Exhibit 10.11
ADVISORY AGREEMENT
ADVISORY AGREEMENT (the "Agreement") dated this 11th day of
February 2003, by and among Prudential Securities Strategic Trust, a
Delaware business trust (the "Trust"), Prudential Securities Futures
Management Inc., a Delaware corporation (the "Managing Owner") and Xxxxxx
Capital Management, L.P. (the "Advisor").
W I T N E S S E T H :
WHEREAS, the Trust has been organized primarily for the purpose
of trading, buying, selling, spreading or otherwise acquiring, holding or
disposing of futures, forwards and options contracts. Physical commodities
also may be traded from time to time. The foregoing commodities related
transactions are collectively referred to as "Commodities"; and
WHEREAS, the Managing Owner is authorized to utilize the
services of one or more professional commodity trading advisors in
connection with the Commodities trading activities of the Trust; and
WHEREAS, the Trust wishes to engage the Advisor as a commodity
trading advisor to the Trust to manage a portion of the assets previously
managed by another trading advisor; and
WHEREAS, the Advisor's present business includes the management
of Commodities accounts for its clients; and
WHEREAS, the Advisor is registered as a commodity trading
advisor under the Commodity Exchange Act, as amended ("CE Act") and is a
member of the National Futures Association ("NFA") as a commodity trading
advisor and will maintain such registration and membership for the term of
this Agreement; and
WHEREAS, the Trust and the Advisor desire to enter into this
Agreement in order to set forth the terms and conditions upon which the
Advisor will render and implement commodity advisory services on behalf of
the Trust during the term of this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Duties of the Advisor.
(a) Appointment. The Trust hereby appoints the Advisor, and
the Advisor hereby accepts appointment, as its limited attorney-in-fact to
exercise discretion to invest and reinvest in Commodities during the term
of this agreement the portion of the Net Asset Value of the Trust which the
Managing Owner allocates to the Advisor's management ("Allocated Assets")
on the terms and conditions set forth herein. The definition of the term
"Net Asset Value" shall be as defined in Exhibit A hereto. This limited
power-of-attorney is a continuing power and shall continue in effect with
respect to the Advisor until terminated hereunder. To this end, the
Advisor (i) agrees to act as a commodity trading advisor retained by the
Managing Owner on behalf of the Trust, and specifically, to exercise
discretion with respect to the Allocated Assets, and which the Managing
Owner may allocate to the Advisor in the
2
future (with the Advisor's consent) upon the terms and conditions, and
for the purposes, set forth in this Agreement and (ii) shall have sole
authority and responsibility for independently directing the investment
and reinvestment in Commodities of the Allocated Assets for the
term of this Agreement pursuant to the trading methods, systems
and strategies of the Global Diversified Program at 150% of
Standard Leverage (the "Trading Approach") as such trading approach is
described in the Advisor's Disclosure Document dated October 15, 2002
attached hereto as Exhibit B (the "Disclosure Document"), receipt of which
is hereby acknowledged, subject to the Trust's trading policies and
limitations as set forth in Exhibit C, attached hereto, as the same may be
modified or amended and provided in writing to the Advisor from time to
time (the "Trading Policies and Limitations"). The Managing Owner and the
Trust acknowledge that the Advisor makes no guarantee of profits or of
protection against loss, and that the Advisor's Commodities transactions
hereunder are for the account and risk of the Trust. Upon receipt of a new
allocation, the Advisor will determine and, if required, adjust its trading
in light of the new allocation.
(b) Allocation of Responsibilities. The Managing Owner will
have the responsibility for the management of that portion of the Allocated
Assets that are not invested in Commodities. The Advisor will use its good
faith best efforts in determining the investment and reinvestment in
Commodities of the Allocated Assets in compliance with the Trading Policies
and Limitations, and in accordance with the Advisor's Trading Approach. In
the event that the Managing Owner shall, in its sole discretion, determine
in good faith following consultation, if appropriate under the
circumstances, with the Advisor that any trading instruction issued by the
Advisor violates the Trust's Trading Policies and Limitations, then the
Managing Owner, following reasonable notice appropriate under the
3
circumstances to the Advisor, may override such trading instruction and the
Advisor shall not be subject to liability for the results of any such
action taken by the Managing Owner. Nothing herein shall be construed to
prevent the Managing Owner from imposing any limitation(s) on the trading
activities of the Trust beyond those enumerated in Exhibit C hereto if the
Managing Owner determines that such limitation(s) are necessary or in the
best interests of the Trust, in which case the Advisor will adhere to such
limitations following written notification thereof.
(c) Modification of Trading Approach. In the event the Advisor
requests to use, or the Managing Owner requests the Advisor to use, a
trading program, system, method or strategy other than or in addition to
the trading programs, systems, methods or strategies comprising the Trading
Approach in connection with trading for the Trust (including, without
limitation, the deletion or addition of an agreed upon trading program,
system, method or strategy to the then agreed upon Trading Approach or a
modification in the leverage employed), either in whole or in part, the
Advisor may not do so and/or shall not be required to do so, as
appropriate, unless both the Managing Owner and the Advisor consent thereto
in writing;
(d) Notification of Material Changes. The Advisor also agrees
to give the Trust prior written notice of any proposed material change in
its Trading Approach, and agrees not to make any material change in such
Trading Approach (as applied to the Trust) over the objection of the
Managing Owner, it being understood that the Advisor shall be free to
institute non-material changes in its Trading Approach (as applied to the
Trust) without prior written notification. Without limiting the generality
of the foregoing, refinements to the
4
Advisor's Trading Approach, and the deletion (but not the addition) of
commodities (other than the addition of commodities then being
traded (i) on organized domestic commodities exchanges, (ii)
on foreign commodities exchanges recognized by the Commodity
Futures Trading Commission (the "CFTC") as providing customer
protections comparable to those provided on domestic exchanges or (iii) in
the interbank foreign currency market) to or from the Advisor's Trading
Approach shall not be deemed a material change in the Advisor's Trading
Approach, and prior approval of the Managing Owner shall not be required
therefor. The addition or deletion of a trading program to or from the
Advisor's Trading Approach as applied to the Trust shall be deemed a
material change in the Advisor's Trading Approach, and prior approval of
the Managing Owner shall be required therefor.
Subject to adequate assurances of confidentiality, the Advisor
agrees that it will discuss with the Managing Owner upon request any
trading methods, programs, systems or strategies used by it for trading
customer accounts which differ from the Trading Approach used for the
Trust, provided that nothing contained in this Agreement shall require the
Advisor to disclose what it deems to be proprietary or confidential
information.
