a quarter shall mean the sum of (A) the
net of any profits and losses realized on trades closed out during the period,
plus or minus (B) the change in the net of any unrealized profits and losses on
trades which remained open as of the end of the period (net of accrued
brokerage commissions and other allocated expenses) from the net of any
unrealized profits and losses on trades initiated by the Trading Advisor which
remained open as of the end of the immediately preceding period (net of accrued
brokerage commissions and other allocated expenses), (C) any Trading Advisor
management fees paid or accrued through the end of the period, and (D) the
Trading Advisor's carryforward loss (as hereinafter defined) from the
immediately preceding period. If the sum of subparagraphs (A) through (D) for
any period is negative, such amount shall be the Trading Advisor's carryforward
loss for the next period. For purposes of calculating incentive fees, interest
income earned on the Allocated Assets will be disregarded. In the event of a
withdrawal from the Allocated Assets at a time when the Trading Advisor has a
carryforward loss in effect, the amount thereof shall be reduced by an amount
determined by multiplying the carryforward loss by a fraction, the numerator of
which shall be the amount of the withdrawal and the denominator of which shall
be the Net Asset Value of the Allocated Assets immediately prior to giving
effect to the withdrawal. In the event that an addition is made to the
Allocated Assets subsequent to a reduction in the Trading Advisor's
carryforward loss by reason of a withdrawal, the Trading Advisor's carryforward
loss shall be increased by or created in an amount (up to the aggregate amount
of prior carryforward loss reductions) determined by multiplying the aggregate
amount of prior carryforward loss reductions by a fraction, the numerator of
which shall be the amount of the addition and the denominator of which shall be
the sum of the previous withdrawals which resulted in carryforward loss
reductions. The incentive fee charged to the Partnership with respect to the
Allocated Assets will be dependent upon the performance of the Trading Advisor
and will not be affected by the performance of any other trading advisor
appointed by the Partnership or the Partnership as a whole. The initial
incentive period shall commence on the date the Trading
Advisor commences trading activity for the Partnership and shall end at the
immediate following quarter-end (even though such period may not be a full
quarter). Subsequent incentive periods shall commence on the first day of the
next succeeding fiscal quarter and end on the last day of such fiscal quarter.
In the
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event this Agreement is terminated as of any date which is not the end
of an incentive period, an incentive fee will be paid by the Partnership, if
earned, with respect to the Allocated Assets as though such termination date
were the last day of the incentive period. For purposes of calculating the
first incentive fee, the Trading Advisor hereby agrees that it shall assume a
carryforward loss equal to $150,000.
(iii) Payment of Fees. The management fees and incentive
fees due to the Trading Advisor shall be paid by the Partnership within thirty
(30) days of the end of the calendar period to which they relate. The
Partnership expressly agrees that any such fees due the Trading Advisor shall
survive the termination or other expiration of this Agreement.
5. TRADING ADVISOR INDEPENDENT. The Trading Advisor
shall for all purposes herein be deemed to be an independent contractor to the
Partnership and the General Partner and shall, except as otherwise expressly
provided herein, have no authority to act for or represent the Partnership or
the General Partner in any way or otherwise be deemed a sponsor of the
Partnership or an agent, joint venturer or partner of the Partnership, the
General Partner or of any other trading advisor retained by the Partnership.
6. BROKER.
(a) The Trading Advisor agrees to enter all Contract
orders through E.D. & F. Man International Inc. ("Man"), or such other brokers
and forward contract dealers as may be designated, from time to time, in
writing by the Partnership. The Partnership must consent in writing to the use
of other floor brokers who will give up such trades to Man in accordance with
exchange rules and the give-up procedures established by the Partnership from
time to time. The Trading Advisor shall be responsible for any errors
committed by any executing broker who gives-up to Man on behalf of the
Partnership. In placing trades for the Partnership's account, the Trading
Advisor agrees that it shall use its standard procedures for allocating orders
among the Trading Advisor's various accounts and not knowingly favor any other
such account over the Partnership's account.
