Exhibit
10.13
ALPHAMETRIX MANAGED FUTURES PLATFORM
ADVISORY AGREEMENT
Dated as of November 1,
2008
__________________________________________
among
ALPHAMETRIX ASPECT FUND – MT0001
ALPHAMETRIX , LLC
and
ASPECT CAPITAL LIMITED
__________________________________________
ALPHAMETRIX MANAGED FUTURES PLATFORM
ADVISORY AGREEMENT
__________________________________________
TABLE OF CONTENTS
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Section
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Page
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1.
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Duties of the
Trading Advisor.
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2
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2.
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Standard of
Liability; Indemnification
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3
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3.
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Limits on
Claims.
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5
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4.
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Trading
Advisor’s Closing Obligations.
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6
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5.
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Independent
Contractor Status.
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6
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6.
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Confidentiality.
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7
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7.
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Clearing
Broker; Executing Broker.
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7
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8.
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Brokerage
Confirmations and Reports
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8
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9.
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Fees
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8
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10.
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Term and
Termination; Removal of the Sponsor.
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8
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11.
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Liquidation of
Positions.
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10
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12.
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Other Accounts
of the Trading Advisor; Exclusivity.
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10
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13.
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Speculative
Position Limits.
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11
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14.
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Redemptions,
Exchanges, Distributions, Subscriptions
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12
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15.
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The Trading
Advisor’s Representations and Warranties.
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12
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16.
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The
Sponsor’s Representations and Warranties
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13
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17.
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Assignment.
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15
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18.
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Successors.
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16
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19.
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Amendment or
Modification or Waiver
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16
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20.
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Notices
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16
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21.
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Governing
Law
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17
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22.
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Survival.
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17
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23.
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Disclosure
Document Modifications.
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17
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24.
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Promotional
Literature.
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17
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25.
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No
Waiver.
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17
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26.
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No Liability of
Members
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17
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27.
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Third-Party
Beneficiaries.
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17
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28.
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Headings
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18
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29.
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Complete
Agreement.
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18
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30.
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Counterparts
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18
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31.
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Miscellaneous.
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18
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_______________
Appendix A
— Fee Schedule
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Appendix B
— Trading Policies
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Appendix C
— List of Futures Interests
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ALPHAMETRIX MANAGED FUTURES PLATFORM
ADVISORY AGREEMENT
__________________________________________
This Advisory Agreement (the “
Agreement ”), made as of this 1st day of November,
2008, among ALPHAMETRIX ASPECT FUND – MT0001, a Cayman
Islands company (the “ Trading Fund ”),
ALPHAMETRIX, LLC, a Delaware corporation (the “
Sponsor ”) and ASPECT CAPITAL LIMITED (the “
Trading Advisor ”), a limited liability company
registered in England and Wales;
WHEREAS, the Trading Fund has been organized to
trade, buy, sell or otherwise acquire, hold or dispose of forward
contracts (including, for the avoidance of doubt, LME and FX
forwards), futures contracts for commodities, financial instruments
and currencies, rights pertaining thereto and options thereon or on
physical commodities (collectively, “ Futures
Interests ”) and engage in all activities incident
thereto;
WHEREAS, ALPHAMETRIX MANAGED FUTURES LLC (ASPECT
SERIES), a series of a Delaware limited liability company (the
“ Aspect Series ”) will invest substantially all
of the proceeds of the sale of its units of limited liability
company interest (“ Units ”) in ALPHAMETRIX
MANAGED FUTURES (ASPECT) LLC, a Delaware limited liability company
(the “ Intermediate Fund ”);
WHEREAS, the initial investor in the Trading
Fund will be the Intermediate Fund;
WHEREAS, the Aspect Series is a “protected
cell” of AlphaMetrix Managed Futures LLC, a series limited
liability company established under the law of the State of
Delaware (the “ Platform ”);
WHEREAS, the Intermediate Fund will invest
substantially all of the proceeds it receives from the Aspect
Series in the Trading Fund;
WHEREAS, the Sponsor will act as sponsor of the
Trading Fund;
WHEREAS, the Sponsor has selected the Trading
Advisor to have authority over the Trading Fund’s trading of
Futures Interests;
WHEREAS, the Trading Advisor is willing to
manage the Trading Fund’s Futures Interest
trading;
WHEREAS, the Trading Fund’s trading of
Futures Interests is described in the Platform’s Confidential
Disclosure Document, as supplemented and amended from time to time
(the “ Memorandum ”), which will be filed with
the National Futures Association (the “ NFA ”)
pursuant to the Commodity Exchange Act, as amended (the “
CEA ”), the commodity pool operator and commodity
trading advisor regulations promulgated under the CEA (the “
Commodity Regulations ”) by the Commodity Futures
Trading Commission (“ CFTC ”), and NFA rules
promulgated under the CEA (the “ NFA Rules
”);
WHEREAS, the Sponsor may in the future form
commodity pools that will, or cause existing pools to, invest the
proceeds of their sale of shares, units or other equity interests
(such shares, units or interests, collectively with the Units,
“Equity Interests” ) directly or indirectly in
the Trading Fund; and
WHEREAS, the Trading Advisor’s current
Disclosure Document delivered to the Sponsor (the “
Disclosure Document ”) has been filed with the NFA
pursuant to the CEA.
