Exhibit 10.5
FUTURES PORTFOLIO FUND, L.P.
ADVISORY AGREEMENT
This ADVISORY AGREEMENT is entered into as of December __, 1997 by and
among Steben Asset Management, Inc., a Maryland corporation (the "General
Partner"), Futures Portfolio Fund, LP, a Maryland limited partnership (the
"Partnership"), and Xxxxxxxx and Company, Inc., a Maryland corporation (the
"Advisor"), whose main business address is Court Towers Building, 000 Xxxx
Xxxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000.
RECITAL
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The Partnership wishes to retain the Advisor to manage a commodity
trading account of the Partnership (the "Account") that the Partnership will
establish for that purpose; and the General Partner hereby acknowledges
receipt of the Advisor's Commodity Trading Advisor Disclosure Document dated
September 12, 1997, the "Disclosure Document"), as filed with the Commodity
Futures Trading Commission ("CFTC") and the National Futures Association
("NFA").
NOW THEREFORE, the parties agree as follows:
1. Advisor's Duties
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(a) The Advisor will trade "commodities" (as defined in ss.l(g) below)
for the Account, pursuant to the terms and conditions of this Agreement.
However, nothing in this Agreement or in the Advisor's activities for the
Partnership shall cause the Advisor to be a partner of, joint venturer with or
have a similar relationship to the General Partner, any other trader for the
Partnership.
(b) The Advisor will use its best efforts to generate profits for the
Account, but makes no assurance that the Account will be profitable or not
incur losses.
(c) In managing the Account pursuant to this Agreement and all other
accounts which the Advisor manages from time to time, the Advisor will manage
the Account and all such other accounts in a good faith effort to achieve an
equitable treatment of all accounts under management.
(d) If position limits restrict the number of positions the Advisor may
establish for the Account, it will use its best efforts to allocate
transaction orders equitably between the Account and the other accounts it
manages.
(e) The Advisor will place orders for the Account through ING Futures and
Options, Inc. or such futures commission merchants as is mutually agreed upon
by the Advisor and the General Partner, (the "FCM"). The Advisor may select
its own executing and/or floor brokers for execution of trades and give-up to
the FCM. The Advisor is not responsible for the brokerage commission rates
charged to the Partnership by the FCMs which execute commodity transactions
for the Account. All purchases and sales of commodities for the Account shall
be for the account and at the risk of the Partnership. All commissions and
expenses arising from the trading of, or other transactions in the course of
the administration of, the Account shall be charged to the Partnership.
(f) The Advisor will promptly advise the General Partner of any
occurrence that renders the Disclosure Document materially inaccurate or
materially incomplete, whether as of the date of the Disclosure Document or a
later date. The Advisor will promptly furnish the General Partner with a copy
of any updated or revised version of the Disclosure Document.
(g) As used in this Agreement, the terms "commodities" and "commodity
transactions" shall mean and include, without limitation, commodities,
commodity futures contracts, commodity options, forward contracts and other
commodity interests.
(h) The Advisor shall give the Partnership immediate written notice of
any proposed material change in the Advisor's trading systems, methods,
models, strategies, or formulae or the manner in which trading decisions are
to be made or implemented and shall not make any such proposed material change
without having given the Partnership at least 20 business days prior written
notice of such change. The addition and/or deletion of commodity interests
from the Partnership's portfolio managed by the Advisor ordinarily shall not
be deemed a change in the Advisor's trading
systems, methods, models, strategies, or formulae and prior written notice to
the Partnership shall not be required therefore.
2. Compensation
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(a) The Partnership will pay the Advisor: (i) after the end of each month
a management fee of .083% of the Account's Net Assets (as defined in ss.2(b)
below) at the end of the month, (1% annually); and (ii) after the end of each
quarter an incentive fee of 25% of any "Trading Profits" (as defined in
ss.2(c) below) generated by the Advisor in the Account during the quarter.
Payment shall be made within 30 days after the month-end for management fees
and quarter-end for incentive fees after an invoice has been provided to the
Partnership by the Advisor.
(b) "Net Assets" are the amount of Partnership funds actually deposited
in the Account maintained with the FCM plus any Notional Funds which may be
allocated to the Advisor increased or decreased by any commodity trading gains
or losses (realized and unrealized) in the Account during the month and any
interest income earned in the Account during the month and decreased by any
accrued but unpaid management or incentive fees from a previous month.