(b) All forward contract and other trades for the
Partnership will be executed through the forward trading and other facilities
of such affiliates of Man or other entities as the Partnership may designate
from time to time.
7. STANDARD OF LIABILITY; INDEMNIFICATIONS.
(a) Standard of Liability. Neither the Trading Advisor
nor any of its Principals and Affiliates shall be liable to the Partnership,
the General Partner or any of their respective successors or assigns under this
Agreement except by reason of (i) acts or omissions to act which constitute bad
faith, negligence or misconduct or (ii) a breach of any of the representations,
warranties, covenants or agreements of the Trading Advisor set forth in this
Agreement.
(b) Indemnity. (i) The Partnership agrees to indemnify
and hold harmless the Trading Advisor and each of its Principals and Affiliates
from and against any and all losses, claims, damages, liabilities, costs and
expenses (including, without limitation, attorneys' and accountants' fees
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and disbursements), judgments and amounts paid in settlement
(collectively, "Losses") to which an indemnified person may become subject
arising out of this Agreement, the transactions contemplated hereby or the fact
the Trading Advisor is or was a trading advisor to the Partnership, unless any
such Losses arise out of, relate to, or are based upon the Trading Advisor's
failure to meet the standard of liability applicable to it under SECTION 7(a).
(ii) The Trading Advisor agrees to indemnify and hold
harmless the Partnership, the General Partner and each of their respective
Principals and Affiliates from and against any and all Losses to which they may
become subject, if any such Losses arise out of, relate to, or are based upon
the Trading Advisor's failure to meet the standard of liability applicable to
it under SECTION 7(a).
(c) Promptly after receipt by a party to be indemnified
under SECTION 7(b), above, of any notice of the commencement of any action or
proceeding, such indemnified party shall, if a claim in respect thereof is to
be made against the indemnified party under such subsection, notify the
indemnifying party in writing of the commencement thereof, but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such subsection. The
requirement that an indemnifying party be given written notice of the
commencement of any action shall be deemed to be satisfied if such indemnifying
party shall have actual knowledge thereof or shall have been given written
notice of the commencement of any action or proceeding within a reasonable time
after the commencement thereof. If any such action shall be brought against
any indemnified party and the indemnified party notifies the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, to assume the defense
thereof with counsel satisfactory to such indemnified party, and shall have the
right to negotiate and consent to a settlement thereof, provided that the
indemnified party shall have consented to the settlement. After notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the indemnified party shall have the right to employ counsel to represent it,
if, in the indemnified party's reasonable judgment, it is advisable for such
party to be represented by separate counsel, in which event the fees and
expenses of such separate counsel shall be borne by the indemnified party. No
indemnifying party shall be liable for any settlement of any such action
effected without its consent, but if any such action or proceeding is settled
with the consent of any indemnifying party or if there be a final judgment for
the plaintiff in any such action or proceeding (of which an indemnifying party
shall have been notified), such indemnifying party shall indemnify and hold
harmless each indemnified party from and against any Losses incurred or
suffered by reason of such settlement or judgment.
(d) Any indemnification required by this SECTION 7, unless
ordered or expressly permitted by a court, shall be made by the indemnifying
party only upon a determination by independent legal counsel in a written
opinion that the conduct which is the subject of the claim, demand, lawsuit,
action or proceeding with respect to which indemnification is sought meets the
applicable standard set forth in this SECTION 7.
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(e) The provisions of this SECTION 7 shall survive the
termination or other expiration of this Agreement.
8. THE TRADING ADVISOR'S REPRESENTATIONS AND WARRANTIES.
The Trading Advisor represents and warrants to the Partnership and the General
Partner as follows:
(a) The Trading Advisor is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and has full power and authority to enter into and perform its
obligations under this Agreement and to conduct its business as described in
this Agreement and the Disclosure Notice, and the Trading Advisor is qualified
to conduct its business and is in good standing in every jurisdiction in which
the nature or conduct of its business requires such qualification and failure
to so qualify would have a materially adverse effect on its ability to comply
with, or perform its obligations under, this Agreement, it being understood
that any decision as to the jurisdiction or jurisdictions in which the Trading
Advisor shall conduct its business is within the sole discretion of the Trading
Advisor.
