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ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT, made as of June 1, 1994 by and among HEINOLD
ASSET MANAGEMENT, INC. (the "Trading Manager"), THE FUTURES DIMENSION FUND L.P.
(the "Fund") and MICHAEL TYM JR. (the "Trading Advisor");
WITNESSETH:
WHEREAS, pursuant to a Trading Manager Agreement (the "Trading Manager
Agreement"), the Trading Manager, which is also the general partner of the
Fund, has agreed with the Fund to act as the trading manager for the Fund,
selecting advisors to direct its trading;
WHEREAS, under the Trading Manager Agreement the Fund has authorized
the Trading Manager to allocate a portion of the Fund's assets to the Trading
Advisor to provide commodity interest advisory services to the Fund;
WHEREAS, the Trading Advisor has agreed with the Trading Manager to act
as a Trading Advisor for the Fund;
NOW, THEREFORE, the parties agree as follows:
1. Independent Contractor.
The Trading Advisor shall for all purposes be considered an independent
contractor in respect of the Trading Manager and the Fund.
2. Duties of the Trading Advisor and its Principals. Throughout the
term of this Agreement, the Trading Advisor shall perform futures trading
advisory services for the Fund as follows:
(a) The Trading Advisor shall have sole authority and
responsibility for trading the assets of the Fund allocated from time to time
to the Trading Advisor in futures transactions in accordance with the Trading
Advisor's best judgment and the trading approach as described in the Trading
Advisor's Disclosure Document dated February 14, 1994 (the "Disclosure
Document"), except that the Trading Manager may overrule the trading
instructions of the Trading Advisor to the extent the Trading Manager deems
necessary for the protection of the Fund.
(b) The Trading Advisor may, with the Trading Manager's consent,
alter the trading approach used by the Trading Advisor in investing and
reinvesting the Fund's assets allocated to the Trading Advisor for management,
provided that the Trading Advisor determines that such alteration is in the
best interests of the Fund.
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(c) The Trading Advisor agrees that it will discuss with the
Trading Manager upon request, subject to reasonable assurances of
confidentiality, any trading approaches used by the Trading Advisor for trading
customer, proprietary or experimental accounts which differ from the approach
used for the Fund by the Trading Advisor, provided, that the Trading Advisor
shall not hereby be required to disclose what the Trading Advisor deems to be
proprietary information.
3. Allocation of Assets Among Trading Advisors; Replacement Trading
Advisors.
(a) The Trading Advisor shall initially be allocated $500,000 of
the Fund's assets as of June 1, 1994. The Trading Manager may increase this
allocation as of the first day of any month, provided that the Trading Advisor
shall not be obligated to accept hereunder more than $5,000,000 of additional
allocations. No "notional" equity shall be included in such allocation.
(b) Distributions and payment of Fund expenses shall be charged
against the various Fund accounts managed by its trading advisors in proportion
(subject to customary roundings and approximations) to the Fund's total Net
Assets maintained in each such account as of the time of such distribution or
payment. Redemptions may be charged to the various Fund accounts in the
discretion of the Trading Manager. The Trading Advisor agrees to liquidate
open positions in the Fund account traded by the Trading Advisor in the
allocable amount that the Trading Manager informs the Trading Advisor the
Trading Manager considers necessary or advisable to liquidate in order to fund
such distributions, payments or redemptions (the Trading Manager shall not,
however, have authority to instruct the Trading Advisor as to which specific
open positions to liquidate, except as otherwise provided herein).
(c) The Trading Manager may reallocate assets from the Trading
Advisor (i) as provided in Section 19 hereof, or (ii) as of the end of any
month in the Trading Manager's discretion.
4. Requests for Information and Notification of Material Changes.
(a) The Trading Advisor agrees to provide the Trading Manager with
any information concerning the Trading Advisor that the Trading Manager may
reasonably request, subject to receipt of reasonable assurances of
confidentiality by the Trading Manager, including, but not limited to,
information regarding any change in control, personnel, trading approach and
financial condition which the Trading Manager reasonably deems to be material
to the Fund; the Trading Advisor shall also notify the Trading Manager of any
such matters the Trading Advisor believes are material to the Fund.