(e) Request for Information. The Advisor agrees to provide
the Trust with any reasonable information concerning the Advisor that the
Trust may reasonably request (other than the identity of its customers or
proprietary or confidential information concerning the Trading Approach),
subject to receipt of adequate assurances of confidentiality by the Trust,
including, but not limited to, information regarding any change in control,
key personnel, Trading Approach and financial condition which the Trust
reasonably deems to be material to the Trust; the Advisor also shall notify
the Trust of any such matters the Advisor, in its
5
reasonable judgment, believes may be material to the Trust relating to the
Advisor and its Trading Approach. During the term of this Agreement, the
Advisor agrees to provide the Trust with updated monthly information related
to the Advisor's performance results within a reasonable period of time
after the end of the month to which it relates.
(f) Notice of Errors. The Advisor is responsible for promptly
reviewing all oral and written confirmations it receives to determine that
the Commodities trades were made in accordance with the Advisor's
instructions. If the Advisor determines that an error was made in
connection with a trade or that a trade was made other than in accordance
with the Advisor's instructions, the Advisor shall promptly notify the
Managing Owner of this fact, and shall utilize its best efforts to cause
the error or discrepancy to be corrected.
(g) Exculpation. Neither the Advisor nor any employee,
director, officer or shareholder of the Advisor, nor any person who
controls the Advisor, shall be liable to the Managing Owner, its officers,
directors, shareholders or employees, or any person who controls the
Managing Owner, or the Trust or its owners, or any of their respective
successors or assignees under this Agreement, except by reason of acts or
omissions in material breach of this Agreement or due to their misconduct
or negligence or by reason of their not having acted in good faith in the
reasonable belief that such actions or omissions were in the best interests
of the Trust; it being understood that the Advisor makes no guarantee of
profit nor offers any protection against loss, and that all purchases and
sales of Commodities shall be for the account and risk of the Trust, and
the Advisor shall not incur any liability for trading profits or losses
resulting therefrom, provided the Advisor would not otherwise be liable to
the Trust under the terms hereof.
6
(h) Initial and Additional Allocations, and Reallocations.
Initially, the Allocated Assets will total $[4] million. Subject to
Section 10(a) below, the Trust may (i) allocate additional capital to the
Advisor with the approval of the Advisor, (ii) reallocate capital away from
the Advisor to one or more other commodity trading advisors that currently,
or in the future, provide commodity trading advisory services to the Trust
or Prudential Securities (each, an "Other Advisor"), or (iii) allocate
additional capital to one or more Other Advisors. If the Trust allocates
additional capital to the Advisor or reallocates capital away from the
Advisor, the Trust will give the Advisor written notice of such changes and
the amount of the then current Allocated Assets once the change has been
effected.
2. Indemnification.
(a) The Advisor. The Advisor, each person who controls the
Advisor and their respective officers, directors, shareholders and
employees shall be indemnified, defended and held harmless by the Trust and
the Managing Owner, jointly and severally, from and against any and all
claims, losses, judgments, liabilities, damages, costs, expenses
(including, without limitation, reasonable investigatory and attorneys'
fees and expenses) and amounts paid in settlement of any claims in
compliance with the conditions specified below (collectively "Losses")
sustained by any of them (i) in connection with any matter relating to the
Trust's Registration Statement No. 33-80443 or final prospectus, dated
February 7, 1996, (the "Prospectus") including all amendments and
supplements thereto, as well as any matters relating to the Trust prior to
the effective date of this Agreement, or the acts of any Other Advisor in
connection with the Trust; (ii) in connection with any acts or omissions of
the Advisor, or any of its officers or employees, relating to the Advisor's
management of the Allocated Assets from and after the effective date of
this Agreement, including in connection
7
with this Agreement or otherwise as a result of the Advisor's performance
of services on behalf of the Trust or its role as trading advisor
of the Allocated Assets and (iii) as a result of a material breach
of this Agreement by the Trust or the Managing Owner, provided that,
(i) (A) such Losses were not the result of negligence, misconduct
or a material breach of this Agreement on the part of the Advisor,
and its officers, directors, shareholders and employees, and each
person controlling the Advisor, (B) the Advisor and its officers,
directors, shareholders and employees, and each person controlling the
Advisor acted in good faith and in a manner reasonably believed by it and
them to be in, or not opposed to, the best interests of the Trust, and (C)
any such indemnification by the Trust will only be recoverable from the
assets of the Trust.
(b) The Trust. The Trust shall be indemnified by the Advisor
against any Losses sustained by the Trust directly resulting from (i) the
negligence or misconduct of, or a material breach of this Agreement by, the
Advisor or its employees, officers, directors, shareholders, and each
person controlling the Advisor or (ii) any action or omission to act of the
Advisor or its employees, officers, directors, shareholders, and each
person controlling the Advisor that was not taken in good faith or in a
manner reasonably believed by it and them to be in the best interests of
the Trust.
(c) Settlements. No indemnification shall be permitted under
this Section 2 for amounts paid in settlement if either (A) the party
claiming indemnification (the "Indemnitee") fails to notify the
indemnifying party of the terms of any settlement proposed, at least
fifteen (15) days before any amounts are paid or (B) the indemnifying party
does not in its good faith business judgment approve the amount of the
settlement within thirty (30)
8
days of its receipt of notice of the proposed settlement. Notwithstanding
the foregoing, the indemnifying party shall, at all times, have
the right to offer to settle any matter with the approval of the
Indemnitee (which approval shall not be withheld unreasonably)
and if the indemnifying party successfully negotiates a settlement
and tenders payment therefor to the Indemnitee, the Indemnitee
must either use its reasonable best efforts to dispose of the matter in
accordance with the terms and conditions of the proposed settlement or the
Indemnitee may refuse to settle the matter and continue its defense in
which latter event the maximum liability of the indemnifying party to the
Indemnitee shall be the amount of said proposed settlement. Any
indemnification under this Section 2, unless ordered by a court, shall be
made by the indemnifying party only as authorized in the specific case and
only upon a determination by mutually acceptable independent legal counsel
in a written opinion that indemnification is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct set forth
hereunder.
(d) Default Judgments and Confessions of Judgment. None of
the provisions for indemnification in this Section 2 shall be applicable
with respect to default judgments or confessions of judgment entered into
by an Indemnitee, with its knowledge, without the prior consent of the
indemnifying party.
