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PRUDENTIAL SECURITIES STRATEGIC TRUST
ADVISORY AGREEMENT
ADVISORY AGREEMENT (the "Agreement") dated as
of the 30th day of June, 2000, 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
Gamma Capital Management, LLC, a Delaware limited
liability 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, forward and options contracts. Physical
commodities may also be traded from time to time. The
foregoing commodities and other 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 retain the Advisor
as a commodity trading advisor to the Trust to manage a
portion of the Trust's Assets; and
WHEREAS, the Advisor's present business
includes the management of Commodities accounts for its
clients; and
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WHEREAS, the Advisor is registered as a
commodity trading advisor under the United States
Commodity Exchange Act, as amended (the "CE Act"), and
is a member of the National Futures Association (the
"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 a portion
of the Trust's Net Asset Value (as defined in Exhibit A
hereto) allocated to the Advisor (the "Allocated
Assets") on the terms and conditions and for the
purposes set forth herein. Initially, the Allocated
Assets will be as set forth in sub-section (i) of this
Section 1. This limited power-of-attorney is a
continuing power, and shall continue in effect with
respect to the Advisor until terminated hereunder. The
Advisor 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
programs, methods, systems, strategies described in
Exhibit B hereto, which the Trust and the Managing
Owner have selected to be utilized by the Advisor in
trading the Allocated Assets (collectively referred to
as the Advisor's "Trading Approach") as, subject to the
trading policies and limitations as set forth in
Exhibit C (the "Trading Policies and Limitations"), as
the same may be modified from time to time and provided
in writing to the
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Advisor. 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. The portion of the
Allocated Assets to be allocated by the Advisor at any
point in time to one or more of the various trading
strategies comprising the Advisor's Trading Approach
will be determined as set forth in Exhibit B hereto, as
it may be amended from time to time, with the consent
of the parties, it being understood that trading gains
and losses automatically will alter the agreed upon
allocations. 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 any portion of the Allocated Assets that
are not invested in Commodities. The Advisor will use
its good faith and 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 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 to the Advisor
appropriate under the circumstances, may override such
trading instruction and shall be responsible therefor.
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 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.
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(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), 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 Advisor's Trading
Approach, 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
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, 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
utilization of forward markets in addition to those
enumerated in the Advisor's Disclosure Document, dated
April 15, 2000 (the "Disclosure Document"),
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attached hereto as Exhibit D, would be deemed a material change
to the Advisor's Trading Approach and prior approval
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.
(f) 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 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.
(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 was made in connection with a trade or that a
trade was made other than in accordance with the
Advisor's
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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.
(h) Liability. 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 the
holders ("Limited Owners") of interests in the Trust
(the "Interests"), 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
incur no liability for trading profits or losses
resulting therefrom provided the Advisor would not
otherwise be liable to the Trust under the terms
hereof.
(i) Initial Allocation, Additional
Allocations, and Reallocations. Initially, the
Allocated Assets will be equal to approximately
$6,665,000 in cash, as of the effective date of this
Agreement. Thereafter, subject to Section 11(a) below,
the Trust may, (A) reallocate capital away from the
Advisor to another commodity trading advisor (an "Other
Advisor"), or (B) reallocate capital to the Advisor
away from an Other Advisor. If the Trust makes any
reallocation pursuant to this Section 1(i), the Trust
will give the Advisor written notice of such change and
the amount of the Allocated Assets after such
reallocation has been effected.
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(j) Delivery of Disclosure Document. The
Advisor agrees to provide to the Managing Owner any
amendment, supplement, or update to the Disclosure
Document attached hereto as Exhibit D.
