ALPHAMETRIX MANAGED FUTURES PLATFORMS
AMENDED AND RESTATED
ADVISORY AGREEMENT
Dated as of October 13,
2009
__________________________________________
among
ALPHAMETRIX ASPECT FUND – MT0001
ALPHAMETRIX MANAGED FUTURES LLC (ASPECT SERIES)
ALPHAMETRIX MANAGED FUTURES II LLC (ASPECT CS SERIES)
ALPHAMETRIX, LLC
and
ASPECT CAPITAL LIMITED
__________________________________________
ALPHAMETRIX MANAGED FUTURES PLATFORMS
AMENDED AND RESTATED ADVISORY
AGREEMENT
__________________________________________
TABLE OF CONTENTS
Section
Page
|
1.
|
Duties of the
Trading Advisor
|
2
|
|
2.
|
Standard of
Liability; Indemnification
|
4
|
|
3.
|
Limits on
Claims
|
5
|
|
4.
|
Trading
Advisor’s Closing Obligations
|
6
|
|
5.
|
Independent
Contractor Status
|
7
|
|
6.
|
Confidentiality
|
7
|
|
7.
|
Clearing
Broker; Executing Broker
|
8
|
|
8.
|
Brokerage
Confirmations and Reports
|
8
|
|
9.
|
Fees
|
8
|
|
10.
|
Term and
Termination; Removal of the Sponsor
|
9
|
|
11.
|
Liquidation of
Positions
|
10
|
|
12.
|
Other Accounts
of the Trading Advisor; Exclusivity
|
11
|
|
13.
|
Speculative
Position Limits
|
12
|
|
14.
|
Redemptions,
Exchanges, Distributions, Subscriptions
|
12
|
|
15.
|
The Trading
Advisor’s Representations and Warranties
|
12
|
|
16.
|
The
Sponsor’s Representations and Warranties
|
14
|
|
17.
|
Assignment
|
16
|
|
18.
|
Successors
|
17
|
|
19.
|
Amendment or
Modification or Waiver; Amendment and Restatement
|
17
|
|
20.
|
Notices
|
17
|
|
21.
|
Governing
Law
|
18
|
|
22.
|
Survival
|
18
|
|
23.
|
Disclosure
Document Modifications
|
18
|
|
24.
|
Promotional
Literature
|
18
|
|
25.
|
No
Waiver
|
19
|
|
26.
|
No Liability of
Members
|
19
|
|
27.
|
Third-Party
Beneficiaries
|
19
|
|
28.
|
Headings
|
19
|
|
29.
|
Complete
Agreement
|
19
|
|
30.
|
Counterparts
|
19
|
|
31.
|
Miscellaneous
|
19
|
_______________
Appendix A
— Fee Schedule
|
|
Appendix B
— Trading Policies
|
|
Appendix C
— List of Futures Interests
|
|
Appendix D
— Determination of Net Asset Value
|
|
ALPHAMETRIX MANAGED FUTURES PLATFORMS
AMENDED AND RESTATED ADVISORY
AGREEMENT
__________________________________________
This Amended and Restated Advisory Agreement
(the “ Agreement ”), made as of this 13th day of
October, 2009, among ALPHAMETRIX ASPECT FUND – MT0001, a
Cayman Islands company (the “ Trading Fund ”),
ALPHAMETRIX MANAGED FUTURES LLC (ASPECT SERIES), a series of
AlphaMetrix Managed Futures LLC, a Delaware limited liability
company, ALPHAMETRIX MANAGED FUTURES II LLC (ASPECT CS SERIES), a
series of AlphaMetrix Managed Futures II LLC, a Delaware limited
liability company, ALPHAMETRIX, LLC, a Delaware limited liability
company (the “ Sponsor ”) and ASPECT CAPITAL
LIMITED (the “ Trading Advisor ”), a limited
liability company registered in England and Wales;
WHEREAS, the Trading Fund, the Sponsor and the
Trading Advisor entered into an advisory agreement dated as of
November 1, 2008 (the “ Original Agreement ”)
with respect to the direction of investment and reinvestment of the
Trading Fund’s assets by the Trading Advisor upon the terms
and conditions set forth therein;
WHEREAS, the parties hereto wish to amend and
restate in its entirety the Original Agreement (and the appendices
attached thereto) to make certain changes desired by the
parties;
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, London Metal
Exchange and foreign exchange 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 ”) previously invested
substantially all of the proceeds of the sale of its units of
limited liability company interest (“ Aspect Series
Units ”) in ALPHAMETRIX MANAGED FUTURES (ASPECT) LLC, a
Delaware limited liability company (the “ Intermediate
Fund ”), which in turn invested substantially all of the
proceeds it received from the Aspect Series in the Trading
Fund;
WHEREAS, as of August 31, 2009 the Intermediate
Fund was dissolved and as of such date the Aspect Series invests
substantially all of the proceeds of the Aspect Series Units in the
Trading Fund;
WHEREAS, ALPHAMETRIX MANAGED FUTURES II LLC
(ASPECT CS SERIES), a series of a Delaware limited liability
company (the “ Aspect CS Series ” and together
with the Aspect Series, each a “ Series ”) will
invest substantially all of the proceeds of the sale of its units
of limited liability company interest (together with the Aspect
Series Units, “ Units ”) in the Trading
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 “ Original Platform
”);
WHEREAS, the Aspect CS Series is a
“protected cell” of AlphaMetrix Managed Futures II LLC,
a series limited liability company established under the law of the
State of Delaware (together with the Original Platform, the “
Platforms ”);
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 Platforms’ Confidential
Disclosure Documents, as supplemented and amended from time to time
(collectively, 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 and 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 Aspect CS Series, any other
