Exhibit 10.12
ADVISORY AGREEMENT
ADVISORY AGREEMENT (the "Agreement") dated this 3rd day of
February, 2003, by and among Diversified Futures Trust I, a Delaware
business trust (the "Trust"), Prudential Securities Futures Management
Inc., a Delaware corporation (the "Managing Owner") and Appleton Capital
Management Limited, an Irish company (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 in connection
with the conduct by the Trust of its Commodities trading activities 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
invest and reinvest in Commodities 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. The Advisor's initial allocation shall be $[5] million. 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
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respect to the Allocated Assets, and which the Managing
Owner may allocate to the Advisor in the 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 Appleton 25% Risk Program (the
"Trading Approach") as such trading approach is described in the Advisor's
Disclosure Document dated October 31, 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.
(b) Allocation of Responsibilities. The Managing Owner will
have the responsibility for the management of that portion of the Trust's
Net Asset Value that is 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 its 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
circumstances to the Advisor, may override such trading instruction and the
Advisor shall not be subject to liability
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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 wishes to use a trading method or strategy other than or in
addition to the Trading Approach in connection with trading for the Trust
(including without limitation the deletion of an agreed upon trading method
or strategy or the addition of a trading method or strategy in addition to
the then agreed upon Trading Approach), either in whole or in part, the
Advisor may not do so unless it gives the Managing Owner prior written
notice of its intention to utilize such different trading method or
strategy, and the Managing Owner consents 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 Advisor's Trading Approach, the
addition or deletion of Commodities to or from the Advisor's Trading
Approach, and variations in the leverage principles and policies utilized
by the Advisor 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
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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 reasonable assurances of confidentiality, the
Advisor agrees that it will discuss with the Managing Owner upon request,
subject to adequate assurances of confidentiality, any trading methods or
strategies used by it for trading customer accounts which differ from the
Trading Approach which it uses for the Trust.
(e) Request for Information. The Advisor agrees to provide
the Trust with any reasonable information concerning the Advisor that the
Trust may reasonably request, 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 reasonable judgment, believes may be material to the Trust
relating to the Advisor and its Trading Approach.
(f) Nondisclosure. Nothing contained in this Agreement shall
require the Advisor to disclose what it deems to be proprietary or
confidential information concerning any such trading methods or strategies,
including but not limited to the Trading Approach or the identity of
customers.
(g) 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
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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 Trust of this fact, and shall utilize its reasonable best
efforts to cause the error or discrepancy to be corrected.
(h) Exculpation. The Advisor shall not 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 assigns under this Agreement, except by
reason of the Advisor's (including any employee, director, officer or
shareholder of the Advisor, or any persons who controls the Advisor) acts
or omissions in material breach of this Agreement or due to its or their
misconduct or negligence or by reason of not having acted in good faith or
in the reasonable belief that such actions or omissions were in the best
interests of the Trust; it being understood 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.
2. Indemnification.
(a) The Advisor and each officer, director, shareholder and
employee of the Advisor shall be indemnified by the Trust against any
losses, judgments, liabilities, expenses (including, without limitation,
reasonable attorneys' fees) and amounts paid in settlement of any claims
(collectively "Losses") sustained by the Advisor (i) in connection with
any matter relating to the Trust's Registration Statement No. 53-81534 or
final prospectus, dated September 13, 1994, (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, (ii) in
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connection with any acts or omissions of the Advisor relating to the Advisor's
management of the Allocated Assets from and after the date of this
Agreement, 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 direct result of negligence, willful misconduct or a material breach of
this Agreement on the part of the Advisor, (B) the Advisor and its
employees, officers, directors, shareholders, and each person controlling
the Advisor acted (or omitted to act) in good faith and in a manner
reasonably believed by it and them to be in 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 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) 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) days of its receipt of notice of the proposed settlement.
Notwithstanding the foregoing, the indemnifying party
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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) 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) 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.
(f) Expenses incurred in defending a threatened or pending
civil, administrative or criminal action, suit or proceeding against an
Indemnitee shall be paid in
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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. The Advisor shall for all purposes
herein be deemed to be an independent contractor with respect to the Trust,
the Managing Owner and any other commodity trading advisor (the "Other
Advisor"), and shall, unless otherwise expressly authorized, have no
authority to act for or to represent the Trust, the Managing Owner or any
Other Advisor in any way or otherwise be deemed to be a general agent,
joint venturer or owner of the Trust, the Managing Owner or any Other
Advisor, or in any way be responsible for the acts or omissions of the
Trust, the Managing Owner or any Other Advisor as long as it is acting
independently of such person. 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.
