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EXHIBIT 10.1
ADVISORY AGREEMENT
This Advisory Agreement (the "Agreement") made as of August 29, 2000
among Xxxxxxx Diversified Fund, LP, a Delaware limited partnership (the "Fund"),
and Xxxxxxx Asset Management, Inc., a New York corporation ("XXX"),
W I T N E S S E T H:
WHEREAS, the Fund buys, sells, trades and generally deals in
commodities, commodity futures contracts, commodity options, forward contracts,
and other commodity interests; and
WHEREAS, the Fund and its general partner are authorized to utilize the
services of one or more commodity trading advisors in connection with the
commodity trading activities of the Fund; and
WHEREAS, the Fund and its general partner have determined to utilize
XXX to render commodity trading services to the Fund; and
WHEREAS, the Fund and XXX wish to enter into this Agreement in order to
set forth the terms and conditions upon which XXX will render and implement
commodity management services in connection with the commodity trading
activities of the Fund during the term of this Agreement;
NOW, THEREFORE, the parties agree as follows:
1. ADVISORY DUTIES. As of the commencement of trading operations of the
Fund and until the termination of this Agreement, XXX shall have sole authority
and responsibility for directing the investment and reinvestment in commodity
interests of the assets of the Fund. XXX shall determine the trades in commodity
interests on behalf of the Fund in accordance with the prospectus included in
the registration statement on Form S-1 of the Fund as declared effective by the
Securities and Exchange Commission (as amended or supplemented from time to
time, the "Prospectus"). All purchases and sales of commodity interests shall be
for the account and at the risk of the Fund. All brokerage and floor commissions
and fees, option premiums and other transaction costs and expenses incurred in
connection with transactions by and for the Fund shall be charged to the Fund.
XXX shall receive a commodity trading authorization appointing it the agent and
attorney-in-fact of the Fund for such purpose. XXX has selected ADM Investor
Services, Inc., a Delaware corporation, as the commodity broker for the Fund
(the "Commodity Broker"). From time to time, XXX may engage another or an
additional firm as commodity broker for the Fund.
2. INDEPENDENCE OF XXX. When acting as the commodity trading advisor of
the Fund, XXX shall be an independent contractor. Unless otherwise expressly
provided herein or authorized in writing, XXX shall have no authority to act for
or represent the Fund and shall not otherwise be deemed an agent of the Fund.
3. COMPENSATION. In consideration of the services to be provided by XXX
as commodity trading advisor, the Fund shall pay XXX in 12.5% of the Brokerage
Fee (as defined in the agreement of limited partnership of the Fund dated as of
August 29, 2000, as such agreement may be amended or modified from time to
time). Such fee shall be paid within 10 days after the date on which it is
earned. Neither XXX nor its principals or employees shall receive any
per-transaction compensation, remuneration or payments whatsoever from any
broker for any transactions executed for the account of the Fund.
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4. RIGHT TO ADVISE OTHERS. (a) The advisory services to be rendered by
XXX hereunder shall not be deemed to be exclusive. The Fund acknowledges that
XXX renders advisory, consulting and management services to other customers for
which XXX may charge different fees from those charged the Fund. XXX shall be
free to advise other customers, to manage other commodity accounts, to trade for
proprietary accounts during the term of this Agreement and to use the same or
different information and trading methods and strategies that XXX obtains,
produces or utilizes in the performance of services for the Fund. XXX shall be
free to compete for the same commodity interests as the Fund or to take
positions in commodity interests that are the same as or opposite to the
positions taken on behalf of the Fund or any other account advised, managed or
traded by XXX.
(b) Notwithstanding Section 4(a), XXX warrants that the
rendering of consulting, advisory and management services to other commodity
futures trading accounts and entities shall not materially impair the discharge
of SAM's responsibilities under this Agreement and that XXX shall not knowingly
and deliberately favor other customer accounts over the Fund. XXX shall not be
deemed to favor another account over the account of the Fund if XXX acts in
accordance with Section 4(a) and as described in the Prospectus. If SAM's
trading recommendations for the Fund are altered because of the application of
speculative limits to the positions of the Fund as a result of the trading
activities of XXX, XXX shall not modify the trading instructions to the Fund in
a manner that affects the Fund materially and disproportionately when compared
with other accounts managed by XXX.