(e) Procedure. In the event that an Indemnitee under this
Section 2 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 Indemnitee shall be
indemnified only for that portion of the Losses incurred in such action,
suit or proceeding which relates to the matters for which indemnification
can be made.
9
(f) Expenses. Expenses incurred in defending a threatened or
pending civil, administrative or criminal action, suit or proceeding
against an Indemnitee shall be paid in advance of the final disposition of
such action, suit or proceeding if (i) the legal action, suit or
proceeding, if sustained, would entitle the Indemnitee to indemnification
pursuant to the terms of this Section 2, and (ii) the Indemnitee undertakes
to repay the advanced funds in cases in which the Indemnitee is not
entitled to indemnification pursuant to the preceding paragraph, and (iii)
in the case of advancement of expenses, the Indemnitee receives a written
opinion of mutually acceptable independent legal counsel that advancing
such expenses is proper in the circumstances.
3. Advisor Independence.
(a) Independent Contractor. The Advisor shall for all purposes
herein be deemed to be an independent contractor with respect to the Trust,
the Managing Owner and each Other Advisor and shall, unless otherwise
expressly authorized, have no authority to act for or to represent the
Trust, the Managing Owner, any Other Advisor or Prudential Securities in
any way or otherwise be deemed to be a general agent, joint venturer or
partner of the Trust, the Managing Owner, any Other Advisor or Prudential
Securities or in any way be responsible for the acts or omissions of the
Trust, the Managing Owner, any Other Advisor or Prudential Securities as
long as it is acting independently of such persons. The parties
acknowledge that the Advisor has not been an organizer or promoter of the
Trust and has no responsibility and shall not be subject to liability in
connection therewith.
(b) Unauthorized Activities. Without limiting the obligations
of the Trust set forth under this Agreement, nothing herein contained shall
be deemed to require the Trust to
10
take any action contrary to the Trust Agreement, Certificate of Trust, or
any applicable statute, regulation or rule of any exchange or self-regulatory
organization.
(c) Confidentiality. The Trust and the Managing Owner
acknowledge that the Advisor's Trading Approach is its confidential
property. Nothing in this Agreement shall require the Advisor to disclose
the confidential or proprietary details of its Trading Approach. The Trust
and the Managing Owner further agree that they will keep confidential and
will not disseminate the Advisor's trading advice to the Trust, except as,
and to the extent that, it may be determined by the Managing Owner to be
(i) reasonably necessary for the monitoring of the business of the Trust,
including the performance of brokerage services by the Trust's commodity
broker(s), or (ii) expressly required by law or regulation.
4. Commodity Broker. All Commodities traded for the account
of the Trust shall be made through such commodity broker or brokers, or
counterparty or counterparties, as the Managing Owner directs or otherwise
in accordance with such order execution procedures as are agreed upon
between the Advisor and the Managing Owner. Except as set forth below, the
Advisor shall not have any authority or responsibility in selecting or
supervising any floor brokers or counterparties for execution of
Commodities trades of the Trust or for negotiating floor brokerage
commission rates or other compensation to be charged therefor. The Advisor
shall not be responsible for determining that any such broker or
counterparty used in connection with any Commodities transactions meets the
financial requirements or standards imposed by the Trust's Trading Policies
and Limitations. At the present time, it is contemplated that the Trust
will execute and clear all Commodities trades through Prudential Securities
and its affiliates. The Advisor may, however, with the
11
consent of the Managing Owner, such consent not to be unreasonably
withheld, execute transactions at such other firm(s) and upon such terms and
conditions as the Advisor and the Managing Owner agree if such firm(s)
agree to "give up" all such transactions to Prudential Securities for
clearance. To the extent that the Trust determines to utilize a broker or
counterparty other than Prudential Securities, it will consult with the
Advisor prior to directing it to utilize such broker or counterparty
and will not retain the services of such firm over the reasonable objection
of the Advisor.
5. Fees. In consideration of and in compensation for the
performance of the Advisor's services under this Agreement, the Advisor
shall receive from the Trust:
(a) Management Fee. A monthly management fee (the "Management
Fee") equal to 1/6 of 1% (approximately 2% annually) of the Allocated
Assets as of the last day of each calendar month. For purposes of
determining such Management Fee, any distributions and redemptions
allocable to the Advisor made as of the last day of such month shall be
added back to the Net Asset Value and there shall be no reduction for (i)
the accrued Management Fee being calculated, or (ii) any accrued but unpaid
incentive fees due the Advisor under paragraph (c) below accrued as of the
last day of such month or (iii) any reallocation of assets as of the last
day of such month, or (iv) any accrued but unpaid extraordinary expenses
unrelated to the Allocated Assets. The Management Fee for any month in
which the Advisor manages all or any portion of the Allocated Assets for
less than a full month shall be prorated, such proration to be calculated
on the basis of the number of days in the month the Allocated Assets were
under the Advisor's management as compared to the total number of days in
such month, such proration to include appropriate adjustments for any funds
taken away from the
12
Advisor's management during the month. Management fees paid pursuant to
this Section are non-refundable.
(b) Calculating the Incentive Fee. For the purposes of
calculating incentive fees under section (c) below, only the (i)
Management Fee paid to the Advisor shall be deducted from the Allocated
Assets, (ii) together with brokerage commissions attributable to the
Advisor's trading activities, (iii) general administrative charges
attributable to the Allocated Assets, and (iv) extraordinary expenses, if
any, attributable to the Advisor.
(c) Incentive Fee. A quarterly Incentive Fee shall be paid to
the Advisor of twenty percent (20%) of New High Net Trading Profits (as
hereinafter defined) achieved on the Allocated Assets, including realized
and unrealized gains and losses thereon. New High Net Trading Profits for
the Advisor shall be computed as of the close of trading on the last day of
each calendar quarter. The first Incentive Fee which may be due and owing
to the Advisor in respect of any New High Net Trading Profits shall be
computed as of the end of the first calendar quarter during which the
Advisor managed the Allocated Assets for at least 45 days. New High Net
Trading Profits shall be computed solely on the performance of the Advisor
and shall not include or be affected by the performance of any Other
Advisor.