(b) This Agreement has been duly and validly authorized,
executed and delivered by the Trading Advisor and is a valid and binding
agreement of the Trading Advisor enforceable in accordance with its terms.
(c) The execution and delivery of this Agreement and the
performance of the obligations and the consummation of the transactions
contemplated in this Agreement and in the Disclosure Notice will not conflict
with, violate, breach or constitute a default under, any term or provision of
the Trading Advisor's certificate of incorporation, by-laws, or other charter
documents, or any indenture, mortgage, deed of trust, loan agreement, or other
agreement or instrument to which the Trading Advisor or any of its Principals
and Affiliates is a party or by which any of them are bound, or to which any of
the property (including, but not limited to, its Trading Approach) or assets of
the Trading Advisor or its Principals and Affiliates are subject, or any order,
rule, law, statute, regulation, or other legal requirement applicable to the
Trading Advisor or any of its Principals or to the property or assets of the
Trading Advisor or its Principals and Affiliates of any court or any
governmental or administrative body or agency or panel or any regulatory or
self-regulatory organization or exchange having jurisdiction over the Trading
Advisor or any of its Principals and Affiliates.
(d) The Trading Advisor is registered as a commodity
trading advisor under the Act, its Principals are identified on the Trading
Advisor's most recent CFTC Form 7-R filed with the NFA pursuant to the Act, and
it is a member of the NFA in such capacity and such registration and membership
has not expired or been revoked, lapsed, suspended, terminated, or not renewed
or limited or qualified in any respect.
(e) The Trading Advisor is not bankrupt or insolvent.
(f) The Disclosure Document is complete and accurate in
all material respects, does not contain any misstatement of any material fact,
does not omit to state any material fact necessary to be stated therein in
order to make the statements made therein, in light of the circumstances under
which they are made, not misleading, and complies in all material respects with
the
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applicable requirements of the Act and the rules promulgated thereunder
and may be relied upon by the Partnership and the General Partner in preparing
the Disclosure Notice and allocating assets of the Partnership to the Trading
Advisor and there has not been, since the date of the Disclosure Document's
issuance, any material adverse change in the condition, financial or otherwise,
business or prospects of the Trading Advisor or any of its Principals and
Affiliates, whether or not arising in the ordinary course of business, or
relating to the historical performance and operations of the Trading Advisor.
(g) The Trading Advisor and each Principal has complied
and will continue to comply with all orders, rules, laws, statutes, regulations
or other legal requirements applicable to the Trading Advisor or any of its
Principals and Affiliates or to their respective businesses, properties, or
assets, including the Act and the rules promulgated by the CFTC and the NFA,
the violation of which would materially and adversely affect its or their
ability to comply with, and perform its or their obligations under this
Agreement, and there are no actions, suits, proceedings, or notices of
investigations or investigations pending or threatened against the Trading
Advisor, or any of its Principals or Affiliates, by the NFA, the CFTC or any
governmental, regulatory or self-regulatory agency regarding noncompliance by
the Trading Advisor or any of its Principals or Affiliates with any law,
statute, rule or regulation, or at law or in equity or before or by any court,
any federal, state, municipal or other governmental department commission,
board, bureau, agency, or instrumentality, or by any regulatory or
self-regulatory organization, or exchange, in which an adverse decision would
materially and adversely affect its or their ability to comply with or to
perform its or their obligations under this Agreement or that would be required
to be disclosed in the Disclosure Notice, which is not so disclosed, would
result in a material adverse change in the condition, financial or otherwise,
business or prospects of the Trading Advisor.
