EXHIBIT 10.15
MANAGEMENT AGREEMENT
THIS AGREEMENT, made as of the 9th day of October, 2007, among
MORGAN STANLEY SPECTRUM CURRENCY L.P., a Delaware limited partnership (the
"Partnership"), DEMETER MANAGEMENT CORPORATION, a Delaware corporation (the
"General Partner"), and FX CONCEPTS TRADING ADVISOR, INC., a New York
corporation (the "Trading Advisor").
W I T N E S S E T H:
WHEREAS, the Partnership has been organized pursuant to the Amended
and Restated Limited Partnership Agreement dated as of April 2, 2007, as may be
amended from time to time, (the "Limited Partnership Agreement"), to trade, buy,
sell, spread, or otherwise acquire, hold, or dispose of commodities (which may
include foreign currencies, mortgage-backed securities, money market
instruments, financial instruments and any other securities or items which are
now, or may hereafter be, the subject of futures contract trading), domestic and
foreign commodity futures contracts, commodity forward contracts, foreign
exchange commitments, options on physical commodities and on futures contracts,
spot (cash) commodities and currencies, and any rights pertaining thereto
(hereinafter referred to collectively as "futures interests") and securities
(such as United States Treasury bills) approved by the Commodity Futures Trading
Commission (the "CFTC") for investment of customer funds and to engage in all
activities incident thereto;
WHEREAS, the Partnership is a member partnership of the Morgan
Stanley Spectrum Series (the "Fund Group") pursuant to which units of limited
partnership interest ("Units") of such member partnerships are sold to investors
in a common prospectus. Units of the Partnership are being offered pursuant to a
Registration Statement on Form S-1 (as it may be amended from time to time, the
"Registration Statement") filed under the Securities Act of 1933, as amended
(the "Securities Act"), and a final prospectus constituting a part thereof (as
it may be amended and supplemented from time to time) (the "Prospectus"). Such
Units can be exchanged by a limited partner of a member partnership of the Fund
Group for Units of other member partnerships of the Fund Group after it has been
a limited partner of a member partnership of the Fund Group for six months at
100% of the respective Net Asset Value (as defined in Section 7(d)(2) of the
Limited Partnership Agreement) thereof;
WHEREAS, the principals of the Trading Advisor have extensive
experience trading in futures interests and the Trading Advisor is willing to
provide certain services and undertake certain obligations as set forth herein;
WHEREAS, the Partnership and the General Partner each desires the
Trading Advisor to act as a trading advisor for the Partnership and to make
investment decisions with respect to futures interests for its allocated portion
of the Partnership's Net Assets (as defined in Section 7(d)(1) of the Limited
Partnership Agreement) and the Trading Advisor desires so to act; and
WHEREAS, the Partnership, the General Partner and the Trading
Advisor wish to enter into this Management Agreement which, among other things,
sets forth certain terms and conditions upon which the Trading Advisor will
conduct a portion of the Partnership's futures interests trading for the
Partnership;
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Undertakings in Connection with the Continuing Offering of Units.
(a) The Trading Advisor agrees with respect to the continuing
offering of Units: (i) to make all disclosures regarding itself, its principals
and affiliates, its trading performance, its trading programs, systems, methods,
and strategies (subject to the need, in the reasonable discretion of the Trading
Advisor, to preserve the confidentiality of proprietary information concerning
such programs, systems, methods, and strategies), any client accounts over which
it has discretionary trading authority (other than the names of any such
clients), and otherwise, as the General Partner may reasonably require (x) to be
made in the Partnership's Prospectus required by Section 4.21 of the CFTC's
Regulations, including any amendments or supplements thereto, or (y) to comply
with any applicable federal or state law or rule or regulation, including those
of the Securities and Exchange Commission (the "SEC"), the CFTC, the National
Futures Association (the "NFA"), the National Association of Securities Dealers,
Inc. (the "NASD") or any other regulatory body, exchange, or board; and (ii)
otherwise to cooperate with the Partnership, the General Partner, and Morgan
Stanley & Co. Incorporated, an affiliate of the General Partner and the selling
agent for the Partnership ("MS&Co."), by providing information regarding the
Trading Advisor in connection with the preparation and filing of the
Registration Statement and Prospectus, including any pre-or post-effective
amendments or supplements thereto, with the SEC, CFTC, NFA, NASD, and with
appropriate governmental authorities as part of making application for
registration of the Units under the securities or Blue Sky laws of such
jurisdictions as the Partnership may deem appropriate. As used herein, the term
"principal" shall have the meaning as defined in Rule 3.1(a) of the CFTC's
Regulations and the term "affiliate" shall mean any individual or entity that
directly or indirectly controls, is controlled by, or is under common control
with the Trading Advisor.
(b) The General Partner, in its sole discretion and at any time may
(i) withdraw the SEC registration of the Units, or (ii) discontinue the offering
of Units.
(c) If, while Units continue to be offered and sold, the Trading
Advisor becomes aware of any materially untrue or misleading statement or
omission regarding itself or any of its principals or affiliates in the
Registration Statement or Prospectus, or of the occurrence of any event or
change in circumstances that would result in there being any materially untrue
or misleading statement or omission in the Registration Statement or Prospectus
regarding itself or any of its principals or affiliates, the Trading Advisor
shall promptly notify the General Partner and shall cooperate with it in the
preparation of any necessary amendments or supplements to the Registration
Statement or Prospectus. Neither the Trading Advisor nor any of its principals
or affiliates or any stockholders, officers, directors, or employees thereof
shall distribute the Prospectus or selling literature or shall engage in any
selling activities whatsoever in connection with the continuing offering of
Units except as may be specifically requested by the General Partner.
2. Duties of the Trading Advisor.
(a) Upon the commencement of trading operations on or about December
1, 2007 by the Trading Advisor on behalf of the Partnership, the Trading Advisor
hereby agrees to act as a Trading Advisor for the Partnership and, as such,
shall have sole authority and responsibility for directing the investment and
reinvestment of its allocated portion of the Net Assets of the Partnership which
initially shall be traded pursuant to its Global Currency Program as described
in the Prospectus, and may be subsequently traded pursuant to such other of the
Trading Advisor's programs described in the Prospectus as agreed to by the
General Partner and the Trading Advisor (with such changes and additions to such
trading programs as the Trading Advisor, from time to time, incorporates into
its trading program(s) for accounts the size of the Partnership's),
(collectively, the "Trading Program") on the terms and conditions and in
accordance with the prohibitions and trading policies set forth in Exhibit A
hereto, the Prospectus, the Limited Partnership Agreement and as otherwise
provided in writing to the Trading Advisor; provided, however, that the General
Partner may override the instructions of the Trading Advisor to the extent
necessary (i) to comply with the trading policies of the Partnership, as
described in Exhibit A hereto, the Prospectus and the Limited Partnership
Agreement, and as otherwise provided in writing to the Trading Advisor, and with
applicable speculative position limits, (ii) to fund any distributions,
redemptions or reapportionments among other trading advisors, if any, to the
Partnership, (iii) to pay the Partnership's expenses, (iv) to the extent the
General Partner believes doing so is necessary for the protection of the
Partnership, (v) to terminate the futures interests trading of the Partnership,
or (vi) to comply with any applicable law or regulation. The General Partner
agrees not to override any such instructions for the reasons specified in
clauses (ii) or (iii) of the preceding sentence unless the Trading Advisor fails
to comply with a request of the General Partner to make the necessary amount of
funds available to the Partnership within five calendar days of such request.
Except as otherwise provided herein, the Trading Advisor shall not be liable for
the consequences of any decision by the General Partner to override instructions
of the Trading Advisor. In performing services for the Partnership, the Trading
Advisor may not materially alter or change the Trading Program without the prior
written consent of the General Partner (and shall not effect such alteration or
change on behalf of the Partnership without the General Partner's consent), it
being understood that changes in the futures interests traded, provided that
such futures interests are listed on Exhibit B hereto or are otherwise approved
in writing by the General Partner (as set forth in Section 10(a)(iii) hereof),
shall not be deemed an alteration in the Trading Program.
(b) The Trading Advisor shall:
(i) Exercise good faith and due care in trading futures
interests for the account of the Partnership in accordance with the
prohibitions and trading policies of the Partnership described in Exhibit
A hereto, the Prospectus, the Limited Partnership Agreement and as
otherwise provided in writing to the Trading Advisor. The Trading Advisor
shall trade its allocated portion of the Partnership's Net Assets pursuant
to the Trading Program.