"New High Net Trading Profits" (for purposes of calculating the
Advisor's Incentive Fee only) for each calendar quarter is defined as
the excess (if any) of (A) the Allocated Assets, including realized
and unrealized gains and losses thereon, as of the last day of the
most recent calendar quarter, after deduction of Management Fees paid
or payable in respect of such Allocated Assets as of the last day of
such quarter but before deduction of Incentive Fees for such quarter,
minus (B) the Allocated
13
Assets, including realized and unrealized gains and losses thereon, as of
the last day of the most recent preceding calendar quarter for which an
Incentive Fee in respect of such Allocated Assets was earned (or, subject
to the last paragraph of this Section (c), the effective date of this
Agreement, whichever date the Allocated Assets were greater), after
deduction of Management Fees and Incentive Fees, paid or payable in respect
of such Allocated Assets for such prior quarter. In computing New High
Net Trading Profits, the difference between (A) and (B) in the
preceding sentence shall be (i) decreased by (1) all additions to the
Allocated Assets and reallocations of assets to the Advisor from
Other Advisors between the dates referred to in (A) and (B) and (2)
all interest earned on the Allocated Assets between the dates
referred to in (A) and (B), and (ii) increased by (1) the Advisor's
Allocable Portion (as defined below) of any distributions or
redemptions paid or payable by the Trust as of, or subsequent to, the
date in (B) through the date in (A), (2) losses incurred between the
dates referred to in (A) and (B), if any, associated with the
Advisor's Allocable Portion of distributions or redemptions as well
as losses associated with negative reallocations in the event the
Trust retains Other Advisors, (3) any reallocations of assets away
from the Advisor between the dates referred to in (A) and (B), and
(4) extraordinary expenses not related to the Advisor from the date
in (B) to the last day of the calendar quarter as of which the
current Incentive Fee calculation is made. The term "extraordinary
expenses" as used in this Agreement shall have the same meaning
ascribed to it under Section 4.7 of the Trust Agreement. Initially,
the Advisor's "Allocable Portion" of distributions and redemptions
shall be an amount which bears the same ratio as the Net Asset Value
of the Allocated Assets bears to the Trust's total
14
Net Asset Value as of the date of the allocation. The loss adjustment
referred to in clause (ii)(2) above shall be calculated by determining any
cumulative net trading loss being carried forward as of the date of
such redemption or reallocation of assets away from the Advisor and
multiplying this cumulative loss by a fraction, the numerator of
which is the aggregate Net Asset Value of the Interests redeemed or
the Net Asset Value of any reallocation of assets away from the
Advisor at the end of such quarter and the denominator of which is
the Net Asset Value of the Allocated Assets at the end of such
quarter but before redemptions or reallocation of assets either to or
from the Advisor. If any redemption or reallocation of assets away
from the Advisor occurs as of any date which is not the end of a
calendar quarter, and the Trust's account has a cumulative loss, the
above calculation will be prepared and a loss carryforward adjustment
will be made; to the extent that as of such date, New High Net
Trading Profits have been achieved, the Advisor will receive an
Incentive Fee thereon as if such redemption or reallocation of assets
away from the Advisor occurred as of the end of a quarter. For
purposes of calculating the first Incentive Fee payable to the
Advisor the date referred to in (B) shall be the effective date of
this Agreement.
(d) Timing of Payments. Monthly Management Fees and quarterly
Incentive Fees shall be paid within fifteen (15) business days following
the end of the period for which they are payable. If an Incentive Fee
shall have been paid by the Trust to the Advisor in respect of any calendar
quarter and the Advisor shall incur subsequent losses on the Allocated
Assets, the Advisor shall nevertheless be entitled to retain amounts
previously paid to it in respect of New High Net Trading Profits.
15
(e) Fee Data. The Managing Owner will provide the Advisor with
the data used by the Managing Owner to compute the foregoing fees including
a statement of the actual execution costs attributable to the Allocated
Assets generally within 15 business days of the end of the relevant period.
(f) Third Party Payments. Neither the Advisor nor any of its
officers, directors, employees or shareholders shall receive any
commissions, compensation, remuneration or payments whatsoever from any
broker with which the Trust carries an account for transactions executed in
the Trust's account. The parties acknowledge that a spouse of any of the
foregoing persons may receive floor brokerage commissions in respect of
trades effected pursuant to the Advisor's Trading Approach on behalf of the
Trust, which payment shall not violate the preceding sentence.
6. Term and Termination.
(a) Term. This Agreement shall commence on the date hereof
and, unless sooner terminated, shall continue in effect until the close of
business on December 31, 2003. Thereafter, this Agreement shall be renewed
automatically on the same terms and conditions set forth herein for
additional successive twelve (12) month terms, each of which shall commence
on the first day of the month subsequent to the conclusion of the preceding
twelve (12) month term, unless this Agreement is terminated pursuant to
paragraphs (b), (c) or (d) of this Section 6. The automatic renewal(s) set
forth in the preceding sentence hereof shall not be affected by (i) any
reallocation of Trust's Net Asset Value away from the Advisor pursuant to
Section 1(h) of this Agreement, or (ii) the retention of Other Advisors
following a reallocation, or otherwise.
16
(b) Automatic Termination. This Agreement shall terminate
automatically in the event that the Trust is terminated. This Agreement
shall terminate automatically with respect to the Advisor, upon notice from
the Managing Owner, without affecting the continuation of this Agreement
with any Other Advisor, in the event that the Advisor's allocable
percentage of the Trust's Net Asset Value at the close of trading on any
business day is equal to or less than the Termination Amount. The
"Termination Amount" shall be an amount equal to 66-2/3% of the Allocated
Assets on the date the Advisor commences Commodities trading activities for
the Trust, or the first day of any calendar year, whichever day the Net
Asset Value allocated to the Advisor is higher, in either case, as adjusted
on an ongoing basis by the percentage decline(s) or increases in that
portion of the Trust's Net Asset Value allocated to the Advisor's
management caused by distributions, redemptions and permitted
reallocations, and new allocations to the Advisor covered by reallocations
away from Other Advisors, respectively. Each redemption and distribution
of funds shall have the effect of reducing the Termination Amount by an
amount equal to the portion of such redemption or distribution allocable to
the Advisor. Reallocations of funds away from the Advisor shall reduce,
and additional allocations to the Advisor shall increase, the Termination
Amount dollar for dollar.
(c) Optional Termination Right of Trust. This Agreement may
be terminated at any time in the sole discretion of the Managing Owner upon
at least one business day prior written notice to the Advisor. The
Managing Owner will use its best efforts to cause any such termination to
occur as of a month-end.