2. Indemnification.
(a) The Advisor. Subject to the provisions of
Section 3, the Advisor, and each officer, director,
shareholder and employee of the Advisor, and each
person who controls the Advisor, shall be indemnified,
defended, and held harmless by the Trust and the
Managing Owner, from and against any and all claims,
losses, judgments, liabilities, damages, costs,
expenses (including, without limitation, reasonable
investigatory and attorneys' fees) and amounts paid in
settlement of any claims in compliance with the
conditions specified below (collectively, "Losses")
sustained by the Advisor or any of its officers,
directors, shareholders, employees or any person who
controls the Advisor (i) in connection with any acts or
omissions of the Advisor, or any of its officers,
directors, shareholders or employees or any person who
controls the Advisor relating to the Advisor's
management of the Allocated Assets, including in
connection 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 to Allocated
Assets, (ii) as a result of a material breach of this
Agreement by the Trust or the Managing Owner, (iii) in
connection with the offer of Interests pursuant to the
Prospectus, and (iv) activities of the Trust which
occurred prior to the date of this Agreement; provided
that, (i) such Losses were not the result of
negligence, misconduct or a material breach of this
Agreement on the part of the Advisor, or its officers,
directors, shareholders or employees, or any person
controlling the Advisor, (ii) 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
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opposed to the best interests of
the Trust and (iii) any such indemnification 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 directors, officers,
shareholders or employees or any person who controls
the Advisor or (ii) any action or omission to act of
the Advisor or its directors, officers, shareholders or
employees or any person who controls 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) Procedure. 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
approve the amount of the settlement within fifteen
(15) days of receiving such notice (such approval not
to be withheld unreasonably). 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 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.
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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 foregoing provisions for
indemnification shall be applicable with respect to
default judgments or confessions of judgment entered
into by the Indemnitee, with its knowledge, without the
prior consent of the indemnifying party.
(e) Partial Indemnification. 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. Expenses incurred in defending
a threatened or pending civil, administrative or
criminal action, suit or proceeding against an
Indemnitee shall be paid by the indemnifying party 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 to the indemnifying party in cases
in which the Indemnitee is not entitled to
indemnification pursuant to this Section 2, and (iii)
in the case of advancement of expenses by the
indemnifying party, the Indemnitee obtains a written
opinion of mutually acceptable independent legal
counsel that advancing such expenses is proper in the
circumstances.
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3. Obligations of the Trust, the Managing Owner
and the Advisor.
(a) Disclosure. Each of the Trust and the
Managing Owner agrees to cooperate and use its good
faith and best efforts in connection with the taking of
such actions not inconsistent with this Agreement as
the Managing Owner may determine to be necessary or
advisable in order to comply with applicable regulatory
requirements. The Advisor agrees to make all
disclosures regarding itself, its officers and
principals, trading performance, Trading Approach,
customer accounts (other than the names of customers,
unless such disclosure is required by law or
regulation) and other information, as the Managing
Owner may request, in its the reasonable judgment,
necessary in order to manage the Trust and correspond
with the Limited Owners. No description of, or other
information relating to, the Advisor may be distributed
by the Managing Owner without the prior written consent
of the Advisor; provided that, distribution of
performance information relating to Trust or the
Allocated Assets account shall not require consent of
the Advisor.
(b) Advisor Not A Promoter. The parties
acknowledge that the Advisor has not been, either alone
or in conjunction with Prudential Securities
Incorporated ("Prudential Securities") or its
affiliates, an organizer or promoter of the Trust, and
it is not intended by the parties that the Advisor
shall have any liability as such.
4. 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 Other Advisors, and shall, unless otherwise
expressly authorized, have no authority to act for or
to represent the Trust, the Managing Owner or any Other
Advisor or Prudential Securities in any way
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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.
(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 take any action contrary to its
Trust Agreement or Certificate of Trust or any
applicable statute, regulation or rule of any exchange
or self-regulatory organization.
(c) Purchase of Interests. Any of the
Advisor, its principals, and employees may, in its
discretion, purchase Interests in the Trust.
(d) Confidentiality. The Trust and the
Managing Owner acknowledge that the Trading Approach of
the Advisor is the confidential property of the
Advisor. 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) 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.
5. 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 or otherwise as
may be agreed upon in accordance with such order
execution procedures as are agreed upon between the
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Advisor and the Managing Owner. 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 execute and clear all Commodities
trades through Prudential Securities. The Advisor may,
however, with the consent of the Managing Owner,
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. To the extent that the Trust determines 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.
