ADVISORY AGREEMENT
THIS AGREEMENT, is made as of the 1st day of December, 2009, by and among the XXXXXXXX CLASSIC
TREND FUND, L.P. a Delaware limited partnership (the “Fund”) and XXXXXXXX & COMPANY, INC., a
Maryland corporation (the “General Partner” and “Trading Advisor”).
W I T N E S S E T H:
WHEREAS, the Fund is a limited liability company formed under the Delaware Revised Uniform
Limited Partnership Act (the “Act”);
WHEREAS, the Fund is more fully described in the Prospectus prepared in connection with the
placement of units of limited liability partnership interest in the Fund (“Units”), as may be
supplemented or amended from time to time (capitalized terms used herein but not defined have or
will have the meanings ascribed to them in the Prospectus); and
WHEREAS, the Trading Advisor is engaged principally in rendering management and commodity
trading services and is registered as a commodity trading advisor and commodity pool operator under
the Commodity Exchange Act (the “CEA”) and is a member of the National Futures Association (“NFA”)
in such capacities;
WHEREAS, the Fund desires to appoint the Trading Advisor to provide commodity pool operator,
commodity trading, and other services to the Fund in the manner and on the terms hereinafter set
forth; and
WHEREAS, the Trading Advisor wishes to accept such appointment to provide commodity pool
operator, commodity trading, and other services to the Fund on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the promises and the covenants hereinafter contained, the
Fund and the Trading Advisor hereby agree as follows:
1. DUTIES OF THE TRADING ADVISOR
(a) The Trading Advisor shall act as a commodity pool operator and trading advisor of the Fund
and to furnish, or arrange for the furnishing of, the commodity pool operator, commodity trading,
and other services described below, for the period and on the terms and conditions set forth in
this Advisory Agreement (the “Agreement”). Additionally, the Trading Advisor will provide certain
administrative, transfer agency and investor services to the Fund. The Trading Advisor hereby
accepts such employment and agrees during such period, at its own expense, to render, or arrange
for the rendering of, such services and to assume the obligations herein set forth for the
compensation provided for herein. The Trading Advisor, its affiliates, or any entity performing
services for the Fund on behalf of the Trading Advisor for all purposes herein shall be deemed to
be independent contractors and, unless otherwise expressly provided herein or authorized, shall
have no authority to act for or represent the Fund in any way or otherwise be deemed agents of the
Fund.
(b) Management and Administrative Services. The Trading Advisor shall perform, or
arrange for the performance of, the management and administrative services necessary for the
operation of the Fund, including administering Limited Partner accounts and handling Limited
Partner relations. The Trading Advisor shall provide the Fund with office space, facilities,
equipment and necessary personnel and such other services as the Trading Advisor, from time to time
shall determine to be necessary or useful to perform its obligations under this Agreement.
Additionally, with regard to administrative services, the Trading Advisor shall reconcile cash and
investment balances; calculate contractual expenses, including management fees and performance
fees; determine net income; arrange for the computation of the Fund’s net asset value, prepare the
Fund’s Statement of Assets and Liabilities and Statement of Operations; prepare the Fund’s annual
reports; prepare and file certain federal and state tax returns for the Fund; maintain the register
of Limited Partners, including any transfer or redemption of Units; and allocate income, expenses,
gains and losses to the Limited Partners. The Trading Advisor, also on behalf of the Fund, shall
conduct relations with depositories, transfer agents, pricing agents, dividend disbursing agents,
other Limited Partner servicing agents, accountants, attorneys, underwriters, brokers and dealers,
corporate fiduciaries, insurers, banks and such other persons in any such other capacity deemed to
be necessary or desirable in the Trading Advisor’s discretion. The Trading Advisor generally shall
monitor the Fund’s compliance with investment policies and restrictions as set forth in the
Prospectus.
(c) Commodity Trading Services. As of the commencement of trading operations of the
Fund and until termination of this Agreement, the Trading Advisor shall have sole authority and
responsibility for directing the investment and reinvestment of the Fund’s assets. The Trading
Advisor will determine trades on behalf of the Fund in accordance with the Fund’s Prospectus. All
purchases and sales of commodity interests shall be for the account of 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.