Nothing herein contained shall be deemed to require the Trust
or the Advisor to take any action contrary to the Trust Agreement or the
Advisor's organizational documents, respectively, or any applicable
statute, regulation or rule of any exchange or self-regulatory
organization.
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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, except to the extent required by law or
regulation. 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 trades for the account
of the Trust shall be made through such commodity broker or brokers as the
Managing Owner directs pursuant to such procedures as are mutually agreed
upon. The Advisor shall not have any authority or responsibility in
selecting or supervising any broker for execution of Commodities trades of
the Trust or for negotiating commission rates to be charged therefor. The
Advisor shall not be responsible for determining that any such bank or
broker 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 effect all Commodities trades through Prudential Securities
Incorporated ("Prudential Securities"); provided, however, that the Advisor
may execute transactions at such other broker(s), and upon such terms and
conditions, as the Advisor and the Managing Owner agree if such broker(s)
agree to "give up" all such transactions to Prudential Securities for
clearance and the Managing Owner's consent to the use of such other
executing brokers shall not be unreasonably withheld. To the extent that
the Trust determines
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to utilize a broker or brokers other than Prudential Securities, it will
consult with the Advisor prior to directing it to utilize such broker(s),
and will not retain the services of such broker(s) 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 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. 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 Advisor's management during the month.
(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
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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 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
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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 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
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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.
Notwithstanding any other provision of this Agreement which may
be interpreted to the contrary, in addition to any cumulative losses of the
Trust being carried forward for purposes of calculating the Incentive Fee
("Current Losses"), it is the intent of the parties that $200,000, which is
equal to 100% of the total cumulative losses existing as of the date of
this Agreement attributable to the Allocated Assets and accumulated while
they were under the management of the prior advisor (the "Reallocated
Losses") will be reallocated to the Advisor. Therefore, the full amount of
Current Losses and the Reallocated Losses must be recouped consistent with
the calculations and provisions of this Section 5 before the next Incentive
Fee under this Agreement will be due and owing on any assets allocated to
the Advisor.
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(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.
(e) Neither the Advisor nor any of its employees 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.
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 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 7 of
this Agreement, or (ii) the retention of Other Advisors following a
reallocation, or otherwise.
(b) Automatic Termination. This Agreement shall terminate
automatically in the event that the Trust is terminated. This Agreement
shall terminate automatically with
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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.
(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
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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; (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; or (vii) 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
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to occur of the date of expiration or termination of this Agreement shall
survive this Agreement until satisfied.
7. Additional Allocations, and Reallocations. Subject to
Section 11(a) below, the Trust may (i) allocate additional capital to the
Advisor, (ii) reallocate capital away from the Advisor to one or more Other
Advisors, 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.
8. Liquidation of Positions.
The Advisor agrees to liquidate open positions in the amount
that the Managing Owner informs the Advisor, in writing via facsimile
transmission or other equivalent means, that the Managing Owner considers
necessary or advisable to liquidate in order to (i) effect any termination
or reallocation pursuant to Sections 6 or 7, 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 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.
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9. Other Accounts of the Advisor.
(a) Subject to paragraph (b) of this Section 9, the Advisor
shall be free to manage and trade accounts for other investors (including
other public and private commodity pools) during the term of this Agreement
and to use the same or other information and Trading Approach utilized in
the performance of services for the Trust for such other accounts so long
as the Advisor's ability to carry out its obligations and duties to the
Trust pursuant to this Agreement is not materially impaired thereby.
Furthermore, neither the Advisor nor any shareholder, director, officer or
employee of the Advisor shall cause or permit the Advisor to engage in any
business enterprise, not presently engaged in, which is unrelated to the
giving of Commodities advice or the operation of commodity pools if such
other business will have a material adverse effect on the Advisor's ability
to perform its obligations and duties to the Trust under this Agreement.