(h) The Trading Advisor and each Principal has all
governmental, regulatory, self-regulatory and exchange licenses and approvals
and has effected all filings and registrations with all governmental,
regulatory and self-regulatory agencies required to conduct their respective
businesses and to act as described in the Disclosure Notice and to perform its
or their respective obligations under this Agreement.
(i) With respect to information contained in the
Disclosure Notice relating to the Trading Advisor, including, without
limitation, the tables and notes thereto, the Disclosure Notice does not
contain any untrue statement of material fact or omit to state therein a
material fact required to be stated therein or necessary to be stated therein
in order to prevent the statements made therein, in light of the circumstances
under which they are made, from being misleading.
(j) In the placement of orders and the allocation of
executed trades for the Partnership and for the accounts of any other client,
the Trading Advisor shall utilize a fair and reasonable order entry system and
trade allocation system, which shall be no less favorable to the Partnership
than to any other account managed by the Trading Advisor.
(k) The Trading Advisor shall promptly notify the other
parties hereto of the commencement of any suit, action or proceeding involving
it or its Principals and Affiliates, whether or not any such suit, action or
proceeding also involves any of the other parties hereto.
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The foregoing representations and warranties shall be
continuing during the term of this Agreement and any renewal hereof and if at
any time any event shall occur which would make or tend to make any of the
foregoing not true or incomplete, the Trading Advisor shall promptly notify the
Partnership and the General Partner of the occurrence of such event.
9. THE PARTNERSHIP'S REPRESENTATIONS AND WARRANTIES.
The Partnership represents and warrants to the Trading Advisor as follows:
(a) The Partnership is duly organized, validly existing
and in good standing as a limited partnership under the laws of Illinois. The
Partnership has full power and authority to perform its obligations under this
Agreement and to conduct its business and to act as described in the Disclosure
Notice.
(b) This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Partnership and is a valid and binding
agreement of it enforceable in accordance with its terms.
(c) The Partnership has complied and will continue to
comply with all orders, rules, laws, statutes, regulations or other legal
requirements applicable to it, to its business, properties, and assets,
including the Act and the rules promulgated by the CFTC and the NFA, the
violation of which would materially and adversely affect its ability to comply
with, and perform its obligations under this Agreement, and there are no
actions, suits, proceedings, or notices of investigations or investigations
pending or threatened against it, by the NFA, the CFTC or any governmental,
regulatory or self-regulatory agency regarding noncompliance by it with any
law, statute, rule or regulation, or at law or in equity or before or by any
court, any federal, state, municipal or other governmental department,
commission, board, bureau, agency, or instrumentality, or by any regulatory or
self-regulatory organization, or exchange, in which an adverse decision would
materially and adversely affect its ability to comply with or to perform its
obligations under this Agreement or that would be required to be disclosed in
the Disclosure Notice, which is not so disclosed, or would result in a
material adverse change in the condition, financial or otherwise, business or
prospects of the Partnership.
(d) The Partnership has all federal and state
governmental, regulatory, self-regulatory and exchange licenses and approvals
and has effected all filings and registrations with all federal and state
governmental and regulatory and self-regulatory agencies required to conduct
its business and to act as described in the Disclosure Notice and to perform
its obligations under this Agreement.
(e) Except with respect to information contained in the
Disclosure Notice relating to the Trading Advisor or any other advisor, the
Disclosure Notice does not contain any untrue statement of material fact or
omit to state therein a material fact required to be stated therein or
necessary to be stated therein in order to prevent the statements
made therein, in light of the circumstances under which they are made, from
being misleading.
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(f) The General Partner is registered as a commodity pool
operator under the Act and is a member of the NFA in such capacity and such
registration and membership has not expired or been revoked, lapsed, suspended,
terminated, or not renewed or limited or qualified in any respect.
(g) The General Partner has all federal and state
governmental, regulatory, self-regulatory and exchange licenses and approvals
and has effected all filings and registrations with all federal and state
governmental and regulatory and self-regulatory agencies required to conduct
its business and to act as described in the Disclosure Notice and to perform
its obligations under this Agreement.