17
(d) Optional Termination Right of Advisor. The Advisor shall
have the right to terminate this Agreement (1) upon written notice to the
Managing Owner at least thirty (30) days' prior to the end of this
Agreement; and (2) upon thirty (30) days' prior written notice to the
Managing Owner in the event (i) of the receipt by the Advisor of an opinion
of independent counsel satisfactory to the Advisor and the Trust that by
reason of the Advisor's activities with respect to the Trust, the Advisor
is required to register as an investment adviser under the Investment
Advisers Act of 1940; (ii) that the registration of the Managing Owner as a
commodity pool operator under the CE Act, or its NFA membership as a
commodity pool operator is revoked, suspended, terminated or not renewed;
(iii) the Managing Owner imposes additional trading limitation(s) pursuant
to Section 1 of this Agreement which the Advisor does not agree to follow
in its management of the Trust's Net Asset Value or the Managing Owner
overrides a trading instruction of the Advisor or does not consent to a
material change to the Trading Approach requested by the Managing Owner;
(iv) if the Allocated Assets decreases, for any reason other than trading
losses, to less than $1,000,000; (v) the Managing Owner elects (pursuant to
Section 1 of this Agreement) to have the Advisor use a different Trading
Approach in the Advisor's management of Trust assets from that which the
Advisor is then using to manage such assets and the Advisor objects to
using such different Trading Approach; (vi) there is an unauthorized
assignment of this Agreement by the Trust or the Managing Owner; (vii)
there is a material breach of this Agreement by the Trust and/or the
Managing Owner and after giving written notice to the Managing Owner which
identifies such breach, such material breach has not been cured within ten
days following receipt of such notice by the Managing Owner; (viii) an
Other Advisor is allocated a portion of the
18
Allocated Assets; or (ix) other good cause is shown and the written
consent of the Managing Owner is obtained (which shall not be withheld
unreasonably).
(e) In the event that this Agreement is terminated pursuant to
subparagraphs (b), (c) or (d) of this Section 6, the Advisor shall be
entitled to, and the Trust shall pay, the Management Fee and the Incentive
Fee, if any, which shall be computed (A) with respect to the Management
Fee, on a pro rata basis, based upon the portion of the month for which the
Advisor had its portion of the Trust's Net Asset Value under management,
and (B) with respect to the Incentive Fee, if any, as if the effective date
of termination was the last day of the then current calendar quarter. The
rights of the Advisor to fees earned through the earlier to occur of the
date of expiration or termination of this Agreement shall survive this
Agreement until satisfied.
(f) Termination and Open Positions. Once terminated, the
Advisor shall have no responsibility for existing positions, including
delivery issues, if any, which may result from such positions.
7. Liquidation of Positions.
The Advisor agrees to liquidate open positions in the amount
that the Managing Owner informs the Advisor, in writing via facsimile or
other equivalent means, that the Managing Owner considers necessary or
advisable to liquidate in order to (i) effect any reallocation or
termination pursuant to Sections 1(h) or 6, respectively, or (ii) fund its
pro rata share of any redemption, distribution or Trust expense. The
Managing Owner shall not, however, have authority to instruct the Advisor
as to which specific open positions to liquidate, except as provided in
Section 1 hereof. The Managing Owner shall provide the
19
Advisor with such reasonable prior notice of such liquidation as is practicable
under the circumstances and will endeavor to provide at least three (3)
business days' prior notice. In the event that losses incurred by the Advisor
exceed the assets allocated to the Advisor, the Managing Owner will
withdraw the funds necessary to cover such excess losses pro rata from the
assets under the management of all Other Advisors.
8. Other Accounts of the Advisor.
(a) Management of Other Accounts and Trading of Proprietary
Capital. Subject to paragraph (b) of this Section 8, the Advisor shall be
free to (i) manage and trade accounts for other investors (including other
public and private commodity pools), and (ii) trade for its own account,
and for the accounts of its partners, shareholders, directors, officers and
employees, as applicable, using the same or other information and Trading
Approach utilized in the performance of services for the Trust, so long as
in the Advisor's reasonable judgment the aggregate amount of capital being
managed or traded by the Adviser does not (i) materially impair the
Advisor's ability to carry out its obligations and duties to the Trust
pursuant to this Agreement or (ii) create a reasonable likelihood of the
Advisor having to modify materially its agreed upon Trading Approach being
used for the Trust in a manner which might reasonably be expected to have a
material adverse effect on the Trust. The aggregate amount of capital
referred to in the preceding sentence hereinafter shall be called
"Advisor's Capacity," and currently is estimated by the Advisor to be $1.5
billion with respect to the Trading Approach. The Advisor shall not be
required to accept capital from the Trust without approval of the Advisor.
20
(b) Acceptance of Non-Trust Capital. So long as the Advisor is
performing services for the Trust, it agrees that it will not manage or
trade funds which exceed the Advisor's Capacity. Without limiting the
generality of the foregoing, it is understood that this paragraph shall not
prohibit routine adjustments to trading patterns in order to comply with
speculative position limits or daily trading limits. The Advisor agrees to
notify the Managing Owner when the Advisor's Capacity is likely to be
reached.
(c) Equitable Treatment of Accounts. The Advisor agrees, in its
management of accounts other than the account of the Trust, that it will
not knowingly or deliberately favor any other account managed or controlled
by it or any of its principals or affiliates (in whole or in part) over the
Trust. The preceding sentence shall not be interpreted to preclude inter
alia (i) the Advisor from charging another client fees which differ from
the fees to be paid to it hereunder, or (ii) an adjustment by the Advisor
in the implementation of any agreed upon Trading Approach in accordance
with the procedures set forth in Section 1 hereof, which is undertaken by
the Advisor in good faith in order to accommodate additional accounts.
Notwithstanding the foregoing, the Advisor also shall not be deemed to be
favoring another commodity interest account over the Trust's account if the
Advisor, in accordance with specific instructions of the owner of such
account, shall trade such account at a degree of leverage or in accordance
with trading policies which shall be different from that which would
normally be applied or if the Advisor, in accordance with the Advisor's
money management principles, shall not trade certain commodity interest
contracts for an account based on the amount of equity in such account.
The Advisor, upon reasonable request and receipt of adequate assurances of
confidentiality, shall provide the Managing Owner with an explanation of
the differences, if any, in performance between the Trust and any other
similar
21
account pursuant to the same Trading Approach for which the Advisor
or any of its principals or affiliates acts as a commodity trading advisor
(in whole or in part), provided, however, that the Advisor may, in its
discretion, withhold from any such inspection the identity of the client
for whom any such account is maintained.