The Trading Advisor shall receive a Commodity Trading Authorization appointing it the Fund’s agent
and attorney-in-fact for such purpose. The Trading Advisor has chosen Newedge USA LLC as the
Fund’s clearing broker (the “Futures Broker”) and the Royal Bank of Scotland plc as the foreign
exchange prime broker (the “Prime Broker”), although the Trading Advisor may select additional or
replacement Futures Brokers or Prime Brokers if it deems such action to be in the best interest of
the Fund.
(d) Trading Advisor not an Agent. When acting as the Fund’s trading advisor, the
Trading Advisor is an independent contractor and unless otherwise provided herein or authorized in
writing, shall have no authority to act for or represent the Fund in any way and shall not be
deemed an agent of the Fund.
2. ALLOCATION OF CHARGES AND EXPENSES
(a) The Trading Advisor. The Trading Advisor shall provide the staff and personnel
necessary to perform its obligations under this Agreement, shall assume and pay or cause to be paid
all expenses incurred in connection with the maintenance of such staff and personnel, and, at its
own expense, shall provide the office space, facilities, equipment and necessary personnel which it
is obligated to provide under Section 1 hereof.
(b) The Fund. The Fund shall pay its organizational and ongoing offering costs
(collectively, “Offering Costs”) as incurred, subject to an annual cap of 0.50% of the Fund’s, and
in turn, each Class of Units’, average month-end net assets. Such Offering Costs include all fees
and expenses in connection with the distribution of the units, including legal, accounting,
printing, mailing, filing fees, escrow fees, salaries and bonuses of employees while engaged in
sales activities, and marketing expenses of Xxxxxxxx & Company and the selling agents which are
paid by the Fund.
2
Any Offering Costs incurred in excess of the aforementioned annual cap shall be initially paid by the Trading Advisor; provided,
however, that the Fund shall reimburse the Offering Costs paid by the Trading Advisor at such time,
if any, as the Fund is able to do so within the limit of the aforementioned cap. In its
discretion, the Trading Advisor may require the Fund to reimburse the Trading Advisor in any
subsequent calendar year for amounts that exceeded these limits in any calendar year, provided that
the maximum amount reimbursed by the Fund in any calendar year not exceed the overall limits set
forth above. In no event will the reimbursement exceed 2.5% of the total subscriptions accepted by
the Fund. Each Class of Units (excluding Class E Units) is specifically allocated its pro rata
share of all such costs.
(c) The Fund shall pay its administrative and operating expenses (collectively, “Operating
Expenses”) as incurred. Such expenses are estimated to be 0.10% (and will not exceed 0.50%) of the
Fund’s net asset value per annum; 0.7 basis points (0.00007) of the 10 estimated basis points will
be paid to Xxxxxxxx & Company directly to cover administrative expenses incurred on behalf of the
Fund. Xxxxxxxx & Company will be responsible for any such expenses during any year of operations
which exceed such percentage estimate. Operating Expenses include, but are not limited to,
administrative expenses; legal, tax, audit, professional, internal and external fund accounting,
cash management, transfer agency and valuation expenses; corporate licensing and printing expenses;
recordkeeping expenses; expenses incurred in communicating with Limited Partners, including the
costs of preparing and printing reports to Limited Partners; and extraordinary expenses. Operating
Expenses also include investment-related expenses, including, but not limited to, custodial fees,
dealer xxxx-ups or spreads, and other transaction costs on its cash management. Each Class of
Units (excluding Class E Units) is specifically allocated its pro rata share of all such expenses.
(d) The Fund shall pay any Sales Fees, Custodial Fees, and Transaction Fees as incurred and as
described in the Prospectus and Limited Partnership Agreement.