6. 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
monthly management fee (the "Management Fee") and a
semi-annual incentive fee (the "Incentive Fee") based
on the Allocated Assets, as follows:
(a) A Management Fee equal to 1/6 of 1% of the
Allocated Assets determined as of the close of business
on the last day of each calendar month (an annual rate
of 2%). For purposes of determining the Management
Fee, any distributions, redemptions, or reallocation of
the Allocated Assets made as of the last day of a month
shall be added back to Allocated Assets
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and there shall be no reduction for (i)
the accrued Management Fee being calculated,
(ii) any Incentive Fees accrued pursuant to
paragraph 6(b) for purposes of calculating
the Net Asset Value of the Allocated Assets but not
paid because the Incentive Measurement Date was not
reached, or (iii) any accrued but unpaid extraordinary
expenses. The Management Fee determined for any month
in which the Advisor manages 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 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 for reasons other than
distributions or redemptions, including but not limited
to the reduction of Allocated Assets allocated to the
Advisor's management resulting from the payment of
extraordinary expenses or distributions.
(b) A semi-annual Incentive Fee equal to
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 six-month period ending June 30 and
December 31 (each, an "Incentive Measurement Date").
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.
For purposes of computing the Net Asset Value of the
Allocated Assets, the Incentive Fee will accrue
monthly.
"New High Net Trading Profits" (for purposes of
calculating the Advisor's Incentive Fee only) will be
computed as of the Incentive Measurement Date and will
include such profits (as outlined below) since the
Incentive Measurement Date of the most recent preceding
six-month period for which an Incentive Fee was earned
(or, with respect to the first
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Incentive Fee, as of the
commencement of trading by the Advisor) (the "Incentive
Measurement Period"). New High Net Trading Profits for
any Incentive Measurement Period will be the net
profits, if any, from trading of the Allocated Assets
during such period (including (i) realized trading
profit (loss) plus or minus (ii) the change in
unrealized trading profit (loss) on open positions) and
will be calculated after the determination of the
Trust's fixed brokerage fee, the Advisor's Management
Fee, and any extraordinary expenses (e.g., litigation,
costs or damages) paid during an Incentive Measurement
Period which are specifically related to the Advisor,
but before deduction of any Incentive Fees payable
during the Incentive Measurement Period. New High Net
Trading Profits will not include interest earned or
credited on the Allocated Assets. New High Net Trading
Profits will be generated only to the extent that the
Advisor's cumulative New High Net Trading Profits
exceed the highest level of cumulative New High Net
Trading Profits achieved by the Advisor as of a
previous Incentive Measurement Date. Except as set
forth below, net losses from prior six-month periods
must be recouped before New High Net Trading Profits
can again be generated. If a withdrawal or
distribution occurs or if this Agreement is terminated
at any date that is not an Incentive Measurement Date,
the date of the withdrawal or distribution or
termination will be treated as if it were an Incentive
Measurement Date, but any Incentive Fee accrued in
respect of the withdrawn assets on such date shall not
be paid to the Advisor until the next scheduled
Incentive Measurement Date. New High Net Trading
Profits for an Incentive Measurement Period shall
exclude capital contributions to the Allocated Assets
in an Incentive Measurement Period, distributions or
redemptions paid or payable from the Allocated Assets
during an Incentive Measurement Period, as well as
losses, if any, associated with redemptions,
distributions, and reallocations of assets, during the
Incentive Measurement Period and prior to the Incentive
Measurement Date (i.e., to the extent that assets are
allocated away from the Advisor, any loss carryforward
attributable to the Advisor shall be
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reduced in the same proportion that the
assets allocated away from the Advisor
through redemptions, allocations, or deleveraging
caused by the Trust or the Managing Owner
bears to the Allocated Assets prior to the reallocation
and New High Net Trading Profits shall reflect this
reduction in loss carryforward). In calculating New
High Net Trading Profits, incentive fees paid for a
previous Incentive Measurement Period will not reduce
cumulative New High Net Trading Profits in subsequent
periods.