The foregoing representations and warranties shall be
continuing during the term of this Agreement and any renewal hereof and if at
any time any event shall occur which would make or tend to make any of the
foregoing not true or incomplete, the General Partner will promptly notify the
Trading Advisor thereof.
10. TERM AND TERMINATION.
(a) Unless terminated earlier as provided below, the term
of this Agreement shall be until the end of the twelfth full calendar month
after the Trading Advisor commences trading activity and is automatically
renewable thereafter for successive one-year periods unless (i) the Partnership
terminates this Agreement during the initial one-year term thereof by giving
thirty days' prior written notice to the Trading Advisor, or (ii) either the
Trading Advisor or the Partnership terminates the Agreement at the end of the
initial one-year term or at any time thereafter by giving thirty days' prior
written notice to such other party.
(b) Notwithstanding the foregoing, this Agreement may be
terminated by the Partnership immediately upon written notice to the Trading
Advisor if (i) the Trading Advisor, if other than a natural person, merges,
consolidates with or sells a substantial portion of its assets to any
individual or entity, or there is a material adverse change relating to the
Trading Advisor or a material adverse change in control, organizational
structure, financial condition, regulatory compliance or personnel of the
Trading Advisor, (ii) any of the Trading Advisor's registrations under the Act
or otherwise are suspended, terminated, lapsed or not renewed, (iii) the
Trading Advisor's membership in the NFA or other self-regulatory organization
is suspended, terminated, lapsed or not renewed, (iv) the Trading Advisor
otherwise becomes unable to serve as a trading advisor to the full extent
contemplated by this Agreement, (v) the Trading Advisor breaches any of its
representations, warranties, covenants or agreements contained in this
Agreement, or (vi) the General Partner determines doing so is in the best
interests of the Partnership.
11. NOTICES. Except as otherwise provided herein, all
notices, demands or requests required to be made or delivered under this
Agreement shall be effective only if in writing and delivered personally or by
facsimile or mail, postage prepaid (airmail if the addressee is in another
country), to the respective addresses below or to such other addresses as may
be designated by the party entitled to receive the same by notice similarly
given and shall be deemed given by the party required to provide notice when
received by the party to whom notice is required to be given.
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If to the Partnership or the General Partner to:
Xxxxxxx Asset Management, Inc.
One Financial Place
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, President
Fax No.: 000-000-0000
If to the Trading Advisor to:
Marathon Capital Growth Partners, L.L.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxx Xxxxx, Managing Director
Fax No.: 000-000-0000
12. ASSIGNMENT. No party hereto may transfer, sell,
encumber, appoint agents or assign any of its rights or obligations hereunder
in whole or in part without the express written consent of each of the other
parties hereto.
13. AMENDMENT; MODIFICATION. This Agreement may not be
amended or modified, nor any of the provisions hereof waived, except by the
written consent of all of the parties hereto.
14. COMPLETE AGREEMENT. This Agreement constitutes the
entire agreement among the parties hereto with respect to the subject hereof
and supersedes all prior agreements written or oral, and no other agreement,
verbal or otherwise, shall be binding as between the parties hereto unless in
writing and signed by the party against whom enforcement is sought.
15. SUCCESSORS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their successors and permitted
assigns. No other person other than the persons indemnified under SECTION 7
hereof for matters relating to that Section shall have any right or obligation
under this Agreement.
16. HEADINGS. Headings to sections herein are for the
convenience of the parties only, and are not intended to be a part of or to
affect the meanings or interpretation of this Agreement.
17. GOVERNING LAW: CONSENT TO JURISDICTION. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Illinois without giving effect to principles of conflicts of laws.