3. COMPENSATION OF THE TRADING ADVISOR
(a) Management Fees. For the services rendered, the facilities furnished and the
expenses assumed by the Trading Advisor, the Class A, Class B, Class C, Class D, and Class E Units
shall pay the Trading Advisor a monthly fee at the annual rate of 3% (2% for providing advisory
services and 1% for acting as general partner) of the net asset value of the Class A, Class B,
Class C, Class D, and Class E Units, respectively, prior to any accrual for or payment of any
Management Fee, Performance-Based Compensation, redemption or subscription effected during said
month (the “Management Fees”). Net assets for these purposes means the total value of all assets
attributable to the Class A, Class B, Class C, Class D, and Class E Units, less an amount equal to
all accrued debts, liabilities and obligations attributable to such Class A, Class B, Class C,
Class D, and Class E Units. The Management Fee is computed based on the net asset value of the
Class A, Class B, Class C, Class D, and Class E Units, respectively, as of the end of business on
the last business day of each month, and will be due and payable in arrears, generally within
twenty (20) business days after the end of the month. The Management Fee is paid out of and
reduces the Fund’s net assets. During any period when the determination of net asset value is
suspended, the average net asset value of a Unit of the relevant Class for the day prior to such
suspension shall for this purpose be deemed to be the net asset value of each succeeding day until
it is again determined.
(b) Performance Fee The Class A, Class B, Class C, Class D, and Class E Units will
pay the Trading Advisor quarterly performance fee equal to 20% of the new net profits (if any),
exclusive of appreciation attributable to interest income, allocable to such Class A, Class B,
Class C, Class D, and Class E Units, respectively, and as adjusted for subscriptions and
redemptions, on a cumulative high water xxxx basis, (the “Performance Fee”) charged quarterly on
only the performance of the Class A, Class B, Class C, Class D, and Class E Units, respectively.
In respect of each Class of Units, “new net
3
profits” means the total increase in Unit value of such Class of Units from the commencement
of trading, minus the total increase in Unit value of such Class of Units for all prior quarters,
multiplied by the number of Units of such Class outstanding. The Performance Fee is paid only on
profits attributable to Class A, Class B, Class C, Class D, and Class E Units outstanding. The
Performance Fee is accrued monthly and paid quarterly.
Units that are redeemed other than at the end of the quarter will pay a Performance Fee if any
would otherwise be due as of the end of the period in which the redemption occurs. If any payment
is made by the Fund in respect of Performance Fee and the Fund thereafter incurs a net loss, the
Trading Advisor will retain the amount previously paid.
If Unit value during a quarter declines, no Performance Fee shall be payable until the Unit
value rises at least to the Unit level when the preceding Performance Fee was paid. To the extent
any Units are redeemed at a loss, any loss attributed to the redeemed Units shall not be carried
forward to reduce further appreciation in Unit value.
(c) If this Agreement becomes effective subsequent to the first day of a month or shall be
terminated other than at the end of a period when a fee is otherwise payable, Performance Fee shall
be calculated as if such termination date were the end of the calendar quarter and the Management
Fee shall be prorated based on the number of trading days for which services were rendered divided
by the total number of trading days in such month.
(d) Neither the Trading Advisor nor its principals or employees shall receive any
per-transaction compensation, renumeration, or payments whatsoever from any broker with whom the
Fund carries an account for any transactions executed in the Fund’s account.
4. STANDARD OF LIABILITY AND INDEMNITIES
(a) The Trading Advisor and its affiliates, and their respective directors, managers,
shareholders, officers, controlling persons, employees, sub-advisors, and agents and/or the legal
representatives and controlling persons of any of the foregoing (together, the “Trading Advisor
Parties”) shall not be liable to the Fund or any of its successors or assigns for any error of
judgment or mistake of law or for any loss arising out of any investment or for any act or omission
in the management of the Fund, except that the Trading Advisor shall be liable in such
capacity to the Fund, as applicable, for losses, damages, costs and expenses sustained by the Fund,
or any of its successors or assigns as a result of (i) acts or omissions of the Trading Advisor
with respect to the Fund which constitute willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of reckless disregard of its obligations and duties
hereunder; (ii) a material breach by the Trading Advisor of this Agreement; or (iii) a misleading
or untrue statement of a material fact or omission to state a material fact relating to or
concerning the Trading Advisor in its capacity as trading advisor contained in the Prospectus.