(ii) Subject to reasonable assurances of confidentiality by
the General Partner and the Partnership, provide the General Partner,
within 30 calendar days of a request therefor by the General Partner, with
information comparing the performance of the Partnership's account and the
performance of all other client accounts directed by the Trading Advisor
using the Trading Program over a specified period of time. In providing
such information, the Trading Advisor may take such steps as are necessary
to assure the confidentiality of the Trading Advisor's clients'
identities. The Trading Advisor shall, upon the General Partner's request,
consult with the General Partner concerning any discrepancies between the
performance of such other accounts and the Partnership's account. The
Trading Advisor shall promptly inform the General Partner of any material
discrepancies of which the Trading Advisor becomes aware. The General
Partner acknowledges that different trading programs, strategies or
implementation methods may be utilized for different accounts, accounts
with different trading policies, accounts experiencing differing inflows
or outflows of equity, accounts that commence trading at different times
and accounts that have different portfolios or different fiscal years and
that such differences may cause divergent trading results.
(iii) Upon the request of the General Partner and subject to
commercially reasonable best efforts assurances of confidentiality by the
General Partner and the Partnership, provide the General Partner, within
10 calendar days of such request, with all material information concerning
the Trading Advisor other than proprietary information (including, without
limitation, information relating to changes in control, personnel, trading
approach, or financial condition). The General Partner acknowledges that
all trading instructions made by the Trading Advisor will be held in
confidence by the General Partner, except to the extent necessary to
conduct the business of the Partnership or as required by law.
(iv) Inform the General Partner when the Trading Advisor's
open positions maintained by the Trading Advisor exceed the Trading
Advisor's applicable speculative position limits.
(v) In performing services to the Partnership, the Trading
Advisor shall utilize the Trading Program. The Trading Advisor shall give
the General Partner prior written notice of any alteration or change in
the Trading Program that the Trading Advisor deems to be material (and
shall not effect such alteration or change on behalf of the Partnership
without the General Partner's consent), it being understood that changes
in the futures interests traded, provided that such futures interests are
listed on Exhibit B hereto or are otherwise approved in writing by the
General Partner (as set forth in Section 10(a)(iii) hereof), shall not be
deemed an alteration in the Trading Program.
(c) All purchases and sales of futures interests pursuant to this
Agreement shall be for the account, and at the risk, of the Partnership and not
for the account, or at the risk, of the Trading Advisor or any of its
stockholders, directors, officers, or employees, or any other person, if any,
who controls the Trading Advisor within the meaning of the Securities Act. All
brokerage fees, including give-up fees at rates approved by MS&Co. arising from
trading by the Trading Advisor shall be for the account of the Partnership. The
Trading Advisor makes no representations as to whether its trading will produce
profits or avoid losses.
(d) Notwithstanding anything in this Agreement to the contrary, the
Trading Advisor shall assume financial responsibility for any errors committed
or caused by it in transmitting orders for the purchase or sale of futures
interests for the Partnership's account, including, but not limited to, payment
of the commissions, exchange and NFA fees, and other transaction charges and
give-up charges incurred on such trades. The Trading Advisor's errors shall
include, but not be limited to, inputting improper trading signals or
communicating incorrect orders for execution. The Trading Advisor shall not be
responsible for errors committed or caused by MS&Co. or any other floor broker
or futures commission merchant executing trades. The Trading Advisor shall have
an affirmative obligation promptly to notify the General Partner of its own
errors, and the Trading Advisor shall use its best efforts to identify and
promptly notify the General Partner of any order or trade that the Trading
Advisor reasonably believes was not executed in accordance with its
instructions.
(e) Prior to the commencement of trading by the Trading Advisor, the
General Partner on behalf of the Partnership shall deliver to the Trading
Advisor a trading authorization in the form attached hereto as Exhibit C hereto,
appointing the Trading Advisor the Partnership's attorney-in-fact for such
purpose.
3. Designation of Additional or Replacement Trading Advisors and
Reallocation of Net Assets.
(a) If the General Partner at any time deems it to be in the best
interests of the Partnership, the General Partner may designate an additional or
replacement trading advisor or advisors for the Partnership and may apportion to
such additional or replacement trading advisor(s) the management of such amounts
of Net Assets as the General Partner shall determine in its absolute discretion.
The designation of an additional trading advisor or advisors or replacement of
any trading advisor for the Partnership by the General Partner shall not require
any approval of any existing trading advisor (including the Trading Advisor).
Subject to Section 7(c) hereof, the designation and retention of an additional
or replacement trading advisor(s) and the apportionment of Net Assets to any
such trading advisor(s) pursuant to this Section 3 shall neither terminate this
Agreement nor modify in any regard the respective rights and obligations of the
Partnership, the General Partner and the Trading Advisor hereunder with respect
to the assets that remain under the management of the Trading Advisor. In the
event that an additional or replacement trading advisor(s) is so designated, the
Trading Advisor shall thereafter receive management and incentive fees based,
respectively, on that portion of the Net Assets managed by the Trading Advisor
and that portion of the Trading Profits (as defined in Section 6(c) hereof)
properly attributable to the trading done by the Trading Advisor.
(b) The General Partner may at any time and from time to time upon
two business days' prior notice reallocate Net Assets allocated to the Trading
Advisor to any other trading advisor or advisors of the Partnership or allocate
additional Net Assets upon two business days' prior notice to the Trading
Advisor from such other trading advisor or advisors; provided that any such
addition to or withdrawal from Net Assets allocated to the Trading Advisor will
only take place on the last day of a month unless the General Partner determines
that the best interests of the Partnership require otherwise.
4. Trading Advisor Independent.
For all purposes of this Agreement, the Trading Advisor shall be
deemed to be an independent contractor and shall, unless otherwise expressly
provided herein or authorized, have no authority to act for or represent the
Partnership in any way or otherwise be deemed an agent of the Partnership or the
General Partner. Nothing contained herein shall be deemed to require the
Partnership or the General Partner to take any action contrary to the Limited
Partnership Agreement, the Certificate of Limited Partnership of the Partnership
as from time to time in effect (the "Certificate of Limited Partnership"), or
any applicable law or rule or regulation of any regulatory body, exchange, or
board. Nothing herein contained shall constitute the Trading Advisor and any
other trading advisor or advisors for the Partnership, the General Partner, or
other member partnership of the Fund Group or their trading advisors as a member
of any partnership, joint venture, association, syndicate or other entity with
the Partnership or the General Partner, or, except as otherwise specifically
provided in this Agreement, be deemed to confer on any of them any express,
implied, or apparent authority to incur any obligation or liability on behalf of
any other. It is expressly agreed that the Trading Advisor is neither a
promoter, sponsor, nor issuer with respect to the Partnership.
5. Commodity Brokers.
The Trading Advisor shall effect all transactions in futures
interests for the Partnership through, and shall maintain a separate account
with, such commodity broker or brokers as the General Partner shall direct. At
the present time, MS&Co. shall act as the commodity broker for the Partnership,
with the exception of trades on the London Metal Exchange which will be cleared
by Morgan Stanley & Co. International plc, an affiliate of the General Partner
("MSIL"). In addition, MS&Co. will act as the counterparty on all of the foreign
currency forward trades for the Partnership. The General Partner shall provide
the Trading Advisor with copies of brokerage statements. Notwithstanding that
MS&Co. and MSIL shall act as the commodity brokers for the Partnership, the
Trading Advisor may execute trades through floor brokers other than those
employed by MS&Co. and MSIL so long as arrangements are made for such floor
brokers to "give-up" or transfer the positions to MS&Co. or MSIL and provided
that the rates charged by such floor brokers have been approved in writing by
MS&Co. Except as provided in Exhibit A hereto, the Trading Advisor will not be
responsible for paying give-up fees at rates approved by MS&Co.
6. Fees.
(a) For the services to be rendered to the Partnership by the
Trading Advisor under this Agreement, the Partnership shall pay the Trading
Advisor the following fees:
(i) A monthly management fee, without regard to the
profitability of the Trading Advisor's trading for the Partnership's
account, equal to 1/12 of 2% (a 2% annual rate) of the Partnership's "Net
Assets" allocated to the Trading Advisor (as defined in Section 7(d)(1) of
the Limited Partnership Agreement) as of the opening of business on the
first day of each calendar month, commencing with the month in which the
Partnership begins to receive trading advice from the Trading Advisor
pursuant to this Agreement.
