WORLD MONITOR TRUST
ADVISORY AGREEMENT
ADVISORY AGREEMENT (the "Agreement") dated as of the 21st day of
March, 2000, by and among World Monitor Trust - Series A, a Delaware
business trust (the "Trust"), Prudential Securities Futures Management
Inc., a Delaware corporation (the "Managing Owner")
and Eagle Trading Systems, Inc., a Delaware corporation (the "Advisor").
W I T N E S S E T H :
WHEREAS, the Trust and Series A has been organized primarily for the
purpose of trading, buying, selling, spreading or otherwise acquiring,
holding or disposing of futures, forward and options
contracts. Other transactions also
may be effected from time to time, including among others, those as more
fully identified in Exhibit A hereto. 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 various
Series (as defined below) of the Trust; 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
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, pursuant to an agreement dated March 24, 1998 (the "Initial
Agreement"), the Advisor managed the assets of Series A using its Eagle
Global System and Eagle-FX System from the date of Series A's initial closing
until December 5, 1999, and by mutual consent because of performance related
issues with the Eagle-FX System, solely pursuant to the Eagle Global System
from December 6, 1999 until March 20, 2000; and
WHEREAS, the Initial Agreement was voluntarily terminated by its terms
on March 20, 2000; and
WHEREAS, the Trust and the Advisor desire to enter into this Agreement
in order to set forth the modified terms and conditions upon which the
Advisor will continue to render and implement commodity
advisory services on behalf of the Trust during the term of this Agreement;
NOW, THEREFORE, the parties agree as follows:
1. Duties of the Advisor.
(a) Appointment. The Trust hereby appoints the Advisor, and the
Advisor hereby accepts appointment, as its limited
attorney-in-fact to exercise discretion
to invest and reinvest in Commodities during
the term of this Agreement the portion of the Trust's Net Asset Value (as
defined in the Prospectus) which is comprised of the assets attributable
to the Trust's Series A Interests allocated to the Advisor (the
"Series A Allocated Assets") on the terms and conditions and
for the purposes set forth herein. 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
Series A Allocated Assets for the term of
this Agreement pursuant to the trading programs, methods, systems, strategies
described in Exhibit A hereto, which the Trust and the Managing
Owner have selected to be utilized by the Advisor in
trading the Series A Allocated Assets
(collectively referred to as the Advisor's
"Trading Approach"), subject to the trading
policies and limitations as set forth
in the Trust's Prospectus and attached hereto
as Exhibit B (the "Trading Policies and Limitations"), as the same may
be modified from time to time and provided in writing to the Advisor. The
portion of the Series A 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 A 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 Series A 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 Series A 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 the Prospectus 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) Trading Approach. The Advisor agrees that at least 90% of the
gains and income, if any, generated by its Trading Approach for
Series A will be from buying and selling Commodities, as described
in Exhibit D hereto.
(d) 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.
(e) 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 Exhibit D hereto 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 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 owners of
Series A Interests ("Limited Owners"), or any of their respective
successors or assignees under this Agreement, except by
reason of acts or omissions in material breach of this Agreement or due to
their misconduct or negligence or by reason of their not having acted in good
faith in the reasonable belief that such actions or omissions were in the best
interests of the Trust; it being understood that the Advisor makes no
guarantee of profit nor offers any protection against loss, and that all
purchases and sales of Commodities shall be for the account and risk
of the Trust, and the Advisor shall 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 Series A Allocated Assets will be equal to
the Series A Allocated Assets as of the close of business on March 20, 2000.
Thereafter, subject to Section 12(a) below, the Trust may, (A)
reallocate the Series A Allocated Assets away from the Advisor
to another commodity trading advisor (an "Other Advisor"), or (B)
reallocate the Series A Allocated Assets to the Advisor away from an
Other Advisor in an amount which will not, in the aggregate, cause the assets
allocated to the Advisor by the Managing Owner to exceed $34,000,000.