NOW, THEREFORE, the parties hereto do hereby
agree as follows, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and in entering
into this Agreement the parties intend to be legally
bound:
1. Duties of the
Trading Advisor.
(a)
(i) The
Sponsor shall appoint the Trading Advisor to have discretionary
authority and responsibility for independently directing the
Futures Interest trading pursuant to the trading program and
strategy agreed upon by the Sponsor and the Trading Advisor and
disclosed in the Memorandum (the “ Program ”),
as the same may be modified from time to time by the Trading
Advisor as a result of its ongoing commitment to research and
development. Any such change will not be deemed to
constitute a material change to the Investment Objective or
Investment Policy (each term as defined in the Disclosure Document)
and may be made without prior notification to the
Sponsor. However, any material change to the Investment
Objective or Investment Policy (each term as defined in the
Disclosure Document) (such change to be determined as material in
the Trading Advisor’s reasonable discretion) will only be
made upon giving the Sponsor at least twenty Business Days’
prior written notice (a “ Business Day ” means
any day on which banks in New York City are not required or
authorized to close). The Trading Advisor may, on behalf
of the Trading Fund and subject to Section 1(a)(iii) and Section 7,
execute transactions in Futures Interests on either a principal or
an agency basis, with or through such clearing brokers as approved
by the Sponsor and executing brokers selected by the Trading
Advisor, provided that the Trading Fund shall be a party to all
“give-up” agreements, from time to
time. This limited authority granted to the Trading
Advisor is a continuing power and shall continue in effect with
respect to the Trading Advisor until terminated
hereunder.
(ii) In
the event the Trading Advisor proposes to make any material changes
to the Program, the Trading Advisor will so inform the Sponsor and
will not make any such change — with respect to the Trading
Fund, not the Trading Advisor’s other accounts — to
which the Sponsor objects (in which case the Trading Advisor will
be free to terminate this Agreement pursuant to Section
10). “ Material changes ” for such
purposes shall not include simply adding or removing a Futures
Interest to or from the group of Futures Interests traded on behalf
of the Trading Fund (subject to Sections 1(b) and 1(c)).
(iii) The
management and operation of the Trading Fund and the determination
of its policies shall be vested exclusively in the Sponsor by the
Board of Directors of the Trading Fund. The Sponsor
shall have the authority and power on behalf and in the name of the
Trading Fund to carry out any and all of the objectives and
purposes of the Trading Fund set forth in the Trading Fund’s
Articles of Association, Trading Management Agreement, and to
perform all acts and enter into and perform all contracts and other
undertakings which the Sponsor may deem necessary or advisable in
connection with such objectives and purposes or incidental thereto;
provided that the Trading Advisor shall at all times have
discretionary authority and responsibility for independently
directing the Futures Interest trading pursuant to Section
1(a)(i). For the avoidance of doubt, notwithstanding the
fact that the Trading Advisor is not authorized to enter into any
agreements or undertakings on behalf of the Trading Fund and may
trade Futures Interests for the Trading Fund only pursuant to the
Program, it may enter into such give-up agreements with the
executing brokers as the Trading Advisor considers necessary or
appropriate in its reasonable discretion; provided,
however, that the Trading Fund shall be a signatory to such give-up
agreements, unless the Sponsor and the Trading Advisor otherwise
mutually agree.