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18. ARBITRATION. The parties agree that all
controversies which may arise in connection with any transaction contemplated
by this Agreement or the construction, performance or breach of this Agreement
shall be determined by arbitration, to be held in the City of Chicago, State of
Illinois unless otherwise agreed to by the parties hereto, and in accordance
with the rules then obtaining of the NFA, or if no such rules are then in
effect or if jurisdiction is declined, then the rules then obtaining of the
American Arbitration Association; provided, however, that (a) the arbitrator(s)
shall be knowledgeable in industry standards and practices and the matters
giving rise to the dispute, (b) the arbitrator(s) shall not have the power and
authority to award punitive damages, (c) the authority of the arbitrator(s)
shall be limited to construing and enforcing the terms and conditions of this
Agreement as expressly set forth herein, and (d) the arbitrator(s) shall state
the reasons for their award and their legal and factual conclusions underlying
the award in a written opinion. The award of the arbitrator(s), or a majority
of them, shall be final, and judgment upon the award may be confirmed and
entered in any court, state or federal, having jurisdiction.
19. CONSENT TO JURISDICTION. Each party hereto expressly
and irrevocably agrees (a) that it waives any objection, and specifically
consents, to venue in the United States federal or state courts located in the
City of Chicago, State of Illinois, United States of America, so that any
action at law or in equity may be brought and maintained in any such court, and
(b) that service of process in any such action may be effected against such
party by certified or registered mail or in any other manner permitted by
applicable United States Federal Rules of Civil Procedure or Rules of the
Courts of the State of Illinois. In addition, each party hereto expressly and
irrevocably waives, in respect of any action brought in any United States
federal or state court located in the City of Chicago, State of Illinois or any
resulting judgment, any objection, and hereby specifically consents, to the
jurisdiction of any such court, and agrees not to seek to change the situs of
such action or to assert that any other court in any other jurisdiction is a
more suitable forum for the hearing and adjudication of any claim or dispute
raised in such action.
20. SURVIVAL. The indemnity provisions of this Agreement
shall survive the termination or expiration of this Agreement with respect to
any matter existing prior to such termination; the payment obligations under
this Agreement shall continue until satisfied; and the other provisions of the
Agreement shall survive the termination of this Agreement with respect to any
matter arising while this Agreement was in effect.
21. WAIVER OF BREACH. The waiver by a party of a breach
of any provisions of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by a party. The failure of a party to insist
upon strict adherence to any provision of this Agreement shall not constitute a
waiver or thereafter deprive such party of the right to insist upon a strict
adherence.
22. 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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IN WITNESS WHEREOF, this Agreement has been executed as of the
day and year first above written.
THE FUTURES DIMENSION FUND
By: Xxxxxxx Asset Management, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx
President
MARATHON CAPITAL GROWTH PARTNERS, L.L.C.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Xxxxx X. Xxxxx
Managing Director
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EXHIBIT 1
November 1, 1995
Marathon Capital Growth Partners, L.L.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Re: Commodity Trading Authorization
Gentlemen:
The Futures Dimension Fund, an Illinois limited partnership
(the "Partnership"), does hereby make, constitute, and appoint you as its
Attorney-in-Fact to purchase and sell futures contracts, commodities and
commodity options and forward contracts, and any other items which are
currently, or may later become, the subject of futures, forward or options
trading, and other related investments on domestic and international exchanges,
through E.D. & F. Man International Inc., or such other brokers and forward
contract dealers as may be designated, from time to time, in writing by the
Partnership, as brokers, in accordance with the Management Contract between us
dated November 1, 1995.
Very truly yours,
THE FUTURES DIMENSION FUND
By: Xxxxxxx Asset Management, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Xxxxxx X. Xxxxx
President
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ACKNOWLEDGEMENT OF RECEIPT
OF DISCLOSURE DOCUMENT
The undersigned hereby acknowledges receipt of Marathon Capital Growth
Partners, L.L.C.'s Disclosure Document dated October 9, 1995.
The Futures Dimension Fund
By: Xxxxxxx Asset Management, Inc.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
President
Dated: November 1, 1995
