-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, N/9+CJSkqVGCGjX1mqQdwgeSuBGrjQ+Dj05QNjPDjrgwMpPgk5JDjH6DqIm2z0vB VJ9V8ZELY79UBDZY2wlwNw== 0001144204-10-059927.txt : 20101112 0001144204-10-059927.hdr.sgml : 20101111 20101112172231 ACCESSION NUMBER: 0001144204-10-059927 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20100930 FILED AS OF DATE: 20101112 DATE AS OF CHANGE: 20101112 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RJO GLOBAL TRUST CENTRAL INDEX KEY: 0001027099 STANDARD INDUSTRIAL CLASSIFICATION: [6221] IRS NUMBER: 364113382 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 000-22887 FILM NUMBER: 101187974 BUSINESS ADDRESS: STREET 1: C/O R J O'BRIEN FUND MANAGEMENT STREET 2: 222 SOUTH RIVERSIDE PLAZA STE 900 CITY: CHICAGO STATE: IL ZIP: 60606 BUSINESS PHONE: 3123735000 MAIL ADDRESS: STREET 1: C/O R J O'BRIEN FUND MANAGEMENT STREET 2: 222 SOUTH RIVERSIDE PLAZA STE 900 CITY: CHICAGO STATE: IL ZIP: 60606 FORMER COMPANY: FORMER CONFORMED NAME: JWH GLOBAL TRUST DATE OF NAME CHANGE: 19970210 FORMER COMPANY: FORMER CONFORMED NAME: JWH GLOBAL PORTFOLIO TRUST DATE OF NAME CHANGE: 19961114 10-Q 1 v201949_10q.htm
UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2010
 
OR
 
¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

For the transition period from ________ to ________

Commission File Number:  000-22887

RJO GLOBAL TRUST
(Exact name of registrant as specified in its charter)

Delaware
36-4113382
(State or other jurisdiction of incorporation or organization)
(I.R.S. Employer Identification No.)

c/o R.J. O’Brien Fund Management, LLC
222 South Riverside Plaza
Suite 900
Chicago, IL  60606
(Address of principal executive offices) (Zip Code)

(312) 373-5000
(Registrant's telephone number, including area code)

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
x Yes         ¨ No

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
¨ Yes         ¨ No

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer  ¨
Accelerated filer  ¨
   
Non-accelerated filer  ¨ (Do not check if smaller reporting company)
Smaller reporting company x
 
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
¨ Yes         x No

 
 

 

TABLE OF CONTENTS
 
PART I. FINANCIAL INFORMATION
3
   
Item 1. Financial Statements
3
Consolidated Statements of Financial Condition, as of September 30, 2010 (unaudited) and December 31, 2009
3
Condensed Consolidated Schedule of Investments, as of September 30, 2010 (unaudited)
4
Condensed Consolidated Schedule of Investments, as of December 31, 2009
5
Consolidated Statements of Operations, for the three and nine months ended September 30, 2010 and 2009 (unaudited)
6
Consolidated Statement of Changes in Unitholders’ Capital, for the nine months ended September 30, 2010 (unaudited)
7
   
Notes to Consolidated Financial Statements
8
   
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations
17
   
Item 3. Quantitative and Qualitative Disclosures about Market Risk
23
   
Item 4T. Controls and Procedures
23
   
PART II. OTHER INFORMATION
24
   
Item 1. Legal Proceedings
24
   
Item 1A. Risk Factors
24
   
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
24
   
Item 6. Exhibits
25
   
SIGNATURES
26
 
 
2

 

PART I – FINANCIAL INFORMATION

Item 1.  Financial Statements

Consolidated Statements of Financial Condition

   
September 30,
   
December 31,
 
   
2010
   
2009
 
   
UNAUDITED
       
Assets
           
Assets:
           
Equity in commodity Trading accounts:
           
Cash on deposit with brokers
  $ 54,177,135     $ 59,500,719  
Unrealized gain on open contracts
    1,835,271       767,006  
Purchased options on futures contracts (premiums paid - $ 206,000)
    142,800       -  
Total due from brokers
    56,155,206       60,267,725  
                 
Cash on deposit with bank
    12,866       38,436  
Interest receivable
    5,171       1,694  
Cash on deposit with bank - Non-Trading
    3,702,032       9,214,964  
Prepaid expenses - Non-trading
    78,182       -  
                 
Total Assets
  $ 59,953,457     $ 69,522,819  
                 
Liabilities and Unitholders' Capital
               
Liabilities:
               
Accrued commissions
  $ 157,070     $ 169,886  
Accrued management fees
    79,341       85,057  
Accrued incentive fees
    161       17,109  
Accrued offering expenses
    15,377       22,768  
Accrued operating expenses
    359,816       239,638  
Redemptions payable - Trading
    748,180       878,988  
Accrued legal fees - Non-Trading
    -       627,762  
Accrued management fees to U.S. Bank - Non-Trading
    22,511       18,426  
Distribution payable - Non-Trading
    329,592       -  
Total liabilities
    1,712,048       2,059,634  
                 
Unitholders' capital:
               
Unitholders’ capital (Trading):
               
Beneficial owners:
               
Class A (518,900 and 551,440 units outstanding at September 30, 2010 and December 31, 2009, respectively)
    52,312,292       56,711,089  
Class B (12,676 and 9,358 units outstanding at September 30, 2010 and December 31, 2009, respectively)
    1,323,422       981,765  
Managing owner (11,679 Class A units outstanding at September 30, 2010 and December 31, 2009)
    1,177,360       1,201,090  
                 
Unitholders' capital (LLC equity/Non-Trading):
               
Participating owners (436,380 and 512,964 units outstanding at September 30, 2010 and December 31, 2009, respectively)
    658,104       1,933,873  
Nonparticipating owners (1,836,908 and 1,760,324 units outstanding at September 30, 2010 and December 31, 2009, respectively)
    2,770,231       6,635,368  
Total unitholders' capital
    58,241,409       67,463,185  
                 
Total Liabilities and Unitholders’ Capital
  $ 59,953,457     $ 69,522,819  
                 
Net asset value per unit:
               
Trading:
               
Class A
  $ 100.81     $ 102.84  
Class B
  $ 104.40     $ 104.91  
LLC equity/Non-Trading
  $ 1.51     $ 3.77  

See accompanying notes to consolidated financial statements.

 
3

 

Condensed Consolidated Schedule of Investments
as of September 30, 2010
UNAUDITED

   
Number of
   
Principal
       
   
contracts
   
(notional)
   
Fair value
 
Long positions (5.16%)
                 
Futures Positions (5.17%)
                 
Agriculture
    578     $ 18,174,841     $ 1,076,231  
Currency
    328       65,762,329       297,518  
Energy
    61       4,115,424       102,810  
Indices
    91       6,763,266       242,119  
Interest rates
    217       47,410,044       167,182  
Metals
    388       59,072,072       1,123,099  
                         
Forward Positions (-0.01%)
                       
Currency
    26,880,000       31,172,578       (5,243 )
                         
Total long positions
          $ 232,470,554     $ 3,003,716  
                         
Short positions (-2.01%)
                       
Future positions (-1.95%)
                       
Agriculture
    75     $ 2,471,867     $ (136,504 )
Energy
    92       6,097,556       (108,066 )
Indices
    56       4,238,472       (5,138 )
Interest rates
    22       7,945,299       (278 )
Metals
    103       8,556,522       (882,708 )
                         
Forward Positions (-0.06%)
                       
Currency
    26,955,000       31,157,279       (35,751 )
                         
Total short positions
          $ 60,466,995     $ (1,168,445 )
                         
Total unrealized gain on open contracts (3.15%)
                  $ 1,835,271  
                         
Long put options on future contracts (0.25%)
                       
Indices (premiums paid - $ 206,000)
    80             $ 142,800  

See accompanying notes to consolidated financial statements.

 
4

 

RJO GLOBAL TRUST AND SUBSIDIARY
Condensed Consolidated Schedule of Investments
as of December 31, 2009

   
Number of
   
Principal
       
   
contracts
   
(notional)
   
Fair value
 
Long positions (1.69%)
                 
Futures Positions (1.45%)
                 
Agriculture
    459     $ 14,175,201     $ 542,222  
Currency
    58       5,175,139       18,650  
Energy
    45       3,386,896       25,657  
Indices
    90       6,006,445       118,235  
Interest rates
    225       73,893,816       (167,286 )
Metals
    165       13,101,937       437,926  
                         
Forward Positions (0.24%)
                       
Currency
    25,375,000       28,588,150       162,279  
                         
Total long positions
          $ 144,327,584     $ 1,137,683  
                         
Short positions (-0.55%)
                       
Future positions (-0.31%)
                       
Agriculture
    142     $ 3,758,129     $ (12,859 )
Currency
    50       6,823,909       61,052  
Energy
    17       2,077,755       (72,953 )
Indices
    35       2,261,654       (1,017 )
Interest rates
    292       78,210,549       102,023  
Metals
    62       5,294,294       (284,081 )
                         
Forward Positions (-0.24%)
                       
Currency
    21,765,000       23,079,582       (162,842 )
                         
Total short positions
          $ 121,505,872     $ (370,677 )
                         
Total unrealized gain on open contracts (1.14%)
                  $ 767,006  

See accompanying notes to consolidated financial statements.

 
5

 
 
RJO GLOBAL TRUST AND SUBSIDIARY
Consolidated Statements of Operations
UNAUDITED

   
For the three months ended September 30,
   
For the nine months ended September 30,
 
   
2010
   
2009
   
2010
   
2009
 
Trading gain (loss):
                       
Gain (loss) on trading of commodity contracts:
                       
Realized gain (loss) on closed positions
  $ 626,298     $ (1,535,233 )   $ 1,258,995     $ (3,447,170 )
Change in unrealized gain (loss) on open positions
    1,012,699       1,257,461       1,005,065       188,207  
Foreign currency transaction gain (loss)
    (8,473 )     74,206       (53,405 )     120,470  
Total Trading gain (loss)
    1,630,524       (203,566 )     2,210,655       (3,138,493 )
                                 
Investment Income:
                               
Interest income
    18,744       14,709       42,652       43,998  
                                 
Expenses:
                               
Commissions - Class A
    560,394       669,700       1,720,846       2,063,805  
Commissions - Class B
    4,721       3,176       12,561       11,322  
Management fees
    230,043       278,075       699,002       927,798  
Incentive fees
    161       28,702       161       37,040  
Ongoing offering expenses
    30,000       65,000       70,000       238,000  
Operating expenses
    217,000       300,000       757,000       1,015,678  
Total expenses
    1,042,319       1,344,653       3,259,570       4,293,643  
                                 
Trading income (loss)
    606,949       (1,533,510 )     (1,006,263 )     (7,388,138 )
                                 
Non-Trading income (loss):
                               
Interest on Non-Trading reserve
    2,876       2,194       7,900       5,369  
Collections in excess of impaired value
    -       -       16,024,600       2,748,048  
Legal and administrative fees
    204,053       (591,427 )     (906,638 )     (1,325,303 )
Management fees paid to US Bank
    (100,104 )     (80,625 )     (261,850 )     (282,212 )
Non-Trading income (loss)
    106,825       (669,858 )     14,864,012       1,145,902  
                                 
Net income (loss)
  $ 713,774     $ (2,203,368 )   $ 13,857,749     $ (6,242,236 )

See accompanying notes to consolidated financial statements.

 
6

 

RJO GLOBAL TRUST AND SUBSIDIARY
Consolidated Statement of Changes in Unitholders’ Capital
For the nine months ended September 30, 2010
UNAUDITIED

Unitholders' Capital (Trading)
 
Beneficial Owners - Trading Class A
   
Beneficial Owners - Trading Class B
   
Managing Owners - Trading Class A
 
   
Units
   
Dollars
   
Units
   
Dollars
   
Units
   
Dollars
 
                                     
Balances at December 31, 2009
    551,440     $ 56,711,089       9,358     $ 981,765       11,679     $ 1,201,090  
Net income (loss)
    -       (988,790 )     -       6,257       -       (23,730 )
Unitholders’ contributions
    50,559       4,909,542       4,607       468,668       -       -  
Transfers from Class A to Class B
    (649 )     (65,443 )     633       65,443       -       -  
Unitholders’ redemptions
    (82,450 )     (8,254,106 )     (1,922 )     (198,711 )     -       -  
Balances at September 30, 2010
    518,900     $ 52,312,292       12,676     $ 1,323,422       11,679     $ 1,177,360  

Unitholders' Capital (Trading)
 
Total Unitholders' Capital - Trading
   
  
   
Units
   
Dollars
     
                 
Balances at December 31, 2009
    572,477     $ 58,893,944      
Net income (loss)
    -       (1,006,263 )    
Unitholders’ contributions
    55,166       5,378,210      
Transfers from Class A to Class B
    (16 )     -      
Unitholders’ redemptions
    (84,372 )     (8,452,817 )    
Balances at September 30, 2010
    543,255     $ 54,813,074                                  

Unitholders' Capital (LLC Equity/Non-
 
Participating Owners-
   
Nonparticipating Owners-
   
Total Unitholders' Capital-
 
Trading)  
LLC Equity/Non-Trading
   
LLC Equity/Non-Trading
   
LLC Equity/Non-Trading
 
   
Units
   
Dollars
   
Units
   
Dollars
   
Units
   
Dollars
 
                                     
Balances at December 31, 2009
    512,964     $ 1,933,873       1,760,324     $ 6,635,368       2,273,288     $ 8,569,241  
Net income
    -       3,100,488       -       11,763,524       -       14,864,012  
Unitholders’ contributions
    -       -       -       -       -       -  
Reallocation due to Redemptions
    (76,584 )     (447,451 )     76,584       447,451       -       -  
Unitholders' distribution
    -       (3,928,806 )     -       (16,076,112 )     -       (20,004,918 )
Balances at September 30, 2010
    436,380     $ 658,104       1,836,908     $ 2,770,231       2,273,288     $ 3,428,335  
                                                 
Total Unitholders Capital at September 30, 2010
                                          $ 58,241,409  

   
Unitholders' Capital
   
Unitholders' Capital
   
Unitholders' Capital
    
   
Trading Class A
   
Trading Class B
   
(LLC Equity/Non-Trading)
     
Net asset value per unit at December 31, 2009
  $ 102.84     $ 104.91     $ 3.77     
Net change per unit
    (2.03 )     (0.51 )     (2.26 )   
Net asset value per unit at September 30, 2010
  $ 100.81     $ 104.40     $ 1.51                        

See accompanying notes to consolidated financial statements.

 
7

 

RJO GLOBAL TRUST AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2010
(Unaudited)

(1)
General Information and Summary
 
RJO Global Trust (the “Trust”), a Delaware statutory trust organized on November 12, 1996, was formed to engage in the speculative trading of futures contracts on currencies, interest rates, energy and agricultural products, metals, commodity indices and stock indices, spot and forward contracts on currencies and precious metals, and exchanges for physicals pursuant to the trading instructions of independent trading advisors.  Since December 1, 2006, R.J. O’Brien Fund Management, LLC (“RJOFM” or the “Managing Owner”) has been the Managing Owner of the Trust.  R.J. O’Brien & Associates, LLC (“RJO”), an affiliate of RJOFM, is the clearing broker and the broker for forward contracts for the Trust.  R.J. O’Brien Securities, LLC (“Selling Agent”) is the lead selling agent of the units.
 
The Trust was originally established and operated as a single-advisor commodity pool.  John W. Henry & Company, Inc. (“JWH”) served as the Trust’s sole trading advisor until October 31, 2008.  As of November 1, 2008, the Trust became a multi-advisor commodity pool where trading decisions for the Trust were delegated to five independent commodity trading advisors:  JWH, AIS Futures Management (“AIS”), Abraham Trading Corp. (“ATC”), Global Advisors LP (“GALP”) and Peninsula LP (“PLP”) (each an “Advisor” and collectively the “Advisors”), pursuant to advisory agreements executed between the Trust and each Advisor (each an “Advisory Agreement” and collectively the “Advisory Agreements”).  Effective February 1, 2009, NuWave Investment Management, LLC (“NW”) became the Trust’s sixth Advisor.  As of March 31, 2009, PLP was terminated as an Advisor to the Trust.  Effective June 1, 2009, the Trust entered into an Advisory Agreement with Global Advisors (Jersey) Limited (“GAJL”) to replace its Advisory Agreement with GALP, in connection with GALP’s initiative to migrate all of its clients to its Jersey-based (UK) entity.  As of June 30, 2009, AIS was terminated as an Advisor to the Trust and the Trust’s assets were reallocated with equal weighting of 16.666% each to the remaining four Advisors along with Conquest Capital Group (“CCG”) and Haar Capital Management (“HCM”) beginning July 1, 2009.  As of September 30, 2010, the Advisors to the Trust consisted of JWH, NW, ATC, GAJL, CCG, and HCM.  Beginning on October 1, 2010, the Trust entered into Advisory Agreements with two additional Advisors.  See Note (11), Subsequent Events, for more information regarding the recently-engaged Advisors.
 
Units of beneficial ownership of the Trust commenced selling on April 3, 1997.  The Managing Owner filed its latest registration statement on Form S-1 on behalf of the Trust with respect to the registration of 1,000,000 units of beneficial interest on September 19, 2007 (File No. 333-146177).  This registration statement became effective with the Securities and Exchange Commission (the “SEC”) on December 4, 2007 and was amended by Post-Effective Amendment No. 1 on Form S-1, filed with the SEC on April 18, 2008, Post-Effective Amendment No. 2 on Form S-1, filed with the SEC on October 6, 2008, Post-Effective Amendment No. 3 on Form S-1, filed with the SEC on December 12, 2008, Post-Effective Amendment No. 4 on Form S-1, filed with the SEC on April 3, 2009, Supplements to Post-Effective Amendment No. 4, filed with the SEC on July 1, 2009 and February 1, 2010, Post-Effective Amendment No. 5 on Form S-1, filed with the SEC on April 7, 2010, and a Supplement to Post-Effective No. 5, filed with the SEC on October 1, 2010.
 
Prior to December 12, 2008, the Trust only offered one class of units for subscription.  As described in the Trust’s Post-Effective Amendment No. 4 on Form S-1, the Trust now offers two classes of units.  Class A units are subject to a selling commission.  Class B units are not charged a selling commission, and will only be offered to certain qualified investors participating in a program through certain financial advisors.  Both Class A and Class B units are traded pursuant to identical trading programs and differ only in respect to selling commissions.  See Note (8) for further detail regarding commissions.
 
The Trust will be terminated on December 31, 2026, unless terminated earlier upon the occurrence of one of the following:  (1) beneficial owners holding more than 50% of the outstanding units notify the Managing Owner to dissolve the Trust as of a specific date; (2) 120 days after the filing of a bankruptcy petition by or against the Managing Owner, unless the bankruptcy court approves the sale and assignment of the interests of the Managing Owner to a purchaser/assignor that assumes the duties of the Managing Owner; (3) 120 days after the notice of the retirement, resignation, or withdrawal of the Managing Owner, unless beneficial owners holding more than 50% of the outstanding units appoint a successor; (4) 90 days after the insolvency of the Managing Owner or any other event that would cause the Managing Owner to cease being managing owner of the Trust, unless beneficial owners holding more than 50% of the outstanding units appoint a successor; (5) dissolution of the Managing Owner; (6) insolvency or bankruptcy of the Trust; (7) a decrease in the net asset value to less than $2,500,000; (8) a decline in the net asset value per unit to $50 or less; (9) dissolution of the Trust; or (10) any event that would make it unlawful for the existence of the Trust to be continued or require dissolution of the Trust.
 
 
8

 

Prior to December 1, 2006, the managing owner of the Trust was Refco Commodity Management, Inc. (“RCMI”).  An affiliate of RCMI, Refco Capital Markets, Ltd. (“RCM”) had held certain assets of the Trust, acting as the Trust’s broker of forward contracts during 2005.  During that year, RCM experienced financial difficulties resulting in RCM’s inability to liquidate the assets.  RCM filed for bankruptcy protection in October, 2005.  As a result, the Trust held a bankruptcy claim against RCM.
 
Effective January 1, 2007, JWH Special Circumstance LLC (the “LLC”), a Delaware limited liability company, was established to pursue the claims against RCM.  Any assets or liabilities held by the LLC are designated as “Non-Trading.”  Any revenue earned or expenses incurred by the LLC are also designated as “Non-Trading.”  The Trust is the sole member of the LLC and holds that membership for the benefit of the unitholders who were investors in the Trust at the time of the bankruptcy of RCM.  U.S. Bank National Association (“US Bank”) is the manager of the LLC.  U.S. Bank may make distributions to the unitholders, as defined above, upon collection, sale, settlement or other disposition of the bankruptcy claim and after payment of all fees and expenses pro rata to the unitholders, as follows:
 
(a)
Any unitholder who had redeemed their entire interest in the Trust prior to distribution shall receive cash (“Non Participating Owners”).
 
(b)
Any unitholder who had continued to own units in the Trust shall receive additional units in the Trust at the then net asset value of the Trust (“Participating Owners”).
 
The unitholders have no right to request redemptions from the LLC.
 
The LLC compensates U.S. Bank, as manager, the following:  (1) an annual fee of $25,000, (2) a distribution fee of $25,000 per distribution, (3) out-of-pocket expenses, and (4) an hourly fee for all personnel at the then expected hourly rate ($350 per hour at execution of agreement).
 
See Note (6) for further detail regarding collection and distribution activity related to the assets held at RCM.
 
(2)
Summary of Significant Accounting Policies
 
The accounting and reporting policies of the Trust conform to accounting principles generally accepted in the United States of America and to practices in the commodities industry.  The following is a description of the more significant of those policies that the Trust follows in preparing its consolidated financial statements.
 
(a)
Basis of Presentation
 
The accompanying unaudited consolidated financial statements of the Trust have been prepared in accordance with accounting principles generally accepted in the United States of America for interim financial information and with rules and regulations of the SEC.  Accordingly, they do not include all of the information and footnotes required by accounting principles generally accepted in the United States of America for complete financial statements.  In the opinion of management, all adjustments (consisting only of normal recurring adjustments) considered necessary for a fair presentation of the financial condition and results of operations of the Trust for the periods presented have been included.
 
The Trust’s unaudited consolidated financial statements and the related notes should be read together with the consolidated financial statements and related notes included in the Trust’s Annual Report on Form 10-K for the year ended December 31, 2009.
 
Reclassifications have been made to the Trust’s December 31, 2009 information to conform to the current presentation.
 
(b)
Principles of Consolidation
 
The accompanying consolidated financial statements include the accounts of the Trust and its wholly-owned subsidiary, JWH Special Circumstance, LLC.  All material intercompany transactions have been eliminated upon consolidation.
 
 
9

 

(c)
Revenue Recognition
 
Commodity futures contracts, forward contracts, physical commodities, and related options are recorded on the trade date.  All such transactions are recorded on the identified cost basis and marked to market daily.  Unrealized gains on open contracts reflected in the consolidated statements of financial condition represent the difference between original contract amount and market value (as determined by exchange settlement prices for futures contracts and related options and cash dealer prices at a predetermined time for forward contracts, physical commodities, and their related options) as of the last business day of the year or as of the last date of the consolidated financial statements.  As the broker has the right of offset, the Trust presents unrealized gains and losses on open futures contracts (the difference between contract trade price and quoted market price) as a net amount in the consolidated statements of financial condition.  Any change in net unrealized gain or loss on futures and forward contracts from the preceding period is reported in the consolidated statements of operations.  Gains or losses are realized when contracts are liquidated.
 
The Trust may purchase exchange listed options on commodities or financial instruments.  An option is a contract allowing, but not requiring, its holder to buy (call) or sell (put) a specific or standard commodity or financial instrument at a specified price during a specified time period.  The option premium is the total price paid or received for the option contract.  When the Trust purchases an option, the premium paid is recorded as an asset in the consolidated statements of financial condition and marked to market daily.  Realized gains (losses) and changes in unrealized gains (losses) on options contracts are included in the consolidated statements of operations.  When a purchased option is exercised, the proceeds on the sale of an underlying instrument (for a purchased put option), or the purchase cost of an underlying instrument (for a purchased call option) is adjusted by the amount of the premium paid.
 
At September 30, 2010, the Trust earns interest on 100% of the Trust’s average daily balances on deposit with RJO during each month at 100% of the average four-week Treasury Bill rate for that month in respect of deposits denominated in U.S. dollars.  For deposits denominated in other currencies, the Trust earns interest at a rate of one-month LIBOR less 100 basis points.  To the extent excess cash is not invested in securities, such cash will be subject to the creditworthiness of the institution where such funds are deposited.
 
(d)
Ongoing Offering Costs
 
Ongoing offering costs subject to a ceiling of 0.50% of the Trust’s average month-end net assets, are paid by the Trust and expensed as incurred.
 
(e)
Foreign Currency Transactions
 
Trading accounts in foreign currency denominations are susceptible to both movements in the underlying contract markets as well as fluctuation in currency rates.  Foreign currencies are translated into U.S. dollars for closed positions at an average exchange rate for the year, while year-end balances are translated at the year-end currency rates.  The impact of the translation is reflected in the consolidated statements of operations.
 
(f)
Use of Estimates
 
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period.  Actual results could differ from those estimates.
 
(g)
Valuation of Assets Held at Refco Capital Markets, Ltd.
 
The Trust recorded an impairment charge against its assets held at RCM at December 31, 2005, based on management’s estimate of fair value at that time.  Subsequent recoveries from RCM were credited against the then book value of the claim.  On June 28, 2007, the Trust’s cumulative recoveries from RCM exceeded the book value of the impaired assets held at RCM, which resulted in no remaining book value for those assets.  All recoveries in excess of the book value of the impaired assets have been recorded as “Collections in excess of impaired value” on the Trust’s consolidated statements of operations.  Any future administrative and/or legal expenses associated with liquidation of the assets held at RCM have not been reflected as such future expenses are not capable of being estimated.  See Note (6) for further details.
 