(d) Inspection of Records. Upon reasonable request of and upon
reasonable notice from the Managing Owner, the Advisor shall permit the
Managing Owner to review at the Advisor's offices during normal business
hours such trading records as it reasonably may request for the purpose of
confirming that the Trust has been treated equitably with respect to advice
rendered during the term of this Agreement by the Advisor for other
accounts managed by the Advisor, which the parties acknowledge to mean that
the Managing Owner may inspect, subject to such restrictions as the Advisor
may reasonably deem necessary or advisable so as to preserve the
confidentiality of proprietary information and the identity of its clients,
all trading records of the Advisor as it reasonably may request during
normal business hours. The Advisor may, in its discretion, withhold from
any such report or inspection the identity of the client for whom any such
account is maintained and in any event, the Trust and the Managing Owner
shall keep all such information obtained by them from the Advisor
confidential, unless disclosure thereof legally is required or has been
made public. Such right will terminate one year after the termination of
this Agreement and does not permit access to computer programs, records, or
other information used in determining trading decisions..
9. Speculative Position Limits. If, at any time during the
term of this Agreement, it appears to the Advisor that it may be required
to aggregate the Trust's Commodities positions with the positions of any
other accounts it owns or controls for
22
purposes of applying the speculative position limits of the Commodity
Futures Trading Commission (the "CFTC"), any exchange, self-regulatory
body, or governmental authority, the Advisor promptly will notify
the Managing Owner if the Trust's positions under its management
are included in an aggregate amount which equals or exceeds one
hundred percent (100%) of the applicable speculative limit. The Advisor
agrees that if its trading recommendations pursuant to its agreed upon
Trading Approach are altered because of the potential application of
speculative position limits, the Advisor will modify its trading
instructions to the Trust and its other accounts in a good faith effort to
achieve an equitable treatment of all accounts; to wit, the Advisor will
liquidate Commodities positions and/or limit the taking of new positions in
all accounts it manages, including the Trust, as nearly as possible in
proportion to the assets available for trading of the respective accounts
to the extent necessary to comply with applicable speculative position
limits. The Advisor presently believes that its Trading Approach for the
management of the Trust's account can be implemented for the benefit of the
Trust notwithstanding the possibility that, from time to time, speculative
position limits may become applicable.
10. Redemptions, Distributions and Reallocations.
(a) Notice. The Managing Owner agrees to give the Advisor at
least one business day prior notice of any proposed redemptions, exchanges,
distributions, reallocations, additional allocations or withdrawals
affecting the Allocated Assets.
(b) Allocations. Redemptions, exchanges, withdrawals and
distributions shall be charged against the various Trust accounts managed
by its trading advisors, including the
23
Advisor, in such proportions as the Managing Owner, in its discretion,
determines to be in the Trust's best interests.
11. Brokerage Confirmations and Reports. The Managing Owner
will instruct the Trust's brokers and counterparties to furnish the Advisor
with copies of all trade confirmations, daily equity runs and monthly
trading statements relating to the Allocated Assets. The Advisor will
maintain records and will monitor all open positions relating thereto;
provided, however, that the Advisor shall not be responsible for any errors
by the Trust's brokers or counterparties. The Managing Owner also will
furnish the Advisor with a copy of the form of all reports, including but
not limited to, monthly, quarterly and annual reports, sent to the Limited
Owners and copies of all reports filed with the SEC, the CFTC and the NFA.
The Advisor shall, at the Managing Owner's request, make a good faith
effort to provide the Managing Owner with copies of all trade confirmations
(if the clearing broker is other than Prudential Securities), daily equity
runs, monthly trading reports or other reports sent to the Advisor by the
Trust's commodity broker regarding the Trust and in the Advisor's
possession or control as the Managing Owner deems appropriate if the
Managing Owner cannot obtain such copies on its own behalf. Upon request,
the Managing Owner will provide the Advisor with accurate information with
respect to the Trust's then current Net Asset Value and Net Asset Value per
Interest.
12. The Advisor's Representations and Warranties. The
Advisor represents and warrants that:
(a) It has full capacity and authority to enter into this
Agreement, and to provide the services required of it hereunder;
24
(b) It will not by entering into this Agreement and by acting
as a commodity trading advisor to the Trust, (i) be required to take any
action contrary to its incorporating or other formation documents or, to
the best of its knowledge, any applicable statute, law or regulation of any
jurisdiction or (ii) breach or cause to be breached, to the best of its
knowledge, any undertaking, agreement, contract, statute, rule or
regulation to which it is a party or by which it is bound which, in the
case of (i) or (ii), would materially limit or materially adversely affect
its ability to perform its duties under this Agreement;
(c) It is duly registered as a commodity trading advisor
under the CE Act and is a member of the NFA as a commodity trading advisor
and it will maintain and renew such registration and membership during the
term of this Agreement;
(d) A copy of its most recent Commodity Trading Advisor
Disclosure Document, as required by Part 4 of the CFTC's regulations, has
been provided to the Managing Owner on behalf of the Trust in the form of
Exhibit B hereto, and, except as disclosed in such Disclosure Document, all
information in such Disclosure Document (including, but not limited to,
background, performance, trading methods and trading systems) is true,
complete and accurate in all material respects and is in conformity in all
material respects with the provisions of the CE Act including the rules and
regulations thereunder, as well as all rules and regulations of the
National Futures Association;
(e) The Allocated Assets should not, in the reasonable
judgment of the Advisor, result in the Advisor being required to alter its
Trading Approach to a degree which would be expected to have a material
adverse effect on the Trust;
25
(f) Neither the Advisor nor its stockholders, directors,
officers, employees, agents, principals, affiliates nor any of its or
their respective successors or assigns: (i) shall knowingly use or
distribute for any purpose whatsoever any list containing the names and/or
residence addresses of, and/or other information about, the owners of the
Trust; nor (ii) shall solicit any person it or they know is an owner of the
Trust for the purpose of soliciting commodity business from such owner,
unless such owner shall have first contacted the Advisor or is already a
client of the Advisor or a prospective client with which the Advisor has
commenced discussions or is introduced or referred to the Advisor by an
unaffiliated agent other than in violation of clause (i); and
(g) Xxxxxxx X. Xxxxxx devotes, and will continue to devote
during the term of this Agreement, such portion of his time to the trading
activities of, and the conduct of the business of, the Advisor as he shall
reasonably believe is necessary and appropriate.