(c) "Trading Profits" are the sum of: (i) the net of all realized profits
and losses on Account commodity positions liquidated during the quarter, plus
(ii) the net of all unrealized profits and losses net of accrued brokerage
commissions on Account commodity positions open as of the quarter-end; minus:
(iii) the net of all unrealized profits and losses on Account commodity
positions open at the end of the previous quarter-end, and (iv) any cumulative
net realized losses (which shall not include incentive fee expenses) from the
Advisor's trading of the Account carried forward from all previous quarters
since the last quarter for which an incentive fee was payable to the Advisor,
and (v) any management fees paid or accrued to the Advisor. Trading Profits
will be calculated solely on the basis of assets allocated to the Advisor, and
incentive fees will not be paid on interest income earned in the account.
(d) With regard to the carry-forward loss referred to in ss.2(c)(iv)
above:
(i) If the Partnership withdraws funds from the Account during a
period (whether by reason of redemptions, distributions, reallocations of
assets, or the payment of expenses) when there is such a carry-forward loss,
the loss shall be reduced, at the time of the withdrawal, by the percentage
obtained by dividing the amount of the withdrawal by the Account's Net Assets
immediately before the withdrawal.
(ii) If there is a carry-forward loss when the Account is
subsequently transferred from Alpine Fund, L.P. to Futures Portfolio Fund,
L.P., then the carry-forward loss will pass on to the Futures Portfolio Fund,
L.P. and the terms of this agreement shall apply.
3. Funding of the Account
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(a) The Partnership may reallocate its assets between the various
advisors managing its accounts and withdraw capital from the Account at any
time. The Partnership shall promptly notify the Advisor, by telephone or
telex, of any such withdrawal, and shall to the extent feasible give the
Advisor advance written notice of such withdrawal. The Partnership may add
capital to the Account at any time with the prior approval of the Advisor and
shall promptly notify the Advisor of any such intended action.
(b) The Partnership, and not the Advisor, shall manage the non-commodity
transactions of the Account, such as the purchase of U.S. Treasury bills.
4. Discretionary Trading and Funds Transfer Authorization
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The Partnership hereby authorizes the Advisor to place orders, in the
Advisor's discretion, with the FCM for the execution of commodity transactions
for the Account. The Partnership constitutes and appoints the Advisor as its
attorney-in-fact for such purpose, with full authority to act on the
Partnership's behalf (except that the Advisor shall not have any authority to
withdraw any funds, securities or other property from the Account). Upon the
Advisor's request, the General Partner shall deliver to the Advisor, and renew
when necessary, a Commodity Trading Authorization form to the above effect.
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5. Errors; Account Statements
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The Advisor shall promptly notify: (a) the Partnership of any error
committed by the Advisor in transmitting Account orders, and (b) the
Partnership and the FCM of any Account transaction that the Advisor believes
was erroneously executed by the FCM. The General Partner shall instruct the
FCM promptly to furnish the Advisor with copies of all Account confirmations,
purchase and sale statements, and monthly account statements.
6. Advisor's Representations
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The Advisor represents that:
(a) This Agreement has been duly and validly authorized, executed and
delivered on behalf of the Advisor, and when duly executed and delivered by
the Partnership and the General Partner, will be a valid and binding contract
of the Advisor enforceable in accordance with its terms.
(b) The Disclosure Document is, in all material respects, accurate and
complete as of the date of the Disclosure Document and as of the date of this
Agreement, and as of the latter date there has been no material adverse change
in the Advisor's performance since the date of the Disclosure Document.
7. General Partner's and Partnership's Representations and Covenants
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The General Partner and the Partnership represent that:
(a) This Agreement has been duly and validly authorized, executed and
delivered and is a valid and binding contract of the General Partner and the
Partnership enforceable in accordance with its terms.
(b) The Partnership is duly formed and validly existing as a Maryland
limited partnership, with full partnership power to carry out its obligations
under this Agreement and its Agreement of Limited Partnership.
(c) The private offering memorandum pursuant to which the Partnership's
limited partnership interests will be [are being] offered, as amended and
supplemented from time to time, (collectively, the "Memorandum") will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they are made, not misleading,
or omit to state any material information required to be disclosed therein
under the Commodity Exchange Act, as amended (the "CEA"), the Securities Act
of 1933, as amended (the "1933 Act"), and the rules promulgated thereunder;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the General Partner by or on behalf of the
Advisor, including, without limitation, all references to the Advisor and its
affiliates (as defined in ss.8(f) below), controlling persons, shareholders,
partners, directors, officers and employees, as well as to such Advisor's
trading approach and performance history.