In addition, the Advisor and its employees, as applicable, also will be
permitted to trade in Commodities for their own accounts, so long as the
Advisor's ability to carry out its obligations and duties to the Trust is
not materially impaired thereby.
(b) Furthermore, so long as the Advisor is performing services
for the Trust, it agrees that it will not accept additional capital for
management in the Commodities markets if doing so would have a reasonable
likelihood of resulting in 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
(without limiting the generality of the foregoing, it is understood that
this paragraph shall not prohibit the acceptance of additional capital,
which acceptance requires only routine adjustments to trading patterns in
order to comply with speculative position limits or daily trading limits).
19
(c) 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 employees
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. 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 account pursuant to
the same Trading Approach for which the Advisor or any of its affiliates
acts as a commodity trading advisor (in whole or in part), including an
explanation of any performance differences involving any individual trading
program being utilized by the Trust as part of the Trading Approach and any
other client of the Advisor utilizing the same trading program.
(d) 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
20
may request related to such other accounts 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 it from the Advisor confidential.
10. 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 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 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.
21
11. Redemptions, Distributions and Reallocations.
(a) The Managing Owner agrees to give the Advisor at least
three (3) business days' prior notice of any proposed redemptions,
distributions or reallocations.
(b) Redemptions and distributions shall be charged against the
various Trust accounts managed by its trading advisors, including the
Advisor, in such proportions as the Managing Owner, in its discretion,
determines to be in the Trust's best interests.
12. Brokerage Confirmations and Reports. The Managing Owner
will instruct the Trust's commodity broker or brokers to furnish the
Advisor with copies of all trade confirmations, daily equity runs, and
monthly trading statements relating to the Trust's assets under the
management of the Advisor. The Advisor will maintain records and will
monitor all open positions relating thereto; provided, however, that except
as provided in Section 1(g) hereof, the Advisor shall not be responsible
for any brokerage errors. The Managing Owner also will furnish the Advisor
with a copy of all reports, including but not limited to, monthly,
quarterly and annual reports, sent to the owners of the Trust, the
Securities and Exchange Commission ("SEC"), the CFTC and the NFA. The
Advisor shall, at the Managing Owner's request, provide the Managing Owner
with copies of all trade confirmations, 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 Unit.
22
13. The Advisor's Representations and Warranties. The Advisor
represents and warrants that:
(a) It has full corporate capacity and authority to enter
into this Agreement, and to provide the services required of it hereunder;
(b) On the date hereof, it is, and during the term of this
Agreement, it will be a duly formed and validly existing corporation, in
good standing under the laws of the jurisdiction of its organization, 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 the
failure to be so qualified would materially adversely affect its ability to
perform its obligations under this Agreement;
(c) 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 documents, any applicable statute, law
or regulation of any jurisdiction or (ii) breach or cause to be breached
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;
(d) 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, and has complied, and
23
will continue to comply, with all laws, rules and regulations having
application to its business, including but not limited to rules and
regulations promulgated by the CFTC and NFA;
(e) 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 Trust in the form of Exhibit B hereto (and will
continue to be provided as it is updated, modified, or supplemented, as
required by CFTC regulations), 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;
(f) 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;
(g) Neither the Advisor nor its stockholders, directors,
officers, employees, agents, principals or affiliates, nor any of its or
their respective successors or assigns: (i) shall knowingly or deliberately
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);
24
(h) This Agreement has been duly and validly executed and
delivered and is a valid and binding agreement, enforceable against it in
accordance with its terms;
(i) Xxxxx Xxxxx 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; and
(j) There is not pending, or to the best of its knowledge,
threatened or contemplated, any action, suit or proceeding before any court
or arbitration panel, or before or by any governmental, administrative or
self-regulatory body, to which the Advisor or its stockholders, directors,
officers, employees, agents, principals or affiliates is a party, or to
which any of its assets is subject, which might reasonably be expected to
result in any material adverse change in the condition of the Advisor
(financial or otherwise), business or prospects or reasonably might be
expected to affect adversely in any material respect any of the Advisor's
assets or which reasonably might be expected to (A) materially impair the
Advisor's ability to discharge its obligations to the Trust, or (B) result
in a matter which would require disclosure in its Disclosure Document which
has not been so disclosed; and the Advisor has not received any notice of
an investigation by (i) the NFA regarding noncompliance with NFA rules or
the CE Act, (ii) the CFTC regarding noncompliance with the CE Act, or the
rules and regulations thereunder, or (iii) any exchange regarding
noncompliance with the rules of such exchange, which investigation
reasonably might be expected to (1) materially impair its ability to
discharge its obligations to the Trust, or (2) result in a matter which
would require disclosure in its Disclosure Document which has not been so
disclosed;
25
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,
the Advisor promptly will notify the Trust in writing thereof.