(iv) All
actions and determinations to be made by the Sponsor hereunder
shall, unless otherwise expressly provided, be made in the
Sponsor’s sole and absolute discretion.
(b) The Trading
Advisor is aware that certain futures and options on futures
— generally certain stock index futures and options (for the
avoidance of doubt, including, but not limited to, all
non-CFTC-approved contracts) — may not be traded on behalf of
United States persons and agrees not to trade such Futures
Interests for the account of the Trading Fund.
(c) The Trading
Advisor agrees to the terms set forth in “Appendix B —
Trading Policies.”
(d) Subject to
adequate assurances of confidentiality, the Trading Advisor agrees
that it will discuss with the Sponsor upon request any trading
methods, programs, systems or strategies used by it for trading
customer accounts which differ from the Program, provided, that
nothing contained in this Agreement shall require the Trading
Advisor to disclose with respect to such accounts that it deems to
be proprietary or confidential information.
(e) The Trading
Advisor agrees to provide the Sponsor with such information
concerning the Trading Advisor as the Sponsor may reasonably
request (other than the identity of the Trading Advisor’s
other customers or proprietary or confidential information
concerning the Program and/or details of any other trading methods,
programs, systems or strategies used by it for trading other
customers’ accounts, except as may be required under Section
12(d) or (e)), subject to receipt of adequate assurances of
confidentiality, including, but not limited to, information
regarding any actual or prospective change in control, key
personnel, the Program or financial condition, provided, that
nothing contained in this Agreement shall require the Trading
Advisor to disclose with respect to itself what it deems to be
proprietary or confidential information.
(f) During the term of
this Agreement, the Trading Advisor agrees to provide the Sponsor
with updated information related to the Program’s performance
results (which information shall be kept confidential as provided
in Section (e)) within a reasonable period of time after the end of
each month or at other times as may be agreed from time to time
between the Trading Advisor and the Sponsor.
(g) The Trading
Advisor shall be responsible for promptly reviewing all oral and
written confirmations it receives to determine that the trades made
for the Trading Fund were made in accordance with the Trading
Advisor’s instructions. If the Trading Advisor
determines that an error was made in connection with a trade or
that a trade was made other than in accordance with the Trading
Advisor’s instructions, the Trading Advisor shall promptly
notify the Sponsor of this fact where such error is not corrected
within three Business Days of the Trading Advisor’s making
such determination, and shall consult with the Sponsor with regard
to the best course of action for the Trading Fund. All
risks relating to transactions ordered by the Trading Advisor on
behalf of the Trading Fund (including any trading or system error
that has occurred in good faith) shall be borne by the Trading Fund
as principal and, accordingly, all gains or losses accruing shall
belong to or be borne by the Trading Fund; provided that, if a
trading error resulting in losses is due to an action or omission
of the Trading Advisor not meeting the applicable standard of
conduct set forth in Section 2(a), such loss shall be borne by the
Trading Advisor.
(h) The Sponsor and
the Trading Fund agree that the Trading Advisor shall be the sole
trading advisor to the Trading Fund absent the Trading
Advisor’s prior written consent.
2. Standard of
Liability; Indemnification.
(a) The Trading
Advisor and its affiliates and each of their officers, employees,
directors, shareholders and controlling persons (the “
Trading Advisor Parties ”) shall have no liability to
the
Sponsor, the
Aspect Series, the Intermediate Fund, the Trading Fund or to any
owners of Equity Interests (the “ Members ”),
and shall be indemnified by the Trading Fund against, any loss,
liability, claim, damage or expense (including the reasonable cost
of investigating or defending any alleged loss, liability, claim,
damage or expense and reasonable counsel fees incurred in
connection therewith) (“ Losses ”), for conduct
undertaken as a trading advisor to the Trading Fund or otherwise
relating to any action or omission of the Trading Advisor Parties
(or alleged action or omission) in connection with this Agreement;
provided that, such action or omission (or alleged action or
omission) does not constitute gross negligence, willful misconduct
or breach of this Agreement or any fiduciary duty owed by the
Trading Advisor to the Trading Fund and was done in a manner
reasonably believed to be in, or not opposed to, the best interests
of the Trading Fund. The indemnity provision contained
in this Section 2(a) shall not increase the liability of the Aspect
Series beyond the amount of its capital and profits (exclusive of
distributions or other returns of capital, including redemptions),
if any, in the Trading Fund.