Notwithstanding the foregoing sentence or any other provision set forth in this
Agreement, the Trading Advisor shall
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not be required to disclose the details of its trading methods or practices
or any proprietary or trade secret information except to the extent that
such disclosure may be necessary, in the opinion of the counsel to the Fund
or the Trading Manager, in connection with any applicable state or federal
law, statute, rule or regulation, including, but not limited to, the United
States Federal securities laws or the Commodity Exchange Act, as amended
(the "Act"); provided, however, that in no event shall the Trading Advisor
be required to disclose the names or identities of its clients.
(b) The Trading Advisor agrees to give the Trading Manager prior
notice of any proposed material refinement or modification in any trading
systems, models, formulae, strategies or approaches the Trading Advisor is
using on behalf of the Fund, or any changes in the management, ownership or
control of the Trading Advisor. Changes in futures, forwards and options
traded shall not be deemed material changes unless the Trading Advisor had
specifically agreed to restrict its trading to a limited range of such
instruments.
(c) The Trading Advisor has furnished the Trading Manager with the
Disclosure Document, and the Fund and the Trading Manager acknowledge receipt
thereof. Subject to the second sentence of clause (a) above, the Trading
Advisor agrees to make all necessary disclosures regarding itself and its
principals, trading performance, approach and systems, customer accounts (other
than the names of customers, unless such disclosure is required by law or
regulation) and otherwise as may be required, in the reasonable judgment of the
Trading Manager, to be made to investors in the Fund; provided, that no
description of the Trading Advisor may be distributed by the Trading Manager
unless such description has been approved in writing and in advance by the
Trading Advisor, in its reasonable discretion.
5. Disclosure Documents. During the term of this Agreement, the
Trading Advisor shall promptly furnish the Trading Manager with a copy of each
amended, supplemented or updated disclosure document of the Trading Advisor
filed with the CFTC or the NFA. Neither the Trading Advisor nor its principals
or affiliates, nor the partners, employees or agents of the Trading Advisor
shall use, publish, circulate, or distribute information relating to the Fund,
except in the context of the preparation of updates to the performance records
set forth in the Trading Advisor's disclosure documents as required under the
Act and the rules and regulations promulgated thereunder.
6. Management and Incentive Fees. (A) Management Fees. The Fund
shall pay the Trading Advisor a monthly management fee equal to 0.167 of 1% (a
2% annual rate) of the month-end Net Assets of the Fund, as determined pursuant
to Section 10 of the Trading Manager Agreement, managed by the Trading Advisor,
including interest income, and before any reduction for accrued management or
incentive fees, but after
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reduction for the brokerage commissions payable and accrued as of the end
of such month.
(B) Incentive Fees. The Trading Advisor shall receive from the Fund a
quarterly incentive fee equal to twenty percent (20%) of any New Trading Profit
recognized with respect to the assets of the Fund allocated to the Trading
Advisor as of the end of each calendar quarter-end (including partial
quarters). Trading Profit equals the net realized gains and losses from closed
futures transactions during a calendar quarter, plus or minus the change from
the beginning to the end of such calendar quarter in unrealized profit or loss
on open futures positions, minus the Trading Advisor's share of the brokerage
commissions paid or accrued by the Fund, minus the Trading Advisor's management
fee payable as of the end of such quarter. New Trading Profit equals
cumulative Trading Profit in excess of the highest cumulative level of Trading
Profit as of the most recent calendar quarter-end as of which there existed an
all-time quarter-end high in Trading Profit (the "High Water Mark of Profit"),
or if New Trading Profit had never existed as of a calendar quarter-end, from
the commencement of the Trading Advisor's management of assets for the Fund.
Redemption of Units or reallocations of assets from the Trading Advisor will
result in a proportional reduction in any short-fall between the High Water
Mark of Profit and the current level of cumulative Trading Profit as of the
date of redemption. If any redemption or reallocation of the Fund's assets
allocated to the Trading Advisor occurs as of any date which is not the end of
a calendar quarter, a proportional incentive fee, if accrued, will be charged
as if such redemption or reallocation occurred as of the end of a quarter and
the incentive fee will be paid to the Trading Advisor.