 
10

 

(3)
Fees
 
Management fees are accrued and paid monthly.  Incentive fees are accrued monthly and paid quarterly.  Trading decisions for the periods covered by these financial statements were made by the Advisors.
 
Pursuant to the Advisory Agreements, each Advisor receives a monthly management fee at the rate of up to 0.167% (a 2.0% annual rate) of the Trust’s month-end net assets calculated after deduction of brokerage fees, but before reduction for any incentive fee or other costs and before inclusion of new unitholder subscriptions and redemptions for the month.  These management fees are not paid on the LLC net assets.
 
The Trust also pays the Advisors a quarterly incentive fee equal to 20% of the “New Trading Profit,” if any, of the Trust.  The incentive fee is based on the performance of each Advisor’s portion of the assets allocated to it.  New Trading Profit in any quarter is equal to the “Trading Profit” for such quarter that is in excess of the highest level of such cumulative trading profit as of any previous calendar quarter-end.  Trading Profit is calculated by including realized and unrealized profits and losses, excluding interest income, and deducting the management fee and brokerage fee.
 
(4)
Income Taxes
 
No provision for federal income taxes has been made in the accompanying consolidated financial statements as each beneficial owner is responsible for reporting income (loss) based on the pro rata share of the profits or losses of the Trust.  Generally, for both federal and state tax purposes, trusts, such as the RJO Global Trust, are treated as partnerships.  The LLC is also treated as a partnership.  The only significant differences in financial and income tax reporting basis are ongoing offering costs.
 
(5)
Trading Activities and Related Risks
 
The Trust engages in the speculative trading of U.S. and foreign futures contracts, options and forward contracts (collectively derivatives) through the Advisors.  These derivatives include both financial and non-financial contracts held as part of a diversified trading strategy.  The Trust is exposed to both market risk, the risk arising from changes in the market value of the contracts, and credit risk, the risk of failure by another party to perform according to the terms of a contract.
 
The purchase and sale of futures requires margin deposits with a futures commission merchant (“FCM”).  Additional deposits may be necessary for any loss on contract value.  The Commodity Exchange Act requires an FCM to segregate or secure all customer transactions and assets from the FCM’s proprietary activities.  A customer’s cash and other property, such as U.S. Treasury Bills, deposited with an FCM are considered commingled with all other customer funds subject to the FCM’s segregation requirements.  In the event of an FCM’s insolvency, recovery may be limited to a pro rata share of segregated funds available.  It is possible that the recovered amount could be less than the total of cash and other property deposited.
 
The Trust has cash on deposit with an affiliated interbank market maker in connection with its trading of forward contracts.  In the normal course of business, the Trust does not require collateral from such interbank market maker.  Due to forward contracts being traded in unregulated markets between principals, the Trust also assumes a credit risk, the risk of loss from counter party non-performance.
 
For derivatives, risks arise from changes in the market value of the contracts.  Theoretically, the Trust is exposed to a market risk equal to the value of futures and forward contracts purchased and unlimited liability on such contracts sold short.
 
The Trust is a buyer of exchange-traded options.  As such, the Trust pays a premium at the outset and then bears the risk of unfavorable changes in the price of the contract underlying the option.  Purchased options expose the Trust to a risk of loss limited to the premiums paid.
 
Net trading results from derivatives for the periods ended September 30, 2010 and 2009, are reflected in the consolidated statements of operations and equal gain or loss from trading.  Such trading results reflect the net gain or loss arising from the Trust’s speculative trading of futures contracts, options and forward contracts.
 
 
11

 

The notional amounts of open contracts at September 30, 2010 and December 31, 2009, as disclosed in the respective condensed consolidated schedule of investments, do not represent the Trust’s risk of loss due to market and credit risk, but rather represent the Trust’s extent of involvement in derivatives at the date of the respective consolidated statement of financial condition.
 
The beneficial owners bear the risk of loss only to the extent of the market value of their respective investment in the Trust.
 
(6)
Assets Held at Refco Capital Markets, Ltd.
 
Effective October 31, 2005, $57,544,206 of equity and 2,273,288 in substitute units, which represented the assets held at RCM plus $1,000,000 in cash, were transferred to a Non-Trading account.  On December 31, 2005 the $56,544,206 of assets held at RCM were reduced by $39,580,944 for impairment to $16,963,262, or 30% of the original value of the assets.  The table below summarizes all recoveries from RCM and distributions to redeemed and continuing unitholders:
 

Recoveries from RCM, Distributions paid by US Bank from the LLC, and effect on impaired value of assets held at RCM
 
   
Amounts
Received from
   
Balance of
   
Collections in
Excess of
   
Cash Distributions to
Non-Participating
   
Additional Units in Trust for
Participating Owners
 
Date
 
RCM
   
Impaired Value
   
Impaired Value
   
Owners
   
Units
   
Dollars
 
12/29/06
  $ 10,319,318     $ 6,643,944     $ -     $ 4,180,958       54,914     $ 5,154,711  
04/20/07
    2,787,629       3,856,315       -       -       -       -  
06/07/07
    265,758       3,590,557       -       -       -       -  
06/28/07
    4,783,640       -       1,193,083       -       -       -  
07/03/07
    5,654       -       5,654       -       -       -  
08/29/07
    -       -       -       2,787,947       23,183       1,758,626  
09/19/07
    2,584,070       -       2,584,070       -       -       -  
12/31/07
    2,708,467       -       2,708,467       -       -       -  
03/28/08
    1,046,068       -       1,046,068       -       -       -  
04/29/08
    -       -       -       2,241,680       10,736       1,053,815  
06/26/08
    701,148       -       701,148       -       -       -  
12/31/08
    769,001       -       769,001       -       -       -  
06/29/09
    2,748,048       -       2,748,048       -       -       -  
12/30/09
    1,102,612       -       1,102,612       -       -       -  
05/19/10
    1,695,150       -       1,695,150       -       -       -  
06/04/10
    14,329,450 *     -       14,329,450 *     -       -       -  
08/01/10
    -       -       -       16,076,112       40,839       3,928,806  
                                                 
Totals
  $ 45,846,013     $ -     $ 28,882,751     $ 25,286,697       129,672     $ 11,895,958  

*The collection on June 4, 2010 was from a settlement agreement reached with Cargill, Inc. and Cargill Investors Services, Inc. (together, "Cargill").  The gross collection of $15,300,000 was reduced by $970,550, which represented Cargill's percentage of distributions, as defined in the Settlement Agreement.

(7)
Fair Value Measurements
 
In accordance with the Fair Value Measurements Topic of the Financial Accounting Standards Board Accounting Standards Codification (the “Codification”), the Trust established a three-level valuation hierarchy for disclosure of fair value measurements. The valuation hierarchy is based upon the transparency of inputs to the valuation of an asset or liability as of the measurement date.  The three levels are defined as follows:
 
          Level 1 inputs are quoted prices (unadjusted) in active markets for identical assets or liabilities that the Trust has the ability to access at the measurement date.  An active market for the asset or liability is a market in which transactions for the asset or liability occur with sufficient frequency and volume to provide pricing information on an ongoing basis.  The value of the Trust’s exchange-traded futures contracts and options fall into this category.
 
 
12

 

         Level 2 inputs are inputs other than quoted prices included in Level 1 that are observable for the asset or liability, either directly or indirectly.  This category includes forward currency contracts and options on forward currency contracts that the Trust values using models or other valuation methodologies derived from observable market data.
 
         Level 3 inputs are unobservable inputs for an asset or liability.  Unobservable inputs shall be used to measure fair value to the extent that observable inputs are not available, thereby allowing for situations in which there is little, if any, market activity for the asset or liability at the measurement date.  As of September 30, 2010 and December 31, 2009, the Trust did not have any Level 3 assets or liabilities.
 
An asset or liability’s categorization within the valuation hierarchy is based upon the lowest level of input that is significant to the fair value measurement.  The fair value hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1) and the lowest priority to unobservable inputs (Level 3).
 
The following table presents the Trust’s fair value hierarchy for those assets and liabilities measured at fair value on a recurring basis as of September 30, 2010 and December 31, 2009, respectively:
 
   
September 30, 2010
       
   
Level 1
   
Level 2
   
Level 3
   
Total
 
                         
Unrealized gain (loss) on open contracts:
                       
Futures positions
  $ 1,876,265     $ -     $ -     $ 1,876,265  
Forward currency positions
    -       (40,994 )     -       (40,994 )
Purchased options on futures contracts
    142,800       -       -       142,800  
                                 
Total fair value
  $ 2,019,065     $ (40,994 )   $ -     $ 1,978,071  

   
December 31, 2009
       
   
Level 1
   
Level 2
   
Level 3
   
Total
 
                         
Unrealized gain (loss) on open contracts:
                       
Futures positions
  $ 767,569     $ -     $ -     $ 767,569  
Forward currency positions
    -       (563 )     -       (563 )
                                 
Total fair value
  $ 767,569     $ (563 )   $ -     $ 767,006  

There were no significant transfers in or out of Level 1 and Level 2 fair value measurements.
 
(8)
Operations
 
Redemptions
 
A beneficial owner may cause any or all of his or her units to be redeemed by the Trust effective as of the last business day of any month of the Trust based on the Net Asset Value per unit on such date on 5 business days’ written notice to ACS Securities Services, Inc., the Trust’s administrator, or the Managing Owner.  Payment will generally be made within 10 business days of the effective date of the redemption.  Any redemption made during the first 11 months of investment is subject to a 1.5% redemption penalty, payable to the Managing Owner.  Any redemption made in the twelfth month of investment or later will not be subject to any redemption penalty.  The Trust’s Ninth Amended and Restated Declaration and Agreement of Trust, contains a full description of redemption and distribution policies.
 
 
13

 

Subscriptions
 
An investor may purchase units in the Trust effective the first business day of any month based on the Net Asset Value per unit on the last business day of the previous month.  A correctly completed and signed subscription form with the corresponding funds must be received by ACS Securities Services, Inc., the Trust’s administrator, no later than five business days before each month end.  If the forms are completed accurately, the investor’s subscription is accepted and the units purchased become invested on the first business day of the following month.  If the subscription form is incomplete, the subscription is rejected and funds are returned to the investor from the administrator.  Likewise if a subscription form is received without the funds by the fifth business day before the end of the month, the subscription request is rejected.  If funds are received without a subscription form, the funds are returned to the investor.  If a subscription is accepted, 100% of the investment amount is invested as of the effective date.  The Trust’s Ninth Amended and Restated Declaration and Agreement of Trust, as amended, and its prospectus contain a full description of subscription policies.  An investment in the Trust does not include a beneficial interest or investment in the LLC.
 
Commissions
 
The Managing Owner and/or affiliates act as commodity brokers for the Trust through RJO.  Commodity brokerage commissions are typically paid upon the completion or liquidation of a trade and are referred to as “round-turn commissions,” which cover both the initial purchase (or sale) and the subsequent offsetting sale (or purchase) of a commodity futures contract.
 
The Trust’s brokerage fee constitutes a “wrap fee” of 4.65% to 5.0% of the Trust’s month-end assets on an annual basis (0.3875% to 0.417% monthly) with respect to Class A units and 2.65% to 3.0% of the Trust’s month-end assets on an annual basis (0.221% to 0.25% monthly) with respect to Class B units, which covers the fees described below.  “Brokerage fee” includes the following across each class of units:
 
Recipient
 
Nature of Payment
 
Class A Units
 
Class B Units
 
Managing Owner
 
Managing Owner fee
 
0.75%
 
0.75%
 
Selling Agent
 
Selling commission
 
2.00%
 
0.00%
 
Managing Owner
 
Underwriting expenses
 
0.35%
 
0.35%
 
Managing Owner
 
Clearing, NFA, and exchange fees
 
Estimated 1.22% - 1.42%,
capped at 1.57%
 
Estimated 1.22% - 1.42%,
capped at 1.57%
 
Liberty Funds Group
 
Consulting fees
 
0.33%
 
0.33%
 
Totals
     
4.65% to 5.00%
 
2.65% to 3.00%
 

In accordance with the Financial Industry Regulatory Authority (“FINRA”) regulations, underwriting expenses, including selling commissions, are limited to 10% of either the existing net asset values for all units of record as of November 1, 2008, or 10% of original subscription price for any new subscriptions thereafter.  Once the maximum amount of underwriting compensation has been met, the Trust will issue an additional class of units which will be charged no selling commissions or underwriting expenses.
 
Commissions were not paid with respect to the LLC net assets.
 
(9)
Financial Highlights
 
The following financial highlights show the Trust’s financial performance for the nine-month periods ended September 30, 2010 and 2009.  Total return is calculated as the change in a theoretical beneficial owner’s investment over the entire period and is not annualized.  Total return is calculated based on the aggregate return of the Trust taken as a whole.
 
 
14

 
 
   
Class A
   
Class B
   
Class A
   
Class B
 
   
Three months ended
   
Three months ended
   
Nine months ended
   
Nine months ended
 
   
September 30,
   
September 30,
   
September 30,
   
September 30,
 
   
2010
   
2009
   
2010
   
2009
   
2010
   
2009
   
2010
   
2009
 
Per share operating performance:
                                               
Net asset value of Trading units, beginning of period
  $ 99.96     $ 110.27     $ 103.00     $ 111.38     $ 102.84     $ 119.39     $ 104.91     $ 119.39  
Total Trading income (loss):
                                                               
Trading gain (loss)
    3.05       (0.32 )     2.90       (0.34 )     3.95       (4.82 )     4.17       (4.89 )
Investment income
    0.04       0.02       0.04       0.02       0.08       0.07       0.09       0.07  
Expenses
    (2.24 )     (2.27 )     (1.54 )     (1.74 )     (6.06 )     (6.94 )     (4.77 )     (5.25 )
Trading income (loss)
    0.85       (2.57 )     1.40       (2.06 )     (2.03 )     (11.69 )     (0.51 )     (10.07 )
Net asset value of Trading units, end of period
  $ 100.81     $ 107.70     $ 104.40     $ 109.32     $ 100.81     $ 107.70     $ 104.40     $ 109.32  
                                                                 
Total return:
                                                               
Total return before incentive fees
    0.85 %     (2.33 )%     1.36 %     (1.85 )%     (1.97 )%     (9.79 )%     (0.49 )%     (8.43 )%
Less incentive fee allocations
    0.00 %     (0.04 )%     0.00 %     (0.04 )%     0.00 %     (0.05 )%     0.00 %     (0.05 )%
Total return
    0.85 %     (2.37 )%     1.36 %     (1.89 )%     (1.97 )%     (9.84 )%     (0.49 )%     (8.48 )%
                                                                 
Ratios to average net assets:
                                                               
Trading income (loss)
    1.13 %     (2.37 )%     1.81 %     (1.88 )%     (1.90 )%     (10.59 )%     0.55 %     (9.17 )%
Expenses:
                                                               
Expenses, less incentive fees
    (1.98 )%     (2.08 )%     (1.51 )%     (1.58 )%     (6.01 )%     (6.17 )%     (4.56 )%     (4.72 )%
Incentive fees
    0.00 %     (0.04 )%     0.00 %     (0.04 )%     0.00 %     (0.05 )%     0.00 %     (0.05 )%
Total expenses
    (1.98 )%     (2.12 )%     (1.51 )%     (1.62 )%     (6.01 )%     (6.22 )%     (4.56 )%     (4.77 )%

The calculations above do not include activity within the Trust's Non-Trading accounts.

The net loss and expense ratios are computed based upon the weighted average net assets for the Trust for the three and nine-month periods ended September 30, 2010 and 2009.
 
 
15

 

(10)
Derivative Instruments and Hedging Activities.
 
The Trust does not utilize hedge accounting and marks its derivatives to market through operations.
 
Derivatives not designated as hedging instruments:
 
As of September 30, 2010

   
Asset
   
Liability
       
Type of
 
Derivatives
   
Derivatives
   
Net
 
Futures Contracts
 
Fair Value
   
Fair Value
   
Fair Value
 
                   
Agriculture
  $ 1,160,350     $ (220,623 )   $ 939,727  
Currency
    758,388       (501,865 )     256,523  
Energy
    189,277       (194,533 )     (5,256 )
Indices
    438,941       (59,160 )     379,781  
Interest Rates
    202,491       (35,586 )     166,905  
Metals
    1,241,299       (1,000,908 )     240,391  
    $  3,990,746     $  (2,012,675 )   $  1,978,071  

As of December 31, 2009

   
Asset
   
Liability
       
Type of
 
Derivatives
   
Derivatives
   
Net
 
Futures Contracts
 
Fair Value
   
Fair Value
   
Fair Value
 
                   
Agriculture
  $ 590,975     $ (61,613 )   $ 529,362  
Currency
    284,224       (205,085 )     79,139  
Energy
    43,234       (90,529 )     (47,295 )
Indices
    126,513       (9,295 )     117,218  
Interest Rates
    115,112       (180,375 )     (65,263 )
Metals
    808,408       (654,563 )     153,845  
    $  1,968,466     $  (1,201,460 )   $  767,006  

The above reported fair values are included in equity in commodity Trading accounts – Unrealized gain on open contracts on the consolidated statements of financial condition as of September 30, 2010 and December 31, 2009 respectively.

Trading gain (loss) for the following periods:
 
   
Three months ended September 30,
     
Nine months ended September 30,
 
Type of Futures
Contracts
 
2010
   
2009
 
Type of Futures
Contracts
 
2010
   
2009
 
Agriculture
  $ 1,688,457     $ 196,924  
Agriculture
  $ 56,352     $ (517,775 )
Currency
    742,038       350,227  
Currency
    965,736       (282,896 )
Energy
    (524,873 )     (738,539 )  
Energy
    (1,098,998 )     (609,300 )
Indices
    (1,464,111 )     (139,700 )
Indices
    215       (288,508 )
Interest Rates
    1,131,421       (323,517 )
Interest Rates
    2,999,170       (1,949,914 )
Metals
    57,592       451,039  
Metals
    (711,820 )     509,900  
    $ 1,630,524     $ (203,566 )     $ 2,210,655     $ (3,138,493 )

See Note (5) for additional information on the Trust’s purpose for entering into derivatives not designed as hedging instruments and its overall risk management strategies.
 
 
16

 

(11)
Subsequent Events
 
On October 1, 2010 Trigon Investment Management (“TIM”) and Dominion Capital Management Institutional Advisers, Inc (“DCM”) were each allocated approximately 8.33% of the Trust’s assets. The allocation to each advisor as of October 1, 2010 is as follows:  ATC 16.67%, CCG 16.67%, DCM 8.33%, GAJL 16.67%, HCM 8.33%, JWH 8.33%, NW 16.67%, and TIM 8.33%.
 
Also on October 6, 2010 the Managing Owner retained RJO Investment Management (“RJOIM”), an SEC Registered Investment Adviser, as cash manager. The assets managed by RJOIM are held in custody by Wells Fargo Bank, NA.  On October 15, 2010, $30,000,000 of the Trust’s assets were transferred to Wells Fargo.  RJOIM is an affiliated entity of the Managing Owner, RJOFM.  RJOIM is paid an annualized fee, currently 0.20%, calculated and accrued daily at a rate equal to 1/360 of the principal balance.
 
Item 2.  Management’s Discussion and Analysis of Financial Condition and Results of Operations
 
(a)
Capital Resources
 
The Trust’s capital resources fluctuate based upon the purchase and redemption of units and the gains and losses of the Trust’s trading activities.  The amount of assets invested in the Trust generally does not affect its performance, as typically this amount is not a limiting factor on the positions acquired by the Advisors, and the Trust’s expenses are primarily charged as a fixed percentage of its asset base.
 
The Trust borrows only to a limited extent and only on a strictly short-term basis in order to finance losses on non-U.S. dollar denominated trading positions pending the conversion of the Trust’s U.S. dollar deposits.  These borrowings are at a prevailing short-term rate in the relevant currency.  They have been immaterial to the Trust’s operation to date and are expected to continue to be so.
 
There are no known material trends, favorable or unfavorable, that would affect, nor any expected material changes, to the Trust’s capital resource arrangements at the present time.
 
(b)
Liquidity
 
The Trust’s assets at September 30, 2010 are held in brokerage accounts with RJO.  Such assets are used as margin to engage in trading and may be used as margin solely for the Trust’s trading.  Except in unusual circumstances, the Trust should be able to close out any or all of its open trading positions and liquidate any or all of its holdings quickly and at market prices.  This should permit the Advisors to limit losses as well as reduce market exposure on short notice should their programs indicate reducing market exposure.
 
The Trust earns interest on 100% of the Trust’s average daily balances on deposit with RJO during each month at 100% of the average four-week Treasury Bill rate for that month in respect of deposits denominated in U.S. dollars.  For deposits denominated in currencies other than U.S. dollars, the Trust earns interest at a rate of one-month LIBOR less 100 basis points.  For the nine months ended September 30, 2010 and 2009, the Trust has received or accrued to receive trading interest of $42,652 and $43,998, respectively.
 
The Trust’s involvement in the futures and forward markets exposes the Trust to both market risk – the risk arising from changes in the market value of the futures and forward contracts held by the Trust – and credit risk – the risk that another party to a contract will fail to perform its obligations according to the terms of the contract.  The Trust is exposed to a market risk equal to the value of the futures and forward contracts purchased and theoretically unlimited risk of loss on contracts sold short. The Advisors monitor the Trust’s trading activities and attempt to control the Trust’s exposure to market risk by, among other things, refining their trading strategies, adjusting position sizes of the Trust’s futures and forward contacts and re-allocating Trust assets to different market sectors.  The Trust’s primary exposure to credit risk is its exposure to the non-performance of the forwards currency broker.  The forwards currency broker generally enters into forward contracts with large, well-capitalized institutions and then enters into a back-to-back contract with the Trust.  The Trust also may trade on exchanges that do not have associated clearinghouses whose credit supports the obligations of its members and operate as principals markets, in which case the Trust will be exposed to the credit risk of the other party to such trades.
 
 
17

 

Most United States commodity exchanges limit the amount of fluctuation in commodity futures contract prices during a single trading day by regulations.  These regulations specify what are referred to as “daily price fluctuation limits” or “daily limits.”  The daily limits establish the maximum amount the price of a futures contract may vary either up or down from the previous day’s settlement price at the end of a trading session.  Once the daily limit has been reached in a particular commodity, no trades may be made at a price beyond the limit.  Positions in the commodity could then be taken or liquidated only if traders are willing to effect trades at or within the limit during the period for trading on such day.  Because the “daily limit” rule only governs price movement for a particular trading day, it does not limit losses.  In the past, futures prices have moved the daily limit for numerous consecutive trading days and thereby prevented prompt liquidation of futures positions on one side of the market, subjecting commodity futures traders holding such positions to substantial losses for those days.
 
It is also possible for an exchange or the Commodity Futures Trading Commission to suspend trading in a particular contract, order immediate settlement of a particular contract, or direct that trading in a particular contract be for liquidation only.  There are no known material trends, demands, commitments, events or uncertainties at the present time that are reasonably likely to result in the Trust’s liquidity increasing or decreasing in any material way.  Additionally, no material deficiencies in liquidity were identified and there are no material unused sources of liquid assets.
 
(c)
Results of Operations
 
As of November 1, 2008, trading decisions for the Trust were delegated to five independent commodity trading advisors:  JWH, AIS, ATC, GALP, and PLP, pursuant to Advisory Agreements executed between the Trust and each Advisor.  Effective February 1, 2009, NW became the Trust’s sixth Advisor.  As of March 31, 2009, PLP was terminated as an Advisor to the Trust.  Effective June 1, 2009, the Trust entered into an Advisory Agreement with GAJL to replace its Advisory Agreement with GALP, in connection with GALP’s initiative to migrate all its clients to its Jersey-based (UK) entity. As of June 30 2009, AIS was terminated as an Advisor to the Trust.  As of July 1, 2009, HCM and CCG became Advisors to the Trust.   As of September 30, 2010, the Advisors to the Trust consisted of JWH, NW, ATC, GAJL, CCG, and HCM.  Beginning October 1, 2010, the Trust entered into Advisory Agreements with two additional Advisors.  See Note (11), Subsequent Events, for more information regarding the recently-engaged Advisors.
 
The Trust’s success depends on the Advisors’ ability to recognize and capitalize on major price movements and other profit opportunities in different sectors of the world economy.  Because of the speculative nature of its trading, operational or economic trends have little relevance to the Trust’s results, and its past performance is not necessarily indicative of its future results.  The Managing Owner believes, however, that there are certain market conditions — for example, markets with major price movements — in which the Trust has a better opportunity of being profitable than in others.
 
JWH, ATC, GAJL, NW and CCG are technical traders, and as such, their programs do not predict price movements. No fundamental economic supply or demand analysis is used in attempting to identify mispricings in the market, and no macroeconomic assessments of the relative strengths of different national economies or economic sectors are made.  However, there are frequent periods during which fundamental factors external to the market dominate prices.  For the discretionary Advisor, HCM, economic fundamentals and macroeconomic assessments were made.
 
The performance summaries set forth below outline certain major events and price trends which the Advisors’ programs have identified for the Trust during the quarters ended September 30, 2010, and September 30, 2009. The fact that certain trends or market movements were captured does not imply that others, perhaps larger and potentially more profitable trends or market movements, were not missed or that the Advisors will be able to capture similar trends or movements in the future.  Moreover, the fact that the programs were profitable in certain market sectors in the past does not mean that they will be so in the future.
 