(b) The Fund shall indemnify the Trading Advisor Parties from and against any liabilities,
claims, and expenses, including amounts paid in satisfaction of judgments, in compromise, or as
fines and penalties, and counsel fees and expenses reasonably incurred by such Trading Advisor
Party in connection with the defense or disposition of any action, suit, or other proceeding,
whether civil or criminal, before any court or administrative or investigative body, in which such
Trading Advisor Party may be or may have been involved as a party or otherwise or with which such
Trading Advisor Party may be or may have been threatened, or thereafter by reason of such Trading
Advisor Party having acted in any such capacity, except with respect to any matter as to which such
Trading Advisor Party shall have been adjudicated by the highest court or tribunal that has
jurisdiction over such matters not to have acted in good faith in determining that such Trading
Advisor Party’s action was in the best interest of the Fund and furthermore, in the case of any
criminal proceeding, so long as such Trading Advisor Party had no
4
reasonable cause to believe that the conduct was unlawful; provided, however, that (i) no
Trading Advisor Party shall be indemnified hereunder against any liability to the Fund or any
expense of such Trading Advisor Party arising by reason of its willful misfeasance, bad faith, or
gross negligence in the performance of its duties or by reason of reckless disregard of its
obligations and duties hereunder.
(c) The Trading Advisor shall indemnify, defend and hold harmless the Fund from and against
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 the Trading Advisor is liable to the Fund
pursuant to this Section 4. The Trading Advisor shall also reimburse any legal and other expenses
reasonably incurred by the Fund in connection with investigating or defending any loss, claim,
damage, liability, cost or expense covered by this indemnity.
(d) Advances from the Fund to an indemnified party for legal expenses and other costs incurred
as a result of a legal action will be made only if the following three conditions are satisfied:
(1) the legal action relates to the performance of duties or services by the Trading Advisor or its
related parties on behalf of the Fund; (2) the legal action is initiated by a person which is not a
party to this Agreement unless the prosecution of such action, suit, or other proceeding by a
Trading Advisor Party was authorized by the General Partner; and (3) the indemnified party
undertakes to repay the advanced funds to the Fund in cases in which it would not be entitled to
indemnification under this Section 4.
(e) The rights accruing to any indemnified party under these provisions shall not exclude any
other right to which such indemnified party may be lawfully entitled.
(f) The provisions of this Section 4 shall survive the termination of this Agreement or the
termination of the services of the Trading Advisor.
5. ACTIVITIES OF THE TRADING ADVISOR
(a) The investment management services of the Trading Advisor provided to the Fund under this
Agreement are not to be deemed exclusive. The Fund acknowledges that the Trading Advisor will
render advisory, consulting and management services to other clients, which may be charged
different fees from those charged to the Fund. The Trading Advisor shall be free to advise others
and manage other accounts as well as trade for proprietary accounts during the term of this
Agreement and to use the same or different information and trading methods and strategies which the
Trading Advisor obtains, produces or utilizes in the performance of services for the Fund, and the
Trading Advisor shall be free to compete for the same instruments as the Fund or to take positions
in instruments which are the same as or opposite to the Fund’s positions on behalf of the Trading
Advisor and/or any other account advised, managed or traded by the Trading Advisor. It is agreed
that the Trading Advisor may give advice and take action with respect to such other clients or for
its own accounts that may differ from the advice or the timing or nature of action taken with
respect to the Fund. Furthermore, the Trading Advisor shall have no obligation to recommend for
purchase or sale for the Fund any asset that the Trading Advisor or an affiliate may purchase or
sell for its own account or for the account of any of their clients.
(b) However, the Trading Advisor warrants that the rendering of such consulting,
advisory, and management services to other accounts and entities will not materially impair the
discharge of the Trading Advisor’s responsibilities under this Agreement and that the Trading
Advisor will not knowingly and deliberately favor other clients’ accounts over the Fund. The Fund
agrees that the Trading Advisor shall not be deemed to favor another account over the Fund’s
account for purposes of this Agreement where the Trading Advisor acts as described in the preceding
paragraph and the Prospectus. If the Trading Advisor’s trading recommendations for the Fund are
altered because of the application of speculative limits to the Fund’s positions as a result of trading activities of the Trading
Advisor, it will not modify the trading instructions to the Fund in a manner as to materially
affect the Fund disproportionately compared with other trading accounts.
5
6. DURATION AND TERMINATION OF THIS AGREEMENT
This Agreement shall continue in effect for successive one-year periods beginning as of the
date hereof, or until its earlier termination as provided herein or upon (i) withdrawal of the
Trading Advisor either as trading advisor or commodity pool operator; or (ii) the termination of
the Fund as provided in the Fund’s Limited Partnership Agreement. Any Party may terminate this
Agreement at the end of each twelve month term on sixty (60) days’ prior written notice to the
other parties. The Fund may terminate this Agreement upon written notice if (i) the Trading
Advisor’s registration as a commodity trading advisor or commodity pool operator or membership in
NFA is terminated; or (ii) the Trading Advisor materially breaches this Agreement.