(b) In the event the
Sponsor, the Aspect Series, the Intermediate Fund or the Trading
Fund or their respective principals, affiliates, officers,
employees and controlling persons (collectively, the “
Sponsor Parties ”) is made a party to any threatened,
pending or completed action, arbitration, claim, demand, dispute,
lawsuit or other proceeding (each a, “ Proceeding
”) or otherwise incurs any Losses as a result of, or in
connection with, the activities or claimed activities of any
Trading Advisor Party (which term shall exclude RMF Investment
Management (“RMF”) and its affiliates, but for the
avoidance of doubt shall include any affiliate of RMF in which
the Trading Advisor has management control) unrelated to the
Trading Fund’s business, the Trading Advisor shall indemnify,
defend and hold harmless such Sponsor Parties against any direct
Losses incurred in connection therewith, except in circumstances
where such Proceeding arises either solely or partly as a result of
the gross negligence, willful misconduct or breach of this
Agreement or any fiduciary obligation owed by the relevant Sponsor
Parties.
(c) The Trading
Advisor Parties shall not be liable to the Sponsor Parties (to the
extent permitted by any applicable laws, statutes, rules,
regulations or orders and so far as not inconsistent with the
provisions of this Agreement) including but not limited to any
liability arising from the act or omission of any Clearing Broker
(as defined in Section 7), Executing Broker (as defined in Section
7) or other counterparty, except that the Trading Advisor Parties
(which term shall exclude RMF and its affiliates, but for the
avoidance of doubt shall include any affiliate of RMF in which the
Trading Advisor has management control) shall be liable to the
Sponsor Parties for acts by the Trading Advisor Parties (which term
shall exclude RMF and its affiliates, but for the avoidance of
doubt shall include any affiliate of RMF in which the Trading
Advisor has management control) with respect to the provision of
services hereunder which constitute gross negligence, willful
misconduct or breach of this Agreement by a Trading Advisor Party
(which term shall exclude RMF and its affiliates, but for the
avoidance of doubt shall include any affiliate of RMF in which the
Trading Advisor has management control).
(d)
(i) Promptly
after receipt by any of the indemnified parties under this
Agreement of notice of any Proceeding, the party or parties seeking
indemnification (the “ Indemnitee ”) shall
notify the party from which indemnification is sought (the “
Indemnitor ”) in writing of the commencement thereof
if a claim with respect thereof is to be made under this
Agreement. Failure to notify an Indemnitor on a timely
basis shall only qualify the right to indemnity hereunder to the
extent that such failure is prejudicial to the
Indemnitor.
(ii) The
Indemnitor shall be entitled to participate in the defense of any
such Proceeding and to assume the defense thereof with the
assistance of counsel reasonably satisfactory to the
Indemnitee(s). In any such Proceeding, the Indemnitee(s)
shall have the right to retain its or their own counsel, but the
fees and expenses of such counsel shall be at such
Indemnitee’s own expense unless (A) otherwise agreed by the
Indemnitor and such Indemnitee or (B) the named parties to any such
Proceeding (including any impleaded parties) include both the
Indemnitor and the Indemnitee(s), and representation
of the
foregoing parties by the same counsel would be inappropriate due to
actual or potential differing interests between them or the
existence of different or additional defenses (it being understood,
however, that the Indemnitor shall not be liable for legal fees or
other expenses of more than one separate firm of attorneys for all
such Indemnitee(s), which firm shall be designated in writing by
such Indemnitees and be reasonably acceptable to the
Indemnitor). The Indemnitee(s) shall cooperate with the
Indemnitor in connection with any such Proceeding and, subject to
the Indemnitor’s ongoing obligation of confidentiality with
regard to such information, shall make all personnel, books and
records relevant to the Proceeding available to the Indemnitor and
grant such authorizations or powers of attorney to the agents,
representatives and counsel of the Indemnitor as the Indemnitor may
reasonably consider desirable in connection with the defense of any
such Proceeding.