(ii) A monthly incentive fee equal to 20% of the "Trading
Profits" (as defined in Section 6(c)) experienced by the Partnership as of
the end of each calendar month, payable on a non-netted basis vis a vis
other trading advisor(s) of the Partnership.
(b) If this Agreement is terminated on a date other than the last
day of a month, the incentive fee described above shall be determined as if such
date were the end of a month. If this Agreement is terminated on a date other
than the end of a month, the management fee described above shall be prorated
based on the ratio of the number of trading days in the month through the date
of termination to the total number of trading days in the month. If, during any
month after the Partnership commences trading operations, the Partnership does
not conduct business operations, or suspends trading for the account of the
Partnership managed by the Trading Advisor, or, as a result of an act or
material failure to act by the Trading Advisor, is otherwise unable to utilize
the trading advice of the Trading Advisor on any of the trading days of that
period for any reason, the management fee described above shall be prorated
based on the ratio of the number of trading days in the month that the
Partnership account managed by the Trading Advisor engaged in trading operations
or utilized the trading advice of the Trading Advisor to the total number of
trading days in the month.
(c) As used herein, the term "Trading Profits" shall mean net
futures interests trading profits (realized and unrealized) earned on the
portion of the Partnership's Net Assets allocated to the Trading Advisor,
decreased by the Trading Advisor's monthly management fees, and a pro rata
portion of the brokerage fees and any transaction fees and costs relating to the
Trading Advisor's allocated Net Assets, if any, not included in the brokerage
fees; with such trading profits and items of decrease determined from the end of
the last calendar month in which an incentive fee was earned by the Trading
Advisor or, if no incentive fee has been earned previously by the Trading
Advisor, from the date that the Partnership begins to receive trading advice
from the Trading Advisor pursuant to this Agreement to the end of the month as
of which such incentive fee calculation is being made. Extraordinary expenses of
the Partnership, if any, will not be deducted in determining Trading Profits. No
incentive fee will be paid on interest income earned by the Partnership.
(d) If any payment of incentive fees is made to the Trading Advisor
on account of Trading Profits earned by the Partnership on Net Assets allocated
to the Trading Advisor and the Partnership thereafter fails to earn Trading
Profits or experiences losses for any subsequent incentive period with respect
to such amounts so allocated, the Trading Advisor shall be entitled to retain
such amounts of incentive fees previously paid to the Trading Advisor in respect
of such Trading Profits. However, no subsequent incentive fees shall be payable
to the Trading Advisor until the Partnership has again earned Trading Profits on
the Trading Advisor's allocated Net Assets; provided, however, that if the
Trading Advisor's allocated Net Assets are reduced or increased because of
redemptions or additions or reallocations that occur at the end of, or
subsequent to, an incentive period in which the Partnership experiences a
futures interests trading loss with respect to Net Assets allocated to the
Trading Advisor, the trading loss for that incentive period which must be
recovered before the Trading Advisor's allocated Net Assets will be deemed to
experience Trading Profits will be equal to the amount determined by (x)
dividing the Trading Advisor's allocated Net Assets after such increase or
decrease by the Trading Advisor's allocated Net Assets immediately before such
increase or decrease and (y) multiplying that fraction by the amount of the
unrecovered futures interests trading loss experienced in the month prior to
such increase or decrease. In the event that the Partnership experiences a
futures interests trading loss in more than one month with respect to the
Trading Advisor's allocated Net Assets without the payment of an intervening
incentive fee and the Trading Advisor's allocated Net Assets are increased or
reduced in more than one such month because of redemptions or additions or
reallocations, then the trading loss for each such month shall be adjusted in
accordance with the formula described above and such increased or reduced amount
of futures interests trading loss shall be carried forward and used to offset
subsequent futures interests trading profits. The portion of redemptions to be
allocated to the Net Assets of the Partnership managed by each of the trading
advisors to the Partnership shall be in the sole discretion of the General
Partner.
7. Term.
(a) This Agreement shall continue in effect until December 31, 2008
(the "Initial Termination Date"). If this Agreement is not terminated on the
Initial Termination Date, as provided for herein, then, this Agreement shall
automatically renew for an additional one-year period and shall continue to
renew for additional one-year periods until this Agreement is otherwise
terminated, as provided for herein. At least 30 calendar days prior to the
expiration of the Initial Termination Date or any subsequent one-year period, as
the case may be, the Trading Advisor may terminate this Agreement at the end of
the current period by providing written notice to the Partnership indicating
that the Trading Advisor desires to terminate this Agreement at the end of such
period. This Agreement shall also terminate if the Partnership terminates.
(b) The Partnership shall have the right to terminate this Agreement
at its discretion (a) at any month-end upon 5 calendar days' prior written
notice to the Trading Advisor or (b) at any time upon written notice to the
Trading Advisor upon the occurrence of any of the following events: (i) if any
person described as a "principal" of the Trading Advisor in the Prospectus
ceases for any reason to be an active executive officer of the Trading Advisor;
(ii) if the Trading Advisor becomes bankrupt or insolvent; (iii) if the Trading
Advisor is unable to use its Trading Program, systems or methods as in effect on
the date hereof and as refined and modified in the future for the benefit of the
Partnership; (iv) if the registration, as a commodity trading advisor, of the
Trading Advisor with the CFTC or its membership in the NFA is revoked,
suspended, terminated, or not renewed, or limited or qualified in any respect;
(v) except as provided in Section 12 hereof, if the Trading Advisor merges or
consolidates with, or sells or otherwise transfers its advisory business, or all
or a substantial portion of its assets, any portion of its futures interests
trading programs, systems or methods, or its goodwill, to any individual or
entity; (vi) if the Trading Advisor's initially allocated Net Assets, after
adjusting for distributions, additions, redemptions, or reallocations, if any,
shall decline by 50% or more as a result of trading losses or if Net Assets
allocated to the Trading Advisor fall below $5,000,000.00 at any time; (vii) if,
at any time, the Trading Advisor materially violates any trading or
administrative policy described in the Prospectus or the Limited Partnership
Agreement or otherwise provided in writing to the Trading Advisor by the General
Partner, except with the prior express written consent of the General Partner;
or (viii) if the Trading Advisor fails in a material manner to perform any of
its obligations under this Agreement.
(c) The Trading Advisor may terminate this Agreement at any time,
upon written notice to the Partnership, in the event: (i) that the General
Partner imposes additional trading limitation(s) (not in effect on the date
hereof) in the form of one or more trading policies or administrative policies
that the Trading Advisor does not agree to follow in its management of its
allocated portion of the Partnership's Net Assets; (ii) the General Partner
objects to the Trading Advisor implementing a proposed material change in the
Trading Advisor's Trading Program and the Trading Advisor certifies to the
General Partner in writing that it believes such change is in the best interests
of the Partnership; (iii) the General Partner overrides a trading instruction of
the Trading Advisor for reasons unrelated to a determination by the General
Partner that the Trading Advisor has violated the Partnership's trading policies
and the Trading Advisor certifies to the General Partner in writing that as a
result the Trading Advisor believes the performance results of the Trading
Advisor relating to the Partnership will be materially adversely affected; (iv)
the Partnership materially breaches this Agreement and does not correct the
breach within 10 business days of receipt of a written notice of such breach
from the Trading Advisor; or (v) the Partnership's Net Assets fall below
$1,000,000 at any time.
The indemnities set forth in Section 8 hereof shall survive any
termination of this Agreement.
8. Standard of Liability; Indemnifications.
(a) Limitation of Trading Advisor Liability. In respect of the
Trading Advisor's role in the futures interests trading of its allocated portion
of the Partnership's assets, none of the Trading Advisor, or its controlling
persons, its affiliates, and their respective directors, officers, shareholders,
employees or controlling persons shall be liable to the Partnership or the
General Partner or their partners, officers, shareholders, directors or
controlling persons except that the Trading Advisor shall be liable for acts or
omissions of any such person provided that such act or omission constitutes a
breach of this Agreement or a representation, warranty or covenant herein,
willful misconduct or negligence or is the result of any such person not having
acted in good faith and in the reasonable belief that such actions or omissions
were in, or not opposed to, the best interests of the Partnership.
(b) Trading Advisor Indemnity in Respect of Management Activities.