Fiscal Quarter ended September 30, 2010
 
The Trust recorded net trading gains of $606,949 or $0.85 per trading unit for Class A units and a gain of $1.40 per trading unit for Class B units in the third quarter of 2010 (*** Please see “Notes to Consolidated Financial Statements” in Part I — Item 1 for explanation of net asset value/unit pursuant to events of October, 2005, as the following excludes the Trust’s Non-Trading accounts).  As of September 30, 2010, the Trust (Class A units) had gained 23.23% since its inception in June 1997.  Class B units have lost (12.56)% since their inception in January of 2009.
 
 
18

 

The stock market rebounded during July rising just over 7%.  This left the market flat on the year.  U.S. Interest rates made new record lows with the 2-year note reaching a yield of 0.55%.  The yield on the 10-year note approached 2.80%.  Several other markets reversed recent trends.  Grains for example, which had been trending lower for most of the year,  reversed dramatically and served as a catalyst for a rally in the commodity sector.  The U.S. dollar which had been stronger against European currencies for most of the year lost about 6.5% against the Euro during the month.  Base metals also reversed course and posted gains during the month.  Congress passed a financial reform act during the month which removed some regulatory uncertainty from the markets.  This combined with improving economic data out of Europe and Asia appeared to trigger a short covering rally in stock markets around the world.  Many of these markets have now rallied back to the top of recent trading ranges.  A review of the individual markets traded by the managers in the Trust’s portfolio reveals the problems our managers have faced.  July was a month of frustrating reversals.  Grains, metals, stocks, energy markets, and currencies had all moved sufficiently lower to cause the traders to take positions in favor of the downward price trends.  These trends took shape for many reasons and across multiple time frames.  Each of the sectors finished June near their lows then reversed course early in July to finish near their highs for the month.  Some managers have reversed positions along with the markets while some remain positioned to the contrary.
 
The stock market had its worst August since 2001 with the S&P 500 losing just over 4.5%. This left the market down almost 5% for the year.  In a repeat of the previous month, U.S. interest rates made new record lows with the 2-year note reaching a yield of less than 0.50%.  The low yield on the 10-year note approached 2.45%.  Commodities were weaker in general as market pundits began to debate openly about a double dip recession and the possibility of deflation.  The Dow Jones UBS Commodity Index, a broad based basket of commodity markets, lost 2.55% during August and is down almost 10% for the year-to-date.  While corn and gold traded higher for the month, crude oil edged lower, along with soybeans, wheat, coffee, cocoa, and base metals markets.  Natural gas was by far the weakest market, establishing new life of contact lows.  Currency markets remain puzzling: The U.S. dollar was stronger overall against the Euro but continued to weaken against the Japanese Yen.  The Japanese Government intervened in the market to try to stem the rise of the Yen but the intervention had little or no effect as the Yen closed out August at its highest point of the year.  The trend following strategies employed to different degrees by our managers were successful during the month.  Interest rates trended lower as did the S&P 500 and natural gas.  Profits were also captured during the upward move by gold and the Yen.  CCG, our short-term specialist, had the best month by profiting from trades in stocks, currencies and interest rates.  The only losing manager was GAJL whose systematic commodity-only portfolio was under more pressure than our other more diversified managers.
 
The stock market had its best September in over 50 years rising almost 9%.  With interest rates hovering at all time lows, the dollar weakening, and the stock market showing signs of life, commodities turned in their strongest month in over a year.  The Dow Jones UBS Commodity Index was up over 7% during the month.  Cotton, corn, and sugar turned in a stellar month with gains of over 15%.  The common theme behind their upward moves was increasing Chinese demand.  Crude oil rallied back above $80 per barrel and gold made a new high just above $1,300 per ounce.  Those two markets appeared to benefit the most from a 5% slide in the U.S. dollar that took place during the month.  The U.S. Congress passed a bill denouncing Chinese currency policy in what seems to be a global chorus among countries who trade with China seeking an end to the artificial suppression of the Chinese currency.  The trend following strategies employed to different degrees by the Trust’s managers were successful again during September.  The S&P 500 and base metals sector reversed course and joined an otherwise upward trend across commodities, currencies, and bonds.  Four of the six managers were profitable.  ATC, HCM, and GAJL posted the strongest results thanks to a heavy allocation to commodity trades.  JWH was also profitable.  Conquest lost money due to a longer-term short position on the stock market.
 
Fiscal Quarter ended September 30, 2009
 
The Trust recorded net trading loss of $(1,533,510) or $(2.57) per unit for Class A units and $(2.06) per unit for Class B units in the third quarter of 2009.  (*** Please see “Notes to Consolidated Financial Statements” in Part I – Item 1 for an explanation of net asset value/unit pursuant to events of October, 2005, as the following excluded the Trust’s Non-Trading accounts).  As of September 30, 2009, the Trust had gained 31.65%  for Class A units since its inception in June 1997 and the Trust has posted a loss of (8.43)% for Class B since its inception in January 2009.
 
Economic data was weak on an absolute basis during July but on a relative basis there was reason for hope.  Housing data appeared to show signs of stabilization.  Corporate earnings showed some life.  The stock market posted strong gains for the month.  Some commodities lead by the grain and base metal sectors also showed strength later in the month. The U.S. dollar was weaker across the board.  The short-term manager, CCG, performed best during the month capturing profits in stock, interest rate, and currency markets.  The longer term strategies provided mixed results:  JWH, who employs only long-term trend following strategies, was positive for the month.  NW and ATC were negative for the month reflecting the difficult conditions being dealt with by other leading multi strategy advisors in the industry this year.  HCM, the discretionary manager, was about even on the month after a cautious start.  GALP/GAJL, the commodity only manager, was slightly negative for the month but was starting to gain ground as the month drew to a close.
 
 
19

 

During August, auto sales improved dramatically thanks to the Government’s “Cash for Clunkers” program.  Housing sales also improved.  The President re-nominated Federal Reserve Chairman Bernanke based on his handling of the crisis that unfolded last year.  IPO activity increased and two large corporate acquisitions took place at month end.  These situations taken together seem to reflect a market and economy returning to more solid footing.  This allowed stocks to turn in their most positive August since 2000.  Bond prices rose as well during the month as inflation remained in check.  Natural gas and corn were the weakest among commodities.  Action in the crude oil and the foreign currency markets looked very similar during the month.  Each traded in a range during the month finishing on the low side.  The short-term advisor, CCG, posted negative returns for the month.  Their short term trading strategy was frustrated by the range bound trading that persisted during the month.  JWH, NW, and ATC were all positive for the month.  This was due to the longer-term nature of their systems.  HCM, the new discretionary manager, was also positive for the month capturing returns from a stronger sugar market.  GALP/GAJL, the commodity only manager, was also positive for the month on the back of stronger metals markets.
 
By September 30, the stock market finished its strongest quarter since Q4 1998 and is up almost 20% for the year.  It is up almost 50% from its low in March of this year.  It is interesting to note that since World War II the average size of stimulus packages implemented by the government and the Federal Reserve (“Fed”) to revive the economy has been 2.9% of our Gross Domestic Product.  This has come from the government chipping in an average of 2.4% and the Fed has added 0.5% through easier monetary policy.  Thus far, to battle this recession, the government has provided 10% in stimulus activity through fiscal measures while the Fed has pumped in 9.5% for a total of 19.5% of assistance.  That is more than the average stimulus package by a factor of six.  No wonder the market has rallied.  The fact that the stimulus package has been delivered on borrowed money has yet to trigger a response from the market.  With the stock market drifting higher and with other markets, particularly grains and energy, mired in trading ranges, the Advisors did not have many opportunities during the month.  Four of the six managers were up slightly during the month with two managers losing money.  JWH, ATC, NW, and HCM were profitable.  GALP/GAJL and CCG lost money.
 
Fiscal Quarter ended June 30, 2010
 
The Trust recorded net trading losses of $(466,105) or $(0.90) per trading unit for Class A units and a loss of $(0.40) per trading unit for Class B units in the second quarter of 2010 (*** Please see “Notes to Consolidated Financial Statements” in Part I — Item 1 for explanation of net asset value/unit pursuant to events of October, 2005, as the following excludes the Trust’s Non-Trading accounts).  As of June 30, 2010, the Trust (Class A units) had gained 22.19% since its inception in June 1997.  Class B units have lost (13.73)% since their inception in January of 2009.
 
On June 30, 2010, the Trust’s assets were allocated equally to the following Advisors as follows: ATC (16.66%), CCG (16.66%), GAJL (16.66%), HCM (16.66%), JWH (16.66%) and NW (16.66%).
 
The stock market sold off aggressively on the last day of April but still managed a small gain for the month.  Weakness was tied to an evolving story with Goldman Sachs as the SEC announced a criminal investigation into the firm’s sales tactics.  European markets were weak for much of the month as debt issues in Greece have brought much focus on the economies and financial situations of other European Union countries.  Note that the Europe, Australasia, and Far East Index are negative for the year while the S&P 500 is up over 7%.  After creeping higher during much of March, long-term interest rates moved lower during the month.  The U.S. dollar remains a mixed story.  It has not kept pace with the strength in gold, the Australian dollar, or the Canadian dollar but it remains strong against the Euro.  Gold and crude oil are both up about 5% for the year and actually made new highs for the year in April, while natural gas and grain markets remain in negative territory and are near their lows for the year.  The markets remained difficult for our Advisors to navigate.  Four of the Advisors had small profits but ATC and HCM lost a modest amount of money and that caused the Trust to turn into a negative month.  NW and CCG are profitable for the year-to-date.  The other four Advisors are down just slightly.  The split between the Euro and other currencies is also a common theme among the Advisors.  At April 30, the majority is short the Euro and long other currencies against the U.S. dollar.
 
After an April that saw mixed performance in the underlying equity markets, May was ruled by volatility and negative returns.  By some measures, the U.S. markets posted their worst May since 1940 and the markets had some of their largest intraday swings in history.  This volatility, as represented by the VIX, came into May at 22.05 and left the month at 32.07, while spiking to over 48 mid-month.  Crude oil lost 20% of its value during May and long-term interest rates fell to 50-year lows.  The U.S. dollar gained against the Euro, rising almost 10% during the month.  Needless to say, the markets are very fluid and active at this point.  Three of our Advisors posted positive results during May.  The strong performance by CCG and NW was enough to lead the Trust to a positive month.  CCG was helped by a short position in the S&P 500.  NW was helped by quickly reversing its April stance to take short stock and energy positions in early May.  Our Advisors held long positions in long-term interest rates which were a positive for much of the month as long-term rates moved lower.
 
 
20

 

The stock market remained under pressure during June, losing just over 5%.  The market is down almost 7% for the year at the midway point of 2010.  The market sell-off was attributed to concerns over a possible double dip recession in the U.S.  The recovery in Europe seems to have stalled and concerns over the European Union members’ debt situations cast a favorable light on U.S. debt markets where demand for U.S. treasuries drove yields to record lows for the two- and five-year notes.  The yield on the 10-year U.S. Treasury, while not a record low, finished the month at 2.9%, a level not seen since the dark days in the spring of 2009.  The U.S. dollar weakened a bit but the U.S. Dollar Index remains up over 10% for the year.  Gold made a new high for the year at $1,270 per ounce, which was an all-time high in nominal U.S. dollar terms, but settled back to finish the month with a small gain.  Crude oil behaved in a similar pattern by firming early in the month then trailing off at month end in sympathy to the stock market’s weakness.  June was another tough month for the managed futures industry.  June also completed the fourth losing calendar quarter out of the last six quarters for the Barclay Top 50 CTA Index, which represents the performance of the top 50 commodity trading advisors in the industry in terms of assets under management.  The Barclay Top 50 CTA Index historically has been profitable in 63% of calendar quarters.  None of the Advisors to the Trust posted a profit during June.  NW and CCG remain positive on the year while the others are weathering the various markets’ gyrations.
 
Fiscal Quarter ended June 30, 2009
 
The Trust recorded net trading loss of $(2,062,029) or $(3.33) per unit for Class A units and $(2.78) per unit for Class B units in the second quarter of 2009.  (*** Please see “Notes to Consolidated Financial Statements” in Part I – Item 1 for an explanation of net asset value/unit pursuant to events of October, 2005, as the following excluded the Trust’s Non-Trading accounts.)  As of June 30, 2009, the Trust had gained 34.79% for Class A units since its inception in June 1997 and the Trust has lost (6.71)% for Class B units since its inception in January 2009.
 
Stocks climbed a wall of worry, as the old axiom states about bull markets, by posting a gain for a fourth consecutive month.  Stocks have rallied 42% from their low in early March.  This was their best three month showing since the 1930’s.  To put the magnitude of the losses sustained by the market over the last year and a half in perspective, the S&P 500 would have to gain another 62% from current levels to match the market high reached in October of 2007.  This seems like a tough task in light of long-term interest rates, which continued to rise during the quarter due to concerns over the expanding budget deficit, and its potential long-term inflationary implications.  Interest rates fell back at the end June, however, as markets digested tepid growth related statistics, and inflationary fears subsided.  This reversal took place after Treasury bond yields had risen more than 60% in five months.
 
Commodity markets began to firm in late April and were able to mount a rally during most of May.  Market worries over the inflationary implications of the government’s massive stimulus plan and other spending programs began to weaken the long-term Treasury markets.  With rates rising and the U.S. dollar weakening against major foreign currencies, commodities began to look like a good place to invest.  Historically, commodities, during times of inflation or currency depreciation, have been a good store of value.  In June, however, commodities sold off and evidence is beginning to appear that would indicate that the lock step relationship between commodities and the stock market that has existed for the last year or so is beginning to break up.  In other words, commodity markets are beginning to respond to the economics affecting their own specific situation rather than moving in tandem with stock prices.  This would create more diverse market movements and would be a good thing for our strategies.
 
The second quarter continued to present a difficult environment as a whole for the managed futures industry.  The Barclay B Top 50 CTA Index was down in two of the three months and lost approximately 2% during the quarter.  The index lost for consecutive quarters for only the third time since its creation in 1987.  The index has lost approximately 3.5% for the year-to-date.  The performance problem seems to lie in the unstable nature of the market environment from a time frame perspective.  Short-term systems focusing on moves lasting less than a week have struggled.  Long-term strategies focused on price moves that take months to evolve have refused to reverse.  This may pay off over time but for now it has created small losses.  Only intermediate term strategies focused on four to six week price movements have been able to adapt appropriately and capture profits.
 
 
21

 

Fiscal Quarter ended March 31, 2010
 
The Trust recorded net trading losses of $(1,147,108) or $(1.98) per trading unit for Class A units and a loss of $(1.51) per trading unit for Class B units in the first quarter of 2010 (*** Please see “Notes to Consolidated Financial Statements” in Part I — Item 1 for explanation of net asset value/unit pursuant to events of October, 2005, as the following excludes the Trust’s Non-Trading accounts). As of March 31, 2010, the Trust had gained 23.29% since its inception in June 1997.
 
On March 31, 2010, the Trust’s assets were allocated equally to the following Advisors as follows: ATC (16.66%), CCG (16.66%), GAJL (16.66%), HCM (16.66%), JWH (16.66%) and NW (16.66%).
 
An overall sell-off in stocks and commodities was the most notable event during January.  The U.S. dollar strengthened during January despite some poor economic reports.  The U.S. dollar rally seemed to catch a number of market participants off guard. The stock market started the year strongly, but fell 8% from its intra-month high to finish with a loss of 3.6% for the month.  Crude oil fell 13% and gold fell 7% from their respective intra-month highs. This paralleled the problems experienced by other commodity markets which had been hoping to see signs of improving domestic and international demand. The Trust fought through another difficult month. It has been one of the most difficult periods on record for managed futures strategies.  Our Advisors remain committed to research and to improving their risk adjusted performance.  During the month, half of the Advisors made money. Those who did had less exposure to long-term trend following.  The three profitable Advisors focused on shorter-time frames or fundamental economic conditions of a few specific underlying markets.
 
After selling off aggressively in early February, the stock market rebounded to finish with a modest gain.  Commodity markets, lead by crude oil and gold, also gained ground during month.  Commodities and stocks continued to move with an uncharacteristically high degree of positive correlation.  For example, the charts for gold, crude oil, and the S&P 500 look very similar.  Each of the three markets finds itself in the middle of a wide trading range bordered by November 2009 highs and early February lows.  The only market that appears to be trending is the U.S. dollar.  It has strengthened 11% or more against the euro, the British pound, and the Swiss franc.  The U.S. dollar however, has not strengthened against the Australian dollar, Japanese yen, or Canadian dollar.  The situation highlights European weakness as opposed to U.S. strength.  During the month NW and CCG made money.  GAJL and HCM were frustrated by choppy commodity markets.  JWH and ATC were also frustrated by a lack of follow through in downside moves that had begun developing in several sectors.
 
The stock market rose steadily during March and finished with a gain of almost 6%.  The U.S. dollar strengthened against the euro as European financial problems appear to be worse than our own in terms of budget deficits and burgeoning government debt.  The U.S. dollar lost ground, however, against the Australian dollar and Canadian dollar which both stand to strengthen from rising demand for their abundant natural resources.  Gold was weaker most of the month but a late rally leveled it for the month and for the year-to-date.  Crude oil was up almost 8% during March leaving it near the top of a $75 – $85 trading range that has persisted since November of last year.  Weakness in the natural gas and grain markets, due to concerns about oversupply, have created a drag on the commodity indices which remain in negative territory for the year-to-date.  During the month HCM and NW lost a modest amount of money but each of the other four advisors were profitable.  GAJL had the best month.  Their models had long positions in the petroleum based energy markets and short positions in the natural gas and grain markets.  There was consensus among our Advisors related to long-term interest rates with each Advisor registering short positions.  It should be noted that trading volume has begun to increase steadily over the last few months.  This should help our Advisors with the execution of their trading strategies.
 
Fiscal Quarter ended March 31, 2009
 
The Trust recorded net trading losses of $(3,792,599) or $(5.79) per trading unit for Class A units and $(5.23) per trading unit for Class B units in the first quarter of 2009 (*** Please see “Notes to Consolidated Financial Statements” in Part I — Item 1 for explanation of net asset value/unit pursuant to events of October, 2005, as the following excludes the Trust’s Non-Trading accounts). As of March 31, 2009, the Trust had gained 38.86% since its inception in June 1997.
 
On March 31, 2009, the Trust’s assets were allocated to the following Advisors as follows: ATC (27%), AIS (10%), GALP (18%), JWH (18%) and NW (27%).
 
 
22

 

The first quarter of 2009 began much as the fourth quarter of 2008 ended, with continued broad market volatility.  Stock markets and commodity markets remained under pressure and declined in lock step during January, February, and early March.  Prices reversed and began climbing during the first week of March as negative sentiment on the part of investors appeared to be at its highest.  Correlation between commodity prices and stock prices, with few exceptions, remained unusually high during the quarter.  The U.S. dollar had an almost exact inverse relationship to stock and commodity prices during the quarter.  It actually strengthened against most major foreign currencies as stocks and commodities sold off and then began to weaken after stocks and commodities bottomed out.  The results of fixed income markets during the quarter told two stories.  Short-term rates remained low and in choppy markets as the Federal Reserve left Fed Fund targets in the 0% to 0.25% range.  Long-term rates, however, edged higher in January and February as concerns over the inflationary impact of the government’s stimulus packages drove down note and bond prices.  Bond and note holders received a big boost, however, in late March when the Fed signaled that it would buy an enormous amount of medium- and long-term notes in an effort to keep mortgage rates low and to maintain a high level of liquidity in the markets.
 
The Advisors to the Trust who employ rule-based or systematic approaches managed the volatility well and the performance was down slightly until the sharp market reversals in March caused some slightly larger losses.  These Advisors employ methods that vary widely in terms of investment time horizons.  Those with shorter-term outlooks did a little worse during January and February while the long-term down trends established during the fall of 2008 remained in place, but managed the March reversals better than the Advisors with longer-term styles. The Advisors to the Trust who employ a more discretionary approach continued to struggle with the unprecedented volatility and uncertainty that surrounded the markets during the quarter.  They posted small losses for the quarter as well.
 
It was a difficult quarter in general for the managed futures industry.  The Barclay Commodity Trading Advisor Index, a broad measure of managed futures performance, lost ground each month during the quarter.  Approximately eight out of every ten managers in the industry were showing negative year-to-date performance at quarter end.  This difficult period followed a strong performance period for the industry in 2008.  Periods like this are to be expected from time to time, and the first quarter profile was consistent with other losing periods from the past.  The objective of the Trust’s portfolio of Advisors is to conserve capital during difficult periods like this using disciplined risk management and a broad diversification of asset exposure, investment style, and investment time frame.
 
(d)
Off-Balance-Sheet Arrangements; Disclosure of Contractual Obligations
 
The Trust does not have any off-balance-sheet arrangements (as defined in Regulation S-K 303(a)(4)(ii)) that have or are reasonably likely to have a current or future effect on its financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that are material to investors.
 
The Trust does not have any material contractual obligations.
 
Item 3.  Quantitative and Qualitative Disclosures About Market Risk
 
There has been no material change with respect to the Trust’s market risk as described in the section entitled “Quantitative and Qualitative Disclosures About Market Risk” in our Annual Report on Form 10-K for the year ended December 31, 2009.
 
Item 4T.  Controls and Procedures
 
Evaluation of Disclosure Controls and Procedures: Under the supervision and with the participation of the management of R.J. O’Brien Fund Management, LLC, the Managing Owner of the Trust at the time this quarterly report was filed, including the Managing Owner’s Chief Executive Officer (the Trust’s principal executive officer) and Chief Financial Officer (the Trust’s principal financial officer), have evaluated the effectiveness of the design and operation of the Trust’s disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act of 1934, as amended (the “Exchange Act”)) as of September  30, 2010.  The Trust’s disclosure controls and procedures are designed to provide reasonable assurance that information the Trust is required to disclose in the reports that the Trust files or submits under the Exchange Act are recorded, processed and summarized and reported within the time period specified in the applicable rules and forms.  Based on this evaluation, the Chief Executive Officer and Chief Financial Officer of the Managing Owner have concluded that the disclosure controls and procedures of the Trust were effective at September 30, 2010.
 
 
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Changes in Internal Control Over Financial Reporting:  There were no changes in the Trust’s internal control over financial reporting, during the quarter ended September 30, 2010, that have materially affected, or are reasonably likely to materially affect, the Trust’s internal control over financial reporting.
 
Limitations on the Effectiveness of Controls: Any control system, no matter how well designed and operated, can provide reasonable (not absolute) assurance that its objectives will be met.  Furthermore, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, have been detected.
 
PART II - OTHER INFORMATION
 
Item 1.  Legal Proceedings
 
The LLC is pursuing certain claims with respect to assets of the Trust formerly held by RCM.  See “Notes to Consolidated Financial Statements – Note 1.”  There is no assurance that such efforts will result in additional recoveries.
 
Item 1A.  Risk Factors
 
There have been no material changes from the risk factors in the section entitled “The Risks You Face” in the Trust Post-Effective Amendment No. 5 to the Registration Statement on Form S-1 filed on April 7, 2010 and declared effective April 30, 2010.
 
Item 2.  Unregistered Sales of Securities and Use of Proceeds
 
a)  None
 
b)  The Trust permits unitholders to redeem units at the end of each month at the net asset value per unit on the redemption date.  The redemption of units has no impact on the net asset value of the units that remain outstanding and units may not be reissued once they are redeemed.
 
The following table summarizes the redemptions by unitholders during the third quarter of 2010:
 
   
Units Redeemed
   
Redemption Date NAV per Unit
 
Month
 
Class A
   
Class B
   
Class A
   
Class B
 
July
    6,294       -     $ 96.15     $ 99.24  
August
    6,342       575     $ 99.64     $ 103.02  
September
    6,945       470     $ 100.81     $ 104.40  
                                 
Total
    19,581       1,045                  

Class A units sold January 1, 2010 through September 30, 2010: 50,559
Class B units sold January 1, 2010 through September 30, 2010: 4,607
Units (Class A) unsold through September 30, 2010:  927,952 ($93,546,841)
Units (Class B) unsold through September 30, 2010: 927,952 ($96,878,189)
Aggregate price paid for units sold January 1, 2010 through September 30, 2010: $5,378,210
 
100% of all subscription proceeds are invested directly into the Trust.
 
 
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Item 6.  Exhibits

 
a)
Exhibits

Index to Exhibits

Exhibit Number
 
Description of Document
     
3.01
 
Ninth Amended and Restated Declaration and Agreement of Trust of RJO Global Trust (the “Registrant”), dated as of September 1, 2010.1
     
3.03
 
Restated Certificate of Trust of the Registrant.2
     
10.01
 
Advisory Agreement, made as of October 1, 2010, among RJO Global Trust, R.J. O’Brien Fund Management, LLC, and Dominion Capital Management Institutional Advisors, Inc.*
     
10.02
 
Advisory Agreement, made as of October 1, 2010, among RJO Global Trust, R.J. O’Brien Fund Management, LLC, and Trigon Investment Advisors, LLC*
     
31.01
 
Rule 13a-14(a)/15d-14(a) Certifications of Principal Executive Officer.
     
31.02
 
Rule 13a-14(a)/15d-14(a) Certifications of Principal Financial Officer.
     
32.01
 
Section 1350 Certification of Principal Executive Officer and Principal Financial Officer.
 
*Confidential Treatment was requested with respect to the omitted portions of these exhibits.
 
1 Incorporated by reference herein from the exhibit of the same description filed on September 7, 2010 on Form 8-K.
 
2 Incorporated by reference herein from the exhibit of the same description filed on September 30, 2008 on Form 8-K.

 
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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned and thereunto duly authorized.

RJO Global Trust
   
Date:
November 12, 2010
   
By:
R.J. O’Brien Fund Management, LLC
 
Managing Owner
   
By:
/s/ Thomas J. Anderson
 
 
Thomas J. Anderson
 
Principal Financial Officer and duly authorized officer
 
 
26

 
EX-10.01 2 v201949_ex10-01.htm
CONFIDENTIAL TREATMENT REQUESTED.  Confidential portions of this document have been redacted and have been separately filed with the Commission.
  