Notwithstanding any other provision of this
Agreement which may be interpreted to the contrary, it
is the intent of the parties that all cumulative losses
existing as of the date of this Agreement which were
accumulated while the Allocated Assets were under the
management of the prior advisor from May 1, 1996 to
February 15, 2000 in the amount of $5,813,299,
must be recouped consistent with the calculations and
provisions of this Section 6 before the first Incentive
Fee under this Agreement will be due and owing.
(c) Timing of Payment. Management Fees and
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 six-
month period 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.
(d) Fee Data. The Advisor will be provided by
the Managing Owner with the data used by the Managing
Owner to compute the foregoing fees within ten (10)
business days of the end of the relevant period.
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(e) Third Party Payments. Neither the
Advisor, nor any of its officers, directors, employees
or stockholders, 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.
7. 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 June
30, 2001. Thereafter, unless this Agreement is
terminated pursuant to paragraphs (b), (c) or (d) of
this Section 7, this Agreement shall be renewed
automatically on the same terms and conditions set
forth herein for successive additional one-year terms,
each of which shall commence on the first day of the
month subsequent to the conclusion of the preceding
twelve (12) month term. Subject to Section 7(d)(iv)
hereof, the automatic renewal(s) set forth in the
preceding sentence hereof shall not be affected by (i)
any reallocation of assets away from the Advisor
pursuant to 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 respect to the Advisor, immediately
upon written 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 Net Asset Value of the Trading Level
of the Allocated Assets at the
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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 portion of the Net Asset Value
of the Allocated Assets on the date it 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.
(c) Optional Termination Right of Trust. This
Agreement may be terminated at any time at the election
of the Managing Owner in its sole discretion upon at
least one business day prior written notice to the
Advisor. The Managing Owner will use its best efforts
to cause any termination to occur as of a month-end.
(d) Optional Termination Right of Advisor. The
Advisor shall have the right to terminate this
Agreement at any time upon written notice to the Trust,
appropriate under the circumstances, in the event: (i)
of the receipt by the Advisor of an opinion of
qualified independent counsel satisfactory to the
Advisor and the Trust (which consent the Trust will not
withhold unreasonably) that by reason of the Advisor's
activities with respect to the Trust it is required to
register as an investment adviser under the Investment
Advisers Act of 1940 and it is not so registered; (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) that the
Managing Owner (A) imposes additional trading
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limitation(s) pursuant to Section 1 of this Agreement
which the Advisor does not agree to follow in its
management of the Allocated Assets or (B) overrides
trading instructions of the Advisor; (iv) if the amount
of the Allocated Assets decreases to less than
$2 million as the result of redemptions, distribution,
reallocation of assets or deleveraging initiated by the
Trust or the Managing Owner but not trading losses, as
of the close of business on the last business day of
any month; (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 and such material
breach has not been cured within ten days following
receipt of such notice by the Managing Owner; or (viii)
other good cause is shown and the written consent of
the Managing Owner is obtained (which shall not be
withheld unreasonably).
(e) Termination Fees. In the event that this
Agreement is terminated with respect to, or by, the
Advisor pursuant to this Section 7 or the Managing
Owner allocates the Trust's assets to Other Advisors,
the Advisor shall be entitled to, and the Trust shall
pay, the Management Fee and the Incentive Fee, if any,
which shall be computed (i) with respect to the
Management Fee, on a pro rata basis, based upon the
portion of the month for which the Advisor had the
Allocated Assets under management, and (ii) with
respect to the Incentive Fee, if any, as if the
effective date of termination was the last day of the
then current calendar year. The rights of the Advisor
to fees earned through the earlier to occur of the date
of expiration or termination shall survive this
Agreement until satisfied.
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(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.
8. Liquidation of Positions.
The Advisor agrees to liquidate open positions
in the amount that the Managing Owner informs the
Advisor, in writing via telecopy 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 1 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) days' prior
notice. In the event that losses incurred by the
Advisor exceed the amount of the Allocated Assets, the
Managing Owner agrees to withdraw the funds necessary
to cover such excess losses pro rata from the assets
under the management of all Other Advisors.