The Trading Advisor shall indemnify, defend and hold harmless the Partnership
and the General Partner, their controlling persons, their affiliates and their
respective directors, officers, shareholders, employees, and controlling persons
from and against any and all losses, claims, damages, liabilities (joint and
several), costs, and expenses (including any reasonable investigatory, legal,
and other expenses incurred in connection with, and any amounts paid in, any
settlement; provided that the Trading Advisor shall have approved such
settlement) incurred as a result of any action or omission involving the
Partnership's futures interests trading by the Trading Advisor, or any of its
controlling persons or affiliates or their respective directors, officers,
partners, shareholders, or employees; provided that such liability arises from
an act or omission of the Trading Advisor, or any of its controlling persons or
affiliates or their respective directors, officers, partners, shareholders, or
employees which is found by a court of competent jurisdiction upon entry of a
final judgment (or, if no final judgment is entered, by an opinion rendered by
counsel who is approved by the Partnership and the Trading Advisor, such
approval not to be unreasonably withheld) to be a breach of this Agreement or a
representation, warranty or covenant herein, or the result of willful misconduct
or negligence or conduct not done in good faith in the reasonable belief that it
was in, or not opposed to, the best interests of the Partnership.
(c) Partnership and General Partner Indemnity in Respect of
Management Activities. The Partnership shall indemnify, defend, and hold
harmless the Trading Advisor, its controlling persons, their affiliates and
their respective directors, officers, shareholders, partners, employees, and
controlling persons, from and against any and all losses, claims, damages,
liabilities (joint and several), costs, and expenses (including any reasonable
investigatory, legal, and other expenses incurred in connection with, and any
amounts paid in, any settlement; provided that the Partnership shall have
approved such settlement) resulting from a demand, claim, lawsuit, action, or
proceeding (other than those incurred as a result of claims brought by or in the
right of an indemnified party) relating to the futures interests trading
activities of the Partnership undertaken by the Trading Advisor, a breach of
this Agreement by the General Partner or the Partnership that relates to futures
interests trading activities or a breach of a representation, warranty or
covenant herein by the General Partner or the Partnership that relates to the
futures interests trading activities of the Partnership; provided that a court
of competent jurisdiction upon entry of a final judgment finds (or, if no final
judgment is entered, an opinion is rendered to the Partnership by independent
counsel reasonably acceptable to both parties) to the effect that the action or
inaction of such indemnified party that was the subject of the demand, claim,
lawsuit, action, or proceeding did not constitute negligence, misconduct, or a
breach of this Agreement by the Trading Advisor or such indemnified party or a
representation, warranty or covenant of the Trading Advisor herein and was done
in good faith and in a manner such indemnified party reasonably believed to be
in, or not opposed to, the best interests of the Partnership.
(d) Trading Advisor Indemnity in Respect of Sale of Units. The
Trading Advisor shall indemnify, defend and hold harmless MS& Co., MSIL, the
Partnership, the General Partner, any additional seller, and their affiliates
and each of their officers, directors, principals, shareholders, and controlling
persons from and against any and all losses, claims, damages, liabilities, costs
and expenses, joint and several, to which any indemnified person may become
subject under the Securities Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Commodity Exchange Act, as amended, and rules
promulgated thereunder (the "CEAct"), the securities or Blue Sky law of any
jurisdiction, or otherwise (including any reasonable investigatory, legal, and
other expenses incurred in connection with, and any amounts paid in, any
settlement, provided that the Trading Advisor shall have approved such
settlement, and in connection with any administrative proceedings), in respect
of the offer or sale of Units, insofar as such loss, claim, damage, liability,
cost, or expense (or action in respect thereof) arises out of, or is based upon:
(i) a breach by the Trading Advisor of any representation, warranty, or
agreement in this Agreement or any certificate delivered pursuant to this
Agreement or the failure by the Trading Advisor to perform any covenant made by
the Trading Advisor herein; (ii) a breach of the disclosure requirements under
the CEAct or NFA Rules that relate to the Trading Advisor and the Trading
Advisor Principals (as defined below); or (iii) a misleading or untrue statement
or alleged misleading or untrue statement of a material fact made in the
Registration Statement, the Prospectus, or any related selling material or an
omission or alleged omission to state a material fact therein which is required
to be stated therein or necessary to make the statements therein (in the case of
the Prospectus and any selling material, in light of the circumstances under
which they were made) not misleading, and such statement or omission relates
specifically to the Trading Advisor, or its Trading Advisor Principals
(including the historical performance capsules, but excluding the pro forma
performance information except to the extent the pro forma performance
information was based on information furnished by the Trading Advisor) or was
made in reliance upon, and in conformity with, written information or
instructions furnished by the Trading Advisor (provided, however, that with
respect to any related selling material only such related selling material as
shall have been approved in writing by the Trading Advisor).
(e) Partnership and General Partner Indemnity in Respect of Sale of
Units. The Partnership and the General Partner agree, to indemnify, defend and
hold harmless the Trading Advisor and each of its officers, directors,
principals, partners, shareholders, and controlling persons from and against any
loss, claim, damage, liability, cost, and expense, joint and several, to which
any indemnified person may become subject under the Securities Act, the Exchange
Act, the CEAct, the securities or Blue Sky law of any jurisdiction, or otherwise
(including any reasonable investigatory, legal, and other expenses incurred in
connection with, and any amounts paid in, any settlement, provided that the
Partnership shall have approved such settlement, and in connection with any
administrative proceedings), in respect of the offer or sale of Units, insofar
as such loss, claim, damage, liability, cost, or expense (or action in respect
thereof) arises out of, or is based upon: (i) a breach by the Partnership or the
General Partner of any representation, warranty, or agreement in this Agreement
or the failure by the Partnership or the General Partner to perform any covenant
made by them herein; or (ii) a misleading or untrue statement or alleged
misleading or untrue statement of a material fact made in the Registration
Statement, the Prospectus, or any related selling material or an omission or
alleged omission to state a material fact therein which is required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus or the selling material, in light of the circumstances under which
they were made) not misleading, provided that such materially misleading or
untrue statement or alleged materially misleading or untrue statement or
omission or alleged omission does not specifically relate to the Trading Advisor
or its Trading Advisor Principals (including the historical performance
capsules, but excluding the pro forma performance information except to the
extent the pro forma performance information was based on information furnished
by the Trading Advisor) or was not made in reliance upon, and in conformity
with, written information or instructions furnished by the Trading Advisor
(provided, however, that with respect to any related selling material, only such
related selling material as shall have been approved in writing by the Trading
Advisor), or does not result from a breach by the Trading Advisor of any
representation, warranty, or agreement in this Agreement or any certificate
delivered pursuant to this Agreement or the failure by the Trading Advisor to
materially perform any covenant made in this Agreement. This indemnity shall not
relate to any matter for which the Partnership would be indemnified under
Section 8(d).
(f) The foregoing agreements of indemnity shall be in addition to,
and shall in no respect limit or restrict, any other remedies which may be
available to an indemnified person.
(g) Promptly after receipt by an indemnified person of notice of the
commencement of any action, claim, or proceeding to which any of the indemnities
may apply, the indemnified person will notify the indemnifying party in writing
of the commencement thereof if a claim in respect thereof is to be made against
the indemnifying party hereunder; but the omission so to notify the indemnifying
party will not relieve the indemnifying party from any liability which the
indemnifying party may have to the indemnified person hereunder, except where
such omission has materially prejudiced the indemnifying party. In case any
action, claim, or proceeding is brought against an indemnified person and the
indemnified person notifies the indemnifying party of the commencement thereof
as provided above, the indemnifying party will be entitled to participate
therein and, to the extent that the indemnifying party desires, to assume the
defense thereof with counsel selected by the indemnifying party and not
unreasonably disapproved by the indemnified person. After notice from the
indemnifying party to the indemnified person of the indemnifying party's
election so to assume the defense thereof as provided above, the indemnifying
party will not be liable to the indemnified person under the indemnity
provisions hereof for any legal and other expenses subsequently incurred by the
indemnified person in connection with the defense thereof, other than reasonable
costs of investigation.
Notwithstanding the preceding paragraph, if, in any action,
claim, or proceeding as to which indemnification is or may be available
hereunder, an indemnified person reasonably determines that its interests are or
may be adverse, in whole or in part, to the indemnifying party's interests or
that there may be legal defenses available to the indemnified person which are
different from, in addition to, or inconsistent with the defenses available to
the indemnifying party, the indemnified person may retain its own counsel in
connection with such action, claim, or proceeding and will be indemnified by the
indemnifying party for any legal and other expenses reasonably incurred in
connection with investigating or defending such action, claim, or proceeding.