5. TERM. This Agreement shall continue for the earliest to occur of 12
months following the date hereof, the withdrawal of XXX as general partner of
the Fund or the termination of the Fund as a limited partnership.
Notwithstanding the foregoing, the Fund may terminate this Agreement upon
written notice if SAM's registration as a commodity trading advisor or
membership in the National Futures Association terminates or is suspended or XXX
materially breaches this Agreement.
6. STANDARD OF LIABILITY AND INDEMNITIES. (a) In acting as trading
advisor, XXX shall not be liable to the Fund or its successors or assigns other
than for losses, damages, costs and expenses sustained by the Fund or its
successors or assigns as a result of (i) acts or omissions of XXX in such
capacity that constitute recklessness or gross misconduct or (ii) a material
breach by XXX of this Agreement.
(b) XXX shall indemnify, defend and hold harmless the Fund
from and against any and all losses, claims, damages, liabilities, costs and
expenses sustained by the Fund (including in connection with the defense or
settlement of claims and in connection with any administrative proceedings), to
the extent and only to the extent that XXX is liable to the Fund pursuant to the
standard in Section 6(a). XXX shall reimburse any legal and other expenses
reasonably incurred by the Fund in connection with the investigating or
defending any such loss, claim, damage, liability, cost or expense.
7. REPRESENTATIONS AND WARRANTIES. XXX represents and warrants
that:
(a) it has full capacity and authority to enter into this
Agreement and to provide the services required hereunder;
(b) it will not, by acting as commodity trading advisor to the
Fund, breach any undertaking, agreement, contract, statute, rule or
regulation to which it is a party or by which it is bound that would
limit or materially affect the performance of its duties under this
Agreement;
(c) it is duly registered as a commodity trading advisor and
commodity pool operator under the Commodity Exchange Act and is a
member in good standing of the National Futures
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Association in such capacities, and it will maintain and renew such
registration and membership during the term of this Agreement;
(d) all of the information in the Prospectus concerning XXX,
including without limitation with respect to SAM's performance records,
is complete, true and accurate in all material respects and complies in
all material respects with the Commodity Exchange Act and the rules
thereunder and the rules of the National Futures Association; and
(e) it will promptly provide to the Fund the most current
version of its commodity trading advisor disclosure document and any
amendments thereto upon request.
Such representations and warranties shall be continuing during the term of this
Agreement, and XXX shall promptly notify the Fund if at any time any event
occurs that would make any of the foregoing not materially true. XXX makes no
promises, representations, warranties or guarantees that any of the trading
services to be rendered to the Fund will result in a profit or shall not result
in a loss to the Fund.
8. MISCELLANEOUS. This Agreement constitutes the entire agreement
between the parties, and no other agreement as to the matters referred to
herein, verbal or otherwise, shall be binding upon the parties hereto. This
Agreement may not be assigned without the prior written consent of the other
party. This Agreement may not be amended except by the written consent of the
parties. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their permitted successors and assigns. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware.
9. SURVIVAL OF CERTAIN TERMS. The obligation of the Fund to pay fees to
XXX for services rendered prior to any termination of this Agreement pursuant to
Section 3 and the indemnities set forth in Section 6 shall survive any
termination of this Agreement.
10. NOTICES. All notices required or desired to be delivered under this
Agreement shall be delivered personally or by registered or certified mail,
postage prepaid, return receipt requested, as follows:
If to the Fund: Xxxxxxx Diversified Fund, LP
c/x Xxxxxxx Asset Management, Inc.
00 Xxxx Xxx Xxx Xxxx
Xxxxx Xxxxxx, XX 00000
If to XXX: Xxxxxxx Asset Management, Inc.
00 Xxxx Xxx Xxx Xxxx
Xxxxx Xxxxxx, XX 00000
Any notice required or desired to be delivered under this Agreement shall be
deemed delivered and received by the party to which such notice is addressed
upon actual receipt of such notice by such party.
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IN WITNESS WHEREOF, this Agreement has been executed for and on behalf
of the undersigned as of the day and year first above written.
XXXXXXX DIVERSIFIED FUND, LP
By: Xxxxxxx Asset Management, Inc.
General Partner
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
President
XXXXXXX ASSET MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
President
