EXHIBIT 10.3
ADVISORY AGREEMENT
ADVISORY AGREEMENT (this "Agreement") dated as of the ___ day of
________, 2004, by and among WORLD MONITOR TRUST III - SERIES H, a separate
series of a Delaware statutory trust (the "Trust"), PREFERRED INVESTMENT
SOLUTIONS CORP., a Connecticut corporation (the "Managing Owner") and
BRIDGEWATER ASSOCIATES, INC., a Connecticut corporation (the "Advisor").
W I T N E S S E T H:
WHEREAS, the Trust has been organized primarily for the purpose of
trading, buying, selling, spreading or otherwise acquiring, holding or
disposing of futures, forward and options contracts with respect to
commodities. Other transactions also may be effected from time to time,
including among others, those as more fully identified in Exhibit A hereto;
the foregoing commodities and other transactions are collectively referred to
as "Commodities"; and
WHEREAS, the Managing Owner is authorized to utilize the services of one
or more professional commodity trading advisors in connection with the
Commodities trading activities of the various Series (as defined below) of the
Trust; and
WHEREAS, the Trust proposes to make an initial public offering (the
"Offering") of units of beneficial interest in the Trust (the "Interests")
issuable in multiple series of Interests (each, a "Series") through [Name of
Selling Agent] (the "Selling Agent"), an affiliate of the Managing Owner, and
in connection therewith, the Trust intends to file with the U. S. Securities
and Exchange Commission (the "SEC"), pursuant to the Securities Act of 1933,
as amended (the "1933 Act"), a registration statement on Form S-1 to register
the Interests, including the Series H Interests, and as part thereof a
prospectus (which registration statement, together with all
amendments thereto, shall be referred to herein as the "Registration
Statement" and which prospectus, in final form, shall be referred to herein as
the "Prospectus"); and
WHEREAS, the Trust will prepare and file applications for registration
of the Interests under the securities or Blue Sky laws of such jurisdictions
as the Managing Owner deems appropriate; and
WHEREAS, the Advisor's present business includes the management of
Commodities accounts for its clients; and
WHEREAS, the Advisor is registered as a commodity trading advisor under
the Commodity Exchange Act, as amended (the "CE Act"), and is a member of the
National Futures Association (the "NFA") as a commodity trading advisor and
will maintain such registration and membership for the term of this Agreement;
and
WHEREAS, the Trust and the Advisor desire to enter into this Agreement
in order to set forth the terms and conditions upon which the Advisor will
render and implement commodity advisory services on behalf of the Trust during
the term of this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Duties of the Advisor.
(a) Appointment. The Trust hereby appoints the Advisor, and the
Advisor hereby accepts appointment, as its limited attorney-in-fact to
exercise discretion to invest and reinvest in Commodities during the term of
this Agreement the portion of the Trust's Net Asset Value (as defined in the
Prospectus) which is comprised of the assets attributable to the Trust's
Series H Interests allocated to the Advisor (the "Series H Allocated Assets")
on the terms and conditions and for the purposes set forth herein. This
limited power-of-attorney is a continuing power and shall continue in effect
with respect to the Advisor until terminated hereunder. The Advisor shall have
sole authority and responsibility for independently directing the investment
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and reinvestment in Commodities of the Series H Allocated Assets for the term
of this Agreement pursuant to the trading programs, methods, systems, and
strategies described in Exhibit A hereto, which the Trust and the Managing
Owner have selected to be utilized by the Advisor in trading the Series H
Allocated Assets (collectively referred to as the Advisor's "Trading
Approach"), subject to the trading policies and limitations as set forth in
the Prospectus and attached hereto as Exhibit B (the "Trading Policies and
Limitations"), as the same may be modified from time to time and provided in
writing to the Advisor. The portion of the Series H Allocated Assets to be
allocated by the Advisor at any point in time to one or more of the various
trading strategies comprising the Advisor's Trading Approach will be
determined as set forth in Exhibit A hereto, as it may be amended from time to
time, with the consent of the parties, it being understood that trading gains
and losses automatically will alter the agreed upon allocations. Upon receipt
of a new allocation, the Advisor will determine and, if required, adjust its
trading in light of the new allocation.
(b) Allocation of Responsibilities. The Managing Owner will have the
responsibility for the management of any portion of the Series H Allocated
Assets that are not invested in Commodities. The Advisor will use its good
faith and reasonable efforts in determining the investment and reinvestment in
Commodities of the Series H Allocated Assets in compliance with the Trading
Policies and Limitations, and in accordance with the Advisor's Trading
Approach. In the event that the Managing Owner shall, in its sole discretion,
determine in good faith following consultation appropriate under the
circumstances with the Advisor that any trading instruction issued by the
Advisor violates the Trading Policies and Limitations, then the Managing
Owner, following reasonable notice to the Advisor appropriate under the
circumstances, may override such trading instruction and shall be responsible
therefor. Nothing
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herein shall be construed to prevent the Managing Owner from imposing any
limitation(s) on the trading activities of the Trust beyond those enumerated
in the Prospectus if the Managing Owner determines that such limitation(s) are
necessary or in the best interests of the Trust, in which case the Advisor
will adhere to such limitations following written notification thereof.
(c) Gains From Trading Approach. The Advisor agrees that at least
90% of the income, if any, generated by its Trading Approach for Series H
Allocated Assets will be "qualifying income" within the meaning of Section
7704(d) of the Code (it being understood that such Advisor also agrees that it
will attempt to trade in such a manner as to allow non-U.S. Limited Owners to
qualify for the safe harbors found in Section 864(b)(2) of the Code and as
interpreted in the regulations promulgated or proposed thereunder.
(d) Modification of Trading Approach. In the event the Advisor
requests to use, or the Managing Owner requests the Advisor to use, a trading
program, system, method or strategy other than or in addition to the trading
programs, systems, methods or strategies comprising the Trading Approach in
connection with trading for the Trust (including, without limitation, the
deletion or addition of an agreed upon trading program, system, method or
strategy to the then agreed upon Trading Approach or a modification in the
leverage employed), either in whole or in part, the Advisor may not do so
and/or shall not be required to do so, as appropriate, unless both the
Managing Owner and the Advisor consent thereto in writing.
(e) Notification of Material Changes. The Advisor also agrees to
give the Trust prior written notice of any proposed material change in its
Trading Approach and agrees not to make any material change in such Trading
Approach (as applied to the Trust) over the objection of the Managing Owner,
it being understood that the Advisor shall be free to institute non-material
changes in its Trading Approach (as applied to the Trust) without prior
written
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notification. Without limiting the generality of the foregoing, refinements to
the Advisor's Trading Approach and the deletion (but not the addition) of
commodities (other than the addition of commodities then being traded (i) on
organized domestic commodities exchanges, (ii) on foreign commodities
exchanges recognized by the Commodity Futures Trading Commission (the "CFTC")
as providing customer protections comparable to those provided on domestic
exchanges or (iii) in the interbank foreign currency market) to or from the
Advisor's Trading Approach shall not be deemed a material change in the
Advisor's Trading Approach, and prior approval of the Managing Owner shall not
be required therefor. The utilization of forward markets in addition to those
enumerated in Exhibit D hereto would be deemed a material change to the
Advisor's Trading Approach and prior approval shall be required therefor.
Subject to adequate assurances of confidentiality, the Advisor agrees
that it will discuss with the Managing Owner upon request any trading methods,
programs, systems or strategies used by it for trading customer accounts which
differ from the Trading Approach used for the Trust, provided, that nothing
contained in this Agreement shall require the Advisor to disclose what it
deems to be proprietary or confidential information.