(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 (i) in connection with any acts or
omissions of the Advisor, or any of its officers, directors or
employees relating to its management of the Series A 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 Series A Allocated Assets and (ii) as a result
of a material breach of this Agreement by the Trust or the
Managing Owner, 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, and its officers, directors, shareholders and
employees, and each 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 opposed to
the best interests of the Trust and (iii) any such
indemnification will only be recoverable from the Series A Allocated
Assets and the assets of the Managing Owner and not
from any other assets of any other Series of the Trust, provided
further, that no indemnification shall be permitted under this Section 2
for amounts paid in settlement if either (A) the
Advisor fails to notify the Trust of the terms of any settlement proposed, at
least fifteen (15) days before any amounts are paid, or (B) the Trust does not
approve the amount of the settlement within fifteen (15) days (such
approval not to be withheld unreasonably). Notwithstanding the
foregoing, the Trust shall, at all times, have the right to offer
to settle any matter with the approval of the Advisor (which
approval shall not be withheld unreasonably) and if the Trust successfully
negotiates a settlement and tenders payment therefor to the party claiming
indemnification (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 Trust 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 Trust 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.
(b) 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 Trust.
(c) Procedure. In the event that an Indemnitee under this Section 2 is
made a party to an action, suit or proceeding alleging both matters for which
indemnification can be made hereunder and matters for which
indemnification may not be made hereunder, such Indemnitee
shall be indemnified only for that portion of the Losses incurred in such
action, suit or proceeding which relates to
the matters for which indemnification can be made.
(d) 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 Trust 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 Advisor undertakes to repay the
advanced funds to the Trust 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 Trust, the Indemnitee obtains a written opinion of
mutually acceptable independent legal counsel that advancing such
expenses is proper in the circumstances.
3. Limits on Claims.
(a) Prohibited Acts. The Advisor agrees that it will not take any of the
following actions against the Trust: (i) seek a decree or order by a court
having jurisdiction in the premises (A) for relief
in respect of the Trust in an involuntary case or proceeding under the
Federal Bankruptcy Code or any other federal or state bankruptcy, insolvency,
reorganization, rehabilitation, liquidation or similar law or (B) adjudging
the Trust a bankrupt or insolvent, or seeking reorganization, rehabilitation,
liquidation, arrangement, adjustment or composition of or in respect of the
Trust under the Federal Bankruptcy Code or
any other applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Trust or of any substantial part
of any of its properties, or ordering the winding up or
liquidation of any of its affairs, or (ii) seek a petition for relief,
reorganization or to take advantage of any law referred to in
the preceding clause or (iii) file an involuntary petition for bankruptcy
(collectively, "Bankruptcy or Insolvency Action").
(b) Limited Assets Available. In addition, the Advisor agrees that for
any obligations due and owing to it by the Trust, the Advisor will look solely
and exclusively to Series A Allocated Assets or
to the assets of the Managing Owner, if it has liability in its capacity as
Managing Owner, to satisfy its claims and will
not seek to attach or otherwise assert a claim against the other assets of
the Trust, whether there is a Bankruptcy or Insolvency Action taken or
otherwise. The parties agree that this provision will survive the
termination of this Agreement, whether terminated in a Bankruptcy
or Insolvency Action or otherwise.
(c) No Limited Owner Liability. This Agreement has been made and
executed by and on behalf of the Trust and the Managing Owner for the
benefit of the Series A Interests 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 are binding only upon
the assets and property identified above and no resort shall be had to the
assets of other Series issued by the Trust or the Limited Owners'
personal property for the satisfaction of any obligation or claim hereunder.