(e) None of the
indemnifications contained in this Section 2 shall be applicable
with respect to default judgments, confessions of judgment or
settlements entered into by the party or parties claiming
indemnification without the prior written consent, which shall not
be unreasonably withheld, of the party obligated to indemnify such
party.
(f) The Sponsor may
not redeem or otherwise distribute or withdraw assets from the
Trading Fund for the purpose of eliminating or reducing assets
available to satisfy a claim for indemnification of the Trading
Advisor pursuant to this Agreement. For the avoidance of
doubt, the preceding sentence shall not be construed as restricting
the right of the Sponsor to make redemptions from the Trading Fund
for the purpose of satisfying redemption or withdrawal requests of
holders of Equity Interests.
(g) The provisions of
this Section 2 shall survive the termination of this
Agreement.
(a) The Trading
Advisor agrees that it will not take any of the following actions
against the Aspect Series, Intermediate Fund or the Platform: (i)
seek a decree or order by a court having jurisdiction in the
premises (A) for relief in respect of the Aspect Series,
Intermediate Fund or the Platform in an involuntary case or
proceeding under the Federal Bankruptcy Code or any other federal
or state bankruptcy, insolvency, reorganization, rehabilitation,
liquidation or similar law or (B) adjudging the Aspect Series,
Intermediate Fund or the Platform bankrupt or insolvent, or seeking
reorganization, rehabilitation, liquidation, arrangement,
adjustment or composition of or in respect of the Aspect Series,
Intermediate Fund or the Platform under the Federal Bankruptcy Code
or any other applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Aspect Series, Intermediate Fund
or the Platform or of any substantial part of any of their
properties, or ordering the winding up or liquidation of any of
their affairs; (ii) seek a petition for relief, reorganization or
to take advantage of any law referred to in the preceding clause;
or (iii) file an involuntary petition for bankruptcy (collectively,
“ Bankruptcy or Insolvency Action ”).
(b) In addition, the
Trading Advisor agrees that for any obligations due and owing to it
by the Trading Fund, the Trading Advisor will look solely and
exclusively to the assets of the Trading Fund to satisfy its claims
and will not seek to attach or otherwise assert a claim against the
assets of the Aspect Series, the Platform, the Intermediate Fund,
the Sponsor or any of their affiliates, whether there is a
Bankruptcy or Insolvency Action taken or otherwise. The
parties agree that this provision will survive the termination of
this Agreement, whether terminated in a Bankruptcy or Insolvency
Action or otherwise.
(c) This Agreement has
been made and executed by and on behalf of the Trading Fund and the
Sponsor, and the obligations of the Trading Fund and/or the Sponsor
set forth herein are not binding upon any of the Members of the
Aspect Series individually but are binding only upon the assets
and
property of the Trading Fund and no resort shall
be had to the assets of any segregated series of the Platform
(each, a “ Series ”) or the Platform or the
Members’ personal property for the satisfaction of any
obligation or claim hereunder. For the avoidance of
doubt, the parties hereto acknowledge and agree that the Platform
is organized in series pursuant to Section 18-215(b) of the
Delaware Limited Liability Company Act. As such, the debts,
liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to each Series shall be enforceable
against the assets of such Series only, and not against the assets
of the Platform generally or the assets of any other
Series.
4. Trading
Advisor’s Closing Obligations.
If requested by the Sponsor, on or
prior to each closing date during the continuous offering of the
Aspect Series (each a “ Closing Date ”), the
Trading Advisor shall deliver or cause to be delivered, at the
expense of the Trading Advisor, to the Selling Agents (as defined
in the Memorandum, “ Selling Agents ”), the
Aspect Series, the Trading Fund and the Sponsor, the reports,
certificates and documents described below addressed to them and,
except as may be set forth below, dated as of the Closing
Date.