Management and incentive fees shall be paid within 15 calendar days
after the end of each period for which they are earned.
7. Notices of Errors. The Trading Advisor agrees immediately to
notify the Trading Manager of any error committed by the Trading Advisor or its
principals or any of its employees with respect to a trade made by the Trading
Advisor on behalf of the Fund and to notify the Trading Manager promptly of any
order or trade for the Fund which the Trading Advisor believes was not executed
in accordance with the Trading Advisor's instructions to any futures commission
merchant, floor broker or forward trading dealer.
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8. Indemnification
(a) (i) In any threatened, pending or completed action, suit or
proceeding (regulatory or otherwise) to which the Trading Advisor is made a
party, relating to the services performed by the Trading Advisor for the Fund
as contemplated herein, the Fund shall indemnify and hold harmless the Trading
Advisor against any loss, liability, damage, cost and expense (including,
without limitation, attorneys' and accountants' fees and disbursements)
reasonably incurred or suffered by the Trading Advisor in connection with the
investigation, defense or settlement of any such action, suit or proceeding if
the Trading Advisor acted or omitted to act in good faith and if the actions or
omissions did not involve negligence or misconduct; provided that if the court
or administrative forum in which such action, suit or proceeding was brought
shall determine that, despite not having met the foregoing standard of conduct,
the Trading Advisor is, in view of all the circumstances of the case,
nevertheless entitled to indemnification, the Trading Advisor shall be
indemnified for such expenses as such court or administrative forum shall deem
proper;
(ii) To the extent that the Trading Advisor has been successful on the
merits or otherwise in the defense of any action, suit or proceeding referred
to in subparagraph (i), above, or in the defense of the claim, issue or matter
therein, the Fund shall indemnify it against any expenses (including, without
limitation, attorneys' and accountants' fees and disbursements) reasonably
incurred or suffered by it in connection therewith;
(iii) Expenses incurred in defending any threatened or pending action,
suit or proceeding against the Trading Advisor shall be paid by the Fund in
advance of the final disposition of such action, suit or proceeding if, and to
the extent that, the Trading Advisor agrees in writing to reimburse the Fund,
with interest, in the event that indemnification is not permitted under this
Section 8 upon final disposition;
(iv) As used in subsections (i) through (iii), above, the terms
"Trading Advisor" shall include the Trading Advisor, and each of the Trading
Advisor's partners or shareholders, employees and affiliates.
(b) The Trading Advisor agrees to indemnify, defend and hold harmless
the Fund and the Trading Manager against any loss, liability, damage, cost or
expense (including, without limitation, attorneys' and accountants' fees)
reasonably incurred or suffered by either of them as a result of the breach of
any representations and warranties made in this Agreement, or by reason of any
negligent act or omission of, or misconduct or act of bad faith by, the Trading
Advisor relating to the Fund (including, without limitation, costs and expenses
of investigating and defending any claims, demand or suit).
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(c) In the event that a person entitled to indemnification under this
Section 8 is made a party to an action, suit or proceeding alleging both
matters for which indemnification can be made hereunder and matters for which
indemnification may not be made hereunder, such person shall be indemnified
only for that portion of the loss, liability, damage, cost or expense incurred
in such action, suit or proceeding which relates to the matters for which
indemnification can be made.
(d) None of the indemnifications contained in this Section 8 shall be
applicable with respect to default judgments, confessions of judgment or
settlements entered into by the party claiming indemnification without the
prior written consent of the party obligated to indemnify such party.
(e) The provisions of this Section 8 shall survive the termination or
other expiration of this Agreement.
9. Status of the Fund, the Trading Manager and the Trading Advisor.
The Trading Advisor shall, unless otherwise expressly provided or authorized,
have no authority to act for or represent the Fund or the Trading Manager,
except as provided herein. This Agreement shall not constitute the Trading
Advisor a promoter or sponsor with respect to the Fund.