(f) Request for Information. The Advisor agrees to provide the Trust
with any reasonable information concerning the Advisor that the Trust may
reasonably request (other than the identity of its customers or proprietary or
confidential information concerning the Trading Approach), subject to receipt
of adequate assurances of confidentiality by the Trust, including, but not
limited to, information regarding any change in control, key personnel,
Trading Approach and financial condition which the Trust reasonably deems to
be material to the Trust; the Advisor also shall notify the Trust of any such
matters the Advisor, in its reasonable judgment, believes may be material to
the Trust relating to the Advisor and its Trading
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Approach. During the term of this Agreement, the Advisor agrees to provide the
Trust with (i) updated monthly information related to the Advisor's estimated
performance results for the Trading Approach and the Pure Alpha Strategy,
within a reasonable period of time after the end of the month to which it
relates and (ii) updated information as of the end of each quarter that
relates to the Advisor's performance results for all of the Advisor's other
trading strategies within a reasonable period of time after the end of the
quarter to which it relates.
(g) Notice of Errors. The Advisor is responsible for promptly
reviewing all oral and written confirmations it receives to determine that the
Commodities trades were made in accordance with the Advisor's instructions. If
the Advisor determines that an error was made in connection with a trade or
that a trade was made other than in accordance with the Advisor's
instructions, the Advisor shall promptly notify the Managing Owner of this
fact and shall utilize its reasonable efforts to cause the error or
discrepancy to be corrected.
(h) Liability. Neither the Advisor nor any employee, director,
officer or shareholder of the Advisor, nor any person who controls the
Advisor, shall be liable to the Managing Owner, its officers, directors,
shareholders or employees, or any person who controls the Managing Owner, or
the Trust or the owners of Series H Interests ("Limited Owners"), or any of
their respective successors or assignees under this Agreement, except by
reason of acts or omissions in material breach of this Agreement or due to
their misconduct or negligence or by reason of their not having acted in good
faith in the reasonable belief that such actions or omissions were in the best
interests of the Trust and the Limited Owners; it being understood that the
Advisor makes no guarantee of profit nor offers any protection against loss,
and that all purchases and sales of Commodities shall be for the account and
risk of the Trust, and the
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Advisor shall incur no liability for trading profits or losses resulting
therefrom provided the Advisor would not otherwise be liable to the Trust
under the terms hereof.
(i) Initial Allocation. Initially, the Series H Allocated Assets
will total an amount equal to the assets of the Trust allocable to the Series
H Interests, including all cash and cash equivalents held by the Trust in
respect of such Interests reduced by all liabilities of the Trust incurred
specifically in respect of the Series H Interests and further reduced by a
pro-rata share of the total liabilities of the Trust which are not otherwise
specifically allocable to another Series of Interests, at the conclusion of
the Trust's Initial Offering Period (as described in the Prospectus).
(j) Additional Allocations and Reallocations. Subject to Section 10
below, the Trust may, on a monthly basis during the Trust's Continuous
Offering Period, as described in the Prospectus, (i) allocate additional
assets to the Advisor, (ii) reallocate the Series H Allocated Assets away from
the Advisor to another commodity trading advisor (an "Other Advisor"), (iii)
reallocate assets to the Advisor from an Other Advisor or (iv) allocate
additional capital with respect to the Series H Allocated Assets to an Other
Advisor.
(k) Delivery of Disclosure Document. The Advisor agrees to provide
to the Managing Owner with any amendment or supplement to the Disclosure
Document attached hereto as Exhibit D (an "Update") as soon as such Update is
available for distribution.
2. Indemnification.
(a) The Advisor. Subject to the provisions of Section 3 of this
Agreement, the Advisor, each person who controls the Advisor and each of their
respective partners, members, managers, officers, directors, shareholders and
employees of the Advisor, shall be indemnified, defended and held harmless by
the Trust and the Managing Owner, jointly and severally, from and against any
and all claims, losses, judgments, liabilities, damages, costs, expenses
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(including, without limitation, reasonable investigatory and attorneys' fees
and reasonable expenses) and amounts paid in settlement of any claims in
compliance with the conditions specified below (collectively, "Losses")
sustained by any of them (i) in connection with any acts or omissions of the
Advisor, or any of its officers, directors or employees relating to its
management of the Series H Allocated Assets, including in connection with this
Agreement or otherwise as a result of the Advisor's performance of services on
behalf of the Trust or its role as trading advisor to Series H Allocated
Assets and/or (ii) as a result of a material breach of this Agreement by the
Trust or the Managing Owner, provided that, (i) such Losses were not the
result of negligence, misconduct or a material breach of this Agreement on the
part of the Advisor, and its officers, directors, shareholders and employees,
and each person controlling the Advisor, (ii) the Advisor, and its officers,
directors, shareholders and employees, and each person controlling the
Advisor, acted in good faith and in a manner reasonably believed by such
person to be in or not opposed to the best interests of the Trust and the
Limited Owners and (iii) any such indemnification will only be recoverable
from the Series H Allocated Assets and the assets of the Managing Owner and
not from any other assets of any other Series of the Trust, provided further,
that no indemnification shall be permitted under this Section 2 for amounts
paid in settlement if either (A) the Advisor fails to notify the Trust of the
terms of any settlement proposed, at least 15 days before any amounts are paid
or (B) the Trust does not approve the amount of the settlement within 15 days
(such approval not to be withheld unreasonably). Notwithstanding the
foregoing, the Trust shall at all times have the right to offer to settle any
matter with the approval of the Advisor (which approval shall not be withheld
unreasonably), and if the Trust successfully negotiates a settlement and
tenders payment therefor to the party claiming indemnification (the
"Indemnitee"), the Indemnitee must either use its reasonable
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efforts to dispose of the matter in accordance with the terms and conditions
of the proposed settlement or the Indemnitee may refuse to settle the matter
and continue its defense in which latter event the maximum liability of the
Trust to the Indemnitee shall be the amount of said proposed settlement. Any
indemnification by the Trust under this Section 2, unless ordered by a court,
shall be made only as authorized in the specific case by the Managing Owner.
(b) Default Judgments and Confessions of Judgment. None of the
foregoing provisions for indemnification shall be applicable with respect to
default judgments or confessions of judgment entered into by the Indemnitee,
with its knowledge, without the prior consent of the Trust.
(c) Procedure. In the event that an Indemnitee under this Section 2
is made a party to an action, suit or proceeding alleging both matters for
which indemnification can be made hereunder and matters for which
indemnification may not be made hereunder, such Indemnitee shall be
indemnified only for that portion of the Losses incurred in such action, suit
or proceeding which relates to the matters for which indemnification can be
made.
(d) Expenses. Expenses incurred in defending a threatened or pending
civil, administrative or criminal action, suit or proceeding against an
Indemnitee shall be paid by the Trust in advance of the final disposition of
such action, suit or proceeding if (i) the legal action, suit or proceeding,
if sustained, would entitle the Indemnitee to indemnification pursuant to the
terms of this Section 2, (ii) the Advisor undertakes to repay the advanced
funds to the Trust in cases in which the Indemnitee is not entitled to
indemnification pursuant to this Section 2 and (iii) in the case of
advancement of expenses by the Trust, the Managing Owner determines that the
Indemnitee is not likely not to be entitled to indemnification hereunder.
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3. Limits on Claims.
(a) Prohibited Acts. The Advisor agrees that it will not take any of
the following actions against the Trust: (i) seek a decree or order by a court
having jurisdiction in the premises (A) for relief in respect of the Trust in
an involuntary case or proceeding under the federal Bankruptcy Code or any
other federal or state bankruptcy, insolvency, reorganization, rehabilitation,
liquidation or similar law or (B) adjudging the Trust a bankrupt or insolvent
or seeking reorganization, rehabilitation, liquidation, arrangement,
adjustment or composition of or in respect of the Trust under the federal
Bankruptcy Code or any other applicable federal or state law or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Trust or of any substantial part of any of its
properties or ordering the winding up or liquidation of any of its affairs,
(ii) seek a petition for relief, reorganization or to take advantage of any
law referred to in the preceding clause or (iii) file an involuntary petition
for bankruptcy (collectively, "Bankruptcy or Insolvency Action").