(d) The General Partner is duly formed and validly existing as a Maryland
corporation with full power and authority to carry out its obligations under
this Agreement and is registered with the CFTC as a commodity pool operator
and is a member of the NFA.
(e) The Partnership will make to the Partnership's limited partners (the
"Limited Partners") all disclosures necessary with respect to the retention of
the Advisor to manage the account to comply with the CEA, the CFTC's
regulations thereunder, the rules and regulations of the NFA and the
applicable state and federal securities laws and regulations.
(f) There are no actions, suits, proceedings or investigations pending
or, to the knowledge of the Partnership, threatened against the Partnership,
at law or in equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrument or
any self-regulatory organization or any commodity exchange.
(g) The Advisor, either alone or in conjunction with the General Partner
or its affiliates, is not an organizer or promoter of the Partnership.
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(h) All necessary and appropriate actions have been taken by the
Partnership and the General Partner to terminate any other trading managers
that previously managed the portions of the Partnership which are being
committed to the management of the Advisor pursuant to this Agreement.
(i) The Partnership is not required to be registered as an investment
company under the Investment Company Act of 1940, as amended.
(j) The offer and sale of the limited partnership interests will be
conducted in accordance with all applicable federal and state laws and
regulations.
(k) The above representations and warranties shall be continuing during
the term of this Agreement and, if at any time, any event has occurred which
would make or tend to make any of the foregoing not true, the General Partner
will promptly notify the Advisor.
8. Indemnification
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(a) By the Advisor. The Advisor agrees to indemnify and hold harmless
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each of the Partnership and the General Partner and each affiliate thereof
against any loss, claim, damage, charge or liability to which they (or such
affiliate) may become subject under the 1933 Act, the CEA or otherwise,
insofar as such loss, claim, damage, charge or liability (or actions in
respect thereof) arises out of or is based upon (i) any misrepresentation or
breach of any warranty, covenant or agreement of the Advisor contained in this
Agreement or (ii) any untrue statement of any material fact contained in the
Memorandum, or arises out of or is based upon the omission to state in the
Memorandum, a material fact required to be stated therein or necessary to make
the statements therein not misleading (in each case under this clause (ii) to
the extent, but only to the extent, that such untrue statement or omission was
made in reliance upon and in conformity with information furnished and
approved by the Advisor for inclusion in the Memorandum), including
liabilities under the 1933 Act and the CEA.
(b) By the Partnership and the General Partner. The Partnership and the
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General Partner jointly and severally agree to indemnify and hold harmless the
Advisor and each of its affiliates against any loss, claim, damage, charge, or
liability to which the undersigned or its controlling persons may become
subject, insofar as such loss, claim, damage, charge or liability (or actions
in respect thereof) arises out of or is based upon: (i) any misrepresentation
or breach of any warranty, covenant or agreement of the Partnership or the
General Partner contained in this Agreement; (ii) any untrue statement of any
material fact contained in the Memorandum, or arises out of or is based upon
the omission to state in the Memorandum, a material fact required to be stated
therein or necessary to make the statements therein not misleading (excluding
in each case under this clause (ii) any untrue statement or omission made in
reliance upon and in conformity with information furnished and approved by the
Advisor for inclusion in the Memorandum), including liabilities under the 1933
Act and the CEA; (iii) the management of the Account by the Advisor or the
fact that the Advisor acted as a trading manager of the Partnership if the
Advisor acted in good faith and in a manner which it reasonably believed to be
in or not opposed to the best interests of the Partnership and provided that
the Advisor's conduct does not constitute gross negligence or willful
misconduct; (iv) any acts or omissions of the Partnership, the General Partner
or any trading manager to the Partnership before the Advisor commenced trading
for the Partnership; or (v) any act or omission with respect to the
Partnership of any other trading manager of the Partnership.
(c) Limitations. None of the indemnifications contained in this Section
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shall be applicable to default judgments, confessions of judgment or
settlements entered into by any indemnified party claiming indemnification
without the prior consent of the indemnifying party.
(d) Notice and Defense of Claims. Promptly after receipt by an
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indemnified party under this section of notice of the commencement of any
action, that party will, if a claim in respect thereof is to be made against
an indemnifying party under this Section, notify the indemnifying party of the
commencement thereof; but the omission to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
under this Section. In case any such action is sought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, to assume the defense thereof, with counsel satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, but shall continue to be liable to the indemnified
party in all other respect as heretofore set forth in this Section.