Exhibit 10.01
  
ADVISORY AGREEMENT
 
THIS AGREEMENT, made as of October 1, 2010, among RJO Global Trust, a Delaware statutory business trust (the “Fund”), R.J. O’Brien Fund Management, LLC, a Delaware limited liability company (the “Managing Owner”), and Dominion Capital Management Institutional Advisors, Inc., a Michigan corporation (the “Trading Advisor”).
 
WITNESSETH:
 
WHEREAS, the Fund has been organized as a Delaware statutory business trust  pursuant to its organizational documents to, among other things, directly or indirectly through one or more commodity trading advisor, trade, buy, sell, spread, or otherwise acquire, hold, or dispose of commodities (including, but not limited to, foreign currencies, mortgage-backed securities, money market instruments, financial instruments, and any other securities or items which are now, or may hereafter be, the subject of futures contract trading), domestic and foreign commodity futures contracts, forward contracts, foreign exchange commitments, options on physical commodities and on futures contracts, spot (cash) commodities and currencies, exchange of futures contracts for physicals transactions, exchange of physicals for futures contracts transactions, and any rights pertaining thereto, whether traded on an organized exchange or otherwise (hereinafter referred to collectively as “futures interests;” provided, however, such definition shall exclude securities futures products as defined by the Commodity Futures Trading Commission (“CFTC”), options in securities futures and options in equities) and securities (such as United States Treasury securities) approved by the CFTC for investment of customer funds and other securities on a limited basis, and to engage in all activities incident thereto;
 
WHEREAS, the Fund is a commodity pool operated by the Managing Owner; and the Fund’s units are being offered pursuant to a registration statement on Form S-1 (No. 333-146177) as from time to time amended filed under the Securities Act of 1933, as amended;
 
WHEREAS, the principals of the Trading Advisor have extensive experience trading in futures interests and the Trading Advisor is willing to provide the services and undertake the obligations as set forth herein;
 
WHEREAS, the Fund and the Managing Owner each desires the Trading Advisor to act as a trading advisor for the Fund and to make investment decisions with respect to futures interests for the Fund and the Trading Advisor desires so to act; and
 
WHEREAS, the Fund, the Managing Owner and the Trading Advisor wish to enter into this Agreement which, among other things, sets forth certain terms and conditions upon which the Trading Advisor will conduct the futures interest trading with respect to a portion of the Fund’s assets, as described herein.
 

 
NOW, THEREFORE, the parties hereto hereby agree as follows:
 
 
1.
Undertakings in Connection with the Continuing Offering of Units.
 
(a)           The Trading Advisor agrees with respect to the continuing offering of interests (“Units”) in the Fund: (i) to make all disclosures regarding itself, its principals and affiliates, its trading performance, its trading systems, methods and strategies (subject to the need, in the reasonable discretion of the Trading Advisor, to preserve the secrecy of Proprietary Information (as defined in Section 1(c) hereof) concerning such systems, methods and strategies), any client accounts over which it has discretionary trading authority (other than the names of or identifying information with respect to any such clients), and otherwise, as the Fund may reasonably require (x) in connection with Fund’s offering materials (the “Prospectus”) as required by Rule 4.21 of the regulations under the Commodity Exchange Act (the “CEAct”), and the rules and regulations of the Securities and Exchange Commission (the “SEC”) including in connection with any amendments or supplements thereto, or (y) to comply with any other applicable law or rule or regulation, including those of the CFTC, the National Futures Association (the “NFA”), the SEC, or any other regulatory or self-regulatory body, exchange, or board with jurisdiction over its members (or to comply with the reasonable request of the aforementioned organizations); and (ii) to otherwise cooperate with the Fund and the Managing Owner by providing information regarding the Trading Advisor in connection with the preparation of the Prospectus, including any amendments or supplements thereto, as part of making application for registration of the Units under the securities or blue sky laws of any jurisdictions, including foreign jurisdictions, as the Fund may deem appropriate; provided that all such disclosures are subject to the need, in the reasonable discretion of the Trading Advisor, to preserve the secrecy of Proprietary Information concerning its clients, systems methods and strategies. As used herein, unless otherwise provided, the term “principal” shall have the meaning as defined in Rule 4.10(e) of the CFTC’s regulations and the term “affiliate” shall mean an individual or entity that directly or indirectly controls, is controlled by, or is under common control with, such party.  The Managing Owner may, in its sole discretion and at any time, withdraw the SEC registration of the Units or discontinue the offering of Units.
 
(b)           If the Trading Advisor becomes aware of any materially untrue or misleading statement or omission regarding itself or any of its principals or affiliates in the Disclosure Document (as defined in Section 19 hereof), or of the occurrence of any event or change in circumstances which would result in there being any materially untrue or misleading statement or omission in the Disclosure Document regarding itself or any of its principals or affiliates, the Trading Advisor shall promptly notify the Managing Owner and shall cooperate with the Managing Owner in the preparation of any necessary amendments or supplements to the Prospectus. Neither the Trading Advisor nor any of its principals, or affiliates, or any stockholders, officers, directors, or employees shall distribute the Prospectus or selling literature or shall engage in any selling activities whatsoever in connection with the continuing offering of Units except as may be specifically approved by the Managing Owner and agreed to by the Trading Advisor.
 
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(c)           For purposes of this Agreement, and notwithstanding any of the provisions hereof, all non-public information relating to the Trading Advisor including, but not limited to, records, whether original, duplicated, computerized, handwritten, or in any other form, and information contained therein, business and/or marketing and/or sales plans and proposals, names of past and current clients, names of past, current and prospective contacts, trading methodologies, systems, strategies and programs, trading advice, trading instructions, results of proprietary accounts, training materials, research data bases, portfolios, and computer software, and all written and oral information, furnished by the Trading Advisor to the Fund and the Managing Owner and/or their officers, directors, employees, agents (including, but not limited to, attorneys, accountants, consultants, and financial advisors) or controlling persons (each a “Recipient”), regardless of the manner in which it is furnished, together with any analysis, compilations, studies or other documents or records which are prepared by a Recipient of such information and which contain or are generated from such information, regardless of whether explicitly identified as confidential, with the exception of information which (i) is or becomes generally available to the public other than as a result of acts by the Recipient in violation of this Agreement, (ii) is in the possession of the Recipient prior to its disclosure pursuant to the terms hereof, (iii) is or becomes available to the Recipient from a source that is not bound by a confidentiality agreement with regard to such information or by any other legal obligation of confidentiality prohibiting such disclosure, or (iv) that is independently developed by the Recipient without use of the confidential information described in this Section 1(c), are and shall be confidential information and/or trade secrets and the exclusive property of the Trading Advisor (“Confidential Information” and/or “Proprietary Information”).
 
(d)           The Fund and the Managing Owner each warrants and agrees that they and their respective officers, directors, members, equity holders, employees and agents (including for purposes of this Agreement, but not limited to, attorneys, accountants, consultants, and financial advisors) will protect and preserve the Confidential Information and will disclose Confidential Information or otherwise make Confidential Information available only to the Fund’s or the Managing Owner’s officers, directors, members, equity holders, employees and agents (including for purposes of this Agreement, but not limited to, attorneys, accountants, consultants, and financial advisors), who need to know the Confidential Information (or any part of it) for the purpose of satisfying their fiduciary, legal, reporting, filing or other obligations hereunder or to monitor performance in the account during the term of this Agreement or thereafter, or to the Fund, Managing Owner or a Recipient, as the case may be, is required to disclose such Confidential Information due to a fiduciary obligation or legal or regulatory request. Additionally, the Fund and the Managing Owner each warrants and agrees that it and any Recipient will use the Confidential Information solely for the purpose of satisfying the Fund’s or the Managing Owner’s obligations under this Agreement and not in a manner which violates the terms of this Agreement.
 
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2.
Duties of the Trading Advisor.
 
(a)           Upon the commencement of trading operations on or about October 1, 2010 by the Trading Advisor with respect to a portion of the assets of the Fund, the Trading Advisor hereby agrees to act as a Trading Advisor for the Fund and, as such, shall have authority and responsibility for directing the investment and reinvestment of that portion of the Fund’s assets allocated to the Trading Advisor, which shall consist of the Allocated Net Assets (as defined in Section 5(c) hereof) plus “notional” funds, if any, allocated to the Trading Advisor, as specified in writing by the Managing Owner and consented to by the Trading Advisor (the “Assets”), on the terms and conditions and in accordance with the prohibitions and the trading policies set forth in Exhibit A to this Agreement as amended from time to time and provided in writing to the Trading Advisor by the Managing Owner (the “Trading Policies”); provided, however, that the Managing Owner may override the instructions of the Trading Advisor without notice to the Trading Advisor to the extent necessary (i) to comply with the Trading Policies and with applicable speculative position limits, (ii) to fund any distributions or redemptions, (iii) to pay the Fund’s expenses, (iv) to the extent the Managing Owner believes doing so is necessary for the protection of the Fund, (v) to terminate the futures interest trading of the Account (as defined in Section 4) with the Trading Advisor, or (vi) to comply with any applicable law or regulation. The Managing Owner agrees not to override any such instructions for the reasons specified in clauses (ii) or (iii) of the preceding sentence unless the Trading Advisor fails to comply with a request of the Managing Owner to make the necessary amount of funds available to the Fund within two trading days of such request.  The Trading Advisor shall not be liable for the consequences of any decision by the Managing Owner to override instructions of the Trading Advisor, except to the extent that such consequences result from a material breach of this Agreement by the Trading Advisor or the Trading Advisor fails to comply with the Managing Owner’s decision to override an instruction.  Notwithstanding anything to the contrary contained in this Agreement, the Fund shall have the right to instruct the Trading Advisor to liquidate any or all positions at any time.
 
(b)           The Trading Advisor shall:
 
(i)           Exercise good faith and due care in trading futures interests for the account of the Fund in accordance with the prohibitions and Trading Policies, and the trading systems, methods, and strategies of the Trading Advisor described in the Disclosure Document, with such changes and additions to such trading systems, methods or strategies as the Trading Advisor, from time to time, incorporates into its trading approach for accounts the size of the Fund.
 
(ii)           Provide the Managing Owner, within 45 days of the end of a calendar quarter, and within 45 days of a separate request which the Managing Owner may make from time to time, with information comparing the performance of the Fund’s account and the performance of all other client accounts (“Other Accounts”) directed by the Trading Advisor using the trading systems used by the Trading Advisor on behalf of the Fund over a specified period of time for the purpose of confirming that the Fund has been treated equitably compared to such Other Accounts.  In providing such information, the Trading Advisor may take such steps as are necessary to assure the confidentiality of the Trading Advisor’s clients’ identities. The Trading Advisor shall, upon the Managing Owner’s request, consult with the Managing Owner concerning any discrepancies between the performance of such Other Accounts and the Fund’s account. The Trading Advisor shall promptly inform the Managing Owner in writing of any material discrepancies of which the Trading Advisor is aware. The Managing Owner acknowledges that the following differences in accounts may cause divergent trading results:  different trading strategies, different account sizes or trading levels, different commission rates, different administrative charges or expenses, methods or degrees of leverage, different trading policies, accounts experiencing differing inflows or outflows of equity, different risk profiles, accounts which commence trading at different times and accounts which have different portfolios or different fiscal years.
 
4

 
(iii)           Inform the Managing Owner when the Trading Advisor’s open positions maintained by the Trading Advisor exceed the Trading Advisor’s applicable speculative position limits.
 
(iv)           Upon request of the Managing Owner, promptly provide the Managing Owner with all information concerning the Trading Advisor and its activities reasonably requested by the Managing Owner (including, without limitation, information relating to changes in control, key personnel, trading approach, or financial condition).  Additionally, the Trading Advisor agrees to furnish R.J. O’Brien & Associates, LLC (“RJOB”) by telephone, facsimile or electronic data transmission  (i) a final report of all trades at the end of each business day and (ii) a report of any trade made involving a position with a required initial margin equal to 10% or more of the Assets within 30 minutes of the Trading Advisor’s receipt of confirmation, verbal or otherwise, from the executing broker that such a trade has been executed.  The Trading Advisor further acknowledges and agrees that the timely provision of all such information is of the essence in order to enable the Fund, its designated entities, and RJOB to monitor and comply with mandatory risk control algorithms imposed upon the operation of the Fund.
 
(c)           All purchases and sales of futures interests pursuant to this Agreement shall be for the account, and at the risk, of the Fund and not for the account, or at the risk of the Trading Advisor or any of its affiliates or each of their principals, stockholders, directors, officers, or employees, or any other person, if any, who controls the Trading Advisor. All brokerage commissions and related transaction fees arising from such trading by the Trading Advisor shall be for the account of the Fund.
 
(d)           Subject to the limitations of liability and standards set forth in Section 8(a) hereof, *. The Trading Advisor shall have an affirmative obligation to promptly notify the Managing Owner upon discovery of its own errors with respect to the account, and the Trading Advisor shall use its best efforts to identify and promptly notify the Managing Owner of any order or trade which the Trading Advisor reasonably believes was not executed in accordance with its instructions to any Commodity Broker or such other commodity broker utilized to execute orders for the Fund.
 
(e)           Prior to the commencement of trading by the Fund, the Managing Owner, on behalf of the Fund, shall deliver to the Trading Advisor a trading authorization appointing the Trading Advisor the Fund’s attorney-in-fact for such purpose (a form of which is attached hereto as Exhibit B).
 
(f)           In performing services to the Fund, the Trading Advisor shall utilize Dominion Sapphire Program (the “Trading Program”), as described in the Disclosure Document, and as modified from time to time. The Trading Advisor shall give the Managing Owner prior written notice of any change in the Trading Program that the Trading Advisor considers to be material (and shall not effect such change on behalf of the Fund without the Managing Owner’s consent), including any additional futures interests to be traded by the Trading Advisor not already listed on Exhibit C.  Changes in the futures interests traded, provided that such futures interests are listed on Exhibit C, shall not be deemed a modification of the Trading Program.
______________________________
* Confidential material redacted and filed separately with the Commission.
 
5

 
 
3.
Trading Advisor as an Independent Contractor.
 
For all purposes of this Agreement, the Trading Advisor shall be deemed to be an independent contractor and shall, unless otherwise expressly provided herein or authorized, have no authority to act for or represent the Fund in any way or otherwise be deemed an agent of the Fund.  Nothing contained herein shall be deemed to require the Fund to take any action contrary to its governing documents as from time to time in effect, or any applicable law or rule or regulation of any regulatory or self-regulatory body, exchange, or board. Nothing herein contained shall constitute the Trading Advisor or the Managing Owner as members of any partnership, joint venture, association, syndicate or other entity, or be deemed to confer on any of them any express, implied, or apparent authority to incur any obligation or liability on behalf of any other. It is expressly agreed that the Trading Advisor is neither a promoter, sponsor, or issuer with respect to the Fund, nor does the Trading Advisor have any authority or responsibility with respect to the offer, sale or issuance of Units.
 
 
4.
Commodity Broker.
 
The Trading Advisor shall effect all transactions in futures interests for the Fund through the Fund’s separate account of the Fund to be traded exclusively by the Trading Advisor (the “Account”) maintained with RJOB or such commodity broker or brokers as the Managing Owner shall direct and appoint from time to time (the “Commodity Brokers”).
 
Notwithstanding the foregoing, the Trading Advisor may execute trades through floor brokers other than those employed by RJOB and its affiliates so long as arrangements (including executed give-up agreements) are made for such floor brokers to “give-up” or transfer the positions to RJOB in conformity with the Trading Policies set forth in Exhibit A attached hereto.
 
 
5.
Fees.
 
(a)           For the services to be rendered to the Fund by the Trading Advisor under this Agreement:
 
(i)           The Fund shall pay the Trading Advisor a monthly management fee equal to 1/12 of *% (a *% annual rate) of the Assets allocated to it (as defined in Section 2(a) hereof) as of the last day of each month (the “Management Fee”).  The Management Fee is payable in arrears within 20 Business Days of the end of the month for which it was calculated.  For purposes of this Agreement, “Business Day” shall mean any day which the securities markets are open in the United States.
______________________________
* Confidential material redacted and filed separately with the Commission.
 
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(ii)           The Fund shall pay the Trading Advisor an incentive fee equal to 20% of the New Trading Profit (as defined in Section 5(d) hereof) that shall accrue monthly but is not payable until the end of each calendar quarter (the “Incentive Fee”).  The initial incentive period will commence on the date the Trading Advisor commences trading the Account and shall end on the last day of the calendar quarter after such date.  The Incentive Fee is payable within 20 Business Days of the end of the calendar quarter for which it was calculated.
 
(b)           If this Agreement is terminated on a date other than the last day of a calendar quarter, the Incentive Fee shall be determined as if such date were the end of a calendar quarter. If this Agreement is terminated on a date other than the end of a month, the Management Fee described above shall be determined as if such date were the end of a month, but such fee shall be prorated based on the ratio of the number of trading days in the month through the date of termination to the total number of trading days in the month. If, during any month after the Trading Advisor commences trading operations on behalf of the Account (including the month in which the Trading Advisor commences such operations), the Fund does not conduct business operations, or suspends trading for the Account, or, as a result of an act or material failure to act by the Trading Advisor, is otherwise unable to utilize the trading advice of the Trading Advisor on any of the trading days of that month for any reason, the Management Fee shall be prorated based on the ratio of the number of trading days in the month which the Account engaged in trading operations or utilizes the trading advice of the Trading Advisor to the total number of trading days in the month. The Management Fee payable to the Trading Advisor for the month in which the Fund begins to receive trading advice from the Trading Advisor pursuant to this Agreement shall be prorated based on the ratio of the number of trading days in the month from the day the Fund begins to receive such trading advice to the total number of trading days in the month. In the event that there is an increase or decrease in the Assets as of any day other than the first day of a month, the Trading Advisor shall be paid a pro rata Management Fee on such increase or decrease in the Assets for such month.
 
(c)           The term “Allocated Net Assets” shall mean the total assets of the Fund allocated to the Account (including, but not limited to, all cash and cash equivalents, accrued interest and amortization of original issue discount, and the market value (marked-to-market) of all open futures interest positions and other assets of the Account) less all liabilities of the Fund determined in accordance with generally accepted accounting principles consistently applied under the accrual basis of accounting. Unless generally accepted accounting principles require otherwise, the market value of a futures or option contract traded on a United States exchange shall mean the settlement price on the exchange on which the particular futures or option contract shall be traded by the Trading Advisor on behalf of the Account with respect to which the Net Assets are being determined; provided, however, that if a contract could not be liquidated on such day due to the operation of daily limits or other rules of the exchange on which that contract shall be traded or otherwise, the settlement price on the first subsequent day on which the contract could be  liquidated shall be the market value of such contract for such day, or if a contract could not be liquidated on such day due to the exchange being closed for an exchange holiday, the settlement price on the most recent preceding day on which the contract could have been liquidated shall be the market value of such contract for such day.  The market value of a forward contract or a futures or option contract traded on a foreign exchange or market shall mean its market value as determined by the Managing Owner on a basis consistently applied for each different variety of contract.
 
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(d)           The term “New Trading Profit” shall mean net futures interest trading profits (realized and unrealized) on the Assets, decreased proportionally by the Trading Advisor’s monthly Management Fees and brokerage commissions and NFA fees applicable to the Account.  Interest income is not included in New Trading Profit. Extraordinary expenses do not reduce New Trading Profit.  Such trading profits and items of decrease shall be determined from the end of the last calendar quarter in respect of which an Incentive Fee was earned by the Trading Advisor or, if no Incentive Fee has been earned previously by the Trading Advisor, from the date that the Trading Advisor commenced managing the Assets, to the end of the calendar quarter as of which such Incentive Fee calculation is being made. New Trading Profit shall be calculated before reduction for Incentive Fees paid or accrued so that the Trading Advisor does not have to earn back Incentive Fees.
 
(e)           If any payment of Incentive Fees is made to the Trading Advisor on account of New Trading Profit earned by the Trading Advisor and the Trading Advisor thereafter fails to earn New Trading Profit or experiences losses for any subsequent incentive period, the Trading Advisor shall be entitled to retain such amounts of Incentive Fees previously paid to the Trading Advisor in respect of such New Trading Profit. No Incentive Fees shall be payable to the Trading Advisor until the Trading Advisor has earned New Trading Profit; provided, however, that if the Assets are reduced because of redemptions that occur at the end of, and/or subsequent to, a calendar quarter in which the Trading Advisor experiences a futures interest trading loss for the Fund, the trading loss that must be recovered before the Trading Advisor will be deemed to experience New Trading Profit in a subsequent calendar quarter will be equal to the amount determined by (x) dividing the Assets after such decrease by the Assets in immediately before such decrease and (y) multiplying that fraction by the amount of the unrecovered futures interest trading loss prior to such decrease. In the event that the Trading Advisor experiences a trading loss in more than one calendar quarter without the Trading Company paying an intervening Incentive Fee and Assets are reduced in more than one such calendar quarter because of redemptions, then the trading loss for each such calendar quarter shall be adjusted in accordance with the formula described above and such reduced amount of futures interest trading loss shall be carried forward and used to offset subsequent futures interest trading profits. No Incentive Fees shall be payable to the Trading Advisor until the Trading Advisor has earned New Trading Profit.
 
 
6.
Designation of Additional Trading Advisors and Reallocation of Net Assets
 
(a)           If the Managing Owner at any time deems it to be in the best  interests  of  the  Fund, the  Managing Owner may designate  one or more additional trading advisors for  the Fund and  may  apportion  to  such  additional trading advisor(s) the management of such amounts of the Fund’s assets as  the Managing Owner shall determine in its absolute discretion.   The designation of an additional trading advisor or advisors and  the apportionment of the Fund’s assets to such trading advisor(s)  pursuant to  this  Section  6 shall neither terminate this  Agreement  nor modify in any regard the respective rights and obligations of the Fund, the Managing Owner and  the  Trading Advisor hereunder.  In the event that assets are reallocated from the Trading  Advisor,  the Trading Advisor shall  thereafter  receive management  and  incentive  fees  based,  respectively, on Assets, as reduced pursuant to this Section 6(a) and  the Trading  Profits attributable to such reduced Assets.

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(b)           The Managing Owner may at any time and from time to time upon three business days' prior notice reallocate Assets to any other trading advisor or advisors of the Fund or allocate additional Assets upon three business days' prior notice to the Trading Advisor from such other trading advisor or advisors; provided that any such addition to or withdrawal from Assets will only take place on the last day of a month unless the Managing Owner determines that the best interests of the Fund require otherwise.  The Trading Advisor shall have the right to refuse any additional allocations to be made pursuant to this Section 6(b).

(c)           The Managing Owner shall not, without the consent of the Trading Advisor, allocate to the Trading Advisor "notional" assets of the Fund.

 
7.
Term
 
(a)           This Agreement shall continue in effect for a period of one year from the date the Agreement was entered into unless otherwise terminated as set forth in this Section 7. The Trading Advisor may terminate this Agreement at the end of such one-year period by providing prior written notice of termination to the Fund at least sixty days prior to the expiration of such one-year period. If the Agreement is not terminated upon the expiration of such one-year period, this Agreement shall automatically renew for an additional one-year period and shall continue to renew for additional one-year periods until this Agreement is otherwise terminated, as provided for herein.  This Agreement shall automatically terminate if the Fund is dissolved.
 
(b)           The Fund and Managing Owner each shall have the right to terminate this Agreement in its discretion (i) at any month end upon five days’ prior written notice to the Trading Advisor, or (ii) at any time upon prior written notice to the Trading Advisor upon the occurrence of any of the following events: (A) if any person described as a “principal” of the Trading Advisor in the Prospectus ceases for any reason to be an active “principal” of the Trading Advisor; (B) if the Trading Advisor becomes bankrupt or insolvent; (C) if the Trading Advisor is unable to use its trading systems or methods as in effect on the date hereof and as modified in the future for the benefit of the Fund; (D) if the registration, as a commodity trading advisor, of the Trading Advisor with the CFTC or its membership in the NFA is revoked, suspended, terminated, or not renewed, or limited or qualified in any respect; (E) except as provided in Section 12 hereof, if the Trading Advisor merges or consolidates with, or sells or otherwise transfers its advisory business, or all or a substantial portion of its assets, any portion of its futures interest trading systems or methods, or its goodwill to, any individual or entity; (F) if, at any time, the Trading Advisor violates any Trading Policy or administrative policy, except with the prior express written consent of the Managing Owner; or (G) if the Trading Advisor fails in a material manner to perform any of its obligations under this Agreement.
 
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(c)           The Trading Advisor may terminate this Agreement at any time, upon thirty days’ prior written notice to the Fund and Managing Owner, in the event: (A) that the Managing Owner imposes additional trading limitation(s) in the form of one or more Trading Policies or administrative policies that the Trading Advisor does not consent to, such consent not to be unreasonably withheld; (B) the Managing Owner objects to the Trading Advisor implementing a proposed material change to the Trading Program and the Trading Advisor certifies to the Managing Owner in writing that it believes such change is in the best interests of the Fund; (C) the Managing Owner or the Fund materially breaches this Agreement and does not correct the breach within ten days of receipt of a written notice of such breach from the Trading Advisor; (D) the Assets fall below $* (after adding back trading losses) at any time; (E) the Fund becomes bankrupt or insolvent, or (F) the registration of the Managing Owner with the CFTC as a commodity pool operator or its membership in the NFA is revoked, suspended, terminated or not renewed, or limited or qualified in any respect.  If the Managing Owner or Fund merges, consolidates or sells a substantial portion of its assets pursuant to Section 12 of this Agreement, the Trading Advisor may terminate this Agreement upon prior written notice to the Managing Owner and Fund.
 