7. REPRESENTATIONS AND WARRANTIES
The Trading Advisor 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 trading advisor and commodity pool operator to the Fund, breach
any undertaking, agreement, contract, statute, rule or regulation with which it is a party or by
which it is bound which would 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 (the “CEA”) and is a member of the National Futures Association (“NFA”) in
such capacities and it will maintain and renew such registrations and membership during the term of
this Agreement.
(d) All of the information in the Prospectus concerning the Trading Advisor, including but not
limited to the Trading Advisor’s performance records and notes thereto, is complete, true, and
accurate in all material respects and complies in all material respects with the CEA, the rules
thereunder, and the rules of the NFA provided the statement or omission was inconformity with
information provided by the Trading Advisor for such use therein.
(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; and
(f) The foregoing representations and warranties shall be continuing during the term of this
Agreement and if at any time any event has occurred which would make any of the foregoing not
materially true, the Trading Advisor will promptly notify the Fund.
8. NO GUARANTEE OF PERFORMANCE.
The Trading Advisor makes no promises, representations, warranties, or guarantees that any of
its trading services rendered to the Fund will result in a profit or will not result in a loss to
the Fund.
6
9. NOTICES
All notices required or desired to be delivered under this Agreement shall be delivered
personally, by telex, telecopier or other means of electronic communication, or by registered or
certified mail, postage prepaid, return receipt requested, as follows:
If to the Trading Advisor:
Xxxxxxxx & Company, Inc.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx
Xxxxxxxx & Company, Inc.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx
If to the Fund:
Xxxxxxxx Classic Trend Fund, L.P.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx
10. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of
Delaware.
11. SURVIVAL OF CERTAIN TERMS
The Fund’s obligation to pay fees to the Trading Advisor for services rendered prior to any
termination of this Agreement pursuant to Section 3 and the indemnities set forth in Section 4
shall survive any termination of this Agreement.
12. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties hereto with respect to the
matters referred to herein, and no other agreement, verbal or otherwise, shall be binding as
between the parties unless it shall be in writing and signed by the party against whom enforcement
is sought.
13. 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.
7
14. AMENDMENT; WAIVER
This Agreement may not be amended except by a writing signed by the parties hereto. No waiver
of any provision of this Agreement shall be implied from any course of dealing between the parties
hereto or from any failure by any party hereto to assert its rights hereunder on any occasion or
series of occasions.
15. COUNTERPARTS
This Agreement may be executed in any number of identical counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one and the same agreement as
if the signatures to each counterpart were upon a single instrument. This Agreement shall become
effective when counterparts have been signed by each party and delivered to the other parties,
provided, that a facsimile signature shall be considered due execution and shall be binding upon
the signatory thereto with the same force and effect as if the signature were an original and not a
facsimile signature.
16. ASSIGNMENT
This Agreement may not be assigned by any party without the prior written consent of the other
parties.
17. SUCCESSORS
This Agreement shall be binding upon and inure to the benefit of the parties hereto, their
successors and, where permitted, their assigns.
8
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the
date first above written.
| XXXXXXXX CLASSIC TREND FUND, L.P. | ||||
| By: | XXXXXXXX & COMPANY, INC. | |||
| its General Partner | ||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | General Counsel | |||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXXXXX & COMPANY, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | General Counsel | |||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
9
December 1, 2009
Xxxxxxxx & Company, Inc.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: Commodity Trading Authorization
Gentlemen:
Xxxxxxxx Classic Trend Fund, L.P., a Delaware limited partnership, does hereby make,
constitute and appoint you as its Attorney-in-Fact to purchase and sell commodity interests,
including commodity futures contracts, through Newedge USA, LLC, as commodity broker, in accordance
with the Advisory Agreement between us dated as of the above date.
| Very truly yours, | ||||
| Xxxxxxxx Classic Trend Fund, L.P. | ||||
| By: | Xxxxxxxx & Company, Inc. | |||
| the General Partner | ||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | General Counsel | |||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
10