(b) Limited Assets Available. In addition, the Advisor agrees that
for any obligations due and owing to it by the Trust, the Advisor will look
solely and exclusively to Series H Allocated Assets or to the assets of the
Managing Owner, if it has liability in its capacity as Managing Owner, to
satisfy its claims and will not seek to attach or otherwise assert a claim
against the other assets of the Trust, whether there is a Bankruptcy or
Insolvency Action taken or otherwise. The parties agree that this provision
will survive the termination of this Agreement, whether terminated in a
Bankruptcy or Insolvency Action or otherwise.
(c) No Limited Owner Liability. This Agreement has been made and
executed by and on behalf of the Trust and the Managing Owner for the benefit
of the Series H Interests of the Trust and the obligations of the Trust and/or
the Managing Owner set forth herein are not binding upon any of the Limited
Owners individually but are binding only upon the
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assets and property identified above, and no resort shall be had to the assets
of other Series issued by the Trust or the Limited Owners' personal property
for the satisfaction of any obligation or claim hereunder.
(d) Subordination Agreement. The Advisor agrees and consents (the
"Consent") to look solely to each Series for which advisory services are being
performed ("Series H") and assets of Series H (the "Series H Assets") and to
the Managing Owner and its assets for payment. The Series H Assets include
only those funds and other assets that are paid, held or distributed to the
Trust on account of and for the benefit of Series H, including, without
limitation, funds delivered to the Trust for the purchase of interests in
Series H. In furtherance of the Consent, the Advisor agrees that any debts,
liabilities, obligations, indebtedness, expenses and claims of any nature and
of all kinds and descriptions (collectively, "Claims") incurred, contracted
for or otherwise existing arising from, related to or in connection with the
Trust and its assets and Series H and the Series H Assets, shall be subject to
the following limitations:
(l) Subordination of certain claims and rights: (i) except as
set forth below, the Claims, if any, of the Advisor (the "Subordinated
Claims") shall be expressly subordinate and junior in right of payment to
any and all other Claims against the Trust and any Series thereof and any
of their respective assets which may arise as a matter of law or pursuant
to any contract; provided, however, that the Advisor's Claims (if any)
against Series H shall not be considered Subordinated Claims with respect
to enforcement against and distribution and repayment from Series H, the
Series H Assets and the Managing Owner and its assets; and provided
further, that the Advisor's valid Claims, if any, against Series H shall
be pari passu and equal in right of repayment and distribution with all
other valid Claims against Series H and (ii) the Advisor will not take,
demand or
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receive from any Series or the Trust or any of their respective assets
(other than Series H, the Series H Assets and the Managing Owner and its
assets) any payment for the Subordinated Claims;
(2) The Claims of the Advisor with respect to Series H shall
only be asserted and enforceable against Series H, the Series H Assets
and the Managing Owner and its assets, and such Claims shall not be
asserted or enforceable for any reason whatsoever against any other
Series, the Trust generally or any of their respective assets;
(3) If the Claims of the Advisor against Series H or the Trust
are secured in whole or in part, the Advisor hereby waives (under section
1111(b) of the Bankruptcy Code (11 U.S.C. ss. 1111(b)) any right to have
any deficiency Claims (which deficiency Claims may arise in the event
such security is inadequate to satisfy such Claims) treated as unsecured
Claims against the Trust or any Series (other than Series H), as the case
may be;
(4) In furtherance of the foregoing, if and to the extent that
the Advisor receives monies in connection with the Subordinated Claims
from a Series or the Trust (or their respective assets), other than
Series H, the Series H Assets and the Managing Owner and its assets, the
Advisor shall be deemed to hold such monies in trust and shall promptly
remit such monies to the Series or the Trust that paid such amounts for
distribution by the Series or the Trust in accordance with the terms
hereof; and
(5) The foregoing Consent shall apply at all times
notwithstanding that the Claims are satisfied and notwithstanding that
the agreements in respect of such Claims are terminated, rescinded or
canceled.
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4. Obligations of the Trust, the Managing Owner and the Advisor.
(a) The Registration Statement and Prospectus. Each of the Trust and
the Managing Owner agrees to cooperate and use its good faith and reasonable
efforts in connection with (i) the preparation by the Trust of the
Registration Statement and the Prospectus (and any amendments or supplements
thereto), (ii) the filing of the Registration Statement and the Prospectus
(and any amendments or supplements thereto) with such governmental and
self-regulatory authorities as the Managing Owner deems appropriate for the
registration and sale of the Interests and the taking of such other actions
not inconsistent with this Agreement as the Managing Owner may determine to be
necessary or advisable in order to make the proposed offer and sale of
Interests lawful in any jurisdiction and (iii) causing the Registration
Statement (and any amendment thereto) to become effective under the 1933 Act
and the Blue Sky securities laws of such jurisdictions as the Managing Owner
may deem appropriate. The Advisor agrees to make all necessary disclosures
regarding itself, its officers and principals, trading performance, Trading
Approach, customer accounts (other than the names of customers, unless such
disclosure is required by law or regulation) and otherwise as may be required,
in the reasonable judgment of the Managing Owner, to be made in the
Registration Statement and Prospectus and in applications to any such
jurisdictions. No description of or other information relating to the Advisor
may be distributed by the Managing Owner without the prior written consent of
the Advisor which consent shall not be unreasonably withheld or delayed;
provided that distribution of performance information relating to Series H's
account shall not require consent of the Advisor.
(b) Road Shows. The Advisor agrees to make representatives of its
marketing department available to participate in "road show" and similar
presentations in connection with the offering of the Series H Interests to the
extent reasonably requested by the Managing Owner,
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on the following conditions: (i) all expenses incurred by the Advisor in the
course of such participation will be shared between and among the Advisor, the
Managing Owner and/or the Selling Agent, in such amounts as shall be agreed
among the parties, (ii) the Advisor shall not be obligated to take any action
which might require registration as a broker-dealer or investment adviser
under any applicable federal or state law and (iii) the Advisor shall not be
required to assist in "road show" or similar presentations to the extent that
it reasonably believes that doing so would interfere with its trading,
marketing or other activities.
(c) Advisor Not A Promoter. The parties acknowledge that the Advisor
has not been, either alone or in conjunction with the Selling Agent or its
affiliates, an organizer or promoter of the Trust, and it is not intended by
the parties that the Advisor shall have any liability as such.
(d) Filings. The Trust may at any time determine not to file the
Registration Statement with the SEC or withdraw the Registration Statement
from the SEC or any other governmental or self-regulatory authority with which
it is filed or otherwise terminate the Registration Statement or the offering
of Interests. Upon any such withdrawal or termination, or if the "minimum" (i)
aggregate number of Interests or (ii) Series H Interests required to be sold
pursuant to the Prospectus is not sold, this Agreement shall terminate and,
except for the payment of expenses as set forth in subparagraph 4(b) above and
in paragraph 2, neither the Trust nor the Managing Owner shall have any
obligations to the Advisor with respect to this Agreement nor shall the
Advisor have any obligations to the Trust or the Managing Owner with respect
to this Agreement.
(e) Representation Agreement. On or prior to commencement of the
offering of Interests pursuant to the Prospectus, the parties agree to execute
a Representation Agreement
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relating to the offering of the Interests (the "Representation Agreement")
substantially in the form of Exhibit C to this Agreement.
5. Advisor Independence.
(a) Independent Contractor. The Advisor shall for all purposes
herein be deemed to be an independent contractor with respect to the Trust,
the Managing Owner and its affiliates and each other commodity trading advisor
that may in the future provide commodity trading advisory services to the
Trust and the Managing Owner and its affiliates and shall, unless otherwise
expressly authorized, have no authority to act for or to represent the Trust,
the Managing Owner and its affiliates, any other commodity trading advisor in
any way or otherwise be deemed to be a general agent, joint venturer or
partner of the Trust, the Managing Owner and its affiliates or any other
commodity trading advisor or in any way be responsible for the acts or
omissions of the Trust, the Managing Owner and its affiliates or any other
commodity trading advisor and assumes no responsibility for the marketing or
administration thereof.