(d) Subordination Agreement. The Advisor agrees and consents (the
"Consent") to look solely to each Series for which brokerage and clearing
services are being performed ("Series A") and assets (the "Series A
Assets") of Series A and to the Managing Owner and its
assets for payment. The Series A
Assets include only those funds and other assets that are paid, held or
distributed to the Trust on account of and for the benefit of the
Series A, including, without limitation, funds delivered to the Trust for
the purchase of interests in Series A. In furtherance of the Consent,
the Advisor agrees that (i) any debts, liabilities, obligations,
indebtedness, expenses and claims of any nature and of all kinds
and descriptions (collectively, "Claims") incurred, contracted for or
otherwise existing arising from, related to or in connection
with the Trust and its assets and Series A and the Series A Assets, shall
be subject to the following limitations:
(1) Subordination of certain claims and rights. (i)
except as set forth below, the Claims, if any, of
the Advisor (the "Subordinated Claims") shall be expressly subordinate and
junior in right of payment to any and all other Claims against the Trust and
any Series thereof, and any of their respective assets, which may arise as a
matter of law or pursuant to any contract; provided, however, that the
Advisor's Claims (if any) against Series A
shall not be considered Subordinated Claims with respect to enforcement
against and distribution and repayment from Series A,
the Series A Assets and the Managing Owner and its assets; and provided
further that the Advisor's valid Claims, if any, against Series A shall be
pari passu and equal in right of repayment and distribution with all other
valid Claims against Series A and (ii)
the Advisor will not take, demand or receive from any Series or the Trust
or any of their
respective assets (other than Series A, the Series A
Assets and the Managing Owner and its assets) any payment
for the Subordinated Claims;
(2) the Claims of the Advisor with respect to Series A
shall only be asserted and enforceable against Series A, the Series A
Assets and the Managing Owner and its assets; and such
Claims shall not be asserted or enforceable for any reason whatsoever against
any other Series, the Trust generally or any of their respective assets;
(3) if the Claims of the Advisor against Series A or
the Trust are secured in whole or in part, the Advisor hereby waives (under
section 1111(b) of the Bankruptcy Code (11 U.S.C. S 1111(b)) any right to have
any deficiency Claims (which deficiency Claims may arise in the event such
security is inadequate to satisfy such Claims) treated
as unsecured Claims against the Trust or any Series (other than Series A), as
the case may be;
(4) in furtherance of the foregoing, if and to the
extent that the Advisor receives monies in connection with the Subordinated
Claims from a Series or the Trust (or their respective assets), other than
Series A, the Series A Assets and the Managing Owner and
its assets, the Advisor shall be deemed to hold such monies in trust and shall
promptly remit such monies to the Series or the Trust that paid such amounts
for distribution by the Series or the Trust in accordance with the terms
hereof; and
(5) the foregoing Consent shall apply at all times
notwithstanding that the Claims are satisfied, and notwithstanding that
the agreements in respect of such Claims are terminated, rescinded or
canceled.
4. Obligations of the Trust, the Managing Owner and the Advisor.
(a) The Registration Statement and Prospectus. Each of the Trust and
the Managing Owner agrees to cooperate and use its good faith, or 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 necessary 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 otherwise as
may be requested, in the reasonable judgment of the Managing
Owner, to be made in order to manage the Trust and correspond with the
Interestholders. 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 Series A's 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.
(c) Representation Agreement. The parties agree that the
Representation Agreement relating to the offering of the
Series A Interests which was executed simultaneous to the
Initial Agreement (a copy of which is attached as Exhibit C)
remains in full force and effect notwithstanding the termination of the
Initial Agreement.
5. Advisor Independence.
(a) Independent Contractor. The Advisor shall for all purposes herein
be deemed to be an independent contractor with respect to the Trust, the
Managing Owner and each other commodity trading advisor that may in the future
provide commodity trading advisory services to the Trust and Prudential
Securities, and shall, unless otherwise expressly authorized,
have no authority to act for or to represent the Trust, the
Managing Owner, any other commodity trading advisor
or Prudential Securities in any way or otherwise be deemed to be a
general agent, joint venturer or partner of the Trust, the Managing Owner, any
other commodity trading advisor or Prudential Securities, or in any way be
responsible for the acts or omissions of the Trust, the
Managing Owner, any other commodity trading 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.
6. 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 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.