In no event will the indemnifying party be liable for the fees
and expenses of more than one counsel for all indemnified persons in connection
with any one action, claim, or proceeding or in connection with separate but
similar or related actions, claims, or proceedings in the same jurisdiction
arising out of the same general allegations. The indemnifying party will not be
liable for any settlement of any action, claim, or proceeding effected without
the indemnifying party's express written consent, but if any action, claim, or
proceeding is settled with the indemnifying party's express written consent, the
indemnifying party will indemnify, defend, and hold harmless an indemnified
person as provided in this Section 8.
9. Right to Advise Others and Uniformity of Acts and Practices.
(a) The Trading Advisor is engaged in the business of advising
investors as to the purchase and sale of futures interests. During the term of
this Agreement, the Trading Advisor, its principals and affiliates, will be
advising other investors (including affiliates and stockholders, officers,
directors, and employees of the Trading Advisor and its affiliates and their
families) and trading for their own accounts. However, under no circumstances
shall the Trading Advisor or any of its principals or affiliates by any act or
omission favor any account advised or managed by the Trading Advisor or any of
its principals or affiliates over the account of the Partnership in any way or
manner (other than by charging different management and/or incentive fees). The
Trading Advisor and its principals and affiliates agrees to treat the
Partnership in a fiduciary capacity to the extent recognized by applicable law,
but, subject to that standard, the Trading Advisor or any of its principals or
affiliates shall be free to advise and manage accounts for other investors and
shall be free to trade on the basis of the same Trading Program, systems,
methods, or strategies employed by the Trading Advisor for the account of the
Partnership, or trading programs, systems, methods, or strategies which are
entirely independent of, or materially different from, those employed for the
account of the Partnership, and shall be free to compete for the same futures
interests as the Partnership or to take positions opposite to the Partnership,
where such actions do not knowingly or deliberately prefer any of such accounts
over the account of the Partnership.
(b) The Trading Advisor and its principals and affiliates shall not
be restricted as to the number or nature of its clients, except that: (i) so
long as the Trading Advisor acts as a trading advisor for the Partnership,
neither the Trading Advisor nor any of its principals or affiliates shall hold
knowingly any position or control any other account that would cause the
Partnership, the Trading Advisor, or the principals or affiliates of the Trading
Advisor to be in violation of the CEAct or any regulations promulgated
thereunder, any applicable rule or regulation of the CFTC or any other
regulatory body, exchange, or board; and (ii) neither the Trading Advisor nor
any of its principals or affiliates shall render futures interests trading
advice to any other individual or entity or otherwise engage in activity which
shall knowingly cause positions in futures interests to be attributed to the
Trading Advisor under the rules or regulations of the CFTC or any other
regulatory body, exchange, or board so as to require the significant
modification of positions taken or intended for the account of the Partnership;
provided that the Trading Advisor may modify its Trading Program, systems,
methods or strategies to accommodate the trading of additional funds or
accounts. If applicable speculative position limits are exceeded by the Trading
Advisor in the opinion of (i) independent counsel (who shall be other than
counsel to the Partnership), (ii) the CFTC, or (iii) any other regulatory body,
exchange, or board, the Trading Advisor and its principals and affiliates shall
promptly liquidate positions in all of their accounts, including the
Partnership's account, as to which positions are attributed to the Trading
Advisor as nearly as possible in proportion to the accounts' respective amounts
available for trading (taking into account different degrees of leverage and
"notional" equity) to the extent necessary to comply with the applicable
position limits.
10. Representations, Warranties, and Covenants of the Trading
Advisor.
(a) Representations, Warranties, and Agreements of the Trading
Advisor. The Trading Advisor with respect to itself and each of its principals
represents and warrants to and agrees with the General Partner and the
Partnership as follows:
(i) It will exercise good faith and due care in using the
Trading Program on behalf of the Partnership.
(ii) The Trading Advisor shall follow, at all times, the
trading policies of the Partnership (as described in the Prospectus and
the Limited Partnership Agreement and as set forth in Exhibit A hereto)
and as amended in writing and furnished to the Trading Advisor from time
to time.
(iii) The Trading Advisor shall trade: (A) its allocated
portion of the Partnership's Net Assets pursuant to the Trading Program;
(B) such futures interests as are set forth on Exhibit B hereto; and (C)
only in futures and options contracts traded on U.S. contract markets,
foreign currency forward contracts traded with MS&Co. (which may include
forward contracts initially executed with financial institutions other
than MS&Co) and such other futures interests that are approved in writing
by the General Partner and have been approved by the CFTC for U.S.
persons. With respect to this Section 10(a)(iii), the parties agree that
the Trading Advisor is not obligated to trade all of the futures interests
listed on Exhibit B hereto or otherwise subsequently approved in writing
by the General Partner.
(iv) The Trading Advisor is duly organized, validly existing
and in good standing as a corporation under the laws of the jurisdiction
of its incorporation and is qualified to do business as a foreign
corporation and in good standing in each other jurisdiction in which the
nature or conduct of its business requires such qualification and the
failure to so qualify would materially adversely affect the Trading
Advisor's ability to perform its duties under this Agreement. The Trading
Advisor has full corporate power and authority to perform its obligations
under this Agreement, and as described in the Registration Statement and
Prospectus. The only principals (as defined in Rule 4.10(e) under the
CEAct) of the Trading Advisor are those set forth in the Prospectus (the
"Trading Advisor Principals").
(v) All references to the Trading Advisor and each Trading
Advisor Principal, including the Trading Advisor's Trading Program,
approaches, systems and performance, in the Registration Statement and the
Prospectus, and in any supplemental selling material which has been
approved in writing by the Trading Advisor, are accurate and complete in
all material respects. With respect to the information relating to the
Trading Advisor and each Trading Advisor Principal, including the Trading
Advisor's and each Trading Advisor Principals' trading programs,
approaches, systems, and performance information, as applicable, (i) the
Registration Statement and Prospectus contain all statements and
information required to be included therein under the CEAct, (ii) the
Registration Statement will not contain any misleading or untrue statement
of a material fact or omit to state a material fact which is required to
be stated therein or necessary to make the statements therein not
misleading and (iii) the Prospectus as of each monthly closing will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which such statements were made, not misleading.
(vi) This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Trading Advisor and is a valid and
binding agreement of the Trading Advisor enforceable in accordance with
its terms.
(vii) Each of the Trading Advisor and each Trading Advisor
Principal has all federal and state governmental, regulatory and exchange
licenses, registrations and approvals and has effected all filings with
federal and state governmental and regulatory agencies required to conduct
its or his business and to act as described in the Registration Statement
and Prospectus or required to perform its or his obligations under this
Agreement. The Trading Advisor is registered as a commodity trading
advisor under the CEAct and is a member of the NFA in such capacity.
(viii) The execution and delivery of this Agreement, the
incurrence of the obligations set forth herein, the consummation of the
transactions contemplated herein and in the Prospectus and the payment of
the fees hereunder will not violate, or constitute a breach of, or default
under, the certificate of incorporation or bylaws of the Trading Advisor
or any other agreement or instrument by which it is bound or of any order,
rule, law or regulation binding on it of any court or any federal, state,
municipal or other governmental body or administrative agency or panel or
self-regulatory organization having jurisdiction over it.
(ix) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as may
otherwise be stated in or contemplated by the Registration Statement and
the Prospectus, there has not been any material adverse change in the
condition, financial or otherwise, business or prospects of the Trading
Advisor or any Trading Advisor Principal.
(x) Except as set forth in the Registration Statement or
Prospectus there has not been in the five years preceding the date of the
Prospectus and there is not pending, or to the best of the Trading
Advisor's knowledge threatened, any action, suit or proceeding at law or
in equity before or by any court or by any governmental body or any
administrative, self-regulatory or commodity exchange organization to
which the Trading Advisor or any Trading Advisor Principal is or was a
party, or to which any of the assets of the Trading Advisor or any Trading
Advisor Principal is or was subject and which resulted in or might
reasonably be expected to result in any material adverse change in the
condition, financial or otherwise, of the Trading Advisor or which is
required under the Securities Act or CEAct to be disclosed in the
Prospectus. Neither the Trading Advisor nor any Trading Advisor Principal
has received any notice of an investigation by the NFA or the CFTC
regarding noncompliance by the Trading Advisor or any of the Trading
Advisor Principals with the CEAct.
(xi) Neither the Trading Advisor nor any Trading Advisor
Principal has received, or is entitled to receive, directly or indirectly,
any commission, finder's fee, similar fee, or rebate from any person in
connection with the organization or operation of the Partnership, other
than as described in the Prospectus.