9. Other Accounts of the Advisor.
(a) Management of Other Accounts. Subject to
paragraph (c) 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
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Trust pursuant to this Agreement is not materially impaired
thereby. In addition, the Advisor, and its
shareholders, directors, officers and employees, as
applicable, also will be permitted to trade in
Commodities using the Trading Approach or otherwise for
their own 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.
(b) Acceptance of Additional Capital.
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.
(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
(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
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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 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 the
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 is legally required or such
information has been made public.
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
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accounts it owns or
controls for purposes of applying the speculative
position limits of the Commodity Futures Trading
Commission ("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 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 (including "notional" equity) 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.
11. Redemptions, Distributions, Reallocations and
Additional Allocations.
(a) Notice. The Managing Owner agrees to give
the Advisor at least one (1) business day prior notice
of any proposed redemptions, exchanges, distributions,
reallocations, additional allocations, or withdrawals.
(b) Allocations. Redemptions, exchanges,
withdrawals, and distributions of Interests 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.
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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
Allocated Assets. 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 errors by the Trust's brokers. 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 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.
13. 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;
(b) it is a duly formed and validly existing
limited liability company, in good standing under the
laws of Delaware, and in good standing and qualified to
do business in each
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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 formation documents or 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;
(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
Managing Owner on behalf of the Trust in the form of
Exhibit D hereto (and the Managing Owner acknowledges
receipt of such Disclosure Document on behalf of the
Trust) 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, as amended, including the
rules and regulations thereunder;
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(f) the amount of 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,
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 Limited Owners of
the Trust; nor (ii) shall solicit any person it or they
know is a Limited Owner of the Trust for the purpose of
soliciting commodity business from such Limited Owner,
unless such Limited 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);
(h) this Agreement has been duly and validly
executed and delivered and is a valid and binding
agreement, enforceable against the Advisor in
accordance with its terms;
(i) there is no pending, or to the best of the
Advisor's or any of its officers', directors' or
employees' knowledge, threatened or contemplated
action, suit or proceeding before any court or
arbitration panel, or before or by any governmental,
administrative or self-regulatory body, to which it or
its employees 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 Advisor's condition (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
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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; and
(j) its business operations and any services
provided pursuant to this Agreement will not be
materially interrupted by Year 2000 problems or issues.
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.
14. The Managing Owner's Representations and
Warranties.
The Managing Owner represents and warrants on
behalf of the Trust and itself that:
(a) each has the full capacity and authority
to enter into this Agreement and to perform its
obligations hereunder;
(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
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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 of the NFA, and it 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.
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 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, except that the
Advisor need not obtain the consent of any Other
Advisor.
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16. 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.
17. Amendment or Modification or Waiver.
This Agreement may not be amended or modified,
nor may any of its provisions be waived, except upon
the prior written consent of the parties hereto, except
that an amendment to, a modification of, or a waiver of
any provision of the Agreement as to the Advisor need
not be consented to by any Other Advisor.
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 or by
registered mail, postage prepaid, return receipt
requested, or by telecopy, 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 or the Trust:
c/o Prudential Securities Futures Management Inc.
One New York Plaza, 13th floor
New York, New York 10292-2013
Attention: Eleanor L. Thomas
Facsimile: (212) 778-3694
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and in either case with a copy to:
Rosenman & Colin LLP and Prudential Securities Incorporated
575 Madison Avenue One New York Plaza, 13th Floor
New York, New York 10022 New York, New York 10292-2013
Attention: Fred M. Santo, Esq. Attention: Eleanor L. Thomas
Facsimile: (212) 940-7079 Facsimile: (212) 778-3694
If to the Advisor:
Gamma Capital Management, LLC
401 Theodore Fremd Avenue
Rye, New York 10580
Attention:
Facsimile: (914) 921-7600
190. 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 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.
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.
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22. Promotional Literature.
Each party agrees that prior to using any
promotional literature 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.
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.
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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.
28. 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 NFA or, if NFA should
refuse to accept the matter, the securities rules of
the American Arbitration Association, and that the
decision of the arbitrator shall be final and binding
and a proceeding to enforce any such decision may be
brought in any court having jurisdiction thereof.