The within 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 in
any material respect, the Advisor promptly will notify the Trust in writing
thereof.
13. The Managing Owner's Representations and Warranties. The
Managing Owner represents and warrants on behalf of the Trust and itself
that:
(a) It has the full capacity and authority to enter into this
Agreement and to perform its obligations hereunder;
26
(b) It will not, by acting as Managing Owner to the Trust or
by entering into this Agreement, and the Trust will not (i) be required to
take any action contrary to its incorporating or other formation documents
or any applicable statute, law or regulation of any jurisdiction, or (ii)
breach or cause to be breached (A) any undertaking, agreement, contract,
statute, rule or regulation to which it or the Trust is a party or by which
it or the Trust is bound or (B) any order of any court or governmental or
regulatory agency having jurisdiction over it or the Trust, which in the
case of (i) or (ii) would materially limit or materially adversely affect
the performance of its or the Trust's duties under this Agreement;
(c) It is registered as a commodity pool operator under the CE
Act and is a commodity pool operator member in the NFA and will maintain
and renew such registration and membership during the term of this
Agreement;
(d) This Agreement has been duly and validly authorized,
executed and delivered, and is a valid and binding agreement, enforceable
against each of them, in accordance with its terms;
(e) On the date hereof, it is, and during the term of this
Agreement, it will be (i) in the case of the Trust, a duly formed and
validly existing Delaware Business Trust and (ii) in the case of the
Managing Owner, a duly formed and validly existing corporation, in each
case, in good standing under the laws of the State of Delaware, and in good
standing and qualified to do business in each jurisdiction in which the
nature and conduct of its business requires such qualification and where
the failure to be so qualified would materially adversely affect its
ability to perform its obligations under this Agreement; and
27
(g) All authorizations, consents or orders of any court, or
of any federal, state or other governmental or regulatory agency or body
required for the valid authorization, issuance, offer and sale of the
Trust's Interests were obtained, and, to the best of its knowledge, after
due inquiry no order preventing or suspending the use of the Prospectus
with respect to the Interests was issued by the SEC, the CFTC or the NFA.
The Trust's Registration Statement and Prospectus contained all statements
which were required to be made therein, conformed in all material respects
with the requirements of the Securities Act of 1933, as amended and the CE
Act, and the rules and regulations of the SEC and the CFTC, respectively,
thereunder, and with the rules of the NFA, and did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein (with respect
to the Prospectus, in light of the circumstances in which they were made)
not misleading; 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 to the Managing Owner, the Trust or
to Prudential Securities by or on behalf of the Advisor specifically for
use in the Registration Statement or Prospectus, supplement thereto, or
monthly report; and
(h) The Trust's offering of its Interests has terminated and
there are not currently, and will not be in the future, any offering
materials in use by the Trust or the Managing Owner in connection with the
offer or sale of Interests in the Trust.
The within 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
28
make any of the foregoing not true in any material respect, the Managing
Owner promptly will notify the Advisor in writing.
14. Assignment. This Agreement may not be assigned by any of
the parties hereto without the express prior written consent of the other
parties hereto, except that the Advisor need not obtain the consent of any
Other Advisor.
15. Successors. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and the successors and permitted
assignees of each of them, and no other person (except as otherwise
provided herein) shall have any right or obligation under this Agreement.
The terms "successors" and "assignees" shall not include any purchasers, as
such, of Interests.
16. Amendment or Modification. This Agreement may not be
amended or modified except by the written consent of the parties hereto.
17. Notices. Except as otherwise provided herein, all
notices required to be delivered under this Agreement shall be effective
only if in writing and shall be deemed given by the party required to
provide notice when received by the party to whom notice is required to be
given and shall be delivered personally or by registered mail, postage
prepaid, return receipt requested, or by facsimile, as follows (or to such
other address as the party entitled to notice shall hereafter designate by
written notice to the other parties):
If to the Managing Owner:
Prudential Securities Futures Management Inc.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
29
If to the Trust:
Prudential Securities Strategic Trust
c/o Securities Futures Management Inc.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
and in either case with a copy to:
Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
and, with respect to legal notices, a copy to:
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
If to the Advisor:
Xxxxxx Capital Management, L.P.
Stamford Harbor Park
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to
Xxxxxx Capital Management, L.P.
Stamford Harbor Park
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
30
18. Governing Law. Each party agrees that this Agreement
shall be governed by and construed in accordance with the laws of the State
of New York without regard to the conflict of laws principles thereof.
19. Survival. The provisions of this Agreement shall survive
the termination of this Agreement with respect to any matter arising while
this Agreement was in effect.
20. Disclosure Document Modifications. The Advisor shall
promptly furnish the Managing Owner with a copy of all modifications to its
Disclosure Document when available for distribution. Upon receipt of any
modified Disclosure Document by the Managing Owner, the Managing Owner will
provide the Advisor with an acknowledgement of receipt thereof.
21. Promotional Literature. Each party agrees that prior to
using any promotional or other material in which reference to the other
parties hereto is made, it shall furnish in advance a copy of such
information to the other parties and will not make use of any promotional
literature containing references to such other parties to which such other
parties object, except as otherwise required by law or regulation.
22. No Waiver. No failure or delay on the part of any party
hereto in exercising any right, power or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such
right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. Any waiver granted
hereunder must be in writing and shall be valid only in the specific
instance in which given.
31
23. No Liability of Limited Owners. This Agreement has been
made and executed by and on behalf of the Trust, and the obligations of the
Trust and/or the Managing Owner set forth herein are not binding upon any
of the Limited Owners individually, but rather, are binding only upon the
assets and property of the Trust, and, to the extent provided herein, upon
the assets and property of the Managing Owner.
24. Headings. Headings to sections herein are for the
convenience of the parties only, and are not intended to be or to affect
the meaning or interpretation of this Agreement.
25. Complete Agreement. Except as otherwise provided herein,
this Agreement constitutes the entire agreement between the parties with
respect to the matters referred to herein, and no other agreement, verbal
or otherwise, shall be binding upon the parties hereto.
26. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of
which, when taken together, shall constitute one original instrument.
27. Arbitration, Remedies. Each party hereto agrees that any
dispute relating to the subject matter of this Agreement shall be settled
and determined by arbitration in the City of New York pursuant to the rules
of the NFA or, if the NFA should refuse to accept the matter, the American
Arbitration Association.