(xii) The actual performance of each discretionary account of
a client directed by the Trading Advisor and the Trading Advisor
Principals since at least the later of (i) the date of commencement of
trading for each such account or (ii) a date five years prior to the
effective date of the Registration Statement, is disclosed in the
Prospectus (other than such discretionary accounts the performance of
which are exempt from the CEAct disclosure requirements); all of the
information regarding the actual performance of the accounts of the
Trading Advisor and the Trading Advisor Principals set forth in the
Prospectus is complete and accurate in all material respects and is in
accordance with and in compliance with the disclosure requirements under
the CEAct and the Securities Act, including the Division of Trading and
Markets "notional equity" advisories and interpretations and the rules and
regulations of the NFA.
(b) Covenants of the Trading Advisor. The Trading Advisor covenants
and agrees that:
(i) The Trading Advisor shall use its best efforts to maintain
all registrations and memberships necessary for the Trading Advisor and
the Trading Advisor Principals to continue to act as described herein and
to at all times comply in all material respects with all applicable laws,
rules, and regulations, to the extent that the failure to so comply would
have a materially adverse effect on the Trading Advisor's ability to act
as described herein.
(ii) The Trading Advisor shall inform the General Partner
immediately as soon as the Trading Advisor or any of the Trading Advisor
Principals becomes the subject of any investigation, claim or proceeding
of any regulatory authority having jurisdiction over such person or
becomes a named party to any litigation materially affecting the
condition, financial or otherwise, business or prospects of the Trading
Advisor. The Trading Advisor shall also inform the General Partner
immediately if the Trading Advisor or any of its officers become aware of
any breach of this Agreement by the Trading Advisor.
(iii) The Trading Advisor agrees reasonably to cooperate by
providing information regarding itself and its performance in the
preparation of any amendments or supplements to the Registration Statement
and the Prospectus.
(iv) The Trading Advisor agrees to participate, to the extent
that the General Partner may reasonably request, in "road shows" and other
promotional activities relating to the marketing of the Units, provided
that such participation shall not in the reasonable judgment of the
Trading Advisor require the registration of the Trading Advisor or any of
its principals or agents as a broker-dealer or salesman or interfere
materially with the trading activities of the Trading Advisor. The Trading
Advisor shall pay the costs of its reasonably requested participation in
such road shows.
11. Representations, Warranties, and Covenants of the General
Partner and the Partnership.
(a) Representations of the Partnership and the General Partner. The
General Partner and the Partnership represent and warrant to the Trading
Advisor, as follows:
(i) The Partnership has provided to the Trading Advisor, and
filed with the SEC, the Registration Statement and has filed copies
thereof with: (A) the CFTC under the CEAct; (B) the NASD pursuant to its
Conduct Rules; and (C) the NFA in accordance with NFA Compliance Rule
2-13. The Partnership will not file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus unless the
Trading Advisor has received reasonable prior notice of and a copy of such
amendments or supplements and has not reasonably objected thereto in
writing.
(ii) The Partnership is a limited partnership duly organized
pursuant to the Certificate of Limited Partnership, the Limited
Partnership Agreement and the Delaware Revised Uniform Limited Partnership
Act ("DRULPA") and is validly existing under the laws of the State of
Delaware with full power and authority to engage in the trading of futures
interests and to engage in its other contemplated activities as described
in the Prospectus; the Partnership has received a certificate of authority
to do business in the State of New York as provided by Article 8-A of the
New York Revised Limited Partnership Act and is qualified to do business
in each jurisdiction in which the nature or conduct of its business
requires such qualification and where failure to be so qualified could
materially adversely affect the Partnership's ability to perform its
obligations hereunder.
(iii) The General Partner is duly organized and validly
existing and in good standing as a corporation under the laws of the State
of Delaware and in good standing and qualified to do business as a foreign
corporation under the laws of the State of New York and is qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction in which the nature or conduct of its business requires such
qualification and where the failure to be so qualified could materially
adversely affect the General Partner's ability to perform its obligations
hereunder.
(iv) The Partnership and the General Partner have full
partnership or corporate power and authority under applicable law to
conduct their business and to perform their respective obligations under
this Agreement.
(v) The Registration Statement and Prospectus contain all
statements and information required to be included therein by the CEAct.
When the Registration Statement becomes effective under the Securities Act
and at all times subsequent thereto up to and including the first monthly
closing following the date in which the Partnership begins to receive
trading advice from the Trading Advisor pursuant to this Agreement (the
"Initial Closing") and each monthly closing thereafter, the Registration
Statement and Prospectus will comply in all material respects with the
requirements of the Securities Act, the rules and regulations promulgated
thereunder (the "SEC Regulations"), the rules of the NFA and the CEAct.
The Registration Statement as of its effective date and as of the date of
each monthly closing will not contain any misleading or untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus as of its date of issue and at each monthly closing will not
contain any misleading or untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light
of the circumstances under which such statements were made, not
misleading. The supplemental selling material, when read in conjunction
with the Prospectus, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which such statements were
made, not misleading. The supplemental selling material will comply with
the CEAct and the regulations and rules of the NFA and NASD. The
representation and warranties in this clause (v) shall not, however, apply
to any statement or omission in the Registration Statement, Prospectus or
supplemental selling material relating to the Trading Advisor, or its
Trading Advisor Principals or its trading programs or its performance
information or made in reliance upon and in conformity with information
furnished by the Trading Advisor.
(vi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
any material adverse change in the condition, financial or otherwise,
business or prospects of the General Partner or the Partnership, whether
or not arising in the ordinary course of business.
(vii) This Agreement has been duly and validly authorized,
executed and delivered by the General Partner for itself and on behalf of
the Partnership and constitutes a valid, binding and enforceable agreement
of the Partnership and the General Partner in accordance with its terms.
(viii) The execution and delivery of this Agreement, the
incurrence of the obligations set forth herein and the consummation of the
transactions contemplated herein and in the Registration Statement and
Prospectus will not violate, or constitute a breach of, or default under,
the General Partner's certificate of incorporation or bylaws, the
Certificate of Limited Partnership, the Limited Partnership Agreement, or
any agreement or instrument by which either the General Partner or the
Partnership, as the case may be, is bound or any order, rule, law or
regulation applicable to the General Partner or the Partnership of any
court or any governmental body or administrative agency or panel or
self-regulatory organization having jurisdiction over the General Partner
or the Partnership.
(ix) The General Partner and each principal of the General
Partner, as defined in Rule 3.1 under the CEAct (each, a "General Partner
Principal"), have all federal and state governmental, regulatory and
exchange approvals, registrations, and licenses, and have effected all
filings with federal and state governmental agencies and regulatory
agencies required to conduct their business and to act as described in the
Registration Statement and the Prospectus or required to perform their
obligations under this Agreement (including, without limitation,
registration as a commodity pool operator under the CEAct and membership
in the NFA as a commodity pool operator) and will maintain all such
required approvals, licenses, filings and registrations for the term of
this Agreement. The General Partner's principals identified in the
Prospectus are all of the General Partner Principals.
(x) The Partnership is a "qualified eligible person" for the
purposes of Rule 4.7 under the CEAct. The Partnership and the General
Partner consent to the account being treated by the Trading Advisor as an
exempt account under Rule 4.7 under the CEAct.
(b) Covenants of the General Partner and the Partnership. The
General Partner for itself and the Partnership covenants and agrees that:
(i) The General Partner shall use its best efforts to maintain
all registrations and memberships necessary for the General Partner to
continue to act as described herein and in the Prospectus and to all times
comply in all material respects with all applicable laws, rules, and
regulations, to the extent that the failure to so comply would have a
materially adverse effect on the General Partner's ability to act as
described herein and in the Prospectus.
(ii) The General Partner shall inform the Trading Advisor
immediately as soon as the General Partner or any of its principals
becomes the subject of any investigation, claim, or proceeding of any
regulatory authority having jurisdiction over such person or becomes a
named party to any litigation materially affecting the condition,
financial or otherwise, business or prospects of the General Partner. The
General Partner shall also inform the Trading Advisor immediately if the
General Partner or any of its officers become aware of any breach of this
Agreement by the General Partner.
(iii) The Partnership will furnish to the Trading Advisor
copies of the Registration Statement, the Prospectus, and all amendments
and supplements thereto, in each case as soon as available.
(iv) The Partnership and the General Partner will keep
confidential and not disseminate any information regarding the trading
systems, strategies, methods and programs of the Trading Advisor or
specific trades made by the Trading Advisor for the account of the
Partnership to any of the limited partners of the Partnership or the
customers, employees, agents, shareholders, officers, directors or
affiliates of the General Partner or MS&Co. or any other person or entity,
except such details as may be, in the reasonable judgment of the General
Partner, necessary or appropriate for the conduct of the business of the
Partnership or as required by law.