(d)           Except as otherwise provided in this Agreement, any termination of this Agreement in accordance with this Section 7 shall be without penalty or liability to any party, on account of such termination.
 
(e)           The indemnities set forth in Section 8 hereof shall survive any termination of this Agreement.
 
 
8.
Standard of Liability: Indemnifications.
 
(a)           Limitation of Trading Advisor Liability. In respect of the Trading Advisor’s role in the futures interests trading of the Fund, the Trading Advisor shall not be liable to the Fund or the Managing Owner or their partners, directors, officers, principals, managers, members, shareholders, employees, controlling persons or successors and assigns except that the Trading Advisor shall be liable for acts or omissions that constitute a breach of this Agreement or a representation, warranty or covenant herein, misconduct, gross negligence or are the result of the Trading Advisor not having acted in good faith and in the reasonable belief that such actions or omissions were in, or not opposed to, the best interests of the Fund.
 
(b)           Trading Advisor Indemnity in Respect of Management Activities. The Trading Advisor shall indemnify, defend and hold harmless the Fund and the Managing Owner, their controlling persons, their affiliates and their respective directors, officers, principals, managers, members, shareholders, employees and controlling persons from and against any and all losses, claims, damages, liabilities (joint and several), costs, and expenses (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Trading Advisor shall have approved such settlement) resulting from a demand, claim, lawsuit, action or proceeding (other than those incurred as a result of claims brought by or in the right of an indemnified party) relating to this Agreement (except as covered by paragraph (d) below) but only to the extent such losses, claims, damages, and expenses  directly result from acts or omissions of the Trading Advisor that constitute a breach of this Agreement or a representation, warranty or covenant herein, misconduct, gross negligence, or are the direct result of the Trading Advisor not having acted in good faith and in the reasonable belief that such actions or omissions were in, or not opposed to, the best interests of the Fund; provided that such loss was not the result of Managing Owner’s own breach of this Agreement or a representation, warranty or covenant herein, misconduct, or gross negligence.
______________________________
* Confidential material redacted and filed separately with the Commission.
 
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(c)           Fund Indemnity in Respect of Management Activities.  The Fund shall indemnify, defend and hold harmless the Trading Advisor, its controlling persons, their affiliates and their respective directors, officers, principals, managers, members, shareholders, employees and controlling persons, from and against any and all losses, claims, damages, liabilities (joint and several), costs and expenses (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Fund shall have approved such settlement) resulting from a demand, claim, lawsuit, action or proceeding (other than those incurred as a result of claims brought by or in the right of an indemnified party) relating to this Agreement (except as covered by paragraph (e) below); but only to the extent such losses, claims, damages, and expenses  directly result from acts or omissions of the Fund that constitute a breach of this Agreement or a representation, warranty or covenant herein, misconduct, or gross negligence; provided that such loss was not the result of Trading Advisor’s own breach of this Agreement or a representation, warranty or covenant herein, misconduct, or gross negligence.
 
(d)           Trading Advisor Indemnity in Respect of Sale of Units. The Trading Advisor shall indemnify, defend and hold harmless the Fund, the Managing Owner, any selling agent, their controlling persons and their affiliates and their respective directors, officers, principals, managers, members, shareholders, employees and controlling persons from and against any and all losses, claims, damages, liabilities, costs, and expenses, (joint and several), to which any indemnified person may become subject (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Trading Advisor shall have approved such settlement, and in connection with any administrative proceedings), in respect of the offer or sale of Units, insofar as such losses, claims, damages, liabilities, costs, or expenses (or action in respect thereof) arise out of, or are based upon: (i) a breach by the Trading Advisor of any applicable laws or regulations or any representation, warranty or agreement in this Agreement; or (ii) any materially untrue statement or omission relating or with respect to the Trading Advisor, or any of its principals, or their operations, trading systems, methods or performance, which was made in the Prospectus or any amendment or supplement thereto or any other sales literature and furnished by the Trading Advisor for inclusion therein.
 
(e)            Fund Indemnity in Respect of Sale of Units. The Fund shall indemnify, defend and hold harmless the Trading Advisor its controlling persons, their affiliates and their respective directors, officers, principals, managers, members shareholders, employees and controlling persons from and against any loss claim, damage, liability, cost, and expense, joint and several, to which any indemnified person may become subject (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Fund shall have approved such settlement, and in connection with any administrative proceedings), in respect of the offer or sale of Units, unless such loss, claim, damage, liability, cost, or expense (or action in respect thereof) arises out of, or is based upon (i) a breach by the Trading Advisor of any applicable laws or regulations or any representation, warranty or agreement in this Agreement; or (ii) any materially untrue statement or omission relating or with respect to the Trading Advisor, or any of its principals or their operations, trading systems, methods or performance that was made in the Prospectus or in any other sales literature and furnished by the Trading Advisor for inclusion therein.
 
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(f)           Subject to the limitations of liability and standards set forth in Section 8(a) hereof, the foregoing agreements of indemnity shall be in addition to, and shall in no respect limit or restrict, any other remedies which may be available to an indemnified person.
 
(g)           Promptly after receipt by an indemnified person of notice of the commencement of any action, claim, or proceeding to which any of the indemnities may apply, the indemnified person will notify the indemnifying party in writing of the commencement thereof if a claim in respect thereof is to be made against the indemnifying party hereunder; but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability that the indemnifying party may have to the indemnified person hereunder, except where such omission has materially prejudiced the indemnifying party. In case any action, claim, or proceeding is brought against an indemnified person and the indemnified person notifies the indemnifying party of the commencement thereof as provided above, the indemnifying party will be entitled to participate therein and, to the extent that the indemnifying party desires, to assume the defense thereof with counsel selected by the indemnifying party and not unreasonably disapproved by the indemnified person. After notice from the indemnifying party to the indemnified person of the indemnifying party’s election so to assume the defense thereof as provided above, the indemnifying party will not be liable to the indemnified person under the indemnity provisions hereof for any legal and other expenses subsequently incurred by the indemnified person in connection with the defense thereof, other than reasonable costs of investigation.
 
Notwithstanding the preceding paragraph, if in any action, claim, or proceeding as to which indemnification is or may be available hereunder, an indemnified person reasonably determines that its interests are or may be adverse, in whole or in part, to the indemnifying party’s interests or that there may be legal defenses available to the indemnified person that are different from, in addition to, or inconsistent with the defenses available to the indemnifying party, the indemnified person may retain its own counsel in connection with such action, claim, or proceeding and will be indemnified (provided the indemnified person is so entitled) by the indemnifying party for any legal and other expenses reasonably incurred in connection with investigating or defending such action, claim, or proceeding.
 
In no event will the indemnifying party be liable for the fees and expenses of more than one counsel for all indemnified persons in connection with any one action; claim, or proceeding or in connection with separate but similar or related actions, claims, or proceedings in the same jurisdiction arising out of the same general allegations. The indemnifying party will not be liable for any settlement of any action, claim, or proceeding effected without the indemnifying party’s express written consent, but if any action, claim, or proceeding, is settled with the indemnifying party’s express written consent, the indemnifying party will indemnify, defend, and hold harmless an indemnified person as provided in this Section 8.
 
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9.
Right to Advise Others and Uniformity of Acts and Practices.
 
(a)           The Trading Advisor is engaged in the business of advising clients as to the purchase and sale of futures interests. During the term of this Agreement, the Trading Advisor, its principals and affiliates, will be advising other clients (including affiliates and the stockholders, officers, directors, and employees of the Trading Advisor and its affiliates and their families) and trading for their own accounts. The Trading Advisor will use its best efforts to implement a fair and consistent allocation policy that seeks to ensure that all clients are treated equitably and positions allocated as nearly as possible in proportion to the assets available for trading of the accounts managed or controlled by the Trading Advisor.  Upon written request, the Managing Owner may request a copy of the Trading Advisor’s procedures regarding the equitable treatment of trades across accounts.  Such procedures shall be provided to the Managing Owner within 30 days of such request by the Managing Owner.  Except as otherwise set forth herein, the Trading Advisor and its principals and affiliates agree to treat the Fund in a fiduciary capacity to the extent recognized by applicable law, but subject to that standard.  Under no circumstances shall the Trading Advisor by any act or omission knowingly or intentionally favor any account advised or managed by the Trading Advisor over the account of the Fund in any way or manner. Nothing contained in this Section 9(a) shall preclude the Trading Advisor from charging different management and/or incentive fees to its clients. Subject to the Trading Advisor’s obligations under applicable law, the Trading Advisor or any of its principals or affiliates shall be free to advise and manage accounts for other clients and shall be free to trade on the basis of the same trading systems, methods, or strategies employed by the Trading Advisor for the account of the Fund, or trading systems, methods, or strategies that are entirely independent of, or materially different from, those employed for the account of the Fund, and shall be free to compete for the same futures interests as the Fund or to take positions opposite to the Fund, where such actions do not knowingly or intentionally prefer any of such accounts over the account of the Fund on an overall basis.
 
(b)           The Trading Advisor shall not be restricted as to the number or nature of its clients, except that: (i) so long as the Trading Advisor acts as a trading advisor for the Fund, neither the Trading Advisor nor any of its principals or affiliates shall knowingly hold any position or control any other account that would cause the Fund, the Trading Advisor, or the principals or affiliates of the Trading Advisor to be in violation of the CEAct or any regulations promulgated thereunder, any other applicable law, or any applicable rule or regulation of the CFTC or any other regulatory or self regulatory body, exchange, or board; and (ii) neither the Trading Advisor nor any of its principals or affiliates shall render futures interests trading advice to any other individual or entity or otherwise engage in activity that shall knowingly cause positions in futures interests to be attributed to the Trading Advisor under the rules or regulations of the CFTC or any other regulatory or self regulatory body, exchange, or board so as to require the significant modification of positions taken or intended for the account of the Fund; provided that the Trading Advisor may modify its trading systems, methods or strategies to accommodate the trading of additional funds or accounts.  If applicable speculative position limits are exceeded by the Trading Advisor in the opinion of (i) independent counsel (who shall be other than counsel to the Fund), (ii) the CFTC, or (iii) any other regulatory or self regulatory body, exchange, or board, the Trading Advisor and its principals and affiliates shall promptly liquidate positions in all of their accounts, including the Fund’s account, as to which positions are attributed to the Trading Advisor as nearly as possible in proportion to the accounts respective amounts available for trading (taking into account different degrees of leverage and “notional” equity) to the extent necessary to comply with the applicable position limits.
 
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10.
Representations, Warranties, and Covenants of the Trading Advisor.
 
(a)           Representations and Warranties of the Trading Advisor. The Trading Advisor represents and warrants to and agrees with the Managing Owner and the Fund as follows:
 
(i)           It will exercise good faith and due care in implementing the Trading Program on behalf of the Fund as described in the Disclosure Document (as modified from time to time) or any other trading programs agreed to by the Managing Owner and the Trading Advisor.
 
(ii)          The Trading Advisor shall follow and comply with, at all times, the Trading Policies.
 
(iii)         The Trading Advisor shall trade the Assets pursuant to the same trading programs described in the Disclosure Document unless the Managing Owner and the Trading Advisor agree otherwise.
 
(iv)         The Trading Advisor is duly organized, validly existing and in good standing under the laws of the state of its organization and is qualified to do business as a foreign corporation or and is in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify would materially adversely affect the Trading Advisor’s ability to perform its duties under this Agreement. The Trading Advisor has full power and authority to perform its obligations under this Agreement. The only principals of the Trading Advisor are those set forth in the Prospectus and Disclosure Document (the “Trading Advisor Principals”).
 
(v)          The Disclosure Document contains all statements and information required to be included therein under the CEAct and other applicable laws, and such information is accurate and complete in all material respects.
 
(vi)         All references to the Trading Advisor and the Trading Advisor Principals and trading systems, methods and performance in the Prospectus are accurate and complete in all material respects. With respect to the Trading Advisor, the Trading Advisor Principals, and its trading systems, methods and performance:  (i) the Prospectus contains all statements and information required to be included therein under the CEAct and the rules and regulations thereunder and (ii) the Prospectus does not contain, and will not during the term of this Agreement contain, any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements were made, not misleading. Except as otherwise disclosed in the Prospectus, the actual performance of a discretionary account directed by the Trading Advisor or any principal or affiliate of the Trading Advisor over the past five years and year-to-date is disclosed in the Prospectus using a model account basis. The information regarding the actual performance of such accounts set forth in the Prospectus have been calculated and presented in accordance with the descriptions therein and is complete and accurate in all material respects.
 
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(vii)        This Agreement has been duly and validly authorized, executed and delivered on behalf of the Trading Advisor and is a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms.
 
(viii)       Each of the Trading Advisor and the Trading Advisor Principals has all federal, state and foreign governmental, regulatory and exchange licenses and approvals and has effected all filings and registrations with federal, state and foreign governmental and regulatory agencies required to conduct its business and to act as described in the Prospectus or required to perform its or his obligations under this Agreement. The Trading Advisor is registered as a commodity trading advisor under the CEAct and is a member of the NFA in such capacity.
 
(ix)          The execution and delivery of this Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions contemplated herein and in the Prospectus and the payment of the fees hereunder will not violate, or constitute a breach of, or default under, the certificate of incorporation or bylaws (or any other organizational documents) of the Trading Advisor or any agreement or instrument by which it is bound or of any order, rule, law or regulation binding on it of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over it.
 
(x)           Since the respective dates as of which information is given in the Disclosure Document, and except as may otherwise be stated in or contemplated by the Disclosure Document, there has not been any material adverse change in the condition, financial or otherwise, business or prospects of the Trading Advisor or any Trading Advisor Principal.
 
(xi)          Except as set forth in the Disclosure Document there have not been and there is not pending, or to the best of the Trading Advisor’s knowledge after due inquiry, threatened, any action, suit or proceeding before or by any court or other governmental body to which the Trading Advisor or any Trading Advisor Principal is or was a party, or to which any of the assets of the Trading Advisor is or was subject and which resulted in or might reasonably be expected to result in any material adverse change in the condition, financial or otherwise, business or prospects of the Trading Advisor.  None of the Trading Advisor or any Trading Advisor Principal has received any notice of an investigation by the NFA, CFTC or other administrative agency or self-regulatory body (whether United States or foreign) regarding noncompliance by the Trading Advisor or any of the Trading Advisor Principals with the CEAct or any other applicable law.
 
(xii)          Neither the Trading Advisor nor any Trading Advisor Principal has received, or is entitled to receive, directly or indirectly, any commission, finder’s fee, similar fee, or rebate from any person in connection with the organization or operation of the Fund.
 
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(xiii)         Participation by the Trading Advisor in accordance with the terms hereof and as described in the Prospectus will not violate any provisions of the Investment Advisers Act of 1940, as amended.
 
(xiv)         Neither the Trading Advisor nor any Trading Advisor Principal will use or distribute the Prospectus or any selling literature or engage in any selling activities whatsoever in connection with the offering of the Units.
 
(xv)          The information in the Prospectus about the Trading Advisor does not contain any misleading or untrue statements of a material fact or omit to state a material fact required to be stated therein to make the statements not misleading.
 
(xvi)         The foregoing representations and warranties shall be continuing during the term of this Agreement and if at any time any event shall occur which could make any of the foregoing representations or warranties inaccurate, the Trading Advisor shall promptly notify the Managing Owner and the Fund of the nature of such event.

(b)           Covenants of the Trading Advisor.  The Trading Advisor covenants and agrees that:
 
(i)           The Trading Advisor shall maintain all registrations and memberships necessary for the Trading Advisor to continue to act as described herein and to at all times comply in all respects with all applicable laws, rules, and regulations, to the extent that the failure to so comply would have a materially adverse effect on the Trading Advisor’s ability to act as described herein.
 
(ii)           The Trading Advisor shall inform the Managing Owner immediately as soon as the Trading Advisor or any Trading Advisor Principal becomes the subject of any investigation, claim or proceeding of any regulatory authority having jurisdiction over such person or becomes a named party to any litigation materially affecting (or which may, with the passage of time, materially affect) the business of the Trading Advisor. The Trading Advisor shall also inform the Managing Owner immediately if the Trading Advisor or any of its officers becomes aware of any breach of this Agreement by the Trading Advisor.
 
(iii)           The Trading Advisor agrees to cooperate by providing information regarding itself and its performance in the preparation of any amendments or supplements to the Prospectus (subject to the limitation set forth in Section 1 hereof).
 
 
11.
Representations and Warranties of the Fund and the Managing Owner; Covenants of the Managing Owner.
 
(a)           The Fund and the Managing Owner represent and warrant to the Trading Advisor, as follows:
 
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(i)           The Fund is a Delaware statutory trust formed pursuant to its organizational documents and Delaware law and is validly existing and in good standing under the laws of the State of Delaware with full power and authority to engage in the trading of futures interests and to engage in its other contemplated activities as described in the Prospectus; the Fund is qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualification and where failure to be so qualified could materially adversely affect the Fund’s ability to perform its obligations hereunder.
 
(ii)           The Managing Owner is duly organized and validly existing and in good standing as a limited liability company under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature or conduct of its business requires such qualification and where the failure to be so qualified could materially adversely affect the Managing Owner’s ability to perform its obligations hereunder.
 
(iii)           The Fund and the Managing Owner have full power and authority under applicable law to conduct their business and to perform their respective obligations under this Agreement and as described in the Prospectus.
 
(iv)          As of the date hereof, the Prospectus contains all statements and information required to be included therein by the CEAct and the rules and regulations of the SEC or other applicable law and at all times subsequent thereto up to and including each closing, the Prospectus will comply in all material respects with the requirements of the rules of the NFA, the CEAct or other applicable laws. The Prospectus as of the date on which the Trading Advisor begins trading operations on behalf of the Account, and at each closing will not contain any misleading or untrue statements of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Any supplemental sales literature, when read in conjunction with the Prospectus, will not contain any untrue statements of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading. This representation and warranty shall not, however, apply to any statement or omission in the Prospectus or supplemental sales literature made in reliance upon information furnished by and relating to the Trading Advisor, its trading methods or its trading performance.
 
(v)           Since the respective dates as of which information is given in the Prospectus, there have not been any material adverse change in the condition, financial or otherwise, or business of the Managing Owner or the Fund, whether or not arising in the ordinary course of business.
 
(vi)          This Agreement has been duly and validly authorized, executed and delivered by the Managing Owner on behalf of the Fund and constitutes a valid, binding and enforceable agreement of the Fund and the Managing Owner in accordance with its terms.
 
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(vii)          The execution and delivery of this Agreement, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein and in the Prospectus will not violate, or constitute a breach of, or default under, the Managing Owner’s organizational documents, or the Fund’s organizational documents, or any material agreement or instrument by which either the Managing Owner or the Fund, as the case may be, is bound or any material order, rule, law or regulation applicable to the Managing Owner or the Fund of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Managing Owner or the Fund.
 
(viii)        Except as set forth in the Prospectus, there have not been in the five years preceding the date of the Prospectus and there is not pending or, to the Managing Owner’s knowledge, threatened, any action, suit or proceeding at law or in equity before or by any court or by any federal, state, municipal or other governmental body or any administrative, self-regulatory or commodity exchange organization to which the Managing Owner or the Fund is or was a party, or to which any of the assets of the Managing Owner or the Fund is or was subject; and neither the Managing Owner nor any of the principals of the Managing Owner (“Managing Owner Principals”) has received any notice of an investigation by the NFA, CFTC or any other administrative or self-regulatory organization regarding non-compliance by the Managing Owner or the Managing Owner Principals or the Fund with the CEAct, the Securities Act of 1933, as amended, or any applicable laws which are material to an investor’s decision to invest in the Fund.
 
(ix)           The Managing Owner and the Managing Owner Principals have all federal, state and foreign governmental, regulatory and exchange approvals and licenses, and have effected all filings and registrations with federal, state and foreign governmental agencies required to conduct their business and to act as described in the Prospectus or required to perform their obligations under this Agreement (including, without limitation, registration as a commodity pool operator under the CEAct and membership in the NFA as a commodity pool operator) and will maintain all such required approvals, licenses, filings and registrations for the term of this Agreement. The Managing Owner’s principals identified in the Prospectus are all of the Managing Owner Principals.
 
(x)           The Fund is and shall remain in material compliance in all respects with all laws, rules, regulations and orders of any government, governmental agency or self-regulatory organization applicable to its business as described in the Prospectus and this Agreement.
 
(xi)           The Fund is a “qualified eligible person” as that term is defined under CFTC Regulation 4.7.
 
(xii)           The foregoing representations and warranties shall be continuing during the term of this Agreement and if at any time any event shall occur which could make any of the foregoing representations or warranties inaccurate, the Managing Owner shall promptly notify the Trading Advisor of the nature of such event.
 
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(b)           Covenants of the Managing Owner. The Managing Owner covenants and
  
agrees that:
(i)           The Managing Owner shall maintain all registrations and memberships necessary for the Managing Owner to continue to act as described herein and in the Prospectus and to all times comply in all respects with all applicable laws, rules, and regulations, to the extent that the failure to so comply would have a materially adverse effect on the Managing Owner’s ability to act as described herein and in the Prospectus.
 
(ii)           The Managing Owner shall inform the Trading Advisor immediately as soon as the Managing Owner, the Fund or any of their principals becomes the subject of any lawsuit, investigation, claim, or proceeding of any regulatory authority having jurisdiction over such person or becomes a named party to any litigation materially affecting the business of the Managing Owner or the Fund. The Managing Owner shall also inform the Trading Advisor immediately if the Managing Owner or the Fund or any of their officers become aware of any material breach of this Agreement by the Managing Owner or the Fund.
 
(iii)           The Fund will furnish to the Trading Advisor copies of the Prospectus, and all amendments and supplements thereto, in each case as soon as available and will ensure that the Fund does not use any such amendments or supplements as to which the Trading Advisor in writing has reasonably objected.
 
 
12.
Merger or Transfer of Assets.
 
The Managing Owner, Fund or the Trading Advisor may merge or consolidate with, or sell or otherwise transfer its business, or all or a substantial portion of its assets, to any entity upon written notice to the other parties.
 
 
13.
Complete Agreement.
 
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 as between the parties unless in writing and signed by the party against whom enforcement is sought.
 
 
14.
Assignment.
 
Subject to Section 12, hereof, this Agreement may not be assigned, transferred by operation of law, change in control or otherwise, by any party hereto without the express prior written consent of the other parties hereto.
 
 
15.
Amendment.
 
This Agreement may not be amended except by the written consent of the parties hereto.  No waiver of any provision of this Agreement shall be implied from any course of dealings between the parties, from any failure by any party to assert its rights hereunder or any occasion or series of occasions.
 
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16.
Severability.
 
The invalidity or unenforceability of any provision of this Agreement or any covenant herein contained shall not affect the validity or enforceability of any other provision or covenant hereof or herein contained and any such invalid provision or covenant shall be deemed to be severable.
 
 
17.
Closing Certificates.
 
(a)           The Trading Advisor shall, at the initial closing and at the request of the Managing Owner at any monthly closing (as described in the Prospectus), provide the following:
 
(i)           To the Managing Owner and the Fund, a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that;
 
(A)          the representations and warranties by the Trading Advisor in this Agreement are true, accurate, and complete on and as of the date of the closing, as if made on the date of the closing; and
 
(B)           the Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
 
(ii)           To the Managing Owner and the Fund, a report as of the closing date which shall present, for the period from the date after the last day covered by the historical performance records in the Prospectus to the latest practicable day before closing, figures which shall be a continuation of such historical performance records and which shall certify that such figures are, to the best of such Trading Advisor’s knowledge, accurate in all material respects.
 
(b)           Upon the reasonable request of the Managing Owner, the Trading Advisor shall provide a legal opinion of the Trading Advisor’s counsel in a form acceptable to the Managing Owner.
 
(c)           The Managing Owner shall, at the initial closing and at the request of the Trading Advisor at any closing (as described in the Prospectus), provide the following:
 
(i)           To the Trading Advisor, a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
 
(A)           the representations and warranties by the Fund and the Managing Owner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing;
 
20

 
(B)           no order preventing or suspending the use of the Prospectus has been issued by the CFTC, the SEC, any state securities commission, or the NFA or other self-regulatory organization and no proceedings for that purpose shall have been instituted or are pending or, to the knowledge of the Managing Owner, are contemplated or threatened under the CEAct; and
 
(C)           The Fund and the Managing Owner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
 
 
18.
Inconsistent Filings.
 
If the Trading Advisor intends to file, to participate in the filing of, or to publish any description of the Trading Advisor, or of its respective principals or trading approaches that is materially inconsistent with those in the Disclosure Document, the Trading Advisor shall inform the Managing Owner of such intention and shall furnish copies of all such filings or publications at least ten Business Days prior to the date of filing or publication.
 
 
19.
Disclosure Documents.
 
(a)           During the term of this Agreement, the Trading Advisor shall furnish to the Managing Owner promptly copies of all disclosure-documents prepared by the Trading Advisor.  The Managing Owner and Fund each acknowledge that the Trading Advisor has claimed an exemption pursuant to CFTC Regulation 4.7 and is not required to prepare or file a disclosure document with the CFTC, NFA or other self-regulatory organization and, if such a document is prepared and furnished, Trading Advisor shall rely on, and the Managing Owner and the Fund shall accept, such further reporting and disclosure relief as permitted under said exemption.  The Managing Owner and Fund each acknowledge receipt of the Trading Advisor’s disclosure document (the “Disclosure Document”).
 
(b)           The Managing Owner and the Fund will not distribute or supplement any promotional material relating to the Trading Advisor unless the Trading Advisor has approved reasonable prior notice of and a copy of such promotional material and has received such material in writing.
 