10. Confidentiality. The Trading Manager agrees to keep confidential
and not to disseminate any details of the Trading Advisor's approach to any of
the limited partners of the Fund, any of the customers, employees, agents,
officers or directors of the Fund's commodity broker or any others, except such
details (other than proprietary information) as may, in the reasonable judgment
of the Trading Manager, be necessary or appropriate for the conduct of the
business of the Fund and the discharge of the Trading Manager's obligations
with respect to the Fund, or as requested by jurisdictional authorities or
required by law, or to the extent such details may have come to be publicly
disseminated through the actions or omissions of persons other than the Trading
Manager or the Fund, and will at no time disclose to any other trading advisor
the futures positions taken by the Trading Advisor for the Fund or any other
account traded by the Trading Advisor.
11. Other Accounts of the Trading Advisor and the Trading Manager.
Without in any respect limiting or qualifying any of the representations,
warranties or agreements made hereunder by any Trading Advisor or the Trading
Manager, the Trading Manager acknowledges and agrees that the Trading Advisor
shall be free to trade other customer and proprietary futures accounts pursuant
to a trading approach similar to or different from that used by the Trading
Advisor on behalf of the Fund, subject to the restrictions imposed by this
Agreement.
The Fund acknowledges and agrees that the Trading Manager shall be free
to manage (as well as trade) accounts other
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than the account of the Fund and in so doing to use the same or different
combination of trading advisors, allocation of assets and monitoring
procedures as those used for the Fund; subject, in each case, to the
restrictions imposed by this Agreement.
The Trading Advisor hereby acknowledges the Trading Advisor's fiduciary
obligation to the Fund and agrees that under no circumstances and in no manner,
in making trading decisions for the Fund, shall the Trading Advisor favor any
of its other accounts over the Fund account allocated to it; provided that this
representation shall not restrict the Trading Advisor's freedom to trade other
accounts pursuant to different portfolios and strategies (subject to Section
2(c) hereof) and to trade its proprietary account in a different manner than
its customer accounts.
12. Speculative Position Limits; Trading Policies.
(a) The Trading Manager will establish procedures for ensuring that
the Fund does not violate speculative position limits due to trades entered by
the trading advisors.
(b) The Trading Advisor agrees that from and after notice from the
Trading Manager that the Trading Advisor must submit orders for Fund trades to
the Trading Manager for clearance under applicable speculative position limits,
the Trading Advisor will so submit such orders pursuant to whatever reasonable
procedures the Trading Manager may, in its discretion, establish and will not
otherwise take positions on behalf of the Fund in any contracts subject to such
clearance procedures.
(c) The Trading Advisor further agrees to liquidate such open
positions in the Fund's account managed by such Trading Advisor as the Trading
Manager informs such Trading Advisor is necessary or advisable to liquidate for
speculative position limit purposes.
(d) The Trading Advisor agrees that in the event that the Trading
Advisor exceeds speculative position limits in respect to the Trading Advisor's
futures trading taken as a whole, the Trading Advisor will liquidate positions
as necessary to comply with applicable speculative position limits in all of
the Trading Advisor's and its principals' outstanding accounts in such manner
as the Trading Advisor may deem fair and equitable.
(e) The Trading Advisor agrees that in the event that any such
liquidation becomes necessary, the Trading Advisor will so inform the Trading
Manager and will report to them the steps taken by the Trading Advisor in order
to comply with all applicable speculative position limits.
(f) The Trading Manager will monitor compliance by the trading
advisors with the trading policies established for the Fund from time to time.
The Trading Advisor agrees to comply
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with written procedures established by the Trading Manager from time to
time for the purpose of preventing the Trading Advisor from violating the
Fund's trading policies. The Trading Manager will notify the Trading Advisor
promptly of any changes in the trading policies of the Fund or in the
procedures established by the Trading Manager.