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(e) Retention of Separate Counsel. If the indemnified party reasonably
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determines that its interest is or may be adverse to the indemnifying party's
or that there may be a legal defense available to the indemnified party that
is different from, in addition to or inconsistent with a defense available to
the indemnifying party, the indemnified party may retain its own counsel and
shall be indemnified by the indemnifying party for any expenses reasonably
incurred in investigating or defending the action.
(f) Advances. Expenses incurred by an indemnified party in defending a
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threatened or asserted claim or a threatened or pending action shall be paid
by the indemnifying party in advance of final disposition or settlement of
such matter, if and to the extent that the person on whose behalf such
expenses are paid shall agree to reimburse the indemnifying party in the
event indemnification is not permitted under this section upon final
disposition or settlement.
(g) Survival. The provisions of this Section shall survive the
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termination or expiration of this Agreement.
(h) "Affiliate" means general partner, officer, director, employee, or
shareholder, and any general partner, officer, director, employee or
shareholder of such shareholder.
9. Term
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(a) Term and Renewal. This Agreement shall continue in effect for a
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period of one year following the end of the month in which the Partnership
shall begin to receive trading advice from the Trading Advisor hereunder.
Thereafter, this Agreement shall be renewed automatically for additional
one-year terms unless either the Partnership or the Trading Advisor, upon
written notice given prior to the original termination date or any extended
termination date, shall notify the other party of his or its intention not to
renew.
(b) Termination. Notwithstanding Section 6(a) hereof, this Agreement
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shall terminate:
(i) immediately if the partnership shall terminate and be dissolved
in accordance with its Agreement of Limited Partnership or otherwise; or
(ii) immediately after receipt by the Trading Advisor from the
General Partner or by the General Partner from the Trader's Advisor of written
notice of termination; or
(iii) immediately if the Trading Advisor can no longer effectively
implement its or his trading strategy on behalf of the Partnership; or
(iv) immediately, at the discretion of the General Partner, if any of
the following events shall occur; (1) the Trading Advisor shall become
bankrupt or insolvent; (2) the Trading Advisor shall be unable to use all or
any portion of his or its trading systems, methods, models, strategies, or
formulae as in effect on the date of this Agreement, or as refined or modified
in the future in accordance herewith, for the benefit of the Partnership for
any reason whatsoever; (3) the Trading Advisor's registration with the CFTC as
a commodity trading advisor or the Trading Advisor's membership in the NFA in
such capacity shall expire or shall be revoked, suspended, terminated, not
renewed, or limited, conditioned, restricted, or qualified in any material
respect; (4) the Trading Advisor shall change or violate any of the Trading
Policies or any administrative policy of the Partnership except with the prior
written consent of the Partnership; (5) the Partnership, upon receipt of not
less than 20 business days' prior written notice from the Trading Advisor
pursuant to Section 1(h) hereof, shall send written notice to the Trading
Advisor stating that the material change proposed by the Trading Advisor in
his or its trading systems, methods, models, strategies, or formulae or the
manner in which trading decisions are to be made or implemented is
unacceptable to the General Partner; (6) the Trading Advisor shall fail to
perform any of its obligations under this Agreement.
10. Arbitration
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The parties agree that all controversies which may arise in connection
with any transaction contemplated by this Agreement or the construction,
performance or breach of this Agreement or any other agreement between the
parties hereto, whether entered into prior, on or subsequent to the effective
date of this Agreement, shall be determined by arbitration, and in accordance
with the rules then obtaining of the NFA, or if no such rules are then in
effect, then the rules then obtaining of the Chicago Board of Trade; provided,
however, that (a) the arbitrator(s) shall be experienced in the matters to be
under dispute, (b) the authority of the arbitrator(s) shall be limited to
construing and enforcing the terms and conditions of this Agreement as
expressly set forth herein, and (c) the arbitrator(s) shall state the reasons
for
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the award in a written opinion. The award of the arbitrator(s), or a majority
of them, shall be final, and judgment upon the award may be confirmed and
entered in any court, state or federal, having jurisdiction.
11. Miscellaneous
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(a) Complete Agreement. This Agreement constitutes the entire agreement
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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 it is in writing and signed by the party against whom enforcement is
sought.
(b) Assignment. This Agreement may not be assigned by either party
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without the prior written consent of the other party. This Agreement shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
(c) Amendment; Waiver. This Agreement may not be amended except by the
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written consent of the parties. No waiver of any provision of this Agreement
may be implied from any course of dealing between the parties or from any
failure by a party to assert its rights under this Agreement on any occasion
or series of occasions.