7. Fees.
In consideration of and in compensation for the performance of the
Advisor's services under this Agreement, the Advisor
shall receive from Series A a weekly
management fee (the "Management Fee") and a quarterly incentive fee
(the "Incentive Fee") based on Series A 's Allocated Assets, as follows:
(a) A Management Fee equal to 1/52 of 1% of Series A 's Allocated
Assets determined as of the close of business each
Friday (an annual rate of 1%) until
the Net Asset Value per Interest at the close of business on any business
day is at least $80 per Interest for a period of at
least 10 consecutive business days, at
which time the weekly Management Fee will be increased to 1/26 of 1%
(an annual rate of 2%). The sum of the amounts
determined each Friday will be paid monthly. For purposes of determining
the Management Fee, any distributions, redemptions, or reallocation
of the Series A's Allocated Assets
made as of the last Friday of a week shall be added back to Series A's
Allocated Assets and there shall be no reduction for (i)
the accrued Management Fees being calculated, or (ii) any accrued but
unpaid incentive fees due the Advisor under paragraph (b) below
for the quarter in which such fees are being computed, or
(iii) any accrued but unpaid extraordinary expenses (as defined in
the Trust Agreement). The Management Fee determined for any week in
which an Advisor manages Series A's Allocated
Assets for less than a full week shall be
prorated, such proration to be calculated on
the basis of the number of days in
the week Series A Allocated Assets were under
the Advisor's management as compared to the total number of days in such
week, such proration to include appropriate adjustments for any funds taken
away from the Advisor's management during the week for reasons other
than distributions or redemptions, including but not limited to the
reduction of Series A 's Allocated
Assets allocated to the Advisor's management
resulting from the payment of extraordinary expenses or distributions.
(b) An incentive fee of twenty three percent (23%) (the "Incentive
Fee") of "New High Net Trading Profits" (as hereinafter defined) generated on
Series A 's Allocated Assets, including realized and
unrealized gains and losses thereon,
as of the close of business on the last
Friday of each calendar quarter (the
"Incentive Measurement Date"). This fee will
accrue weekly.
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 calendar
quarter for which an incentive fee was earned (or, with respect to the first
Incentive Fee since September 25, 1998,
the last date at which the Advisor earned an incentive fee under the Initial
Agreement (the "Incentive Measurement Period").
New High Net Trading Profits for any Incentive Measurement Period will
be the net profits, if any, from Series A 's trading
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 Series A 's fixed brokerage fee and the
Advisor's weekly Management Fee, and the operating expenses
for which Series A is responsible, 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 Series A 's assets and will be adjusted (either increased or decreased, as
the case may be) to reflect extraordinary expenses (e.g.,
litigation, costs or damages) paid during an Incentive Measurement
Period. 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 quarters (and in the case of the
first incentive fee, from the Initial Agreement) must be recouped before New
High Net Trading Profits can be generated.
If a withdrawal or distribution occurs at any date that is not an Incentive
Measurement Date, the date of the withdrawal or distribution 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 Series A in an
Incentive Measurement Period, distributions or redemptions payable by
Series A during an Incentive Measurement Period, as
well as losses, if any, associated with redemptions during the Incentive
Measurement Period and prior to the Incentive Measurement Date (i.e.,
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 at the date of the termination of
the Initial Agreement must be recouped consistent with the calculations and
provisions of this Agreement 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. The first incentive fee which
may be due and owing to the Advisor
in respect of any New Trading Profits will be
due and owing as of the last Friday
of the first calendar quarter during which
the Trading Advisor managed the
Allocated Assets for at least forty five (45)
days. 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
Series A 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.
(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.
8. 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, 2000. Thereafter, unless this
Agreement is terminated pursuant to
paragraphs (b), (c) or (d) of this Section 8,
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 8(d)(iv) hereof, the
automatic renewal(s) set forth in the
preceding sentence hereof shall not be
affected by (i) any reallocation of the
Series A Allocated 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. In
addition, this Agreement shall terminate automatically in the event that the
Series A Allocated Assets declines as of the end of any business day
by 33 1/3% from the Series A Allocated
Assets (i) as of the first day of this
Agreement, or (ii) as of the first day of any
calendar year, as adjusted on
an ongoing basis by (A) any decline(s) in
the Series A Allocated Assets caused by
distributions, redemptions, permitted
reallocations, and withdrawals, and (B)
additions to the Series A Allocated
Assets caused by additional allocations to
the Advisor's management.