13. Standard of Liability. Neither the Trading Advisor nor any of its
employees or principals nor any person who controls the Trading Advisor shall
be liable to the Trading Manager, the Fund or their respective principals,
officers, directors, employees, agents, shareholders, or partners or to any
person who controls the Trading Manager or the Fund or any of their respective
successors or assigns under this Agreement except by reason of acts or
omissions in contravention of this Agreement or due to misconduct or negligence
or by reason of not having acted in good faith in the reasonable belief that
such actions or omissions were in, or not opposed to, the best interests of the
Fund; it being understood that, without limiting the Trading Advisor's
liability hereunder, futures transactions made by the Trading Advisor on behalf
of the Fund's account shall be for the account and risk of the Fund. The
Trading Advisor is not responsible for the execution or clearance of the Fund's
trades once complete orders have been transmitted to the Fund's commodity
broker for those trades in accordance with the Trading Advisor's duties.
14. Representations and Warranties of the Trading Advisor.
The Trading Advisor represents and warrants that:
(a) The Trading Advisor is a sole proprietor. The Trading Advisor has
full power and authority to enter into and perform its obligations under this
Agreement.
(b) The Trading Advisor has full power and authority to enter into and
carry out its obligations under this Agreement and to conduct its business as
contemplated herein;
(c) 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, subject to
applicable bankruptcy, insolvency or other similar laws affecting creditors'
rights generally;
(d) The performance of the obligations under this Agreement by the
Trading Advisor will not conflict with, violate the terms or provisions of, or
constitute a default under, its partnership agreement, or any indenture,
mortgage, deed or trust, loan agreement, or other agreement or instrument to
which the Trading Advisor is a party or by which it is bound, or to which any
of the property (including, but not limited to, its trading
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systems, methods, models, strategies and formulas) or assets of the Trading
Advisor is subject, or any order, rule, law, regulation, or other legal
requirement applicable to the Trading Advisor or to the property or assets of
the Trading Advisor;
(e) The Trading Advisor and its principal are registered as a
"commodity trading advisor" and principal, respectively, under the Act and are
members of the NFA in such capacities, and such registrations and memberships
have not expired or been revoked, suspended, terminated, or not renewed or
limited or qualified in any respect, and the Trading Advisor is not bankrupt or
insolvent;
(f) The information contained in the Disclosure Document, including,
without limitation, the information regarding the trading method and its
performance tables and the notes thereto (i) is accurate and complete in all
material respects, (ii) does not contain any misstatement of a material fact or
omit to state a material fact necessary to make the statements made in the
Disclosure Document, in light of the circumstances under which they were made,
not misleading, and (iii) is in compliance with the Act and the rules and
regulations of the NFA;
(g) The Trading Advisor has complied, and will continue to comply,
with all laws, rules and regulations having application to its business,
properties, and assets, including the Act and of the NFA thereunder, the
violation of which would, in the Trading Advisor's best knowledge and belief,
materially and adversely affect its ability to comply with, and perform its
obligations under, this Agreement and, there are no action, suits, proceedings,
or investigations pending or, to the knowledge of the Trading Advisor,
threatened against the Trading Advisor or its affiliates at law or in equity or
before or by any federal, state, municipal, or other governmental department,
commission, board, bureau, agency, or instrumentality, or by a self-regulatory,
or by any commodity, exchange, in which an adverse decision would, in the
Trading Advisor's best knowledge and belief, materially and adversely affect
its ability to comply with, and perform its obligations under this Agreement or
an investor's decision of whether to invest in the Fund; and
(h) The foregoing representations and warranties shall be continuing
during the term of this Agreement and if at any time any event shall occur
which would make any of the foregoing incomplete or inaccurate, the Trading
Advisor shall promptly notify the Trading Manager of the occurrence of such
event.
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15. Representations and Warranties of the Trading Manager.