(d) Severability. If any provision of this Agreement, or the application
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of any provision to any person or circumstance, shall be held to be
inconsistent with any law, ruling, rule or regulation, the remainder of this
Agreement, or the application of the provision to persons or circumstances
other than those as to which it is held inconsistent, shall not be affected
thereby.
(e) Notices. All notices required or desired to be delivered under this
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Agreement shall be in writing and shall be effective when delivered personally
on the day delivered, or, when given by registered or certified mail, postage
prepaid, return receipt requested, on the day of receipt, addressed as follows
(or to such other address as the party entitled to notice shall designate):
If to the Partnership Steben Asset Management, Inc.
and the General Partner: 00000 Xxxxxxxxx Xxxx, 0xx xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, President
If to the Advisor: At the address on page 1 above.
(f) Survival. The provisions of this Agreement shall survive the
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termination of this Agreement with respect to any matter arising while this
Agreement was in effect.
(g) Governing Law. This Agreement shall be governed by and construed in
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accordance with Illinois law (excluding the law thereof which requires the
application of, or reference to, the law of any other jurisdiction).
(h) Property Right of the Advisor. The Partnership, the General Partner
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and their employees or agents acknowledge that commodity interest trading
advice provided and trading strategies used by the Advisor are confidential
property rights belonging to it; the Partnership further agrees, unless
authorized by the Advisor, that such advice will not be disseminated in whole
or in part, directly or indirectly, to any of the Limited Partners, brokers,
brokers' customers, employees, agents, officers, directors or any others,
except as necessary to conduct the business of the Partnership or except as
required by any applicable law or regulation. Nothing contained in this
Agreement shall require the Advisor to disclose the confidential or
proprietary details of its trading systems or strategies.
(i) Limit on Liability. Except as otherwise set forth herein, the Advisor
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shall not be liable to the Partnership, its partners or any of their
respective successors or permitted assigns except by reason of its acts or
omissions taken or omitted due to bad faith, willful misconduct or gross
negligence or for not having acted in good faith in the reasonable belief that
its actions were taken in, or not opposed to, the best interests of the
Partnership. The foregoing sentence is intended to limit the liability of the
Advisor, and nothing therein shall expressly or impliedly create any
liability, duty or responsibility on the part of any person.
(j) Agreement Not Exclusive. The Advisor's present business is advising
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with respect to the purchase and sale of commodity interests. The services
provided by the Advisor hereunder are not to be deemed exclusive. The
Partnership and General Partner acknowledge that, subject to the terms of this
Agreement, the Advisor may render
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advisory, consulting and management services to other clients for which it may
charge fees similar or different from those charged to the Partnership. The
Advisor shall be free to advise others and manage other accounts during the
term of this Agreement and to use the same or different information, computer
programs and trading strategies which it obtains, produces or utilizes in the
performance of services for the Partnership.
(k) Right to Approve Offering Materials. The Partnership and the General
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Partner each agree that it shall not place any advertisement in any media or
distribute or disseminate any offering materials including, without
limitation, letters, brochures and the Memorandum, which makes any reference
to the Advisor, this Agreement or the transactions or arrangements
contemplated herein without the prior written approval of the Advisor.
(l) Independent Contractor. This Agreement is not a contract of
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employment, and nothing contained herein shall be construed to create an
exclusive relationship or the relationship of employer or agent and principal
or a joint venture or partnership between the parties hereto, except as
otherwise expressly set forth herein. Each of the Partnership, the General
Partner and the Advisor is an independent contractor and shall be free to
exercise its judgment and discretion with regard to the conduct of its
business except as otherwise limited herein.
(m) Counterparts. This Agreement may be executed in one or more
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counterparts, all of which together shall constitute one original Agreement.
(n) Headings. Headings to sections and subsections in this Agreement are
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for the convenience of the parties and are not a part of or affect the meaning
of this Agreement.
IN WITNESS WHEREOF this Advisory Agreement has been executed for and on behalf
of the undersigned as of the date first above written.
The Partnership: The Advisor:
Futures Portfolio Fund, X.X. Xxxxxxxx and Company, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President By: /s/ Xxxxxxx Xxxxx
Steben Asset Management, Inc. ------------------------
Name: /s/ Xxxxxxx Xxxxx
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Steben Asset Management, Inc. Title: CFO
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By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President
Steben Asset Management, Inc.
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