(b) Unauthorized Activities. Without limiting the obligations of the
Trust set forth under this Agreement, nothing herein contained shall be deemed
to require the Trust to take any action contrary to its Declaration of Trust
and Trust Agreement or Certificate of Trust or any applicable statute,
regulation or rule of any exchange or self-regulatory organization.
(c) Purchase of Interests. Any of the Advisor, its principals and
employees may, in its discretion, purchase Interests in the Trust.
(d) Confidentiality. The Trust and the Managing Owner acknowledge
that the Trading Approach including methods, models, and strategies of the
Advisor is the confidential property of the Advisor. Nothing in this Agreement
shall require the Advisor to disclose the confidential or proprietary details
of its Trading Approach. The Trust and the Managing Owner further agree that
they will keep confidential and will not disseminate the Advisor's trading
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advice to the Trust, except as, and to the extent that, it may be determined
by the Managing Owner to be (i) necessary for the monitoring of the business
of the Trust, including the performance of brokerage services by the Trust's
commodity broker(s), or (ii) expressly required by law or regulation.
6. Commodity Broker.
All Commodities traded for the account of the Trust shall be made
through such commodity broker or brokers, or counterparty or counterparties,
as the Managing Owner directs or otherwise in accordance with such order
execution procedures as are agreed upon between the Advisor and the Managing
Owner. Except as set forth below, the Advisor shall have no authority or
responsibility in selecting or supervising floor brokers or counterparties for
execution of Commodities trades of the Trust, or for negotiating floor
brokerage commission rates or other compensation to be charged therefor. The
Advisor shall not be responsible for determining that any such broker or
counterparty used in connection with any Commodities transactions meets the
financial requirements or standards imposed by the Trust's Trading Policies
and Limitations. At the present time, it is contemplated that the Trust will
execute and clear all Commodities trades through UBS Securities LLC and its
affiliates. The Advisor may, however, with the consent of the Managing Owner,
such consent not to be unreasonably withheld, execute transactions at such
other firm(s) and upon such terms and conditions as the Advisor and the
Managing Owner agree if such firm(s) agree to "give up" all such transactions
to UBS Securities LLC for clearance. To the extent that the Trust determines
to utilize a broker or counterparty other than UBS Securities LLC, it will
consult with the Advisor prior to directing it to utilize such broker or
counterparty and will not retain the services of such firm over the reasonable
objection of the Advisor.
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7. Fees.
In consideration of and in compensation for the performance of the
Advisor's services under this Agreement, the Advisor shall receive from Series
H a management fee (the "Management Fee") and an incentive fee (the "Incentive
Fee") based on the Series H Allocated Assets, as follows:
(a) Management Fee [RESERVED]
(b) Incentive Fee [RESERVED]
(c) Timing of Payment. Management Fees and Incentive Fees shall be
paid generally within 15 business days following the end of the period for
which they are payable. The first incentive fee which may be due and owing to
the Advisor in respect of any New Trading Profits will be due and owing as of
the last Friday of the first calendar quarter during which the Trading Advisor
managed the Allocated Assets for at least 45 days. If an Incentive Fee shall
have been paid by the Trust to the Advisor in respect of any calendar quarter
and the Advisor shall incur subsequent losses on the Series H Allocated
Assets, the Advisor shall nevertheless be entitled to retain amounts previously
paid to it in respect of New High Net Trading Profits.
(d) Fee Data. The Managing Owner will provide the Advisor with the
data used by the Managing Owner to compute the foregoing fees including a
statement of the actual execution costs attributable to the Series H Allocated
Assets generally within 15 business days of the end of the relevant period.
(e) Third Party Payments. Neither the Advisor nor any of its
officers, directors, employees or stockholders shall receive any commissions,
compensation, remuneration or payments whatsoever from any broker with which
the Trust carries an account for transactions executed in the Trust's account.
The parties acknowledge that a spouse of any of the foregoing
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persons may receive floor brokerage commissions in respect of trades effected
pursuant to the Advisor's Trading Approach on behalf of the Trust, which
payment shall not violate the preceding sentence.
8. Term and Termination.
(a) Term. This Agreement shall commence on the date hereof and,
unless sooner terminated pursuant to paragraph (b), (c) or (d) of this Section
8, shall continue in effect until the close of business on the last day of the
month ending fifteen full months following the commencement of Series H's
trading activities (the end of the "Initial Term"). Thereafter, unless this
Agreement is terminated pursuant to paragraphs (b), (c) or (d) of this Section
8, this Agreement shall be renewed automatically on the same terms and
conditions set forth herein for successive additional one-year terms, each of
which shall commence on the first day of the month subsequent to the
conclusion of the preceding term and end on the last day of the month ending
twelve months later (the end of a "Renewal Term"). Subject to Section 8(d)(iv)
hereof, the automatic renewal(s) set forth in the preceding sentence hereof
shall not be affected by (i) any allocation of the Series H Allocated Assets
away from the Advisor pursuant to this Agreement of (ii) the retention of
Other Advisors following a reallocation or otherwise.
(b) Automatic Termination. This Agreement shall terminate
automatically in the event that the Trust is terminated. In addition, this
Agreement shall terminate automatically in the event that the Series H
Allocated Assets decline as of the end of any business day by at least 40%
from the Series H Allocated Assets (i) as of the first day of this Agreement
or (ii) as of the first day of any calendar year, as adjusted on an ongoing
basis by (A) any decline(s) in the Series H Allocated Assets caused by
distributions, redemptions, reallocations and withdrawals, and (B) additions
to the Series H Allocated Assets caused by additional allocations.
18
(c) Optional Termination Right of Trust. This Agreement may be
terminated at any time at the election of the Managing Owner in its sole
discretion upon at least 30 days' prior written notice to the Advisor. The
Managing Owner will use its reasonable efforts to cause any termination to
occur as of a month-end. This Agreement also may be terminated upon prior
written notice, appropriate under the circumstances, to the Advisor in the
event that: (i) the Managing Owner determines in good faith following
consultation appropriate under the circumstances with the Advisor that the
Advisor is unable to use its agreed upon Trading Approach to any material
extent, as such Trading Approach may be refined or modified in the future in
accordance with the terms of this Agreement for the benefit of the Trust; (ii)
the Advisor's registration as a commodity trading advisor under the CE Act or
membership as a commodity trading advisor with the NFA is revoked, suspended,
terminated or not renewed; (iii) the Managing Owner determines in good faith
following consultation appropriate under the circumstances with the Advisor
that the Advisor has failed to conform, and after receipt of written notice,
continues to fail to conform in any material respect, to (A) any of the
Trust's Trading Policies and Limitations or (B) the Advisor's Trading
Approach; (iv) there is an unauthorized assignment of this Agreement by the
Advisor; (v) the Advisor dissolves, merges or consolidates with another entity
or sells a substantial portion of its assets, any portion of its Trading
Approach utilized by the Trust or its business goodwill, in each instance
without the consent of the Managing Owner; (vi) Xxxxxxx X. Xxxxx is not in
control of the Advisor's trading activities for the Trust; (vii) the Advisor
becomes bankrupt (admitted or decreed) or insolvent; and (viii) and (iv) for
any other reason, the Managing Owner determines in good faith that such
termination is essential for the protection of the Trust and the Series H
Interests, including, without limitation a good faith determination by the
Managing Owner that the Advisor has
19
breached a material obligation to the Trust under this Agreement relating to
the trading of the Series H Allocated Assets.