entity that now or in the future invests in the Trading 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 each of the Aspect Series and the Aspect
CS 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 Aspect CS Series, any other entity
that now or in the future invests in the Trading 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 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
shall be liable to the Sponsor Parties for acts
by the Trading Advisor Parties with respect to
the provision of services hereunder which constitute gross
negligence, willful misconduct or breach of this Agreement by a
Trading Advisor Party.
(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, Aspect CS Series or the Platforms: (i)
seek a decree or order by a court having jurisdiction in the
premises (A) for relief in respect of the Aspect Series, Aspect CS
Series or the Platforms 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, Aspect CS Series
or the Platforms bankrupt or insolvent, or seeking reorganization,
rehabilitation, liquidation, arrangement, adjustment or composition
of or in respect of the Aspect Series, Aspect CS Series or the
Platforms 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, Aspect CS Series or the Platforms 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 Aspect CS Series, the Platforms,
the Sponsor or any of their affiliates, whether there is a
Bankruptcy or Insolvency Action taken or otherwise, except that the
Aspect Series and the Trading Fund agree to be held jointly and
severally liable for any Management Fees or Performance Fees due on
the Aspect Series’ interest in the Trading Fund, and the
Trading Fund and the Aspect CS Series agree to be held jointly and
severally liable for any Management Fees or Performance Fees due on
the Aspect CS Series’ interest in the Trading
Fund. For the avoidance of doubt, the Aspect CS Series
and the Aspect Series shall in no way be liable for Management Fees
or Performance Fees due on the each other’s interests in the
Trading Fund. 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 CS Series or 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 Members’ personal property for the
satisfaction of any obligation or claim hereunder. In
addition, no resort shall be had to the assets of the Aspect CS
Series or the Aspect Series, except with regard to Management Fees
and Performance Fees as described in Section 3(b), for the
satisfaction of any obligation or claim hereunder. Subject to
Appendix A, for the avoidance of doubt, the parties hereto
acknowledge and agree that the Platforms are 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
Platforms 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
Two: Series 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 Platforms 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 Platforms 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 Platforms 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
Aspect CS Series 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. The Trading Fund will clear Futures Interest
trades through Credit Suisse Securities (USA) LLC (“
Credit Suisse Securities ” or the “ Clearing
Broker ”).
(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 has retained UBS Financial Services Inc. as a selling agent
for the Aspect Series and will retain Credit Suisse Securities as a
selling agent for the Aspect CS Series; provided however that the
Sponsor shall obtain the Trading Advisor’s prior written
consent prior to appointing any other selling agents for the Aspect
Series or the Aspect CS Series.
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, unless the Sponsor is unable to value a
material portion of the Trading Fund’s positions, in which
case the Management Fees and Performance Fees will be paid as soon
as reasonably possible after such positions have been
valued. 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, or otherwise separately account
for, the Aspect Series, the Aspect CS Series, and any series of 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 the
expiration of the Initial Term, unless sooner terminated, this
Agreement shall be renewed automatically on the same terms and
conditions set forth herein for successive additional one-year
terms, each of which shall commence on the first day of the month
subsequent to the conclusion of the then-current
term. Notice of any such termination shall require
thirty (30) days’ prior written notice.
(b) This Agreement may
be terminated at any time at the election of the Sponsor in its
sole discretion upon at least one Business Day’s prior
written notice to the Trading Advisor. The Sponsor will
use its reasonable best efforts to cause any termination to occur
as of a month-end.
(c) The Trading
Advisor shall have the right to terminate this Agreement at any
time upon ten (10) days’ written notice to the Trading Fund
and the Sponsor in the event (i) of the receipt by the Trading
Advisor of an opinion of independent c