14. The Managing Owner's Representations and Warranties. The Managing
Owner represents and warrants on behalf of the Trust and itself that:
(a) It has full corporate and other capacity and authority to
enter into this Agreement;
(b) It will not, by acting as Managing Owner to the Trust or
by entering into this Agreement, (i) be required to take any action
contrary to its incorporating or Trust 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,
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 the Trust or the Managing Owner, 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) The Trust and the Managing Owner have obtained all required
governmental and regulatory licenses, registrations and approvals required
by law as may be necessary to act as described in the Trust's Registration
Statement and Prospectus, including, without limitation, registration as a
commodity pool operator under the CE Act and membership as a commodity pool
operator in the NFA. The Managing Owner will maintain
26
and renew the foregoing registrations, licenses, memberships and approvals,
as appropriate, during the term of this Agreement;
(d) The Trust and the Managing Owner have complied, and will
continue to comply, with all laws, rules and regulations having application
to its or their business, including but not limited to rules and
regulations promulgated by the CFTC and NFA, and there are no actions,
suits or proceedings pending or, to the best of the knowledge of the Trust
or the Managing Owner, threatened against it or them, at law or in equity
or before or by any federal, state, municipal or other governmental or
regulatory department, commission, board, bureau, agency or
instrumentality, or by any commodity or security exchange worldwide in
which an adverse decision would materially and adversely affect the ability
of the Trust or the Managing Owner to comply with, and perform their
obligations under, this Agreement;
(e) 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;
(f) 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 limited 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 the failure to be
so qualified would materially adversely affect its ability to perform its
obligations under this Agreement;
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; and
(h) The Trust's offering of its Interests has terminated and
there are not currently 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 make any of the foregoing not true,
the Managing Owner promptly will notify the Advisor in writing.
15. Assignment. This Agreement may not be assigned by any of
the parties hereto without the express prior written consent of the other
parties hereto.
28
16. Successors. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and the successors and permitted
assigns 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 "assigns" shall not include any purchasers, as such, of
Interests.
17. Amendment or Modification. This Agreement may not be
amended or modified except by the written consent of the parties hereto.
18. 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, by registered mail, postage prepaid, return receipt
requested, or by facsimile transmission, 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
If to the Trust:
Diversified Futures Trust I
c/o Prudential 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:
29
Prudential Financial
000 Xxxxxxxx Xxxxxx, 0XX-0
Xxxxxx, Xxx Xxxxxx
Attention: Xxxxxxxxx Xxx, Esq.
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:
Appleton Capital Management Limited
Dublin Exchange Facility
IFSC
Xxxxxx 0
Ireland
Attention: Xxxxx Xxxxx
Facsimile: x0-000-0-000-0000
With a copy to
Sidley & Austin
Bank Xxx Xxxxx
00 Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
Facsimile: (312) _______________
19. Governing Law. The parties agree that this Agreement
shall be governed by and construed in accordance with the laws of the State
of New York without regard to conflict of laws principles.
20. 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.
30
21. 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.
22. Promotional Literature. The parties agree that prior to
using any promotional or other material in which reference to the other
parties hereto is made (including reports to clients), they shall furnish a
copy of such information to the other parties and will not make use of any
literature containing references to such other parties to which such other
parties object, except as otherwise required by law or regulation.
23. 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.
24. 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.
31
25. 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.
26. 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.
27. 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.
32
IN WITNESS WHEREOF, this Agreement has been executed for and on
behalf of the undersigned.
DIVERSIFIED FUTURES TRUST I
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
---------------
APPLETON CAPITAL MANAGEMENT LIMITED
By: /s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx, an Authorized Person
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 Appleton 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.
(5) The Trust will, from time to time, employ trading techniques
such as spreads, straddles and conversions.
(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
37
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.
(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