(d) Optional Termination Right of Advisor. The Advisor shall have
the right to terminate this Agreement at any time upon written notice to the
Trust, appropriate under the circumstances, in the event: (i) of the receipt
by the Advisor of an opinion of independent counsel satisfactory to the
Advisor and the Trust that by reason of the Advisor's activities with respect
to the Trust it is required to register as an investment adviser under the
Investment Advisers Act of 1940 and it is not so registered; (ii) that the
registration of the Managing Owner as a commodity pool operator under the CE
Act or its NFA membership as a commodity pool operator is revoked, suspended,
terminated or not renewed; (iii) that the Managing Owner (A) imposes
additional trading limitation(s) pursuant to Section 1 of this Agreement which
the Advisor does not agree to follow in its management of the Series H
Allocated Assets or (B) overrides trading instructions of the Advisor or does
not consent to a material change to the Trading Approach requested by the
Advisor; (iv) if the amount of the Series H Allocated Assets (A) decreases to
less than $4 million as the result of redemptions, distribution, reallocation
of assets, or deleveraging initiated by the Trust or the Managing Owner, but
not trading losses, as of the close of business on any Friday or (B) allocated
to the Advisor's management during the first 12-month trading period is less
than $6.67 million without regard to redemptions, or trading gains or losses;
(v) the Managing Owner elects (pursuant to Section 1 of this Agreement) to
have the Advisor use a different Trading Approach in the Advisor's management
of Trust assets from that which the Advisor is then using to manage such
assets and the Advisor objects to using such different Trading Approach; (vi)
there is an unauthorized assignment of this Agreement by the Trust or the
Managing Owner; (vii) there is a material breach of this Agreement by the
Trust
20
and/or the Managing Owner and after giving written notice to the Managing
Owner which identifies such breach and such material breach has not been cured
within ten days following receipt of such notice by the Managing Owner; (viii)
an Other Advisor is allocated a portion of the Series H Assets; or (ix) other
good cause is shown and the written consent of the Managing Owner is obtained
(which shall not be withheld or unreasonably). The Advisor also shall have the
right to terminate this Agreement upon prior written notice to the Trust, as
follows:
Required Notice Notice Date
--------------- -----------
At least 90 days Prior to the termination of the Initial Term.
At least 60 days Prior to the termination of any Renewal Term.
At least 30 days Prior to the implementation of any increase
(without the Advisor's consent) in the
aggregate of the fixed brokerage fee
(currently 6%) to be paid by Series H and
the routine operating expenses (currently
capped at 1.5%) for which Series H is
responsible to more than 7.5% of the Net
Asset Value of Series H.
(e) Termination Fees. In the event that this Agreement is terminated
with respect to, or by, the Advisor pursuant to this Section 8 or the Managing
Owner allocates the Trust's assets to Other Advisors, the Advisor shall be
entitled to, and the Trust shall pay, the Management Fee and the Incentive
Fee, if any, which shall be computed (i) with respect to the Management Fee,
on a pro rata basis, based upon the portion of the month for which the Advisor
had the Series H Allocated Assets under management and (ii) with respect to
the Incentive Fee, if any, as if the effective date of termination was the
last day of the then current calendar quarter. The rights of the Advisor to
fees earned through the earlier to occur of the date of expiration or
termination shall survive this Agreement until satisfied.
21
(f) Termination and Open Positions. Once terminated, the Advisor
shall have no responsibility for existing positions, including delivery
issues, if any, which may result from such positions.
9. Liquidation of Positions.
The Advisor agrees to liquidate open positions in the amount that
the Managing Owner informs the Advisor, in writing via facsimile or other
equivalent means, that the Managing Owner considers necessary or advisable to
liquidate in order to (i) effect any termination or reallocation pursuant to
Sections l or 8, respectively or (ii) fund its pro rata share of any
redemption, distribution or Trust expense. The Managing Owner shall not,
however, have authority to instruct the Advisor as to which specific open
positions to liquidate, except as provided in Section 1 hereof. The Managing
Owner shall provide the Advisor with such reasonable prior notice of such
liquidation as is practicable under the circumstances and will endeavor to
provide at least three days prior notice. In the event that losses incurred as
a result of such liquidation exceed the amount of the Series H Allocated
Assets, the Managing Owner agrees to cover such excess losses from its assets,
but in no event from the assets of the other Series issued by the Trust. The
Advisor shall have no liability for any such losses.
10. Other Accounts of the Advisor.
(a) Management of Other Accounts and Trading of Proprietary Capital.
The Advisor shall be free to (i) manage and trade accounts for other investors
(including other public and private commodity pools), and (ii) trade for its
own account, and for the accounts of its shareholders, directors, officers and
employees, as applicable, using the same or other information and Trading
Approach utilized in the performance of services for the Trust.
(b) Acceptance of Non-Trust Capital. So long as the as the Advisor
is performing services for the Trust, it agrees that it will notify the Trust
and the Managing Owner
22
at least 30 days prior to accepting an account which the Advisor believes may
have a material adverse effect on the Trust.
(c) Equitable Treatment of Accounts. The Advisor agrees, in its
management of accounts other than the account of the Trust, that it will not
knowingly or deliberately favor any other account managed or controlled by it
or any of its principals or affiliates (in whole or in part) over the Trust.
The preceding sentence shall not be interpreted to preclude (i) the Advisor
from charging another client fees which differ from the fees to be paid to it
hereunder or (ii) an adjustment by the Advisor in the implementation of any
agreed upon Trading Approach in accordance with the procedures set forth in
Section 1 hereof which is undertaken by the Advisor in good faith in order to
accommodate additional accounts. Notwithstanding the foregoing, the Advisor
also shall not be deemed to be favoring another commodity interest account
over the Trust's account if the Advisor, in accordance with specific
instructions of the owner of such account, shall trade such account at a
degree of leverage or in accordance with trading policies which shall be
different from that which would normally be applied or if the Advisor, in
accordance with the Advisor's money management principles, shall not trade
certain commodity interest contracts for an account based on the amount of
equity in such account. The Advisor, upon reasonable request and receipt of
adequate assurances of confidentiality, shall provide the Managing Owner with
an explanation of the differences, if any, in performance between the Trust
and any other similar account managed pursuant to the same Trading Approach
for which the Advisor or any of its principals or affiliates acts as a
commodity trading advisor (in whole or in part), provided, however, that the
Advisor may, in its discretion, withhold from any such inspection the identity
of the client for whom any such account is maintained.
23
(d) Inspection of Records. Upon the reasonable request of and upon
reasonable notice from the Managing Owner, the Advisor shall permit the
Managing Owner to review at the Advisor's offices, in each case at its own
expense, during normal business hours such trading records as it reasonably
may request for the purpose of confirming that the Trust has been treated
equitably with respect to advice rendered during the term of this Agreement by
the Advisor for other accounts managed by the Advisor pursuant to its Pure
Alpha Strategy or any trading strategy which is a derivation thereof, which
the parties acknowledge to mean that the Managing Owner may inspect, subject
to such restrictions as the Advisor may reasonably deem necessary or advisable
so as to preserve the confidentiality of proprietary information and the
identity of its clients, all trading records of the Advisor for those accounts
traded pursuant to the Pure Alpha Strategy or any trading strategy which is a
derivation thereof as it reasonably may request during normal business hours.
The Advisor may, in its discretion, withhold from any such report or
inspection the identity of the client for whom any such account is maintained
and in any event the Trust and the Managing Owner shall keep all such
information obtained by them from the Advisor confidential unless disclosure
thereof legally is required or has been made public. Such right will terminate
one year after the termination of this Agreement and does not permit access to
computer programs, records, or other information used in determining trading
decisions.
11. Speculative Position Limits.
If, at any time during the term of this Agreement, it appears to the
Advisor that it may be required to aggregate the Trust's Commodities positions
with the positions of any other accounts it owns or controls for purposes of
applying the speculative position limits of the CFTC, any exchange,
self-regulatory body or governmental authority, the Advisor promptly will
notify the Managing Owner if the Trust's positions under its management are
included in an
24
aggregate amount which equals or exceeds the applicable speculative limit. The
Advisor agrees that if its trading recommendations pursuant to its agreed upon
Trading Approach are altered because of the potential application of
speculative position limits, the Advisor will modify its trading instructions
to the Trust and its other speculative accounts in a good faith effort to
achieve an equitable treatment of all accounts; to wit, the Advisor will
liquidate Commodities positions and/or limit the taking of new positions in
all accounts it manages, including the Trust, as nearly as possible in
proportion to the assets available for trading of the respective accounts
(including "notional" equity) to the extent necessary to comply with
applicable speculative position limits. The Advisor presently believes that
its Trading Approach for the management of the Trust's account can be
implemented for the benefit of the Trust notwithstanding the possibility that,
from time to time, speculative position limits may become applicable.