The Trading Manager represents and warrants to the Trading Advisor
that:
(a) The Trading Manager is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Trading Manager has full corporate power and authority to enter into and
perform its obligations under this Agreement; and the Trading Manager is
qualified to conduct its business as a foreign corporation in good standing in
every jurisdiction in which the failure to so qualify could have a materially
adverse effect on its ability to comply with or perform its obligations under
this Agreement; it being understood that any decision as to the jurisdiction or
jurisdictions in which the Trading Manager shall conduct its business is within
the sole discretion of the Trading Manager;
(b) This Agreement has been duly and validly authorized, executed, and
delivered on behalf of the Trading Manager and is a valid and binding agreement
of the Trading Manager, enforceable in accordance with its terms;
(c) The performance of the obligations under this Agreement by the
Trading Manager will not conflict with, violate the terms or provisions of, or
constitute a default under, its Articles of Incorporation or other agreement or
instrument to which the Trading Manager is a party or by which it is bound, or
to which any of the property or assets of the Trading Manager is subject, or
any order, rule, law, regulation, or other legal requirement applicable to the
Trading Manager or the property or assets of the Trading Manager;
(d) The Trading Manager and its principals are registered as a
"commodity trading advisor" and principals, respectively, under the Act and are
members of the NFA in such capacities, and such registrations and memberships
have not expired or been revoked, suspended, terminated, or not renewed or
limited or qualified in any respect, and the Trading Advisor is not bankrupt or
insolvent;
(e) The Trading Manager has complied, and will continue to comply,
with all laws, rules and regulations having application to its business,
properties and assets, the violation of which would, to the Trading Manager's
best knowledge and belief, materially and adversely affect its ability to
comply with, and perform its obligations under, this Agreement, and there are
no actions, suits, proceedings, or investigations pending, or, to the knowledge
of the Trading Manager, threatened against the Trading Manager or its
principals or affiliates, at law or in equity or before or by any federal,
state, municipal, or other governmental department, commission, board, bureau,
agency, or instrumentality, or by a self-regulatory organization,
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or by any commodity exchange, in which an adverse decision would, in the
Trading Manager's best knowledge and belief, materially and adversely
affect its ability to comply with, and perform its obligations under, this
Agreement; and
(f) The foregoing representations and warranties shall be continuing
during the term of this Agreement and if at any time any event shall occur
which would make any of the foregoing incomplete or inaccurate, the Trading
Manager will promptly notify the Trading Advisor of the occurrence of such
event.
16. Representations and Warranties of the Fund.
The Fund represents and warrants to the Trading Advisor that:
(a) The Fund is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Illinois. The Fund has full
partnership power and authority to enter into and perform its obligations under
this Agreement.
(b) This Agreement has been duly and validly authorized, executed, and
delivered on behalf of the Fund and is a valid and binding agreement of the
Fund, enforceable in accordance with its terms;
(c) The performance of the obligations under this Agreement by the
Fund will not conflict with, violate the terms or provisions of, or constitute
a default under, its limited partnership agreement or other agreement or
instrument to which the Fund is a party or by which it is bound, or to which
any of the property or assets of the Fund is subject, or any order, rule, law,
regulation, or other legal requirement applicable to the Fund or the property
or assets of the Fund.
(d) The Fund has complied, and will continue to comply, with all laws,
rules and regulations having application to its business, properties and
assets, the violation of which would, to the Fund's best knowledge and belief,
materially and adversely affect its ability to comply with, and perform its
obligations under, this Agreement, and there are no actions, suits,
proceedings, or investigations pending or, to the knowledge of the Fund,
threatened against the Fund, at law or in equity or before or by any federal,
state, municipal, or other governmental department, commission, board, bureau,
agency, or instrumentality, or by a self-regulatory organization, or by any
commodity exchange, in which an adverse decision would, in the Fund's best
knowledge and belief, materially and adversely affect its ability to comply
with, and perform its obligations under, this Agreement; and
(e) The foregoing representations and warranties shall be continuing
during the term of this Agreement and if at any time any event shall occur
which would make any of the foregoing
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incomplete or inaccurate, the Fund will promptly notify the Trading Advisor
of the occurrence of such event.
17. Term. The term of this Agreement shall be until the close of
business on May 31, 1995 subject to up to two one-year renewals in the
discretion of the Trading Manager, unless the Trading Manager has been given
notice by the Trading Advisor of the Trading Advisor's intent not to renew at
least 30 days prior to the expiration of the then current one-year term.