12. Merger or Transfer of Assets of Trading Advisor.
The Trading Advisor may merge or consolidate with, or sell or
otherwise transfer its advisory business, or all or a substantial portion of its
assets, any portion of its commodity trading programs, systems or methods, or
its goodwill, to any entity that is directly or indirectly controlled by,
controlling, or under common control with, the Trading Advisor, provided that
such entity expressly assumes all obligations of the Trading Advisor under this
Agreement and agrees to continue to operate the business of the Trading Advisor,
substantially as such business is being conducted on the date hereof.
13. Complete Agreement.
This Agreement constitutes the entire agreement between the parties
with respect to the matters referred to herein, and no other agreement, verbal
or otherwise, shall be binding as between the parties unless in writing and
signed by the party against whom enforcement is sought.
14. Assignment.
This Agreement may not be assigned by any party hereto without
the express written consent of the other parties hereto.
15. Amendment.
This Agreement may not be amended except by the written consent
of the parties hereto.
16. Severability.
The invalidity or unenforceability of any provision of this
Agreement or any covenant herein contained shall not affect the validity or
enforceability of any other provision or covenant hereof or herein contained and
any such invalid provision or covenant shall be deemed to be severable.
17. Closing Certificates and Opinions.
(a) The Trading Advisor shall, at the Initial Closing and at the
request of the General Partner at any monthly closing thereafter, provide the
following:
(i) To MS&Co., the General Partner and the Partnership a
certificate, dated the date of any such closing and in form and substance
satisfactory to such parties, to the effect that:
(A) The representations and warranties by the Trading
Advisor in this Agreement are true, accurate, and complete on and as
of the date of the closing, as if made on the date of the closing.
(B) The Trading Advisor has performed all of its
obligations and satisfied all of the conditions on its part to be
performed or satisfied under this Agreement, at or prior to the date
of such closing.
(ii) To MS&Co., the General Partner and the Partnership an
opinion of counsel to the Trading Advisor in form and substance
satisfactory to such parties, to the effect that:
(A) The Trading Advisor is a corporation duly organized
and validly existing under the laws of the jurisdiction of its
incorporation and is qualified to do business and in good standing
in each other jurisdiction in which the nature or conduct of its
business requires such qualification and the failure to be duly
qualified would materially adversely affect the Trading Advisor's
ability to perform its obligations under this Agreement. The Trading
Advisor has full corporate power and authority to conduct its
business as described in the Registration Statement and Prospectus
and to perform its obligations under this Agreement.
(B) The Trading Advisor (including the Trading Advisor
Principals) has all governmental, regulatory, self-regulatory and
commodity exchange and clearing association licenses, registrations,
and memberships required by law, and the Trading Advisor (including
the Trading Advisor Principals) has made all filings necessary to
perform its obligations under this Agreement and to conduct its
business as described in the Registration Statement and Prospectus,
except for such licenses, memberships, filings and registrations,
the absence of which would not have a material adverse effect on its
ability to act as described in the Registration Statement and
Prospectus or to perform its obligations under this Agreement, and,
to the best of such counsel's knowledge, after due investigation,
none of such licenses, memberships or registrations have been
rescinded, revoked or suspended.
(C) This Agreement has been duly authorized, executed
and delivered by or on behalf of the Trading Advisor and constitutes
a legal, valid and binding agreement of the Trading Advisor,
enforceable against the Trading Advisor in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, receivership or other laws
relating to or affecting creditors' rights generally, and to general
principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity), and except that the enforcement
of rights with respect to indemnification and contribution
obligations and provisions may be limited by applicable law or
considerations of public policy.
(D) To such counsel's knowledge, except as disclosed in
the Prospectus, there are no actions, suits or proceedings at law or
in equity pending or threatened before or by any court, governmental
body, administrative agency, panel or self-regulatory organization,
nor have there been any such actions, suits or proceedings within
the five years preceding the date of the Prospectus against the
Trading Advisor or any Trading Advisor Principal which are required
to be disclosed in the Registration Statement or Prospectus.
(E) The execution and delivery by the Trading Advisor of
this Agreement, and the performance by the Trading Advisor of its
obligations hereunder and in the Prospectus (a) will not require any
governmental approval to be obtained on the part of the Trading
Advisor, except those that have been obtained and, to such counsel's
knowledge, are in effect, (b) will not result in a violation of any
provision of the Trading Advisor's organizational documents or any
applicable laws applicable to the Trading Advisor, and (c) will not
breach or result in a violation of, or default under, (i) any
indenture, mortgage, deed of trust, agreement or instrument known to
such counsel to which the Trading Advisor or any of its subsidiaries
is a party or by which the Trading Advisor or any of its
subsidiaries is bound or to which any of the property or assets of
the Trading Advisor or any of its subsidiaries is subject, or (ii)
any judgment, decree or order known to such counsel that is
applicable to the Trading Advisor and, pursuant to any applicable
laws, is issued by any governmental authority having jurisdiction
over the Trading Advisor or its properties.
(F) Based upon reliance of certain SEC "no-action"
letters, as of the closing, the performance by the Trading Advisor
of the transactions contemplated by this Agreement and as described
in the Prospectus will not require the Trading Advisor to be
registered as an "investment adviser" as that term is defined in the
Investment Advisers Act of 1940, as amended.
(G) Nothing has come to such counsel's attention that
would lead them to believe that, (A) the Registration Statement at
the time it became effective, insofar as the Trading Advisor and the
Trading Advisor Principals are concerned, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or (B) the Prospectus at the time it was
issued or at the closing contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make
the statements therein relating to the Trading Advisor or the
Trading Advisor Principals, in light of the circumstances under
which they were made, not misleading; provided, however, that such
counsel need express no opinion or belief as to the performance data
and notes or descriptions thereto set forth in the Registration
Statement and Prospectus, except that such counsel shall opine,
without rendering any opinion as to the accuracy of the information
in such tables, that the actual performance tables of the Trading
Advisor set forth in the Prospectus comply as to form in all
material respects with applicable CFTC rules and all CFTC and NFA
interpretations thereof.
In giving the foregoing opinion, counsel may rely on information
obtained from public officials, officers of the Trading Advisor, and other
sources believed by it to be responsible and may assume that signatures on all
documents examined by it are genuine.
(iii) To MS&Co., the General Partner and the Partnership, a
report dated the date of the closing that shall present, for the period
from the date after the last day covered by the historical performance
capsules in the Prospectus to the latest practicable day before closing,
updated performance information, and which shall certify that such
information is, to the best of such Trading Advisor's knowledge, accurate
in all material respects.
(b) The General Partner shall, at the Initial Closing, provide the
following:
(i) To the Trading Advisor a certificate, dated the date of
such closing and in form and substance satisfactory to the Trading
Advisor, to the effect that:
(A) The representations and warranties by the
Partnership and the General Partner in this Agreement are true,
accurate, and complete on and as of the date of the closing as if
made on the date of the closing.
(B) No stop order suspending the effectiveness of the
Registration Statement has been issued by the SEC and no proceedings
for that purpose have been instituted or are pending or, to the
knowledge of the General Partner, are contemplated or threatened
under the Securities Act. No order preventing or suspending the use
of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and
no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the General Partner, are contemplated or
threatened under the Securities Act or the CEAct.
(C) The Partnership and the General Partner have
performed all of their obligations and satisfied all of the
conditions on their part to be performed or satisfied under this
Agreement at or prior to the date of the closing.
(ii) To the parties hereto, an opinion of Cadwalader,
Wickersham & Taft LLP, counsel to the General Partner and the Partnership,
in form and substance satisfactory to such parties, to the effect that:
(A) The Partnership is a limited partnership validly
existing and in good standing under the laws of the State of
Delaware with limited partnership power to enter into and perform
its obligations under this Agreement; the Partnership has received a
certificate from the New York Secretary of State certifying that the
Partnership filed an application for authority pursuant to Section
121-902 of the New York Revised Limited Partnership Act and that, so
far as shown by the records of the New York Department of State, the
Partnership is authorized to do business under the laws of the State
of New York.
(B) The General Partner is a corporation validly
existing and in good standing as a corporation under the laws of the
State of Delaware with corporate power to conduct its business as
described in the Prospectus and to perform its obligations under
this Agreement. The General Partner is duly qualified as a foreign
corporation to do business in the State of New York. To such
counsel's knowledge, the General Partner does not conduct business
in any jurisdiction other than the State of New York.