20.           Track Record.  The track record and other performance information of the Fund shall be the property of the Managing Owner and not the Trading Advisor, provided such information may be used by the Trading Advisor (upon written consent of the Managing Owner) on a confidential basis for purposes of compiling performance composites and related applications.
 
 
21.
Use of Name.
 
Upon termination of this Agreement, the Fund, at its expense, as promptly as practicable:  (i) shall take all necessary action to cause the Prospectus and organizational documents of the Fund to be amended in order to eliminate any reference to "Dominion" or “Dominion Capital Management Institutional Advisors, Inc.” (except to the extent required by law, regulation or rule); and (ii) shall cease to use in any other manner, including, but not limited to, use in any sales literature or promotional material, the names "Dominion" or “Dominion Capital Management Institutional Advisors, Inc.” or any name, mark or logo type derived from it or similar to it (except to the extent required by law, regulation or rule).
 
21

 
 
22.
Notices.
 
All notices required to be delivered under this Agreement shall be in writing and shall be effective when delivered personally on the day delivered, by facsimile on receipt confirmation, by email followed by delivery of an original, or when given by registered or certified mail, postage prepaid, return receipt requested, on the second business day following the day on which it is so mailed, addressed as follows (or to such other address as the party entitled to notice shall hereafter designate in accordance with the terms hereof):
 
 
if to the Fund:
   
 
RJO Global Trust
 c/o R. J. O’Brien Fund Management, LLC
222 S. Riverside Plaza
Suite 9
Chicago, Illinois 60606
Attn:  Annette A. Cazenave
Facsimile: 312-373-4831
Email: acazenave@rjobrien.com
   
 
if to the Managing Owner:
   
 
R. J. O’Brien Fund Management, LLC
222 S. Riverside Plaza
Suite 9
Chicago, Illinois 60606
Attn:  Annette A. Cazenave
Facsimile: 312-373-4831
Email: acazenave@rjobrien.com
   
 
With a copy to:
   
 
Alston & Bird LLP
90 Park Avenue
New York, NY 10016
Attn: Timothy P. Selby
Facsimile: (212) 210-9444
Email: timothy.selby@alston.com
 
22

 
 
if to the Trading Advisor:
   
 
Dominion Capital Management Institutional Advisors, Inc.
12935 S. West Bayshore Drive, Suite 420
Traverse City, MI 49684
Attn:  Joseph H. Vanderbosch
Phone:  (231) 995-4400
Facsimile:  (231) 995-4450
Email:  jvb@domcap.com
 
 
23.
Continuing Nature of Representations Warranties and Covenants: Survival.
 
All representations, warranties and covenants contained in this Agreement shall be continuing during the term of this Agreement and the provisions of this Agreement shall survive the termination of this Agreement with respect to any matter arising while this Agreement was in effect.  Each party hereby agrees that as of the date of this Agreement it is, and during its term shall be, in compliance with its representations, warranties and covenants herein contained.  In addition, if at any time any event occurs which would make any of such representations, warranties or covenants not true, the affected party will use its best efforts to promptly notify the other parties of such fact.
 
 
24.
Third-Party Beneficiaries.
 
This Agreement is not intended and shall not convey any rights to a party to this Agreement.
 
 
25.
Governing Law.
 
This Agreement and any amendment hereto shall be governed by, and construed in accordance with, the laws of the State of Illinois, United States of America  (excluding the law thereof which requires the application of, or reference to, the law of any other jurisdiction).  Each party hereto expressly and irrevocably agrees (a) that it waives any objection, and specifically consents, to venue in the United States federal or state courts located in the City of Chicago, State of Illinois, United States of America, so that any action at law or in equity may be brought and maintained in any such court, and (b) that service of process in any such action may be effected against such party by certified or registered mail or in any other manner permitted by applicable United States Federal Rules of Civil Procedure or rules of the Courts of the State of Illinois.  In addition each party hereto expressly and irrevocably waives, in respect of any action brought in any United States federal or state court located in the City of Chicago, State of Illinois or any resulting judgment, any objection, and hereby specifically consents, to the jurisdiction of any such court and agrees not to seek to change the situs of such action or to assert that any other court in any other jurisdiction is a more suitable forum for the hearing and adjudication of any claim or dispute raised in such action.
 
23

 
 
26.
Remedies.
 
In any action or proceeding arising out of any of the provisions of this Agreement, the Trading Advisor agrees not to seek any prejudgment equitable or ancillary relief. The Trading Advisor agrees that its sole remedy in any such action or proceeding shall be to seek actual monetary damages for any breach of this Agreement, except that Trading Advisor may seek a declaratory judgment or equitable relief with respect to the indemnification provisions or provisions relating to Confidential Information and/or Proprietary Information, of this Agreement.
 
 
27.
Headings.
 
Headings to sections herein are for the convenience of the parties only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
 
 
28.
Successors.
 
This Agreement including the representations, warranties and covenants contained herein shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns, and no other person shall have any right or obligation under this Agreement.
 
 
29.
Counterparts.
 
This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
 
 
30.
Waiver of Breach.
 
The waiver by any party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach or of a breach by any other party.  The failure of a party to insist upon strict adherence to any provision of the Agreement shall not constitute a waiver or thereafter deprive such party of the right to insist upon strict adherence.
 
PURSUANT TO AN EXEMPTION FROM THE COMMODITY FUTURES TRADING COMMISSION IN CONNECTION WITH ACCOUNTS OF QUALIFIED ELIGIBLE PERSONS, THIS AGREEMENT IS NOT REQUIRED TO BE, AND HAS NOT BEEN, FILED WITH THE COMMISSION.  THE COMMODITY FUTURES TRADING COMMISSION DOES NOT PASS UPON THE MERITS OF PARTICIPATING IN ANY TRADING PROGRAM OR UPON THE ADEQUACY OR ACCURACY OF COMMODITY TRADING ADVISOR DISCLOSURE.  CONSEQUENTLY, THE COMMODITY FUTURES TRADING COMMISSION HAS NOT REVIEWED OR APPROVED ANY TRADING PROGRAM OF THE TRADING ADVISOR OR THIS AGREEMENT.
  
24

 
IN WITNESS WHEREOF, this Agreement has been executed for and on behalf of the undersigned as of the day and year first above written.
 
 
RJO GLOBAL TRUST
by R.J. O’Brien Fund Management, LLC
Managing Owner
   
 
By
s/ Annette A. Cazenave
 
Name:  Annette A. Cazenave
 
Title:  Executive Vice President
   
 
R.J. O’BRIEN FUND MANAGEMENT, LLC
   
 
By
s/ Thomas J. Anderson                                                  
 
Name:  Thomas J. Anderson
 
Title:  Chief Financial Officer
   
 
DOMINION CAPITAL MANAGEMENT
INSTITUTIONAL ADVISORS, INC.
   
 
By
s/ Joseph Vanderbosch
 
Name:  Joseph Vanderbosch
 
Title:  Executive Vice President
 
25

 
EXHIBIT A
Trading Policies
 
1.           The Trading Advisor will not employ the trading technique commonly known as “pyramiding,” in which the Trading Advisor uses unrealized profits on existing positions in a given futures interest due to favorable price movement as margin specifically to buy or sell additional positions in the same or a related futures interest. Taking into account the Fund’s open trade equity (i.e., the profit or loss on an open futures interest position) on existing positions in determining generally whether to acquire additional futures interest positions on behalf of the Fund will not be considered to constitute “pyramiding.”
 
2.           The Trading Advisor will not utilize borrowings on behalf of the Fund except if the Fund purchases or takes delivery of commodities. If the Trading Advisor borrows money on behalf of the Fund, the lending entity in such case (the “lender”) may not receive interest in excess of its interest costs, nor may the lender receive interest in excess of the amounts which would be charged the Fund by unrelated banks on comparable loans for the same purpose, nor may the lender or any affiliate thereof receive any points or other financing charges or fees regardless of the amount. Use of lines of credit in connection with its forward trading does not, however, constitute borrowing for purposes of this trading limitation.
 
3.           The Trading Advisor will not “churn” the Fund’s assets. Churning is the unnecessary execution of trades so as to generate increased brokerage commissions.
 
4.           The Trading Advisor will trade currencies and other commodities on futures exchanges, in the interbank and forward contract markets only with banks, brokers, dealers, and other financial institutions which the Managing Owner has determined to be creditworthy.
 
5.           The Trading Advisor will trade only in those futures interests that have been approved by the CFTC as suitable for US investors. The Trading Advisor will not establish new positions in a futures interest on behalf of the Fund for any one contract month or option if such additional positions would result in a net long or short position for that futures interest requiring as margin or premium more than 15% of the Fund’s net assets.
 
6.           The Trading Advisor will not acquire additional positions in any futures interest on behalf of the Fund if such additional positions would result in the aggregate net long or short positions for all futures interests requiring as margin or premium for all outstanding positions more than 66 2/3% of the Fund’s net assets.
 
7.           The Trading Advisor will not purchase, sell, or trade securities (except securities approved by the CFTC for investment of customer funds).
 
8.           The Trading Advisor will be responsible for errors committed or caused by it in transmitting orders for the purchase or sale of futures interests for the Fund’s account in accordance with the Agreement.

A-1

 
EXHIBIT B
 
COMMODITY TRADING AUTHORITY
 
Dear Dominion Capital Management Institutional Advisors, Inc.:
 
RJO Global Trust (the “Fund”) and R.J. O’Brien Fund Management, LLC, the Fund’s managing owner (the “Managing Owner”) do hereby make, constitute and appoint you as the Fund’s attorney-in-fact to buy and sell futures and forward contracts through such futures commission merchants as shall be agreed on by you and the Managing Owner on behalf of the Fund, pursuant to the trading program identified in the Agreement among the Fund, the Managing Owner and you as of the 1st day of October, as amended or supplemented, and in accordance with the terms and conditions of said Agreement.
 
This authorization shall terminate and be null, void and of no further effect simultaneously with the termination of the said Agreement.
 
 
Very truly yours,
   
 
RJO GLOBAL TRUST
by R.J. O’Brien Fund Management, LLC
Managing Owner
   
 
By
s/ Annette A. Cazenave                                                  
 
Name:  Annette A. Cazenave
 
Title:  Executive Vice President
   
 
R.J. O’Brien Fund Management, LLC
   
 
By
s/ Thomas J. Anderson                                                  
 
Name:  Thomas J. Anderson
 
Title:  Chief Financial Officer

B-1

  
EXHIBIT C
 
FUTURES INTERESTS TRADED
 
Stock Index Contracts: Dow Jones, S&P 500, CAC 40, DAX, FTSE 100, MIB, AEX, Kospi, Bovespa, SPI 200, Nikkei 225 (Osaka & Singapore), Hang Seng, Russell 2000, Nasdaq 100, Taiwan Stock Index, and Euro Stoxx.

Commodity Contracts: Coffee, Silver, Sugar, Gold, Cocoa, Heating Oil, Cotton, Copper, Crude Oil, Soybeans, Natural Gas, Wheat, Unleaded Gas, Live Cattle, Brent Crude, Gas Oil, Live Hogs, and Corn.

Foreign Exchange: Dollar/Yen, Dollar/Swiss, Euro/US Dollar, Pound Sterling/Dollar, Pound Sterling/Yen, Euro/Yen, Aussie/Dollar, Dollar/Canada, Dollar/Rand, and Peso/Dollar.

Interest Rate Contracts:  US Bond, Euro Bund, Japanese Gov’t Bond, British Long Gilt, US 10yr, US 5yr, Bobl, Schatz, and Aussie 10yr.
 
C-1

EX-10.02 3 v201949_ex10-02.htm Unassociated Document
CONFIDENTIAL TREATMENT REQUESTED.  Confidential portions of this document have been redacted and have been separately filed with the Commission.

Exhibit No. 10.02
ADVISORY AGREEMENT
 
THIS AGREEMENT, made as of October 1, 2010, among RJO Global Trust, a Delaware statutory business trust (the “Fund”), R.J. O’Brien Fund Management, LLC, a Delaware limited liability company (the “Managing Owner”), and Trigon Investment Advisors LLC (the “Trading Advisor”).
 
WITNESSETH :
 
WHEREAS, the Fund has been organized as a Delaware statutory business trust  pursuant to its organizational documents to, among other things, directly or indirectly through one or more commodity trading advisor, trade, buy, sell, spread, or otherwise acquire, hold, or dispose of commodities (including, but not limited to, foreign currencies, mortgage-backed securities, money market instruments, financial instruments, and any other securities or items which are now, or may hereafter be, the subject of futures contract trading), domestic and foreign commodity futures contracts, forward contracts, foreign exchange commitments, options on physical commodities and on futures contracts, spot (cash) commodities and currencies, exchange of futures contracts for physicals transactions, exchange of physicals for futures contracts transactions, and any rights pertaining thereto, whether traded on an organized exchange or otherwise (hereinafter referred to collectively as “futures interests;” provided, however, such definition shall exclude securities futures products as defined by the Commodity Futures Trading Commission (“CFTC”), options in securities futures and options in equities) and securities (such as United States Treasury securities) approved by the CFTC for investment of customer funds and other securities on a limited basis, and to engage in all activities incident thereto;
 
WHEREAS, the Fund is a commodity pool operated by the Managing Owner; and the Fund’s units are being offered pursuant to a prospectus contained in a registration statement on Form S-1 (No. 333-146177) as from time to time amended and filed under the Securities Act of 1933, as amended;
 
WHEREAS, the principals of the Trading Advisor have extensive experience trading in futures interests and the Trading Advisor is willing to provide the services and undertake the obligations as set forth herein;
 
WHEREAS, the Fund and the Managing Owner each desires the Trading Advisor to act as a trading advisor for the Fund and to make investment decisions with respect to futures interests for the Fund and the Trading Advisor desires so to act; and
 
WHEREAS, the Fund, the Managing Owner and the Trading Advisor wish to enter into this Agreement which, among other things, sets forth certain terms and conditions upon which the Trading Advisor will conduct the futures interest trading with respect to a portion of the Fund’s assets, as described herein.
 

 
NOW, THEREFORE, the parties hereto hereby agree as follows:
 
 
1.
Undertakings in Connection with the Continuing Offering of Units.
 
(a)           The Trading Advisor agrees with respect to the continuing offering of interests (“Units”) in the Fund: (i) to make all disclosures regarding itself, its principals and affiliates, its trading performance, its trading systems, methods and strategies (subject to the need, in the reasonable discretion of the Trading Advisor, to preserve the secrecy of Proprietary Information (as defined in Section 1(c) hereof) concerning such systems, methods and strategies), any client accounts over which it has discretionary trading authority (other than the names of or identifying information with respect to any such clients), and otherwise, as the Fund may reasonably require (x) in connection with Fund’s offering materials (the “Prospectus”) as required by Rule 4.21 of the regulations under the Commodity Exchange Act (the “CEAct”), and the rules and regulations of the Securities and Exchange Commission (the “SEC”) including in connection with any amendments or supplements thereto, or (y) to comply with any other applicable law or rule or regulation, including those of the CFTC, the National Futures Association (the “NFA”), the SEC, or any other regulatory or self-regulatory body, exchange, or board with jurisdiction over its members (or to comply with the reasonable request of the aforementioned organizations); and (ii) to otherwise cooperate with the Fund and the Managing Owner by providing information the Fund may reasonably request regarding the Trading Advisor in connection with the preparation of the Prospectus, including any amendments or supplements thereto, as part of making application for registration of the Units under the securities or blue sky laws of any jurisdictions, including foreign jurisdictions, as the Fund may deem appropriate; provided that all such disclosures are subject to the need, in the reasonable discretion of the Trading Advisor, to preserve the secrecy of Proprietary Information concerning its clients, systems methods and strategies. As used herein, unless otherwise provided, the term “principal” shall have the meaning as defined in Rule 4.10(e) of the CFTC’s regulations and the term “affiliate” shall mean an individual or entity that directly or indirectly controls, is controlled by, or is under common control with, such party.  The Managing Owner may, in its sole discretion and at any time, withdraw the SEC registration of the Units or discontinue the offering of Units.  Upon any such withdrawal or discontinuance, the Managing Owner shall inform the Trading Advisor thereof promptly in writing.
 
(b)           If the Trading Advisor becomes aware of any materially untrue or misleading statement or omission regarding itself or any of its principals or affiliates in the Disclosure Document (as defined in Section 19 hereof), or of the occurrence of any event or change in circumstances which would result in there being any materially untrue or misleading statement or omission in the Disclosure Document regarding itself or any of its principals or affiliates, the Trading Advisor shall promptly notify the Managing Owner and shall cooperate with the Managing Owner in the preparation of any necessary amendments or supplements to the Prospectus. Neither the Trading Advisor nor any of its principals, or affiliates, or any stockholders, officers, directors, or employees shall distribute the Prospectus or selling literature or shall engage in any selling activities whatsoever in connection with the continuing offering of Units.  For the avoidance of doubt, the Trading Advisor shall have no obligation whatsoever under this Agreement with respect to any portion of the Prospectus not regarding itself, its performance history or any of its principals or affiliates.
 
2

 
(c)           For purposes of this Agreement, and notwithstanding any of the provisions hereof, all non-public information relating to the Trading Advisor including, but not limited to, records, whether original, duplicated, computerized, handwritten, or in any other form, and information contained therein, business and/or marketing and/or sales plans and proposals, names of past and current clients, names of past, current and prospective contacts, trading methodologies, systems, strategies and programs, trading advice, trading instructions, results of proprietary accounts, training materials, research data bases, portfolios, and computer software, and all written and oral information, furnished by the Trading Advisor to the Fund and the Managing Owner and/or their officers, directors, employees, agents (including, but not limited to, attorneys, accountants, consultants, and financial advisors) or controlling persons (each a “Recipient”), regardless of the manner in which it is furnished, together with any analysis, compilations, studies or other documents or records which are prepared by a Recipient of such information and which contain or are generated from such information, regardless of whether explicitly identified as confidential, with the exception of information which (i) is or becomes generally available to the public other than as a result of acts by the Recipient in violation of this Agreement, (ii) is in the possession of the Recipient prior to its disclosure pursuant to the terms hereof, (iii) is or becomes available to the Recipient from a source that is not bound by a confidentiality agreement with regard to such information or by any other legal obligation of confidentiality prohibiting such disclosure, or (iv) that is independently developed by the Recipient without use of the confidential information described in this Section 1(c), are and shall be confidential information and/or trade secrets and the exclusive property of the Trading Advisor (“Confidential Information” and/or “Proprietary Information”).
 
(d)           The Fund and the Managing Owner each warrants and agrees that they and their respective officers, directors, members, equity holders, employees and agents (including for purposes of this Agreement, but not limited to, attorneys, accountants, consultants, and financial advisors) will protect and preserve the Confidential Information and will disclose Confidential Information or otherwise make Confidential Information available only to the Fund’s or the Managing Owner’s officers, directors, members, equity holders, employees and agents (including for purposes of this Agreement, but not limited to, attorneys, accountants, consultants, and financial advisors), who need to know the Confidential Information (or any part of it) for the purpose of satisfying their fiduciary, legal, reporting, filing or other obligations hereunder or to monitor performance in the account during the term of this Agreement or thereafter, or to the Fund, Managing Owner or a Recipient, as the case may be, is required to disclose such Confidential Information due to a fiduciary obligation or legal or regulatory request. Additionally, the Fund and the Managing Owner each warrants and agrees that it and any Recipient will use the Confidential Information solely for the purpose of satisfying the Fund’s or the Managing Owner’s obligations under this Agreement and not in a manner which violates the terms of this Agreement.
 
3

 
 
2.
Duties of the Trading Advisor.
 
(a)           Upon the commencement of trading operations on or about October 1, 2010 by the Trading Advisor with respect to an allocation of a portion of the assets of the Fund by the Fund, the Trading Advisor hereby agrees to act as a Trading Advisor for the Fund and, as such, shall have authority and responsibility for directing the investment and reinvestment of that portion of the Fund’s assets allocated to the Trading Advisor, which shall consist of the Allocated Net Assets (as defined in Section 5(c) hereof) plus “notional” funds, if any, allocated to the Trading Advisor, as specified in writing by the Managing Owner and consented to by the Trading Advisor (collectively, the “Assets”), on the terms and conditions and in accordance with the prohibitions and the trading policies set forth in Exhibit A to this Agreement as amended from time to time and provided in writing to the Trading Advisor by the Managing Owner (the “Trading Policies”); provided, however, that the Managing Owner may override the instructions of the Trading Advisor, and shall promptly provide notice to the Trading Advisor, to the extent necessary (i) to comply with the Trading Policies and with applicable speculative position limits, (ii) to fund any distributions or redemptions, (iii) to pay the Fund’s expenses, (iv) to the extent the Managing Owner believes doing so is necessary for the protection of the Fund, (v) to terminate the futures interest trading of the Account (as defined in Section 4) with the Trading Advisor, or (vi) to comply with any applicable law or regulation. The Managing Owner agrees not to override any such instructions for the reasons specified in clauses (ii) or (iii) of the preceding sentence unless the Trading Advisor fails to comply with a request of the Managing Owner to make the necessary amount of funds available to the Fund within two trading days of such request.  The Trading Advisor shall not be liable for the consequences of any decision by the Managing Owner to override instructions of the Trading Advisor, except to the extent that such consequences result from a material breach of this Agreement by the Trading Advisor or the Trading Advisor fails to comply with the Managing Owner’s decision to override an instruction after receiving notification of such decision.  Notwithstanding anything to the contrary contained in this Agreement, the Fund shall have the right to instruct the Trading Advisor to liquidate any or all positions at any time.
 
(b)           The Trading Advisor shall:
 
(i)           Exercise good faith and due care in trading futures interests for the account of the Fund in accordance with the prohibitions and Trading Policies, and the trading systems, methods, and strategies of the Trading Advisor described in the Disclosure Document as communicated to the Trading Advisor by the Fund or the Managing Owner, with such changes and additions to such trading systems, methods or strategies as the Trading Advisor, from time to time, incorporates into its trading approach for accounts the size of the Fund.
 
(ii)           Provide the Managing Owner, within 45 days of the end of a calendar quarter, and within 45 days of a separate written request which the Managing Owner may make from time to time, with information comparing the performance of the Fund’s account and the performance of all other client accounts (“Other Accounts”) directed by the Trading Advisor using the trading systems used by the Trading Advisor on behalf of the Fund over a specified period of time for the purpose of confirming that the Fund has been traded consistently with such Other Accounts.  In providing such information, the Trading Advisor may take such steps as are necessary to assure the confidentiality of the Trading Advisor’s clients’ identities. The Trading Advisor shall, upon the Managing Owner’s reasonable request, consult with the Managing Owner concerning any material discrepancies between the performance of such Other Accounts and the Fund’s account. A “material discrepancy” for purposes of this Section shall mean an amount equal to 20 basis points on a daily basis.  The Trading Advisor shall promptly inform the Managing Owner in writing of any material discrepancies of which the Trading Advisor is aware. The Managing Owner acknowledges that the following differences in accounts are some but not all of the factors that may cause divergent trading results:  different trading strategies, methods or degrees of leverage, different trading policies, accounts experiencing differing inflows or outflows of equity, different risk profiles, accounts which commence trading at different times and accounts which have different portfolios or different fiscal years.
 
4

 
(iii)           Inform the Managing Owner when the Trading Advisor’s open positions maintained by the Trading Advisor exceed the Trading Advisor’s applicable speculative position limits.
 
(iv)           Upon request of the Managing Owner, promptly provide the Managing Owner with all information concerning the Trading Advisor and its activities reasonably requested by the Managing Owner (including, without limitation, information relating to the Trading Advisor’s changes in control, key personnel, trading approach, or financial condition).  Additionally, the Trading Advisor agrees to furnish R.J. O’Brien & Associates, LLC (“RJOB”) by telephone, facsimile or electronic data transmission  (i) a final report of all trades in the Account at the end of each business day and (ii) a report of any trade in the Account made involving a position with a required initial margin equal to 10% or more of the Assets within 30 minutes of the Trading Advisor’s receipt of confirmation, verbal or otherwise, from the executing broker that such a trade has been executed.  The Trading Advisor further acknowledges that the timely provision of all such information is of the essence in order to enable the Fund, its designated entities, and RJOB to monitor and comply with mandatory risk control algorithms imposed upon the operation of the Fund.
 
(c)           All purchases and sales of futures interests pursuant to this Agreement shall be for the account, and at the risk, of the Fund and not for the account, or at the risk of the Trading Advisor or any of its affiliates or each of their principals, stockholders, directors, officers, or employees, or any other person, if any, who controls the Trading Advisor. All brokerage commissions and related transaction fees arising from such trading by the Trading Advisor shall be for the account of the Fund and not the Trading Advisor or any of its affiliates.
 
(d)           Subject to Section 8(a) hereof, *. The Trading Advisor shall promptly notify the Managing Owner upon discovery of its own errors with respect to the account, if any, and the Trading Advisor shall use its best efforts to identify and promptly notify the Managing Owner of any order or trade which the Trading Advisor reasonably believes was not executed in accordance with its instructions to any Commodity Broker or such other commodity broker utilized to execute orders for the Fund.
 
(e)           Prior to the commencement of trading by the Fund, the Managing Owner, on behalf of the Fund, shall deliver to the Trading Advisor a trading authorization appointing the Trading Advisor the Fund’s attorney-in-fact for such purpose (a form of which is attached hereto as Exhibit B).
 

* Confidential material redacted and filed separately with the Commission.
 
5

 
(f)           In performing services to the Fund, the Trading Advisor shall utilize its Discretionary Macro Program (the “Trading Program”), as described in the Disclosure Document, and as modified from time to time. The Trading Advisor shall give the Managing Owner prior written notice of any change in the Trading Program that the Trading Advisor considers to be material (and shall not effect such change on behalf of the Fund without the Managing Owner’s consent), including any additional futures interests to be traded by the Trading Advisor not already listed on Exhibit C.  Changes in the futures interests traded, provided that such futures interests are listed on Exhibit C, shall not be deemed a change in the Trading Program.
 