12. Redemptions, Distributions Reallocations and Additional
Allocations.
(a) Notice. The Managing Owner agrees to give the Advisor at least
one business day prior notice of any proposed redemptions or exchanges, and at
least two business days prior notice of any proposed distributions,
reallocations, additional allocations or withdrawals controlled by the
Managing Owner affecting the Series H Allocated Assets.
(b) Allocations. Redemptions, exchanges, withdrawals and
distributions of Series H Interests shall be charged against the Series H
Allocated Assets.
13. Brokerage Confirmations and Reports.
The Managing Owner will instruct the Trust's brokers and
counterparties to furnish the Advisor with copies of all trade confirmations,
daily equity runs and monthly trading statements relating to the Series H
Allocated Assets. The Advisor will maintain records and will monitor all open
positions relating thereto; provided, however, that the Advisor shall not be
responsible for any errors by the Trust's brokers or counterparties. The
Managing Owner also
25
will furnish the Advisor with a copy of the form of all reports, including but
not limited to, monthly, quarterly and annual reports, sent to the Limited
Owners and copies of all reports filed with the SEC, the CFTC and the NFA. The
Advisor shall, at the Managing Owner's request, make a good faith effort to
provide the Managing Owner with copies of all trade confirmations, daily
equity runs, monthly trading reports or other reports sent to the Advisor by
the Trust's commodity broker regarding the Trust and in the Advisor's
possession or control as the Managing Owner deems appropriate if the Managing
Owner cannot obtain such copies on its own behalf. Upon request, the Managing
Owner will provide the Advisor with accurate information with respect to the
Series H Allocated Assets.
14. The Advisor's Representations and Warranties.
The Advisor represents and warrants that:
(a) it has full capacity and authority to enter into this Agreement
and to provide the services required of it hereunder;
(b) it will not by entering into this Agreement and by acting as a
commodity trading advisor to the Trust (i) be required to take any action
contrary to its incorporating or other formation documents or, to the best of
its knowledge, any applicable statute, law or regulation of any jurisdiction
or (ii) breach or cause to be breached, to the best of its knowledge, any
undertaking, agreement, contract, statute, rule or regulation to which it is a
party or by which it is bound which, in the case of (i) or (ii), would
materially limit or materially adversely affect its ability to perform its
duties under this Agreement;
(c) it is duly registered as a commodity trading advisor under the
CE Act and is a member of the NFA as a commodity trading advisor and it will
maintain and renew such registration and membership during the term of this
Agreement;
26
(d) a copy of its most recent Commodity Trading Advisor Disclosure
Document as required by Part 4 of the CFTC's regulations has been provided to
the Managing Owner on behalf of the Trust in the form of Exhibit D hereto (and
the Managing Owner acknowledges receipt of such Disclosure Document on behalf
of the Trust) and, except as disclosed in such Disclosure Document, all
information in such Disclosure Document (including, but not limited to,
background, performance, trading methods and trading systems) is true,
complete and accurate in all material respects and is in conformity in all
material respects with the provisions of the CE Act, including the rules and
regulations thereunder, as well as all rules and regulations of the National
Futures Association;
(e) assuming that the Series H Allocated Assets equal not more than
$30 million as of the commencement of trading, the amount of such assets
should not, in the reasonable judgment of the Advisor, result in the Advisor
being required to alter its Trading Approach to a degree which would be
expected to have a material adverse effect on Series H; and
(f) neither the Advisor nor its stockholders, directors, officers,
employees, agents, principals, affiliates nor any of its or their respective
successors or assigns: (i) shall knowingly use or distribute for any purpose
whatsoever any list containing the names and/or residence addresses of, and/or
other information about, the Limited Owners of the Trust nor (ii) shall
solicit any person it or they know is a Limited Owner of the Trust for the
purpose of soliciting commodity business from such Limited Owner, unless such
Limited Owner shall have first contacted the Advisor or is already a client of
the Advisor or a prospective client with which the Advisor has commenced
discussions or is introduced to or referred to the Advisor by an unaffiliated
agent other than in violation of clause (i).
27
The within representations and warranties shall be continuing during
the term of this Agreement, and if at any time any event has occurred which
would make any of the foregoing not true in any material respect with respect
to the Advisor, the Advisor promptly will notify the Trust in writing thereof.
15. The Managing Owner's Representations and Warranties.
The Managing Owner represents and warrants on behalf of the Trust
and itself that:
(a) each has the full capacity and authority to enter into this
Agreement and to perform its obligations hereunder;
(b) it will not, by acting as managing owner to the Trust or by
entering into this Agreement, and the Trust will not (i) be required to take
any action contrary to its incorporating or other formation documents or any
applicable statute, law or regulation of any jurisdiction or (ii) breach or
cause to be breached (A) any undertaking, agreement, contract, statute, rule
or regulation to which it or the Trust is a party or by which it or the Trust
is bound or (B) any order of any court or governmental or regulatory agency
having jurisdiction over it or the Trust, which in the case of (i) or (ii)
would materially limit or materially adversely affect the performance of its
or the Trust's duties under this Agreement;
(c) it is registered as a commodity pool operator under the CE Act
and is a commodity pool operator member of the NFA, and it will maintain and
renew such registration and membership during the term of this Agreement;
(d) this Agreement has been duly and validly authorized, executed
and delivered and is a valid and binding agreement, enforceable against each
of them, in accordance with its terms; and
28
(e) on the date hereof, it is, and during the term of this
Agreement, it will be (i) in the case of the Trust, a duly formed and validly
existing Delaware statutory trust and (ii) in the case of the Managing Owner,
a duly formed and validly existing corporation, in each case, in good standing
under the laws of the State of Delaware and the State of Connecticut,
respectively, and in good standing and qualified to do business in each
jurisdiction in which the nature and conduct of its business requires such
qualification and where the failure to be so qualified would materially
adversely affect its ability to perform its obligations under this Agreement.
The within representations and warranties shall be continuing
during the term of this Agreement, and if at any time any event has occurred
which would make or tend to make any of the foregoing not true in any material
respect, the Managing Owner promptly will notify the Advisor in writing.
16. Assignment.
This Agreement may not be assigned by any of the parties hereto
without the express prior written consent of the other parties hereto, except
that the Advisor need not obtain the consent of any Other Advisor.
17. Successors.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and the successors and permitted assignees of each of them, and
no other person (except as otherwise provided herein) shall have any right or
obligation under this Agreement. The terms "successors" and "assignees" shall
not include any purchasers, as such, of Interests.
18. Amendment or Modification or Waiver.
(a) Changes to Agreement. This Agreement may not be amended or
modified, nor may any of its provisions be waived, except upon the prior
written consent of the
29
parties hereto, except that an amendment to, a modification of or a waiver of
any provision of the Agreement as to the Advisor need not be consented to by
any Other Advisor.
(b) No Waiver. No failure or delay on the part of any party hereto
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. Any waiver granted hereunder must be in writing
and shall be valid only in the specific instance in which given.
19. Notices.
Except as otherwise provided herein, all notices required to be
delivered under this Agreement shall be effective only if in writing and shall
be deemed given by the party required to provide notice when received by the
party to whom notice is required to be given and shall be delivered personally
or by registered mail, postage prepaid, return receipt requested or by
facsimile, as follows (or to such other address as the party entitled to
notice shall hereafter designate by written notice to the other parties):
If to the Managing Owner or the Trust:
Preferred Investment Solutions Corp.
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (203) [___-____]
with a copy to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Advisor:
30
Bridgewater Associates, Inc.
0 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Bridgewater Associates, Inc.