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IN WITNESS WHEREOF, this Agreement has been
executed for and on behalf of the undersigned as of the
day and year first above written.
PRUDENTIAL SECURITIES STRATEGIC PRUDENTIAL SECURITIES
TRUST FUTURES MANAGEMENT, INC.
By: PRUDENTIAL SECURITIES
FUTURES MANAGEMENT INC.
Its: Managing Owner By:_______________________
Joseph A. Filicetti
President
By:_____________________________
Eleanor L. Thomas
Executive Vice-President
GAMMA CAPITAL MANAGEMENT, LLC
By: ____________________________
Name:
Title:
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EXHIBIT A
DEFINITION OF "NET ASSET VALUE"
"Net Asset Value" of the assets in the Trust
Estate, 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:
1. 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.
2. 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.
3. Interest earned on the Trust's commodity
brokerage account shall be accrued at least monthly.
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4. 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.
"Trust Estate" means any cash, commodity futures,
forward and option contracts, all funds on deposit in
the Trust's accounts, and any other property held by
the Trust, and all proceeds therefrom, including any
rights of the Trust pursuant to any Subscription
Agreement and any other agreements to which the Trust
is a party.
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EXHIBIT B
TRADING SYSTEM
TRADING SYSTEM OF GAMMA CAPITAL MANAGEMENT, LLC
The Advisor's will make its trading decisions
for the Allocated Assets according to its Gamma
Investment Program as described in Exhibit D as amended
from time to time.
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EXHIBIT C
TRADING LIMITATIONS AND POLICIES
The Trust will observe the trading limitations
and trading policies set forth hereafter. The Advisor
initially will be allocated approximately
$6,665,000 of the Trust's Net Asset Value (the
"Allocated Assets"), which thereafter may be
reallocated to additional commodity trading managers
(but will in no event be reallocated to commodity
trading managers affiliated with Prudential Securities)
whom the Managing Owner may, in its discretion, retain
in the event of the termination of the Advisor or the
reallocation of assets under the Advisor's management
away from the Advisor.
The following limitations and policies are
applicable to the Trust as a whole. The Advisor
sometimes may be prohibited from taking positions for
the Trust which it would otherwise acquire, due to the
need to comply with these limitations and policies.
The Managing Owner will monitor compliance with the
trading limitations and policies of the Trust set forth
below, and it may impose additional restrictions
(through modification of such limitations and policies)
upon the trading activities of the Advisor, as it, in
good faith, deems appropriate in the best interests of
the Trust, subject to the terms of the Advisory
Agreement.
The Managing Owner will not approve a material
change in the following trading limitations and
policies without obtaining the prior written approval
of Limited Owners owning more than 50% of the
Interests. The Managing Owner may, however, impose
additional trading limitations on the trading
activities of the Trust without obtaining such approval
if the Managing Owner determines such additional
limitations to be necessary in the best interests of
the Trust.
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 currency contracts; provided,
however, that the Trust is prohibited from incurring
any indebtedness on a non-recourse basis); (iii) permit
rebates 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.
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Trading Policies
Subject to the foregoing limitations, the Advisor
has agreed to abide by the trading policies of the
Trust as they apply to the Allocated Assets, which
currently are as follows:
a. The Allocated Assets will generally be
invested in contracts which are traded in sufficient
volume to permit taking and liquidating positions.
b. 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.
c. 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.
d. The Advisor 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.
e. The Advisor may, from time to time,
employ trading techniques such as spreads, straddles
and conversions.
f. The Advisor will not initiate open
positions which would result in net long or short
positions requiring as margin or premium for
outstanding positions in excess of 15% of the Allocated
Assets for any one commodity, or in excess of 662/3% of
the Allocated Assets 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.
g. To the extent the Advisor engages in
transactions in forward currency contracts other than
with or through Prudential Securities and/or PBFI, the
Trust will only engage in such transactions with or
through a bank that, 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 capital, surplus and related accounts of at
least $50,000,000.
37
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EXHIBIT D
[ATTACH LATEST DISCLOSURE DOCUMENT]
38