18. Notices. All notices required to be delivered under this
agreement shall be in writing (including telegraphic communication or by
telephone confirmed in writing, all such writings to be delivered personally or
sent by registered or certified mail, postage prepaid and return receipt
requested, as follows:
if to the Fund or the Trading Manager:
HEINOLD ASSET MANAGEMENT, INC.
440 S. LaSalle Street, 20th Floor
Chicago, Illinois 60605
Attn: Ms. Stacy L. Hatch
if to the Trading Advisor:
MICHAEL TYM JR.
141 West Jackson Boulevard
Suite 1570
Chicago, Illinois 60604
Attn: Mr. Michael Tym Jr.
19. Termination.
(a) Either the Trading Advisor or the Trading Manager may, in its
discretion, terminate this Agreement if the Trading Manager Agreement is
terminated. In this regard, the Trading Manager agrees to notify the Trading
Advisor immediately upon a termination of the Trading Manager Agreement.
(b) The Trading Advisor may terminate this Agreement on ten (10)
business days' notice in the event that the Net Assets of the Fund under the
management of the Trading Advisor, after adding back the Trading Advisor's
cumulative net trading loss, total less than $250,000.00 as of the close of
business as of any month-end. In addition, the Trading Advisor may terminate
the Trading Advisor's obligations hereunder by written notice to the Trading
Manager: (i) in the event that the trading polices applicable to the Fund are
amended without the consent of the Trading Advisor and, as amended, would, in
the opinion of the Trading Advisor, materially and adversely affect the trading
approach used by the Trading Advisor for the Fund; (ii) the brokerage fees
charged to the Fund account managed by the Trading Advisor are altered in such
a manner that the Trading Advisor believes the Trading Advisor's strategy would
generate excessive
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commission expense; (iii) in the event any representation or warranty
made by the Fund or the Trading Manager becomes materially untrue at any time
during the term hereof or was materially untrue at the time made; or (iv) in
the event the Trading Manager or the Fund breaches any of its obligations
hereunder.
(c) Termination of this Agreement and the Trading Advisor's
obligations hereunder or reallocations of assets from the Trading Advisor may
be made by the Trading Manager at any time upon one (1) business day's notice;
provided that the Trading Manager shall use best efforts, except in the event
of a material breach hereof by the Trading Advisor, to assure that any such
reallocations are made only as of a month-end upon at least ten (10) business
days' notice.
20. Amendment and Assignment. No party hereto may amend or assign
this Agreement without the prior written consent of the other party.
21. Complete Agreement. This Agreement constitutes the entire
agreement between the Trading Manager and the Trading Advisor with respect to
the matters covered herein.
22. Successors. This Agreement 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.
23. Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Illinois (excluding the law thereof which requires the application of, or
reference to, the law of any other jurisdiction) and each of the parties hereto
consents and submits to the jurisdiction of the federal and state courts and
any applicable arbitral body within the County of Cook, City of Chicago, and
State of Illinois over any suit, action or proceeding with respect to this
Agreement.
24. Survival. The indemnity provision of this Agreement shall survive
the termination or expiration of this Agreement with respect to any matter
existing prior to such termination; the payment obligations under this
Agreement shall continue until satisfied; and the other provisions of this
Agreement shall survive the termination of this Agreement with respect to any
matter arising while this Agreement was in effect.
25. Waiver of Breach. The waiver by either party of a breach of any
provisions of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by either 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.
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IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first above written.
HEINOLD ASSET MANAGEMENT, INC.
By:/s/ William G. O'Donnell
---------------------------------
Name: William G. O'Donnell
Title: President
MICHAEL TYM JR.
By:/s/ Michael Tym Jr.
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Name: Michael Tym Jr.
Title: Sole Proprietor
THE FUTURES DIMENSION FUND L.P.
By: Heinold Asset Management, Inc.
General Partner
By: /s/ William G. O'Donnell
-------------------------------
Name: William G. O'Donnell
Title: President
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