(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 thirty (30) days' 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. This Agreement also may be terminated upon
prior written notice, appropriate
under the circumstances, to the Advisor in
the event that: (A) the Managing
Owner determines in good faith following
consultation appropriate under the
circumstances with the Advisor that the
Advisor is unable to use its agreed
upon Trading Approach to any material extent, as
such Trading Approach may be
refined or modified in the future in
accordance with the terms of this Agreement
for the benefit of the Trust; (B) the
Advisor's registration as a commodity
trading advisor under the CE Act, or
membership as a commodity trading
advisor with the NFA is revoked, suspended,
terminated or not renewed; (C) the
Managing Owner determines in good faith
following consultation appropriate
under the circumstances with the Advisor that
the Advisor has failed to conform,
and after receipt of written notice,
continues to fail to conform in any
material respect, to (i) any of the Trust's Trading
Policies and Limitations, or (ii) the
Advisor's Trading Approach; (D) there is an
unauthorized assignment of this
Agreement by the Advisor; (E) the Advisor
dissolves, merges or consolidates with
another entity or sells a substantial portion
of its assets, any portion of its
Trading Approach utilized by the Trust or its
business goodwill, in each instance
without the consent of the Managing Owner;
(F) either ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ is not in control of the
Advisor's trading activities for the
Trust; (G) the Advisor becomes bankrupt (admitted or
decreed) or insolvent, (H) for
any other reason, the Managing Owner
determines in good faith that such
termination is essential for the protection
of the Trust and the Series A Interests,
including, without limitation a good faith
determination by the Managing
Owner that the Advisor has breached a
material obligation to the Trust under
this Agreement relating to the trading of the
Series A Allocated Assets.
(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 independent counsel
satisfactory to the Advisor and the
Trust 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) the Managing Owner (x) 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 Series A Allocated Assets,
or (y) overrides trading instructions of the Advisor or does not
consent to a material change to the
Trading Approach requested by the Advisor;
(iv) if the amount of the Series A
Allocated Assets decreases to less than $1
million as the result of redemptions,
but not trading losses, as of the close of
business on any Friday; (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 after giving written notice to
the Managing Owner which
identifies such breach and such material
breach has not been cured within 10
days following receipt of such notice by the
Managing Owner; (viii) an Other
Advisor is allocated a portion of the Series
A Assets; or (ix) other good cause is
shown and the written consent of the Managing
Owner is obtained (which shall
not be withheld unreasonably).
(e) Termination Fees. In the event that this
Agreement is terminated with
respect to, or by, the Advisor pursuant to
this Section 8 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 Series
A 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 quarter. 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.
(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.
9. 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 8, 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 Series
A Allocated Assets, the Managing Owner agrees
to cover such excess losses from
its assets, but in no event from the assets
of the other Series issued by the Trust.
10. Other Accounts of the Advisor.
(a) Management of Other Accounts. Subject to
paragraph (c) of this Section
10, 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. 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 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 has been made public..
11. 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 ("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, assuming
that the allocation is not more
than $34,000,000, can be implemented for the
benefit of the Trust notwithstanding the possibility that, from
time to time, speculative position limits
may become applicable.
12. 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
Series A Interests shall be charged against
Series A Allocated Assets.
13. 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
Series A Allocated Assets. The
Advisor will maintain records and will
monitor all open positions relating
thereto; provided, however, that the Advisor
shall not be responsible for any
errors by the Trust's brokers. 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
Series A Allocated Assets.
14. 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 will not by entering into this
Agreement and by acting as a commodity
trading advisor to the Trust, (i) be required
to take any action contrary to its
incorporating or other formation documents or
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;
(c) it is duly registered as a commodity
trading advisor under the CE Act and
is a member of the NFA as a commodity trading
advisor and it will maintain and
renew such registration and membership during
the term of this Agreement;
(d) a copy of its most recent Commodity
Trading Advisor Disclosure
Document as required by Part 4 of the CFTC's
regulations has been
provided to the Managing Owner on behalf of the Trust in
the form of Exhibit 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;
(e) the Series A 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; and
(f) neither the Advisor, nor its
stockholders, directors, officers, employees,
agents, principals, affiliates, nor any of
its or their respective successors or
assigns: (i) shall knowingly use or
distribute for any purpose whatsoever
any list containing the names and/or residence
addresses of, and/or other information
about, the 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).
(g) its business operations and any services
provided pursuant to this Agreement will not be materially interrupted
by the advent of the Year 2000 date.
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 with
respect to the Advisor, the Advisor promptly
will notify the Trust in writing thereof.