0 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx La Tronica
Facsimile: (000) 000-0000
20. Governing Law.
Each party agrees that this Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard
to the conflict of laws principles thereof.
21. Survival.
The provisions of this Agreement shall survive the termination of
this Agreement with respect to any matter arising while this Agreement was in
effect.
22. Promotional Literature.
Each party agrees that prior to using any promotional literature in
which reference to the other parties hereto is made, it shall furnish in
advance a copy of such information to the other parties and will not make use
of any promotional literature containing references to such other parties to
which such other parties object, except as otherwise required by law or
regulation.
23. No Liability of Limited Owners.
This Agreement has been made and executed by and on behalf of the
Trust, and the obligations of the Trust and/or the Managing Owner set forth
herein are not binding upon any of the Limited Owners individually, but
rather, are binding only upon the assets and property of
31
the Trust and, to the extent provided herein, upon the assets and property of
the Managing Owner.
24. Headings.
Headings to sections herein are for the convenience of the parties
only and are not intended to be or to affect the meaning or interpretation of
this Agreement.
25. Complete Agreement.
Except as otherwise provided herein, this Agreement and the
Representation Agreement constitute the entire agreement between the parties
with respect to the matters referred to herein, and no other agreement, verbal
or otherwise, shall be binding upon the parties hereto.
26. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which, when taken together, shall
constitute one original instrument.
27. Arbitration, Remedies.
Each party hereto agrees that any dispute relating to the subject
matter of this Agreement shall be settled and determined by arbitration in the
City of New York pursuant to the rules of the NFA or, if the NFA should refuse
to accept the matter, the American Arbitration Association.
28. No Third Party Beneficiaries.
This Agreement has been undertaken to provide services to Series H
and it is not intended to benefit any third party.
32
30. Series Disclaimer.
The parties hereto acknowledge and agree that the Trust is organized
in series pursuant to Sections 3804(a) and 3806(b)(2) of the Delaware
Statutory Trust Act. As such, the debt, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to each series of
the Trust shall be enforceable against the assets of such series of the Trust
only, and not against the assets of the Trust generally or the assets of any
other series of the Trust or against the trustee of the Trust. There may be
several series of the Trust created pursuant to the Declaration of Trust and
Trust Agreement of the Trust.
33
IN WITNESS WHEREOF, this Agreement has been executed for and on
behalf of the undersigned as of the day and year first above written.
WORLD MONITOR TRUST III- SERIES H
By: PREFERRED INVESTMENT SOLUTIONS
CORP., its sole Managing Owner
By:
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
PREFERRED INVESTMENT SOLUTIONS CORP.
By:
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
BRIDGEWATER ASSOCIATES, INC.
By:
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Operating Officer
34
EXHIBIT A
SERIES H TRADING APPROACH
AGGRESSIVE PURE ALPHA FUTURES ONLY - A, NO BENCHMARK STRATEGY
The Advisor's will make its trading decisions for Series H according to
its Aggressive Pure Alpha Futures Only Trading System as described in Exhibits
A and D as amended from time to time. For purposes of this Agreement, the
Aggressive Pure Alpha Futures Only Strategy will (i) exclude cash bonds from
the portfolio mix and the capital normally allocated to cash bonds will be
reallocated to the other markets the Advisor trades, (ii) trade only futures
contracts on currencies, instead of futures and forward contracts on
currencies, unless a forward contract is executed through the Selling Agent or
its affiliates and (iii) trade the Trust's assets at 1.5 times the normal Pure
Alpha Strategy level. In the future, upon reasonable prior notice, the
Managing Owner may authorize the Advisor to execute forward currency
transactions through counterparties, other than the Selling Agent or its
affiliates.
The reallocation of assets from cash bonds to other markets traded by
the Advisor allows the Advisor to manage the allocated assets within the same
target return as The Pure Alpha Strategy with cash bonds. The Advisor makes no
representation about the overall performance which will result from the
modifications set forth above to its Pure Alpha Strategy.
The Trust is, however, required to prepare a pro forma performance table
concerning the Aggressive Pure Alpha Futures Only Trading system for
presentation in the Trust's Prospectus. Solely for purposes of permitting the
Trust to prepare such presentation, the Advisor represents and warrants that
(i) it introduced cash bonds to The Pure Alpha Strategy on August l,
1997; and
(ii) the use of cash bonds between August 1, 1997 and July 31, 1998 has
had contributed a (0.20%) loss on the performance of the Pure
Alpha Strategy during that time period. If cash bonds had not been
used and the weighting used for other products increased, the
effect on the performance of the Pure Alpha Strategy would have
been a 0.61% gain for the same time period.
The Advisor believes it should enter block orders as part of its trading
strategy. If as the result of the Managing Owner's failure to agree to the use
of one or more floor brokers selected by the Advisor, the Advisor is unable to
enter orders for Series H as a block order, the Advisor believes that this may
affect the performance of the Advisor for Series H.
A-1
EXHIBIT B
TRADING LIMITATIONS AND POLICIES
The following limitations and policies are applicable to assets
representing the Series H Allocated Assets of the Trust as a whole and at the
outset to the Advisor individually; since the Advisor initially will manage
100% of the Trust's Series H Allocated Assets, such application of the
limitations and policies is identical initially for the Series H Allocated
Assets of the Trust and the Advisor. The Advisor sometimes may be prohibited
from taking positions for the Series H Allocated Assets which it would
otherwise acquire due to the need to comply with these limitations and
policies. The Managing Owner will monitor compliance with the trading
limitations and policies set forth below, and it may impose additional
restrictions (through modification of such limitations and policies) upon the
trading activities of the Advisor as it, in good faith, deems appropriate in
the best interests of the Series H Interests of the Trust, subject to the
terms of the Advisory Agreement.
The Managing Owner will not approve a material change in the following
trading limitations and policies without obtaining the prior written approval
of Limited Owners owning more than 50% of the Series H Interests. The Managing
Owner may, however, impose additional trading limitations on the trading
activities of the Series H Interests of the Trust without obtaining such
approval if the Managing Owner determines such additional limitations to be
necessary in the best interests of the Series H Interests of the Trust.
Trading Limitations
The Series H Interests of the Trust will not: (i) engage in pyramiding
its commodities positions (i.e., the use of unrealized profits on existing
positions to provide margin for the acquisition of additional positions in the
same or a related commodity provided, however, unrealized profits may be
considered in determining the current Allocated Assets) but may take into
account open trading equity on existing positions in determining generally
whether to acquire additional commodities positions; (ii) borrow or loan money
(except with respect to the initiation or maintenance of commodities positions
or obtaining lines of credit for the trading of forward currency contracts;
provided, however, that the Series H Interests of the Trust is prohibited from
incurring any indebtedness on a non-recourse basis); (iii) permit rebates to
be received by the Managing Owner or its affiliates or permit the Managing
Owner or any affiliate to engage in any reciprocal business arrangements which
would circumvent the foregoing prohibition; (iv) permit the Advisor to share
in any portion of the commodity brokerage fees paid by the Series H Interests
of the Trust; (v) commingle its assets, except as permitted by law; or (vi)
permit the churning of its commodity accounts.
The Series H Interests of the Trust will conform in all respects to the
rules, regulations and guidelines of the markets on which its trades are
executed.
Trading Policies
Subject to the foregoing limitations, the Advisor has agreed to abide by
the trading policies of the Series H Interests of the Trust, which currently
are as follows:
B-1
(1) Series H Allocated Assets will generally be invested in contracts
which are traded in sufficient volume which, at the time such trades are
initiated, are reasonably expected to permit entering and liquidating
positions.
(2) Stop or limit orders may, in the Advisor's discretion, be given with
respect to initiating or liquidating positions in order to attempt to limit
losses or secure profits. If stop or limit orders are used, no assurance can
be given, however, that the clearing broker will be able to liquidate a
position at a specified stop or limit order price, due to either the
volatility of the market or the inability to trade because of market
limitations.