(C) The General Partner, each of its principals as
defined in Rule 3.1 under the CEAct, and the Partnership have all
federal and New York state governmental and regulatory licenses,
registrations and memberships required by law and have made all
filings necessary in order for the General Partner and the
Partnership to perform their obligations under this Agreement and to
conduct their business as described in the Prospectus, except for
such licenses, memberships, filings, and registrations, the absence
of which, either individually or in the aggregate, would not be
reasonably likely to have a material adverse effect on the ability
of the Partnership or the General Partner to conduct their business
as described in the Prospectus, or to perform their obligations
under this Agreement, and, to such counsel's knowledge, after due
investigation, none of such licenses and memberships or
registrations have been rescinded, revoked or suspended.
(D) This Agreement has been duly authorized, executed
and delivered by or on behalf of the General Partner and the
Partnership and constitutes a legal, valid and binding agreement of
the General Partner and the Partnership, enforceable against the
General Partner and the Partnership, in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, receivership or other laws relating to
or affecting creditors' rights generally, and to general principles
of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity), and except that the enforcement of
rights with respect to indemnification and contribution obligations
and provisions relating to submission to jurisdiction, venue or
service of process, may be limited by applicable law or
considerations of public policy.
(E) The execution and delivery by each of the General
Partner and the Partnership of this Agreement and the performance by
each of the General Partner and the Partnership of its respective
obligations hereunder and in the Prospectus (a) do not require any
Governmental Approval to be obtained on the part of the General
Partner or the Partnership, except those that have been obtained
and, to such counsel's knowledge, are in effect, (b) do not result
in a violation of any provision of the General Partner's certificate
of incorporation or bylaws, the Certificate of Limited Partnership
or the Limited Partnership Agreement of the Partnership or any
Applicable Laws applicable to the General Partner and the
Partnership, and (c) do not breach or result in a violation of, or
default under, (i) any of the agreements listed on the Registration
Statement which are known to such counsel's knowledge to be
effective, or (ii) any judgment, decree or order known to such
counsel which is applicable to the General Partner or the
Partnership and, pursuant to any Applicable Laws, is issued by any
Governmental Authority having jurisdiction over it or its
properties. "Applicable Laws" means those laws, rules and
regulations of the State of New York and of the United States of
America which, in such counsel's experience, are normally applicable
to transactions of the type contemplated by this Agreement.
"Governmental Authorities" means executive, legislative, judicial,
administrative or regulatory bodies of the State of New York or the
United States of America. "Government Approval" means any consent,
approval, license, authorization or validation of, or filing,
recording or registration with any Governmental Authority pursuant
to Applicable Laws.
(F) Based upon reliance on certain SEC "no-action"
letters, as of the closing, the performance by the Partnership of
the transactions contemplated by this Agreement and as described in
the Prospectus will not require the Partnership to register as an
"investment company" under the Investment Company Act of 1940, as
amended.
(G) Nothing has come to such counsel's attention that
would lead them to believe that the Registration Statement, as of
its effective date, 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 not misleading, or that the
Prospectus, as of the date of such counsel's opinion, contains any
untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; it
being understood that Cadwalader, Wickersham & Taft LLP express no
view as to the adequacy and accuracy of (a) information in the
Registration Statement or the Prospectus regarding any trading
advisor to the Partnership or its principals, (b) any financial,
numerical, statistical or computational information included in or
omitted from the Registration Statement or Prospectus, or (c) as to
the performance data and notes or descriptions thereto set forth in
the Registration Statement and Prospectus.
In rendering its opinion, such counsel may rely on information
obtained from public officials, officers of the General Partner and other
sources believed by it to be responsible and may assume that signatures on all
documents examined by it are genuine.
18. Inconsistent Filings.
The Trading Advisor agrees not to file, participate in the filing
of, or publish any description of the Trading Advisor, or of its respective
principals or trading approaches that is materially inconsistent with those in
the Registration Statement and Prospectus, without so informing the General
Partner and furnishing to it copies of all such filings within a reasonable
period prior to the date of filing or publication.
19. Disclosure Document.
During the term of this Agreement, the Trading Advisor shall furnish
to the General Partner promptly copies of all disclosure documents, information
documents or similar documents used by the Trading Advisor. The General Partner
acknowledges receipt of the Trading Advisor's information document dated
June 7, 2007.
20. Notices.
All notices required to be delivered under this Agreement shall be
in writing and shall be effective when delivered personally or by telecopy on
the day delivered, or when given by registered or certified mail, postage
prepaid, return receipt requested, on the day actually received, addressed as
follows (or to such other address as the party entitled to notice shall
hereafter designate in accordance with the terms hereof):
if to the Partnership:
Morgan Stanley Spectrum Currency L.P.
c/o Demeter Management Corporation
522 Fifth Avenue, 13th Floor
New York, New York 10036
Attn: Walter Davis, President
if to the General Partner:
Demeter Management Corporation
522 Fifth Avenue, 13th Floor
New York, New York 10036
Attn: Walter Davis, President
if to the Trading Advisor:
FX Concepts Trading Advisor, Inc.
225 W. 34th Street
Suite 710
New York, New York 10122
Attn: Philip Simotas
21. Survival.
The provisions of this Agreement shall survive the termination of
this Agreement with respect to any matter arising while this Agreement was in
effect.
22. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK. IF ANY ACTION OR PROCEEDING SHALL BE
BROUGHT BY A PARTY TO THIS AGREEMENT OR TO ENFORCE ANY RIGHT OR REMEDY UNDER
THIS AGREEMENT, EACH PARTY HERETO HEREBY CONSENTS AND WILL SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
IN THE COUNTY, CITY AND STATE OF NEW YORK. ANY ACTION OR PROCEEDING BROUGHT BY
ANY PARTY TO THIS AGREEMENT TO ENFORCE ANY RIGHT, ASSERT ANY CLAIM OR OBTAIN ANY
RELIEF WHATSOEVER IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT BY SUCH
PARTY EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE COUNTY, CITY AND STATE OF NEW YORK.
23. Remedies.
In any action or proceeding arising out of any of the provisions of
this Agreement, the Trading Advisor agrees not to seek any prejudgment equitable
or ancillary relief. The Trading Advisor agrees that its sole remedy in any such
action or proceeding shall be to seek actual monetary damages for any breach of
this Agreement.
24. Headings.
Headings to sections herein are for the convenience of the parties
only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
25. Successors.
This Agreement, including the representations, warranties and
covenants contained herein shall be binding upon and inure to the benefit of the
parties hereto, their successors and permitted assigns, and no other person
shall have any right or obligation under this Agreement.
26. Waiver of Breach.
The waiver by any party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
or of a breach by any other party. The failure of a party to insist upon strict
adherence to any provision of the Agreement shall not constitute a waiver or
thereafter deprive such party of the right to insist upon strict adherence.
27. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute the
same agreement.
PURSUANT TO AN EXEMPTION FROM THE COMMODITY FUTURES TRADING
COMMISSION IN CONNECTION WITH ACCOUNTS OF QUALIFIED ELIGIBLE PERSONS, THIS
BROCHURE OR ACCOUNT DOCUMENT IS NOT REQUIRED TO BE, AND HAS NOT BEEN FILED WITH
THE COMMISSION. THE COMMODITY FUTURES TRADING COMMISSION DOES NOT PASS UPON THE
MERITS OF PARTICIPATING IN A TRADING PROGRAM OR UPON THE ADEQUACY OR ACCURACY OF
COMMODITY TRADING ADVISOR DISCLOSURE. CONSEQUENTLY, THE COMMODITY FUTURES
TRADING COMMISSION HAS NOT REVIEWED OR APPROVED THIS TRADING PROGRAM OR THIS
BROCHURE OR ACCOUNT DOCUMENT.
IN WITNESS WHEREOF, this Agreement has been executed for and on
behalf of the undersigned as of the day and year first above written.
MORGAN STANLEY SPECTRUM CURRENCY L.P.
by Demeter Management Corporation,
General Partner
By /s/ Walter Davis
------------------------------------
Name: Walter Davis
Title: President
DEMETER MANAGEMENT CORPORATION
By /s/ Walter Davis
------------------------------------
Name: Walter Davis
Title: President
FX CONCEPTS TRADING ADVISOR, INC.
By /s/ Philip Simotas
------------------------------------
Name: Philip Simotas
Title: Director