15. 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 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; and
(e) on the date hereof, it is, and during the
term of this Agreement, it will be
(i) in the case of the Trust, a duly formed
and validly existing Delaware Business
Trust, and (ii) in the case of the Managing
Owner, a duly formed and validly
existing corporation, in each case, in good
standing under the laws of the State
of Delaware, and in good standing and
qualified to do business in each
jurisdiction in which the nature and conduct
of its business requires such
qualification and where the failure to be so
qualified would materially adversely
affect its ability to perform its obligations
under this Agreement.
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.
16. 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.
17. 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.
18. 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.
19. 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.
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and in either case with a copy to:
Rosenman & Colin LLP and Prudential Securities Incorporated
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ Plaza, 13th Floor
New York, New York 10022 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq. Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Advisor:
Eagle Trading Systems Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. Complete Agreement.
Except as otherwise provided herein, this
Agreement and the Representation
Agreement constitute 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.
28. 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.
26. 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 American Arbitration Association.
IN WITNESS WHEREOF, this Agreement has been
executed for and on behalf
of the undersigned as of the day and year
first above written.
WORLD MONITOR TRUST - Series A PRUDENTIAL SECURITIES
FUTURES MANAGEMENT, INC.
By: PRUDENTIAL SECURITIES
FUTURES MANAGEMENT INC.
Its: Managing Owner By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice-President
EAGLE TRADING SYSTEMS INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chairman
EXHIBIT A
SERIES A TRADING SYSTEM
TRADING SYSTEM OF EAGLE TRADING SYSTEMS INC.
The Advisor's will make its trading decisions
for Series A according to its Eagle-
Global System as described in Exhibit D as
amended from time to time.
EXHIBIT B
TRADING LIMITATIONS AND POLICIES
The following limitations and policies are
applicable to assets representing the
Series A Allocated Assets of the Trust as a
whole and at the outset to the Advisor
individually; since the Advisor initially
will manage 100% of the Trust's Series A
Allocated Assets, such application of the
limitations and policies is identical
initially for the Series A Allocated Assets
of the Trust and the Advisor. The
Advisor sometimes may be prohibited from
taking positions for the Series A
Allocated Assets 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 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 Series A
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
Series A Interests. The
Managing Owner may, however, impose
additional trading limitations on
the trading activities of the Series A Interests
of the Trust without obtaining such
approval if the Managing Owner determines
such additional limitations to be
necessary in the best interests of the Series
A Interests of the Trust.
Trading Limitations
The Series A Interests of 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 commodities positions or
obtaining lines of credit for the trading
of forward currency contracts; provided,
however, that the Series A Interests of
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 Series A Interests of the Trust;
(v) commingle its assets, except as
permitted by law; or (vi) permit the churning
of its commodity accounts.
The Series A Interests of 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 Series A Interests of
the Trust, which currently are as
follows:
(1) Series A Allocated Assets will generally
be invested in contracts which are
traded in sufficient volume which, at the
time such trades are initiated, are
reasonably expected to permit entering 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 attempt 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 Series A Interests of the Trust
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 Series A Interests of the Trust may
occasionally make or accept
delivery of a commodity including, without
limitation, currencies. The Series A
Interests of the Trust also may engage in EFP
transactions involving currencies
and metals and other commodities.
(5) The Series A Interests of the Trust may,
from time to time, employ trading
techniques such as spreads, straddles and
conversions.
(6) The Series A Interests of the Trust will
not initiate open futures or option
positions which would result in net long or
short positions requiring as margin
or premium for outstanding positions in
excess of 15% of the Trust's Series A
Allocated Assets for any one commodity, or in
excess of 66(% of the Trust's
Series A 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
Allocated Assets as margin in excess of the
foregoing limits and in such case the
Managing Owner will cause the Advisor to
reduce its open futures and option
positions to comply to these limits before
initiating new commodities positions.
(7) To the extent the Series A Interests of
the Trust engages in transactions in
forward currency contracts other than with or
through Prudential Securities
and/or PBFI, the Series A Interests of 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.
EXHIBIT C
[REPRESENTATION AGREEMENT]
EXHIBIT D
[ATTACH LATEST DISCLOSURE DOCUMENT]