(a) a report from the
Trading Advisor which shall present, for the period from the date
after the last day covered by the Trading Advisor’s
performance information as set forth in the Part
One(B): Trading Advisor Information of the Memorandum to
the latest practicable month–end before the Closing Date,
figures which shall show the actual past performance of the Program
(or, if such actual past performance information is unavailable,
then the estimated past performance) for such period as well as any
pro forma performance information for such period reasonably
requested by the Sponsor, and which shall certify that, to the best
of its knowledge, such figures are complete and accurate in all
material respects;
(b) a certificate of
the Trading Advisor in the form proposed prior to the Closing Date
by counsel to the Sponsor, with such changes in such form as are
proposed by the Trading Advisor or its counsel and are acceptable
to the Sponsor and its counsel so as to make such form mutually
acceptable to the Sponsor, the Trading Advisor and their respective
counsel, to the effect that:
(1) the
representations and warranties of the Trading Advisor contained in
this Agreement are true and correct in all material respects on the
date of the certificate as though made on such date;
(2) nothing has come
to the Trading Advisor’s attention which would cause the
Trading Advisor to believe that, at any time from: (A) the time the
forms required to register the Units under the Securities Exchange
Act of 1934, as amended (such forms, collectively, the “
Form 10 ”), initially became effective to (B) the
Closing Date, the Form 10, as amended from time to time, or the
Memorandum, as supplemented or amended from time to time, with
respect to the Trading Advisor Parties, or with respect to the
Program or performance information, contained an 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, in
light of the circumstances in which they were made, not misleading;
and
(3) the Trading
Advisor has performed all covenants and agreements herein contained
to be performed on its part at or prior to the Closing
Date.
5. Independent
Contractor Status.
The Trading Advisor shall for all purposes
herein be deemed to be an independent contractor with respect to
the Sponsor and the Trading Fund, and shall, unless otherwise
expressly authorized, have no
authority to
act for or to represent the Trading Fund, the Sponsor, any other
commodity trading advisor of the Platform or the Selling Agents in
any way or otherwise be deemed to be a general agent, joint
venturer or partner of the Trading Fund, the Sponsor, any other
commodity trading advisor of the Platform or the Selling Agents, or
in any way be responsible for the acts or omissions of the Trading
Fund, the Sponsor, any other commodity trading advisor of the
Platform or the Selling Agents as long as it is acting
independently of such persons.
The Sponsor acknowledges that the Program is the
confidential property of the Trading Advisor. Nothing in
this Agreement shall require the Trading Advisor to disclose the
confidential or proprietary details of the Program and/or the
Trading Advisor’s trading programs generally, its systems,
methodologies, trading techniques, research, strategies, models and
other commercial information, except only to the extent that such
disclosure may be legally compelled under applicable law or may be
required under Section 12(d) or (e). The Sponsor further
agrees that it will keep confidential and will not disclose to any
third party (including any Members) or to its own employees other
than on a “need to know” basis the Trading
Advisor’s trading advice to the Trading Fund, except as, and
to the extent that, it may be determined by the Sponsor to be
expressly required by: (i) any law or statute; (ii) governmental,
regulatory or self-regulatory agency or organization, rule,
regulation or order; (iii) the request of any governmental,
regulatory or self-regulatory agency or organization; (iv) valid
legal process; or (v) as otherwise authorized by the Trading
Advisor from time to time. The Trading Fund and the
Sponsor further agree that they shall not 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 and analyses previously, currently or hereafter used by
the Trading 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. For the
avoidance of doubt, all performance information relating to the
Program, the Trading Fund, the Aspect Series and the Intermediate
Fund that is provided on an intra-month basis, and all exposure
reports, shall be deemed confidential information and not
distributed to Members or any other party, except as otherwise
indicated in clauses (i) through (v) above.
7. Clearing
Broker; Executing Broker.
(a) All Futures
Interest trades, including foreign exchange trades, for the
accounts of the Trading Fund shall be cleared through such
commodity clearing broker or brokers as the Sponsor
directs. At the present time it is contemplated that the
Trading Fund will clear all Futures Interest trades through UBS
Securities LLC (the “ Clearing Broker ”) or its
affiliates.
(b) All foreign
exchange trades for the accounts of the Trading Fund shall be
executed through such commodity broker or brokers and banks (or
other forward dealers) as the Trading Advisor may consider
necessary or appropriate in its reasonable discretion and which are
pre-approved by the Sponsor, which approval shall not be
unreasonably withheld.