 
3.
Trading Advisor as an Independent Contractor.
 
The Trading Advisor shall be an independent contractor and shall, unless otherwise expressly provided herein or authorized, have no authority to act for or represent the Fund in any way or otherwise be deemed an agent of the Fund.  Nothing contained herein shall be deemed to require the Fund to take any action contrary to its governing documents as from time to time in effect, or any applicable law or rule or regulation of any regulatory or self-regulatory body, exchange, or board. Nothing herein contained shall constitute the Trading Advisor or the Managing Owner as members of any partnership, joint venture, association, syndicate or other entity, or be deemed to confer on any of them any express, implied, or apparent authority to incur any obligation or liability on behalf of any other. It is expressly agreed that the Trading Advisor is neither a promoter, sponsor, operator, manager or issuer with respect to the Fund, nor does the Trading Advisor have any authority or responsibility with respect to the offer, sale or issuance of Units.
 
 
4.
Commodity Broker.
 
The Trading Advisor shall effect all transactions in futures interests for the Fund through the Fund’s separate account of the Fund to be traded exclusively by the Trading Advisor (the “Account”) maintained with RJOB or such commodity broker or brokers as the Managing Owner shall direct and appoint from time to time (the “Commodity Brokers”).
 
Notwithstanding the foregoing, the Trading Advisor may execute trades through floor brokers other than those employed by RJOB and its affiliates so long as arrangements (including executed give-up agreements) are made for such floor brokers to “give-up” or transfer the positions to RJOB in conformity with the Trading Policies set forth in Exhibit A attached hereto.  Fees or costs in connection with any give-up agreement shall be for the account of the Fund and not the Trading Advisor or its affiliates.
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5.
Fees.
 
(a)           For the services to be rendered to the Fund by the Trading Advisor under this Agreement:
 
(i)           The Fund shall pay the Trading Advisor a monthly management fee equal to 1/12 of *% (a *% annual rate) of the Assets allocated to it (as defined in Section 2(a) hereof) as of the last day of each month (the “Management Fee”).  The Management Fee is payable in arrears within 20 Business Days of the end of the month for which it was calculated.  For purposes of this Agreement, “Business Day” shall mean any day which the futures markets are open in the United States.
 
(ii)           The Fund shall pay the Trading Advisor an incentive fee equal to 20.0% of the New Trading Profit (as defined in Section 5(d) hereof) accrued monthly but not payable until the end of each calendar quarter (the “Incentive Fee”).  The initial incentive period will commence on the date the Trading Advisor commences trading the Account and shall end on the last day of the first calendar quarter after such date.  The Incentive Fee is payable within 20 Business Days following the end of the calendar quarter for which it was calculated.
 
(b)           If this Agreement is terminated on a date other than the last day of a calendar quarter, the Incentive Fee shall be determined as if such date were the end of a calendar quarter. If this Agreement is terminated on a date other than the end of a month, the Management Fee described above shall be determined as if such date were the end of a month, but such fee shall be prorated based on the ratio of the number of trading days in the month through the date of termination to the total number of trading days in the month. If, during any month after the Trading Advisor commences trading on behalf of the Account (including the month in which the Trading Advisor commences such trading), the Fund does not conduct business, or suspends trading for the Account, or, as a result of an act or material failure to act by the Trading Advisor, is otherwise unable to trade the Account on any of the trading days of that month for any reason, the Management Fee shall be prorated based on the ratio of the number of trading days in the month which the Account engaged in trading or utilizes the trading advice of the Trading Advisor to the total number of trading days in the month. The Management Fee payable to the Trading Advisor for the month in which the Fund begins to receive trading advice from the Trading Advisor pursuant to this Agreement shall be prorated based on the ratio of the number of trading days in the month from the day the Fund begins to receive such trading advice to the total number of trading days in the month. In the event that there is an increase or decrease in the Assets as of any day other than the first day of a month, the Trading Advisor shall be paid a pro rata Management Fee on such increase or decrease in the Assets for such month.
 
(c)           The term “Allocated Net Assets” shall mean the total assets of the Fund allocated to the Account (including, but not limited to, all cash and cash equivalents, accrued interest and amortization of original issue discount, and the market value (marked-to-market) of all open futures interest positions and other assets of the Account) less all liabilities of the Fund allocated to the Account determined in accordance with generally accepted accounting principles consistently applied under the accrual basis of accounting. Unless generally accepted accounting principles require otherwise, the market value of a futures or option contract traded on a United States exchange shall mean the settlement price on the exchange on which the particular futures or option contract is traded by the Trading Advisor on behalf of the Account with respect to which the Net Assets are being determined; provided, however, that if a contract could not be liquidated on such day due to the operation of daily limits or other rules of the exchange on which that contract shall be traded or otherwise, the settlement price on the first subsequent day on which the contract could be  liquidated shall be the market value of such contract for such day, or if a contract could not be liquidated on such day due to the exchange being closed for an exchange holiday, the settlement price on the most recent preceding day on which the contract could have been liquidated shall be the market value of such contract for such day.  The market value of a forward contract or a futures or option contract traded on a foreign exchange or market shall be its market value as determined by the Managing Owner on a basis consistently applied for each different variety of contract.
 

* Confidential material redacted and filed separately with the Commission.
 
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(d)           The term “New Trading Profit” shall mean net futures interest trading profits (realized plus the change in unrealized since the end of the immediately preceding calendar quarter) on the Assets, decreased proportionally by the Trading Advisor’s monthly Management Fees and brokerage commissions and NFA fees applicable to the Account.  Interest income is not included in New Trading Profit. Extraordinary expenses do not reduce New Trading Profit.  Such trading profits and items of decrease shall be determined from the end of the last calendar quarter in respect of which an Incentive Fee was earned by the Trading Advisor or, if no Incentive Fee has been earned previously by the Trading Advisor, from the date that the Trading Advisor commenced managing the Assets, to the end of the calendar quarter as of which such Incentive Fee calculation is being made. New Trading Profit shall be calculated before reduction for Incentive Fees paid or accrued so that the Trading Advisor does not have to earn back Incentive Fees.
 
(e)           If any payment of Incentive Fees is made to the Trading Advisor on account of New Trading Profit earned by the Trading Advisor and the Trading Advisor thereafter fails to earn New Trading Profit or experiences losses for any subsequent incentive period, the Trading Advisor shall be entitled to retain such amounts of Incentive Fees previously paid to the Trading Advisor in respect of such New Trading Profit. No Incentive Fees shall be payable to the Trading Advisor until the Trading Advisor has earned New Trading Profit; provided, however, that if the Assets are reduced due to redemptions that occur at the end of, and/or subsequent to, a calendar quarter in which the Trading Advisor experiences a futures interest trading loss for the Fund, the trading loss that must be recovered before the Trading Advisor will be deemed to experience New Trading Profit in a subsequent calendar quarter will be equal to the amount determined by (x) dividing the Assets after such decrease by the Assets immediately before such decrease and (y) multiplying that fraction by the amount of the unrecovered futures interest trading loss prior to such decrease. In the event that the Fund experiences a trading loss in more than one calendar quarter without the Trading Company paying an intervening Incentive Fee and Assets are reduced in more than one such calendar quarter because of redemptions, then the trading loss for each such calendar quarter shall be adjusted in accordance with the formula described above and such reduced amount of futures interest trading loss shall be carried forward and used to offset subsequent futures interest trading profits.  No Incentive Fees shall be payable to the Trading Advisor until the Trading Advisor has earned New Trading Profit.
 
 
6.
Designation of Additional Trading Advisors and Reallocation of Net Assets
 
(a)           If the Managing Owner at any time deems it to be in the best interests of the Fund, the Managing Owner may designate  one or more additional trading advisors for the Fund and may apportion to such additional trading advisor(s) the management of such amounts of the Fund’s assets as  the Managing Owner shall determine in its absolute discretion.  The designation of an additional trading advisor or advisors and the apportionment of the Fund’s assets to such trading advisor(s)  pursuant to this Section 6 shall neither terminate this Agreement nor modify in any regard the respective rights and obligations of the Fund, the Managing Owner and the Trading Advisor hereunder.  In the event that assets are reallocated from the Trading Advisor, the Trading Advisor shall thereafter receive management and incentive fees based, respectively, on Assets, as reduced pursuant to this Section 6(a) and the Trading Profits attributable to such reduced Assets.

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(b)           The Managing Owner may at any time and from time to time upon three business days' prior notice reallocate Assets to any other trading advisor or advisors of the Fund or allocate additional Assets upon three business days' prior notice to the Trading Advisor from such other trading advisor or advisors; provided that any such addition to or withdrawal from Assets will only take place on the last day of a month unless the Managing Owner determines that the best interests of the Fund require otherwise.  The Trading Advisor shall have the right to refuse any additional allocations to be made pursuant to this Section 6(b).

 
7.
Term
 
(a)           This Agreement shall continue in effect for a period of one year from the date the Agreement was entered into unless otherwise terminated as set forth in this Section 7. The Trading Advisor may terminate this Agreement at the end of such one-year period by providing prior written notice of termination to the Fund at least sixty days prior to the expiration of such one-year period. If the Agreement is not terminated upon the expiration of such one-year period, this Agreement shall automatically renew for an additional one-year period and shall continue to renew for additional one-year periods thereafter until this Agreement is otherwise terminated, as provided for herein.  This Agreement shall automatically terminate if the Fund is dissolved.
 
(b)           The Fund and Managing Owner each shall have the right to terminate this Agreement in its discretion (i) at any month end upon five days’ prior written notice to the Trading Advisor, or (ii) at any time upon prior written notice to the Trading Advisor upon the occurrence of any of the following events: (A) if any person described as a “principal” of the Trading Advisor in the Prospectus ceases for any reason to be a “principal” of the Trading Advisor; (B) if the Trading Advisor becomes bankrupt or insolvent; (C) if the Trading Advisor is unable to use its trading systems or methods as in effect on the date hereof and as modified in the future for the benefit of the Fund; (D) if the registration, as a commodity trading advisor, of the Trading Advisor with the CFTC or its membership in the NFA is revoked, suspended, terminated, or not renewed, or limited or qualified in any respect; (E) except as provided in Section 12 hereof, if the Trading Advisor merges or consolidates with, or sells or otherwise transfers its advisory business, or all or a substantial portion of its assets, any portion of its futures interest trading systems or methods, or its goodwill to, any individual or entity; (F) if, at any time, the Trading Advisor violates any Trading Policy or administrative policy, except with the prior express written consent of the Managing Owner; or (G) if the Trading Advisor fails in a material manner to perform any of its obligations under this Agreement.
 
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(c)           Notwithstanding Section 7(a) above, the Trading Advisor may terminate this Agreement at any time, upon thirty days’ prior written notice to the Fund and Managing Owner, in the event: (A) that the Managing Owner imposes additional trading limitation(s) in the form of one or more Trading Policies or administrative policies that the Trading Advisor does not consent to, such consent not to be unreasonably withheld; (B) the Managing Owner objects to the Trading Advisor implementing a proposed material change to the Trading Program and the Trading Advisor certifies to the Managing Owner in writing that it believes such change is in the best interests of the Fund; (C) the Managing Owner or the Fund materially breaches this Agreement and does not correct the breach within ten days of receipt of a written notice of such breach from the Trading Advisor; (D) the Assets fall below $* (after adding back trading losses, if any) at any time; (E) the Fund becomes bankrupt or insolvent, or (F) the registration of the Managing Owner with the CFTC as a commodity pool operator or its membership in the NFA is revoked, suspended, terminated or not renewed, or limited or qualified in any respect.  If the Managing Owner or Fund merges, consolidates or sells a substantial portion of its assets pursuant to Section 12 of this Agreement, the Trading Advisor may terminate this Agreement upon prior written notice to the Managing Owner and Fund.
 
(d)           Except as otherwise provided in this Agreement, any termination of this Agreement in accordance with this Section 7 shall be without penalty or liability to any party, on account of such termination.
 
(e)           The indemnities set forth in Section 8 hereof shall survive any termination of this Agreement.
 
 
8.
Standard of Liability: Indemnifications.
 
(a)           Limitation of Trading Advisor Liability. The Trading Advisor shall not be liable to the Fund or the Managing Owner or their partners, directors, officers, principals, managers, members, shareholders, employees, controlling persons or successors and assigns except that the Trading Advisor shall be liable for acts or omissions that constitute a material breach of this Agreement or a representation, warranty or covenant herein, misconduct or negligence, or are the result of the Trading Advisor not having acted in good faith and in the reasonable belief that such actions or omissions were in, or not opposed to, the best interests of the Fund.
 
(b)           Trading Advisor Indemnity in Respect of Management Activities. The Trading Advisor shall indemnify, defend and hold harmless the Fund and the Managing Owner, their controlling persons, their affiliates and their respective directors, officers, principals, managers, members, shareholders, employees and controlling persons from and against any and all losses, claims, damages, liabilities (joint and several), costs, and expenses (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Trading Advisor shall have approved such settlement) resulting from a demand, claim, lawsuit, action or proceeding (other than those incurred as a result of claims brought by or in the right of an indemnified party) relating to this Agreement (except as covered by paragraph (d) below); provided that a court of competent jurisdiction upon entry of a final judgment (or, if no final judgment is entered, by an opinion rendered by counsel who is approved by the Fund and the Trading Advisor, such approval not to be unreasonably withheld) to the effect that the action or inaction of such indemnified party that was the subject of the demand, claim, lawsuit, action, or proceeding did not constitute negligence, misconduct, or a breach of this Agreement or a representation, warranty or covenant of the Fund or the Managing Owner, their controlling persons, their affiliates and their respective directors, officers, shareholders, employees, and controlling persons and was done in good faith.
  

* Confidential material redacted and filed separately with the Commission.
 
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(c)           Fund and Managing Owner Indemnity in Respect of Management Activities.  The Fund and the Managing Owner jointly and severally shall indemnify, defend and hold harmless the Trading Advisor, its controlling persons, their affiliates and their respective directors, officers, principals, managers, members, shareholders, employees and controlling persons, from and against any and all losses, claims, damages, liabilities, costs and expenses (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Fund shall have approved such settlement) resulting from a demand, claim, lawsuit, action or proceeding (other than those incurred as a result of claims brought by or in the right of an indemnified party) relating to this Agreement (except as covered by paragraph (e) below); provided that a court of competent jurisdiction upon entry of a final judgment finds (or, if no final judgment is entered, by an opinion rendered by counsel who is approved by the Fund and the Trading Advisor, such approval not to be unreasonably withheld) to the effect that the action or inaction of such indemnified party that was the subject of the demand, claim, lawsuit, action, or proceeding did not constitute negligence, misconduct, or a breach of this Agreement or a representation, warranty or covenant of the Trading Advisor, its controlling persons, its affiliates and directors, officers, shareholders, employees, and controlling persons and was done in good faith.
 
(d)           Trading Advisor Indemnity in Respect of Sale of Units. The Trading Advisor shall indemnify, defend and hold harmless the Fund, the Managing Owner, any selling agent, their controlling persons and their affiliates and their respective directors, officers, principals, managers, members, shareholders, employees and controlling persons from and against any and all losses, claims, damages, liabilities, costs, and expenses, to which any indemnified person may become subject (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Trading Advisor shall have approved such settlement, and in connection with any administrative proceedings), in respect of the offer or sale of Units, insofar as such losses, claims, damages, liabilities, costs, or expenses (or action in respect thereof) arise out of, or are based upon: (i) a material breach by the Trading Advisor of any applicable laws or regulations or any representation, warranty or agreement in this Agreement; or (ii) any materially untrue statement or omission regarding the Trading Advisor, or any of its principals, which was made in the Prospectus or any amendment or supplement thereto or any other sales literature and in each case furnished by the Trading Advisor for inclusion therein.
 
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(e)            Fund and Managing Owner Indemnity in Respect of Sale of Units. The Fund and the Managing Owner, jointly and severally shall indemnify, defend and hold harmless the Trading Advisor its controlling persons, their affiliates and their respective directors, officers, principals, managers, members shareholders, employees and controlling persons from and against any loss claim, damage, liability, cost, and expense, joint and several, to which any indemnified person may become subject (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Fund shall have approved such settlement, and in connection with any administrative proceedings), in respect of the offer or sale of Units, unless such loss, claim, damage, liability, cost, or expense (or action in respect thereof) arises out of, or is based upon (i) a material breach by the Trading Advisor of any applicable laws or regulations or any representation, warranty or agreement in this Agreement; or (ii) any materially untrue statement or omission relating or with respect to the Trading Advisor, or any of its principals or their operations, trading systems, methods or performance that was made in the Prospectus or in any other sales literature and in each case furnished by the Trading Advisor for inclusion therein.
 
(f)           Subject to Section 8(a) hereof, the foregoing agreements of indemnity shall be in addition to, and shall in no respect limit or restrict, any other remedies which may be available to an indemnified person.
 
(g)           Promptly after receipt by an indemnified person of notice of the commencement of any action, claim, or proceeding to which any of the indemnities may apply, the indemnified person will notify the indemnifying party in writing of the commencement thereof if a claim in respect thereof is to be made against the indemnifying party hereunder; but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability that the indemnifying party may have to the indemnified person hereunder, except where such omission has materially prejudiced the indemnifying party. In case any action, claim, or proceeding is brought against an indemnified person and the indemnified person notifies the indemnifying party of the commencement thereof as provided above, the indemnifying party will be entitled to participate therein and, to the extent that the indemnifying party desires, to assume the defense thereof with counsel selected by the indemnifying party and not unreasonably disapproved by the indemnified person. After notice from the indemnifying party to the indemnified person of the indemnifying party’s election so to assume the defense thereof as provided above, the indemnifying party will not be liable to the indemnified person under the indemnity provisions hereof for any legal and other expenses subsequently incurred by the indemnified person in connection with the defense thereof, other than reasonable costs of investigation.
 
Notwithstanding the preceding paragraph, if in any action, claim, or proceeding as to which indemnification is or may be available hereunder, an indemnified person reasonably determines that its interests are or may be adverse, in whole or in part, to the indemnifying party’s interests or that there may be legal defenses available to the indemnified person that are different from, in addition to, or inconsistent with the defenses available to the indemnifying party, the indemnified person may retain its own counsel in connection with such action, claim, or proceeding and will be indemnified (provided the indemnified person is so entitled) by the indemnifying party for any legal and other expenses reasonably incurred in connection with investigating or defending such action, claim, or proceeding.
 
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In no event will the indemnifying party be liable for the fees and expenses of more than one counsel for all indemnified persons in connection with any one action; claim, or proceeding or in connection with separate but similar or related actions, claims, or proceedings in the same jurisdiction arising out of the same general allegations. The indemnifying party will not be liable for any settlement of any action, claim, or proceeding effected without the indemnifying party’s express written consent, but if any action, claim, or proceeding, is settled with the indemnifying party’s express written consent, the indemnifying party will indemnify, defend, and hold harmless an indemnified person as provided in this Section 8.
 
 
9.
Right to Advise Others and Uniformity of Acts and Practices.
 
(a)           During the term of this Agreement, the Trading Advisor, its principals and affiliates, will be advising other clients (including affiliates and the stockholders, officers, directors, and employees of the Trading Advisor and its affiliates and their families) and trading for their own accounts. The Trading Advisor will use its best efforts to implement a fair and consistent allocation policy that seeks to ensure that no client is systematically favored over any other client.  All positions will be allocated in a manner that is done on a non-preferential basis, are verifiable and consistently applied among the accounts managed or controlled by the Trading Advisor.  Upon written request, the Managing Owner may request a copy of the Trading Advisor’s procedures regarding the treatment of trades across accounts.  Such procedures shall be provided to the Managing Owner within 30 days of such request by the Managing Owner.  Under no circumstances shall the Trading Advisor by any act or omission knowingly or intentionally favor any account advised or managed by the Trading Advisor over the account of the Fund in any way or manner. Nothing contained in this Section 9(a) shall preclude the Trading Advisor from charging different management and/or incentive fees to its clients. Subject to the Trading Advisor’s obligations under applicable law, the Trading Advisor or any of its principals or affiliates shall be free to advise and manage accounts for other clients and shall be free to trade on the basis of the same trading systems, methods, or strategies employed by the Trading Advisor for the account of the Fund, or trading systems, methods, or strategies that are entirely independent of, or materially different from, those employed for the account of the Fund, and shall be free to compete for the same futures interests as the Fund or to take positions opposite to the Fund, where such actions do not knowingly or intentionally prefer any of such accounts over the account of the Fund on an overall basis.
 
(b)           The Trading Advisor shall not be restricted as to the number or nature of its clients, except that: (i) so long as the Trading Advisor acts as a trading advisor for the Fund, neither the Trading Advisor nor any of its principals or affiliates shall knowingly hold any position or control any other account that would cause the Fund, the Trading Advisor, or the principals or affiliates of the Trading Advisor to be in violation of the CEAct or any regulations promulgated thereunder, any other applicable law, or any applicable rule or regulation of the CFTC or any other regulatory or self regulatory body, exchange, or board; and (ii) neither the Trading Advisor nor any of its principals or affiliates shall render futures interests trading advice to any other individual or entity or otherwise engage in activity that shall knowingly cause positions in futures interests to be attributed to the Trading Advisor under the rules or regulations of the CFTC or any other regulatory or self regulatory body, exchange, or board so as to violate applicable speculative position limits; provided that the Trading Advisor may modify its trading systems, methods or strategies to accommodate the trading of additional funds or accounts.  If applicable speculative position limits are exceeded by the Trading Advisor in the opinion of (i) independent counsel (who shall be other than counsel to the Fund), (ii) the CFTC, or (iii) any other regulatory or self regulatory body, exchange, or board, the Trading Advisor and its principals and affiliates shall promptly liquidate positions in all of their accounts, including the Fund’s account, as to which positions are attributed to the Trading Advisor as nearly as possible in proportion to the accounts respective amounts available for trading (taking into account different degrees of leverage and “notional” equity) to the extent necessary to comply with the applicable position limits.
 
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10.
Representations, Warranties, and Covenants of the Trading Advisor.
 
(a)           Representations and Warranties of the Trading Advisor. The Trading Advisor represents and warrants to and agrees with the Managing Owner and the Fund as follows:
 
(i)            It will exercise reasonable care in implementing the Trading Program on behalf of the Fund as described in the Disclosure Document (as modified from time to time) or any other trading programs agreed to by the Managing Owner and the Trading Advisor.
 
(ii)           The Trading Advisor shall follow and materially comply with, at all times, the Trading Policies.
 
(iii)           The Trading Advisor is duly organized, validly existing and in good standing under the laws of the state of its organization and is qualified to do business as a foreign corporation or and is in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify would materially adversely affect the Trading Advisor’s ability to perform its duties under this Agreement. The Trading Advisor has full power and authority to perform its obligations under this Agreement. The only principals of the Trading Advisor are those set forth in the Disclosure Document (the “Trading Advisor Principals”).
 
(iv)          The Disclosure Document contains all statements and information required to be included therein under the CEAct and other applicable laws, and such information is accurate and complete in all material respects.
 
(v)           With respect to the Trading Advisor and the Trading Advisor Principals only:  (i) the Prospectus contains all statements and information required to be included therein under the CEAct and the rules and regulations thereunder, and (ii) the Prospectus as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements were made, not misleading. Except as otherwise disclosed in the Prospectus, the actual performance of each discretionary account directed by the Trading Advisor or any principal or affiliate of the Trading Advisor over the past five  years and year-to-date is disclosed in the Prospectus on either a composite or a stand alone basis. The information regarding the actual performance of such accounts set forth in the Prospectus has been calculated and presented in accordance with the descriptions therein and is complete and accurate in all material respects.
 
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(vi)          This Agreement has been duly and validly authorized, executed and delivered on behalf of the Trading Advisor and is a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms.
 
(vii)         Each of the Trading Advisor and the Trading Advisor Principals has all federal, state and foreign governmental, regulatory and exchange licenses and approvals and has effected all filings and registrations with federal, state and foreign governmental and regulatory agencies required to conduct its business and to act as described in the Prospectus or required to perform its or his obligations under this Agreement. The Trading Advisor is registered as a commodity trading advisor under the CEAct and is a member of the NFA in such capacity.
 
(viii)        The execution and delivery of this Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions contemplated herein and in the Prospectus and the payment of the fees hereunder will not violate, or constitute a breach of, or default under, the certificate of incorporation or bylaws (or any other organizational documents) of the Trading Advisor or any agreement or instrument by which it is bound or of any order, rule, law or regulation binding on it of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over it.
 
(ix)           Since the respective dates as of which information is given in the Disclosure Document, and except as may otherwise be stated in or contemplated by the Disclosure Document, there has not been any material adverse change in the condition, financial or otherwise, business or prospects of the Trading Advisor or any Trading Advisor Principal.
 
(x)           Except as set forth in the Disclosure Document there have not been and there is not pending, or to the best of the Trading Advisor’s knowledge after due inquiry, threatened, any action, suit or proceeding before or by any court or other governmental body to which the Trading Advisor or any Trading Advisor Principal is or was a party, or to which any of the assets of the Trading Advisor is or was subject and which resulted in or might reasonably be expected to result in any material adverse change in the condition, financial or otherwise, business or prospects of the Trading Advisor.  None of the Trading Advisor or any Trading Advisor Principal has received any notice of an investigation by the NFA, CFTC or other administrative agency or self-regulatory body (whether United States or foreign) regarding noncompliance by the Trading Advisor or any of the Trading Advisor Principals with the CEAct or any other applicable law.
 