32
IN WITNESS WHEREOF, this Agreement has been executed for and on
behalf of the undersigned.
PRUDENTIAL SECURITIES STRATEGIC TRUST
By: PRUDENTIAL SECURITIES FUTURES
MANAGEMENT INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx, President
PRUDENTIAL SECURITIES FUTURES
MANAGEMENT INC.
By: /s/ Xxx X. Xxxxxxxx
-----------------------------------
Xxx X. Xxxxxxxx, Director
XXXXXX CAPITAL MANAGEMENT, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx, Chairman
33
EXHIBIT A
"Net Asset Value" of the Trust's assets includes, but is not limited
to, all cash and cash equivalents (valued at cost plus accrued interest and
amortization of original issue discount) less total liabilities, of the
Trust, each determined on the basis of generally accepted accounting
principles in the United States, consistently applied under the accrual
method of accounting ("GAAP"), including, but not limited to, the extent
specifically set forth below:
(a) Net Asset Value shall include any unrealized profit or
loss on open Commodities Positions, and any other credit or
debit accruing to the Trust but unpaid or not received by the
Trust.
(b) All open commodity futures contracts and options traded
on a United States exchange are calculated at their then
current market value, which shall be based upon the settlement
price for that particular commodity futures contract and option
traded on the applicable United States exchange on the date
with respect to which Net Asset Value is being determined;
provided, that if a commodity futures contract or option traded
on a United States exchange could not be liquidated on such
day, due to the operation of daily limits or other rules of the
exchange upon which that position is traded or otherwise, the
settlement price on the first subsequent day on which the
position could be liquidated shall be the basis for determining
the market value of such position for such day. The current
market value of all open commodity futures contracts and
options traded on a non-United States exchange shall be based
upon the liquidating value for that particular commodity
futures contract and option traded on the applicable non-United
States exchange on the date with respect to which Net Asset
Value is being determined; provided, that if a commodity
futures contract or option traded on a non-United States
exchange could not be liquidated on such day, due to the
operation of rules of the exchange upon which that position is
traded or otherwise, the liquidating value on the first
subsequent day on which the position could be liquidated shall
be the basis for determining the market value of such position
for such day. The current market value of all open forward
contracts entered into by the Trust shall be the mean between
the last bid and last asked prices quoted by the bank or
financial institution which is a party to the contract on the
date with respect to which Net Asset Value is being determined;
provided, that if such quotations are not available on such
date, the mean between the last bid and asked prices on the
first subsequent day on which such quotations are available
shall be the basis for determining the market value of such
forward contract for such day. The Managing Owner may in its
discretion value any assets of the Trust Estate pursuant to
such other principles as it may deem fair and equitable, so
long as such principles are consistent with normal industry
standards.
(c) Interest earned on the Trust's commodity brokerage
account shall be accrued at least monthly; and
34
(d) The amount of any distribution made pursuant to Article
VI of the Trust Agreement shall be a liability of the Trust
from the day when the distribution is declared until it is
paid.
35
EXHIBIT B
[Attach Most Recent Disclosure Document]
36
EXHIBIT C
Trading Limitations
The Trust will not: (i) engage in pyramiding its Commodities
positions (i.e., the use of unrealized profits on existing positions to
provide margin for the acquisition of additional positions in the same or a
related commodity), but may take into account open trading equity on existing
positions in determining generally whether to acquire additional Commodities
positions; (ii) borrow or loan money (except with respect to the initiation
or maintenance of the Trust's Commodities positions or obtaining lines of
credit for the trading of forward contracts; provided, however, that the
Trust is prohibited from incurring any indebtedness on a non-recourse basis);
(iii) permit rebates or give-ups to be received by the Managing Owner or its
affiliates, or permit the Managing Owner or any affiliate to engage in any
reciprocal business arrangements which would circumvent the foregoing
prohibition; (iv) permit the Advisor to share in any portion of the commodity
brokerage fees paid by the Trust; (v) commingle its assets, except as
permitted by law; or (vi) permit the churning of its commodity accounts.
The Trust will conform in all respects to the rules, regulations
and guidelines of the markets on which its trades are executed.
Trading Policies
----------------
Subject to the foregoing limitations, the Advisor has agreed to
abide by the trading policies of the Trust, which currently are as follows:
(1) Trust funds will generally be invested in contracts which
are traded in sufficient volume to permit taking and liquidating
positions.
(2) Stop or limit orders may, in the Advisor's discretion, be
given with respect to initiating or liquidating positions in
order to seek to limit losses or secure profits. If stop or
limit orders are used, no assurance can be given, however, that
Prudential Securities will be able to liquidate a position at a
specified stop or limit order price, due to either the volatility
of the market or the inability to trade because of market
limitations.
(3) The Advisor generally will not initiate an open position in
a futures contract (other than a cash settlement contract) during
any delivery month in that contract, except when required by
exchange rules, law or exigent market circumstances. This policy
does not apply to forward and cash market transactions.
(4) The Trust may occasionally make or accept delivery of a
commodity, including, without limitation, currencies. The
Advisor also may engage in EFP transactions involving currencies
and metals and other commodities in such volume as may be agreed
upon between the Trust and the Advisor.
(5) The Trust will, from time to time, employ trading techniques
such as spreads, straddles and conversions.
37
(6) The Advisor will not initiate open positions which would
result in net long or short positions requiring margin or premium
for outstanding positions in excess of 15% of the Trust's Net
Asset Value for any one commodity, or in excess of 66 2/3% of the
Trust's Net Asset Value for all Commodities combined. Under
certain market conditions, such as an inability to liquidate open
commodities positions because of daily price fluctuations, the
Managing Owner may be required to commit as margin in excess of
the foregoing limits and in such case the Managing Owner will
cause the Advisor to reduce its open positions to comply with
these limits before initiating new commodities positions.
(7) To the extent the Trust engages in transactions in foreign
currency forward contracts other than with or through Prudential
Securities or its affiliates, the Trust will only engage in such
transactions with or through a bank which as of the end of its
last fiscal year had an aggregate balance in its capital, surplus
and related accounts of at least $100,000,000, as shown by its
published financial statements for such year, and through other
broker-dealer firms with an aggregate balance in its capital,
surplus and related accounts of at least $50,000,000.
The Managing Owner will be responsible for the management of non-
Commodities assets, with the assistance of Prudential Securities or other
affiliates.
38