(c) All Futures
Interest trades, other than foreign exchange trades, for the
accounts of the Trading Fund shall be executed through such
commodity broker or brokers and banks (the “ Executing
Brokers ”) as the Trading Advisor may consider necessary
or appropriate in its reasonable discretion if such broker(s) agree
to “give up” all transactions to the Clearing Broker
for clearance subject to Section 1(a)(iii). If the
Trading Fund is not a signatory to the resulting give-up agreements
pursuant to Section
1(a)(iii), the Trading Advisor shall notify the
Sponsor and the Trading Fund from time to time in writing of the
Executing Brokers selected by the Trading Advisor.
(d) The Sponsor shall
retain UBS FS as an exclusive selling agent for the Aspect
Series. The Intermediate Fund and the Trading Fund shall
not employ selling agents.
8. Brokerage
Confirmations and Reports.
The Sponsor will instruct the Clearing Broker to
furnish the Trading Advisor with copies of all trade confirmations,
daily equity runs and monthly trading statements relating to the
Trading Fund. The Trading Advisor will maintain records
and will monitor all open positions relating thereto; provided,
however, that the Trading Advisor shall not be responsible for any
errors by the Clearing Broker or any other brokers appointed
pursuant to Section 7 as long as the Trading Advisor’s
actions or omissions, if any, relating to such error are consistent
with the standard set forth in Section 2(a). The Sponsor
will also furnish the Trading Advisor with a copy of the form of
all reports, including but not limited to, monthly, quarterly and
annual reports, sent to the Members, and copies of all reports
filed with the Securities and Exchange Commission, the CFTC or the
NFA. The Trading Advisor shall, at the Sponsor’s
request, make a good faith effort to provide the Sponsor with
copies of all trade confirmations, daily equity runs, monthly
trading reports or other reports sent to the Trading Advisor by the
Clearing Broker regarding the Trading Fund, provided that such
confirmations and reports are actually in the Trading
Advisor’s possession or control, as the Sponsor deems
appropriate and in circumstances where the Sponsor cannot obtain
copies of these confirmations and reports on its own
behalf. Upon request, the Sponsor will provide the
Trading Advisor with accurate information with respect to the
Trading Fund.
(a) In consideration
of and in compensation for the performance of the Trading
Advisor’s services under this Agreement, the Trading Advisor
shall receive from the Trading Fund a management fee (the “
Management Fee ”) and a performance fee (the “
Performance Fee ”) as set forth in the “Appendix
A — Fee Schedule” hereto.
(b) Management Fees
and Performance Fees (including, if applicable, any United Kingdom
value added tax or any analogous taxation thereon) shall be paid
within twenty Business Days following the end of the period for
which they are payable. For the avoidance of doubt, all
fees and expenses payable under this Agreement shall be stated
exclusive of any United Kingdom value added tax or any analogous
taxation payable or chargeable thereon and, if applicable, the
Trading Fund shall pay to the Trading Advisor an amount equal to
any United Kingdom value added tax or any analogous taxation so
chargeable against production by the Trading Advisor of an
appropriate tax invoice addressed to the Trading
Fund. If a Performance Fee shall have been paid by the
Trading Fund to the Trading Advisor in respect of any calendar
quarter and the Trading Advisor shall incur subsequent losses in
trading on behalf of the Trading Fund, the Trading Advisor shall
nevertheless be entitled to retain amounts previously paid to it in
respect of New Net Trading Profits (as defined in Appendix
A).
(c) The Trading
Advisor will be provided by the Sponsor with the data used by the
Sponsor to compute the foregoing fees within twenty Business Days
of the end of the relevant period.
(d) For purposes of
allocating fees hereunder, the Trading Fund shall issue a separate
series of shares with respect to the Aspect Series and the
AlphaMosaic Platform. Additional series may be issued to
new investors with the prior written consent of the Trading
Advisor.
10.
Term and Termination; Removal of the Sponsor.
(a) This Agreement
shall commence on the date hereof and, unless sooner terminated
pursuant to sections (b), (c), (e) or (f) of this Section 10, shall
continue in effect until the close of business on March 31, 2010
(the “ Initial Term
”). After