(xi)           Neither the Trading Advisor nor any Trading Advisor Principal has received, or is entitled to receive, directly or indirectly, any commission, finder’s fee, similar fee, or rebate from any person in connection with the organization or operation of the Fund.
 
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(xii)          Participation by the Trading Advisor in accordance with the terms hereof and as described in the Prospectus will not violate any provisions of the Investment Advisers Act of 1940, as amended.
 
(xiii)         Neither the Trading Advisor nor any Trading Advisor Principal will use or distribute the Prospectus or any selling literature or engage in any selling activities whatsoever in connection with the offering of the Units.
 
(xiv)        The information in the Prospectus about the Trading Advisor does not contain any misleading or untrue statements of a material fact or omit to state a material fact required to be stated therein to make the statements not misleading.
 
(xv)         The foregoing representations and warranties shall be continuing during the term of this Agreement and if at any time any event shall occur which could make any of the foregoing representations or warranties inaccurate, the Trading Advisor shall notify the Managing Owner of the nature of such event within 5 days, except for the representations and warranties contained in Sections 10(a)(iv), (v), (x) and (xiv), in which case notice shall be provided promptly.
 
(b)           Covenants of the Trading Advisor.  The Trading Advisor covenants and agrees that:
 
(i)            The Trading Advisor shall maintain all registrations and memberships necessary for the Trading Advisor to continue to act as described herein and to at all times comply in all respects with all applicable laws, rules, and regulations, to the extent that the failure to so comply would have a materially adverse effect on the Trading Advisor’s ability to act as described herein.
 
(ii)           The Trading Advisor shall inform the Managing Owner immediately as soon as the Trading Advisor or any Trading Advisor Principal becomes the subject of any investigation, claim or proceeding of any regulatory authority having jurisdiction over such person or becomes a named party to any litigation materially affecting (or which may, with the passage of time, materially affect) the business of the Trading Advisor. The Trading Advisor shall also inform the Managing Owner immediately if the Trading Advisor or any of its officers becomes aware of any material breach of this Agreement by the Trading Advisor.
 
(iii)           The Trading Advisor agrees to cooperate by providing information regarding itself and its performance in the preparation of any amendments or supplements to the Prospectus (subject to the limitation set forth in Section 1 hereof) as the Managing Owner may reasonably request.
 
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11.
Representations and Warranties of the Fund and the Managing Owner; Covenants of the Managing Owner.
 
(a)           The Fund and the Managing Owner represent and warrant to the Trading Advisor, as follows:
 
(i)           The Fund is a Delaware statutory trust formed pursuant to its organizational documents and Delaware law and is validly existing and in good standing under the laws of the State of Delaware with full power and authority to engage in the trading of futures interests and to engage in its other contemplated activities as described in the Prospectus; the Fund is qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualification and where failure to be so qualified could materially adversely affect the Fund’s ability to perform its obligations hereunder.
 
(ii)           The Managing Owner is duly organized and validly existing and in good standing as a limited liability company under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature or conduct of its business requires such qualification and where the failure to be so qualified could materially adversely affect the Managing Owner’s ability to perform its obligations hereunder.
 
(iii)           The Fund and the Managing Owner have full power and authority under applicable law to conduct their business and to perform their respective obligations under this Agreement and as described in the Prospectus.
 
(iv)           As of the date hereof, the Prospectus contains all statements and information required to be included therein by the CEAct and the rules and regulations of the SEC or other applicable law and at all times subsequent thereto up to and including each closing, the Prospectus will comply in all material respects with the requirements of the rules of the SEC, NFA, the CEAct, applicable state laws, or other applicable laws. The Prospectus as of the date on which the Trading Advisor begins trading operations on behalf of the Account, and at all times throughout the term of this Agreement will not contain any misleading or untrue statements of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Any supplemental sales literature, when read in conjunction with the Prospectus, will not contain any untrue statements of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading. This representation and warranty shall not, however, apply to any statement or omission in the Prospectus or supplemental sales literature made in reliance upon information furnished by and relating to the Trading Advisor, its trading methods or its trading performance.
 
(v)           Since the respective dates as of which information is given in the Prospectus, there have not been any material adverse change in the condition, financial or otherwise, or business of the Managing Owner or the Fund, whether or not arising in the ordinary course of business.
 
(vi)           This Agreement has been duly and validly authorized, executed and delivered by the Managing Owner on behalf of the Fund and constitutes a valid, binding and enforceable agreement of the Fund and the Managing Owner in accordance with its terms.
 
17

 
(vii)         The execution and delivery of this Agreement, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein and in the Prospectus will not violate, or constitute a breach of, or default under, the Managing Owner’s organizational documents, or the Fund’s organizational documents, or any material agreement or instrument by which either the Managing Owner or the Fund, as the case may be, is bound or any material order, rule, law or regulation applicable to the Managing Owner or the Fund of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Managing Owner or the Fund.
 
(viii)        Except as set forth in the Prospectus, there have not been in the five years preceding the date of the Prospectus and there is not pending or, to the Managing Owner’s knowledge, threatened, any action, suit or proceeding at law or in equity before or by any court or by any federal, state, municipal or other governmental body or any administrative, self-regulatory or commodity exchange organization to which the Managing Owner or the Fund is or was a party, or to which any of the assets of the Managing Owner or the Fund is or was subject; and neither the Managing Owner nor any of the principals of the Managing Owner (“Managing Owner Principals”) has received any notice of an investigation by the NFA, CFTC or any other administrative or self-regulatory organization regarding non-compliance by the Managing Owner or the Managing Owner Principals or the Fund with the CEAct, the Securities Act of 1933, as amended, or any applicable laws which are material to an investor’s decision to invest in the Fund.
 
(ix)           The Managing Owner and the Managing Owner Principals have all federal, state and foreign governmental, regulatory and exchange approvals and licenses, and have effected all filings and registrations with federal, state and foreign governmental agencies required to conduct their business and to act as described in the Prospectus or required to perform their obligations under this Agreement (including, without limitation, registration as a commodity pool operator under the CEAct and membership in the NFA as a commodity pool operator) and will maintain all such required approvals, licenses, filings and registrations for the term of this Agreement. The Managing Owner’s principals identified in the Prospectus are all of the Managing Owner Principals.
 
(x)           The Fund is and shall remain in material compliance in all respects with all laws, rules, regulations and orders of any government, governmental agency or self-regulatory organization applicable to its business as described in the Prospectus and this Agreement.
 
18

 
(xi)           The foregoing representations and warranties shall be continuing during the term of this Agreement and if at any time any event shall occur which could make any of the foregoing representations or warranties inaccurate, the Managing Owner shall notify the Trading Advisor of the nature of such event within five days.
 
(xii)          The Fund is as of the date hereof a “qualified eligible person” as defined in CFTC Regulation 4.7.
 
(b)           Covenants of the Managing Owner. The Managing Owner covenants and
 
agrees that:
(i)           The Managing Owner shall maintain all registrations and memberships necessary for the Managing Owner to continue to act as described herein and in the Prospectus and to all times comply in all respects with all applicable laws, rules, and regulations, to the extent that the failure to so comply would have a materially adverse effect on the Managing Owner’s ability to act as described herein and in the Prospectus.
 
(ii)           The Managing Owner shall inform the Trading Advisor immediately as soon as the Managing Owner, the Fund or any of their principals becomes the subject of any lawsuit, investigation, claim, or proceeding of any regulatory authority having jurisdiction over such person or becomes a named party to any litigation materially affecting the business of the Managing Owner or the Fund. The Managing Owner shall also inform the Trading Advisor immediately if the Managing Owner or the Fund or any of their officers become aware of any material breach of this Agreement by the Managing Owner or the Fund.
 
(iii)           The Fund will furnish to the Trading Advisor copies of the Prospectus, and all amendments and supplements thereto, in each case as soon as available and will ensure that the Fund does not use any such amendments or supplements as to which the Trading Advisor in writing has reasonably objected.
 
 
12.
Merger or Transfer of Assets.
 
The Managing Owner, Fund or the Trading Advisor may merge or consolidate with, or sell or otherwise transfer its business, or all or a substantial portion of its assets, to any entity upon written notice to the other parties.
 
 
13.
Complete Agreement.
 
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 as between the parties unless in writing and signed by the party against whom enforcement is sought.
 
19

 
 
14.
Assignment.
 
Subject to Section 12, hereof, this Agreement may not be assigned, transferred by operation of law, change in control or otherwise, by any party hereto without the express prior written consent of the other parties hereto.
 
 
15.
Amendment.
 
This Agreement may not be amended except by the written consent of the parties hereto.  No waiver of any provision of this Agreement shall be implied from any course of dealings between the parties, from any failure by any party to assert its rights hereunder or any occasion or series of occasions.
 
 
16.
Severability.
 
The invalidity or unenforceability of any provision of this Agreement or any covenant herein contained shall not affect the validity or enforceability of any other provision or covenant hereof or herein contained and any such invalid provision or covenant shall be deemed to be severable.
 
 
17.
Closing Certificates.
 
(a)           The Trading Advisor shall, at the initial closing and at the request of the Managing Owner at any monthly closing (as described in the Prospectus), provide the following:
 
(i)           To the Managing Owner and the Fund, a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that;
 
(A)           the representations and warranties by the Trading Advisor in this Agreement are true, accurate, and complete on and as of the date of the closing, as if made on the date of the closing; and
 
(B)           the Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
 
(ii)           To the Managing Owner and the Fund, a report as of the closing date which shall present, for the period from the date after the last day covered by the historical performance records in the Prospectus to the latest practicable day before closing, figures which shall be a continuation of such historical performance records and which shall certify that such figures are, to the best of such Trading Advisor’s knowledge, accurate in all material respects.
 
(b)           Upon the reasonable request of the Managing Owner, the Trading Advisor shall provide a legal opinion of the Trading Advisor’s counsel in a form acceptable to the Managing Owner.
 
20

 
(c)           The Managing Owner shall, at the initial closing and at the request of the Trading Advisor at any closing (as described in the Prospectus), provide the following:
 
(i)           To the Trading Advisor, a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
 
(A)           the representations and warranties by the Fund and the Managing Owner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing;
 
(B)           no order preventing or suspending the use of the Prospectus has been issued by the CFTC, the SEC, any state securities commission, or the NFA or other self-regulatory organization and no proceedings for that purpose shall have been instituted or are pending or, to the knowledge of the Managing Owner, are contemplated or threatened under the CEAct; and
 
(C)           The Fund and the Managing Owner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
 
 
18.
Inconsistent Filings.
 
If the Trading Advisor intends to file, to participate in the filing of, or to publish any description of the Trading Advisor, or of its respective principals or trading approaches that is materially inconsistent with those in the Disclosure Document, the Trading Advisor shall inform the Managing Owner of such intention and shall furnish copies of all such filings or publications at least ten Business Days prior to the date of filing or publication.
 
 
19.
Disclosure Document.
 
(a)           During the term of this Agreement, the Trading Advisor shall furnish to the Managing Owner promptly copies of any information brochure and other written information prepared by the Trading Advisor in lieu of a disclosure document.  The Managing Owner and Fund each acknowledge receipt of the Trading Advisor’s information brochure and other written information (the “Disclosure Document”).
 
(b)           The Managing Owner and the Fund will not distribute or supplement any promotional material relating to the Trading Advisor unless the Trading Advisor has approved reasonable prior notice of and a copy of such promotional material and has received such material in writing.
 
20.           Track Record.  The track record and other performance information of the Fund shall be the property of the Managing Owner and not the Trading Advisor.   Notwithstanding the foregoing, the Trading Advisor shall be permitted to include performance information for the Fund in any past performance presentation or statement on a confidential basis such that the name of the Fund is not used
 
21

 
 
21.
Notices.
 
All notices required to be delivered under this Agreement shall be in writing and shall be effective when delivered personally on the day delivered, by facsimile on receipt confirmation, by email followed by delivery of an original, or when given by registered or certified mail, postage prepaid, return receipt requested, on the second business day following the day on which it is so mailed, addressed as follows (or to such other address as the party entitled to notice shall hereafter designate in accordance with the terms hereof):
 
 
if to the Fund:
   
 
RJO Global Trust
 c/o R. J. O’Brien Fund Management, LLC
222 S. Riverside Plaza
Suite 9
Chicago, Illinois 60606
Attn:  Annette A. Cazenave
Facsimile: 312-373-4831
Email: acazenave@rjobrien.com
   
 
if to the Managing Owner:
   
 
R. J. O’Brien Fund Management, LLC
222 S. Riverside Plaza
Suite 9
Chicago, Illinois 60606
Attn:  Annette A. Cazenave
Facsimile: 312-373-4831
Email: acazenave@rjobrien.com
   
 
With a copy to:
   
 
Alston & Bird LLP
90 Park Avenue
New York, NY 10016
Attn: Timothy P. Selby
Facsimile: (212) 210-9444
Email: timothy.selby@alston.com
   
 
if to the Trading Advisor:
   
 
Trigon Investment Advisors, LLC
Wall Street Plaza
88 Pine Street, 31st Floor
New York, NY 10005
Attn: Paul Mastroddi
Facsimile: (212) 344-0712
Email: pm@trigoninvestment.com
 
22

 
 
22.
Continuing Nature of Representations Warranties and Covenants: Survival.
 
All representations, warranties and covenants contained in this Agreement shall be continuing during the term of this Agreement and the provisions of this Agreement shall survive the termination of this Agreement with respect to any matter arising while this Agreement was in effect.  Each party hereby agrees that as of the date of this Agreement it is, and during its term shall be, in compliance with its representations, warranties and covenants herein contained.  In addition, if at any time any event occurs which would make any of such representations, warranties or covenants not true, the affected party will use its best efforts to promptly notify the other parties of such fact.
 
 
23.
Third-Party Beneficiaries.
 
This Agreement is not intended and shall not convey any rights to a party to this Agreement.
 
 
24.
Governing Law.
 
This Agreement and any amendment hereto shall be governed by, and construed in accordance with, the laws of the State of Illinois, United States of America  (excluding the law thereof which requires the application of, or reference to, the law of any other jurisdiction).  Each party hereto expressly and irrevocably agrees (a) that it waives any objection, and specifically consents, to venue in the United States federal or state courts located in the City of Chicago, State of Illinois, United States of America, so that any action at law or in equity may be brought and maintained in any such court, and (b) that service of process in any such action may be effected against such party by certified or registered mail or in any other manner permitted by applicable United States Federal Rules of Civil Procedure or rules of the Courts of the State of Illinois.  In addition each party hereto expressly and irrevocably waives, in respect of any action brought in any United States federal or state court located in the City of Chicago, State of Illinois or any resulting judgment, any objection, and hereby specifically consents, to the jurisdiction of any such court and agrees not to seek to change the situs of such action or to assert that any other court in any other jurisdiction is a more suitable forum for the hearing and adjudication of any claim or dispute raised in such action.
 
 
25.
Remedies.
 
In any action or proceeding arising out of any of the provisions of this Agreement, the Trading Advisor agrees not to seek any prejudgment equitable or ancillary relief. The Trading Advisor agrees that its sole remedy in any such action or proceeding shall be to seek actual monetary damages for any breach of this Agreement, except that Trading Advisor may seek a declaratory judgment with respect to the indemnification provisions of this Agreement or in the event the Managing Owner overrides a trading instruction of the Trading Advisor and such override causes a material adverse event for the Trading Advisor.
 
23

 
 
26.
Headings.
 
Headings to sections herein are for the convenience of the parties only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
 
 
27.
Successors.
 
This Agreement including the representations, warranties and covenants contained herein shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns, and no other person shall have any right or obligation under this Agreement.
 
 
28.
Counterparts.
 
This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
 
 
29.
Waiver of Breach.
 
The waiver by any party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach or of a breach by any other party.  The failure of a party to insist upon strict adherence to any provision of the Agreement shall not constitute a waiver or thereafter deprive such party of the right to insist upon strict adherence.

 
24

 

IN WITNESS WHEREOF, this Agreement has been executed for and on behalf of the undersigned as of the day and year first above written.
 
 
RJO GLOBAL TRUST
by R.J. O’Brien Fund Management, LLC
Managing Owner
   
 
By
s/ Annette A. Cazenave                                                  
 
Name:  Annette A. Cazenave
 
Title:  Executive Vice President
   
 
R.J. O’BRIEN FUND MANAGEMENT, LLC
   
 
By
s/ Thomas J. Anderson                                                  
 
Name:  Thomas J. Anderson
 
Title:  Chief Financial Officer
   
 
TRIGON INVESTMENT ADVISORS LLC
   
 
By
s/ Ante Basic                                                  
 
Name:  Ante Basic
 
Title:  Managing Partner

 
25

 

EXHIBIT A
 
Trading Policies
 
1.           The Trading Advisor will not employ the trading technique commonly known as “pyramiding,” in which the Trading Advisor uses unrealized profits on existing positions in a given futures interest due to favorable price movement as margin specifically to buy or sell additional positions in the same or a related futures interest. Taking into account the Fund’s open trade equity (i.e., the profit or loss on an open futures interest position) on existing positions in determining generally whether to acquire additional futures interest positions on behalf of the Fund will not be considered to constitute “pyramiding.”
 
2.           The Trading Advisor will not utilize borrowings on behalf of the Fund except if the Fund purchases or takes delivery of commodities. If the Trading Advisor borrows money on behalf of the Fund, the lending entity in such case (the “lender”) may not receive interest in excess of its interest costs, nor may the lender receive interest in excess of the amounts which would be charged the Fund by unrelated banks on comparable loans for the same purpose, nor may the lender or any affiliate thereof receive any points or other financing charges or fees regardless of the amount. Use of lines of credit in connection with its forward trading does not, however, constitute borrowing for purposes of this trading limitation.
 
3.           The Trading Advisor will not “churn” the Fund’s assets. Churning is the unnecessary execution of trades so as to generate increased brokerage commissions.
 
4.           The Trading Advisor will trade currencies and other commodities on futures exchanges, in the interbank and forward contract markets only with banks, brokers, dealers, and other financial institutions which the Managing Owner has determined to be creditworthy.
 
5.           The Trading Advisor will trade only in those futures interests that have been approved by the CFTC as eligible for US investors. The Trading Advisor will not establish new positions in a futures interest on behalf of the Fund for any one contract month or option if such additional positions would result in a net long or short position for that futures interest requiring as margin or premium more than 15% of the Fund’s net assets.
 
6.           The Trading Advisor will not acquire additional positions in any futures interest on behalf of the Fund if such additional positions would result in the aggregate net long or short positions for all futures interests requiring as margin or premium for all outstanding positions more than 66 2/3% of the Fund’s net assets.
 
7.           The Trading Advisor will not purchase, sell, or trade securities (except securities approved by the CFTC for investment of customer funds).
 
8.           The Trading Advisor will be responsible for actual and not incidental or consequential damages resulting from errors committed or caused by it in transmitting orders for the purchase or sale of futures interests for the Fund’s account.
 
 
A-1

 

EXHIBIT B
 
COMMODITY TRADING AUTHORITY
 
Dear Trigon Investment Advisors LLC:
 
RJO Global Trust (the “Fund”) and R.J. O’Brien Fund Management, LLC, the Fund’s managing owner (the “Managing Owner”) do hereby make, constitute and appoint you as the Fund’s attorney-in-fact to buy and sell futures and forward contracts through such futures commission merchants as shall be agreed on by you and the Managing Owner on behalf of the Fund, pursuant to the trading program identified in the Agreement among the Fund, the Managing Owner and you as of the 1st day of October, 2010, as amended or supplemented, and in accordance with the terms and conditions of said Agreement.
 
This authorization shall terminate and be null, void and of no further effect simultaneously with the termination of the said Agreement.
 
 
Very truly yours,
   
 
RJO GLOBAL TRUST
by R.J. O’Brien Fund Management, LLC
Managing Owner
   
 
By
/s Annette A. Cazenave                                                  
 
Name:  Annette A. Cazenave
 
Title:  Executive Vice President
   
 
R.J. O’Brien Fund Management, LLC
   
 
By
/s. Thomas J. Anderson                                                  
 
Name:  Thomas J. Anderson
 
Title:  Chief Financial Officer

 
B-1

 

EXHIBIT C
 
FUTURES INTERESTS TRADED
 
FUTURES INTERESTS TRADED
 
Name
Bloomberg Symbol
   
Fixed Income (Futures)
 
Eurodollar
ED <CMDTY>
Fed Funds
FF <CMDTY>
Canadian BA
BA <CMDTY>
Short sterling
L <CMDTY>
Euribor
ER <CMDTY>
Euroswiss
ES <CMDTY>
Euroyen (Singapore)
EY <CMDTY>
Euroyen (Tokyo)
YE <CMDTY>
Australian bank bills
IR <CMDTY
Australian 30 day cash rate
lB <CMDTY
US 2 year note
TU <CMDTY>
US 5 year note
FV <CMDTY>
US 10 year note
TY <CMDTY>
US 30 year bond
US <CMDTY>
Euro Schatz (2Yr.)
DU <CMDTY>
Euro BOBL (5Yr.)
OE <CMDTY>
10 year Bund
RX <CMDTY>
10 year Gilt
G <CMDTY>
10 year JGB (Tokyo)
JB <CMDTY>
10 year JGB (Singapore)
BJ <CMDTY>
10 year Australia
NYM <CMDTY>
10 year Canada
CN <CMDTY>
   
Equities (Futures)
 
S&P500
SP <CMDTY>
Nasdaq
ND <CMDTY>
Russell
RL <INDEX)
Nikkei (Singapore)
NI <INDEX>
Nikkei (Osaka)
NK <INDEX>
Nikkei (Chicago)
NH <INDEX>
DAX
GX <CMDTY>
FTSE
Z <INDEX>
ASX
XP <INDEX>
IP (Canada)
IP <INDEX>
HI (Hang Seng)
HI <INDEX>
BZ (Bovespa)
BZ <INDEX>
Nasdaq mini
NQ <INDEX>
S&P500 mini
ES <INDEX>
Russell mini
RTA <INDEX)
   
Commodities (Futures)
 
Crude Oil
CL <CMDTY>
Heating Oil
HO <CMDTY>
Gasoline
HU <CMDTY>
Natural Gas
NG <CMDTY>
Copper
HG <CMDTY>
 
C-1

 
Gold
GC <CMDTY>
Silver
SI <CMDTY>
Coffee
KC <CMDTY>
Sugar
SB <CMDTY>
Cotton
CT <CMDTY>
Corn
C <CMDTY>
Soybeans
S <CMDTY>
Wheat
W <CMDTY>
   
Foreign Exchange (Spot and Forwards)
AUD
AUD <CRNCY>
CAD
CAD <CRNCY>
CHF
CHF <CRNCY>
EUR
EUR <CRNCY>
SGD
SGD <CRNCY>
GBP
GBP <CRNCY>
JPY
JPY <CRNCY>
ZAR
ZAR <CRNCY>
NZD
NZD <CRNCY>
SEK
SEK <CRNCY>
NOK
NOK <CRNCY>
BRL
BRL <CRNCY>
MXN
MXN <CRNCY>
TRY
TRY <CRNCY>
IDR
IDR <CRNCY>
KRW
KRW <CRNCY>
TWD
TWD <CRNCY>
CLP
CLP <CRNCY>
HUF
HUF <CRNCY>
THB
THB <CRNCY>
CNY
CNY <CRNCY>
CZK
CZK <CRNCY>
PLN
PLN <CRNCY>
INR
INR <CRNCY>
PHP
PHP <CRNCY>
COP
COP <CRNCY>
RUB
RUB <CRNCY>
ILS
ILS <CRNCY>
 
 
C-2

 
EX-31.01 4 v201949_ex31-01.htm
EXHIBIT 31.01
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER

I, Gerald Corcoran, certify that:

1.
I have reviewed this quarterly report on Form 10-Q of RJO Global Trust;

2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report;

4.
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a–15(f) and 15d–15(f)) for the registrant and have:

 
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) 
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) 
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date:  
November 12, 2010
 
     
By:
/s/ Gerald Corcoran
 
 
Gerald Corcoran, Chief Executive Officer
 
 
(principal executive officer)
 
 
R.J. O’Brien Fund Management, LLC, Managing Owner
 
 
 

 
EX-31.02 5 v201949_ex31-02.htm
EXHIBIT 31.02
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER

I, Thomas J. Anderson, certify that:

1.
I have reviewed this quarterly report on Form 10-Q of RJO Global Trust;

2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report;

4.
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a–15(f) and 15d–15(f)) for the registrant and have:

 
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) 
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date:  
November 12, 2010
 
     
By:
/s/ Thomas J. Anderson
 
 
Thomas J. Anderson, Chief Financial Officer
 
 
(principal financial officer)
 
 
R.J. O’Brien Fund Management, LLC, Managing Owner
 
 
 

 
EX-32.01 6 v201949_ex32-01.htm
EXHIBIT 32.01

SECTION 1350 CERTIFICATION
OF PRINCIPAL EXECUTIVE OFFICER AND PRINCIPAL FINANCIAL OFFICER
 
I, Gerald Corcoran, Chief Executive Officer, and I, Thomas J. Anderson, Chief Financial Officer, of R.J. O’Brien Fund Management, LLC (“RJOFM”), the Managing Owner of RJO Global Trust (the “Trust”), certify that, to my knowledge (i) the attached Form 10-Q fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and (ii) the information contained in the attached Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of the Trust.
 
/s/ Gerald Corcoran   /s/ Thomas J. Anderson
Gerald Corcoran
 
Thomas J. Anderson
Chief Executive Officer
 
Chief Financial Officer
R. J. O’Brien Fund Management, LLC, Managing Owner
 
R. J. O’Brien Fund Management, LLC, Managing Owner
November 12, 2010
 
November 12, 2010
 
 

 
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