(3) The Series H Interests of the Trust generally will not initiate an
open position in a futures contract (other than a cash settlement contract)
during any delivery month in that contract, except when required by exchange
rules, law or exigent market circumstances. This policy does not apply to
forward and cash market transactions.
(4) The Series H Interests of the Trust may occasionally make or accept
delivery of a commodity including, without limitation, currencies. The Series
H Interests of the Trust also may engage in EFP transactions involving
currencies and metals and other commodities.
(5) The Series H Interests of the Trust may, from time to time, employ
trading techniques such as spreads, straddles and conversions.
(6) The Series H Interests of the Trust will not initiate open futures
or option positions which would result in net long or short positions
requiring as margin or premium for outstanding positions in excess of 15% of
the Trust's Series H Allocated Assets for any one commodity or in excess of
66?% of the Trust's Series H Allocated Assets for all commodities combined.
Under certain market conditions, such as an inability to liquidate open
commodities positions because of daily price fluctuations, the Managing Owner
may be required to commit Allocated Assets as margin in excess of the
foregoing limits, and in such case the Managing Owner will cause the Advisor
to reduce its open futures and option positions to comply to these limits
before initiating new commodities positions.
(7) To the extent the Series H Interests of the Trust engage in
transactions in forward currency contracts other than with or through UBS
Securities LLC, the Series H Interests of the Trust will only engage in such
transactions with or through a bank which as of the end of its last fiscal
year had an aggregate balance in its capital, surplus and related accounts of
at least $100 million, as shown by its published financial statements for such
year and through other broker-dealer firms with an aggregate balance in its
capital, surplus and related accounts of at least $50 million.
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EXHIBIT C
REPRESENTATION AGREEMENT CONCERNING THE
REGISTRATION STATEMENT AND THE PROSPECTUS
REPRESENTATION AGREEMENT ("Agreement") dated as of the ___ day of
_________, 2004, by and among WORLD MONITOR TRUST III - SERIES H (the
"Trust"), a separate series of a statutory trust organized under Chapter 38 of
Title 12 of the Delaware Code (the "Delaware Act"), [NAME OF SELLING AGENT], a
_______ corporation ("the Selling Agent"), PREFERRED INVESTMENT SOLUTIONS
CORP., a Connecticut corporation (the "Managing Owner"), and BRIDGEWATER
ASSOCIATES, INC., a Connecticut corporation (the "Advisor").
W I T N E S S E T H:
WHEREAS, the Trust proposes to make an initial public offering
(the "Offering") units of beneficial interest in the Trust (the "Interests")
issuable in multiple series of Interests (the "Series"), each separately
managed by a different professional commodity trading advisor through the
Selling Agent, an affiliate of the Managing Owner, and in connection
therewith, the Trust intends to file with the U.S. Securities and Exchange
Commission (the "SEC"), pursuant to the U.S. Securities Act of 1933, as
amended (the "1933 Act"), a registration statement on Form S-1 to register the
Interests in Series H, including the Series H Interests, and as a part thereof
a prospectus (which registration statement, together with all amendments
thereto, shall be referred to herein as the "Registration Statement" and which
prospectus in final form, together with all amendments and supplements
thereto, shall be referred to herein as the "Prospectus"); and
WHEREAS, the Trust and the Managing Owner entered into an
agreement with the Advisor, dated as of __________, 2004 (the "Advisory
Agreement"), pursuant to which the
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Advisor has agreed to act as a commodity trading advisor to the Trust with
respect to the trust estate represented by Series H Interests; and
WHEREAS, the parties hereto wish to set forth their duties and
obligations to each other with respect to the Registration Statement as of its
effective date and the Prospectus as of the date(s) on which subscribers'
funds are transferred to the portion of the trust estate represented by Series
H Interests ("Closing Dates(s)").
NOW, THEREFORE, the parties agree as follows:
1. Representations and Warranties of the Advisor. The Advisor
hereby represents and warrants to the Selling Agent, the Trust and the
Managing Owner that:
a. All references in the Registration Statement, consented
to in writing by the Advisor in the form attached hereto as
Exhibit A, as of its effective date and the Prospectus as of the
Closing Date to (i) the Advisor and its affiliates, and the
controlling persons, shareholders, directors, officers and
employees of any of the foregoing, (ii) the Advisor's Trading
Approach (as defined in the Advisory Agreement) and (iii) the
actual past performance of discretionary accounts directed by the
Advisor or any principal thereof, including the notes to the
tables reflecting such actual past performance (hereinafter
referred to as the Advisor's "Past Performance History") are
complete and accurate in all material respects, and as to such
persons, the Advisor's Trading Approach and the Advisor's Past
Performance History, the Registration Statement as of its
effective date and the Prospectus as of each Closing Date contain
all information required to be included therein by the Commodity
Exchange Act, as amended (the "CE Act"), and the regulations
(including interpretations thereof) thereunder, and do not contain
an
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untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein (with respect to the Prospectus, in light of
the circumstances in which they were made) not misleading. The
Advisor also represents and warrants as to the accuracy and
completeness in all material respects of the underlying data
made available by the Advisor to the Trust and the Managing
Owner for purposes of preparing the pro forma performance
tables, it being understood that no representation or warranty
is being made with respect to the pro forma performance tables
or notes thereto. The term "principal" in this Agreement shall
have the same meaning as that term in Commodity Futures Trading
Commission (the "CFTC") Regulation ss. 4.10(e) under the CE
Act.
b. The Advisor will not distribute the Registration
Statement, the Prospectus and/or the selling materials related
thereto, except as may be requested by the Managing Owner in
connection with "road show" presentations or otherwise.
c. This Agreement and the Advisory Agreement have been duly
and validly authorized, executed and delivered on behalf of the
Advisor and each is a valid and binding agreement enforceable in
accordance with its terms. The performance of the Advisor's
obligations under this Agreement and the consummation of the
transactions set forth in this Agreement, in the Advisory
Agreement and in the Registration Statement as of its effective
date and Prospectus as of the Closing Date are not contrary to the
provisions of the Advisor's formation documents, or to the best of
its knowledge, any applicable
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statute, law or regulation of any jurisdiction, and will not
result in any violation, breach or default under any term or
provision of any undertaking, contract, agreement or order to
which the Advisor is a party or by which the Advisor is bound.
d. The Advisor has all governmental and regulatory licenses,
registrations and approvals required by law as may be necessary to
perform its obligations under the Advisory Agreement and this
Agreement and to act as described in the Registration Statement as
of its effective date and the Prospectus as of the Closing Date
including, without limitation, registration as a commodity trading
advisor under the CE Act and membership as a commodity trading
advisor with the National Futures Association (the "NFA"), and it
will maintain and renew any required licenses, registrations,
approvals or memberships during the term of the Advisory
Agreement.
e. On the date hereof, the Advisor is, and at all times
during the term of this Agreement will be, a corporation duly
formed and validly existing and in good standing under the laws of
its jurisdiction of incorporation and in good standing and
qualified to do business in each jurisdiction in which the nature
or conduct of its business requires such qualifications and the
failure to be so qualified would materially adversely affect the
Advisor's ability to perform its obligations hereunder or under
the Advisory Agreement. The Advisor has full capacity and
authority to conduct its business and to perform its obligations
under this Agreement and to act as described in the Registration
Statement as of its effective date and the Prospectus as of the
Closing Date.
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f. Subject to adequate assurances of confidentiality, and as
requested by the Managing Owner, the Advisor has supplied to or
made available for review by the Managing Owner and the Selling
Agent (and if requested by the Managing Owner and the Selling
Agent to its designated auditor) all documents, statements,
agreements and workpapers requested by them relating to all
accounts covered by the Advisor's Past Performance History in the
Registration Statement as of its effective date and the Prospectus
as of the Closing Date which are in the Advisor's possession or to
which it has access; provided, however, that the Advisor may, in
its sole discretion withhold from any such inspection the identity
of the clients for whom any such accounts are maintained.
g. Without limiting the generality of paragraph a. of this
Section 1, neither the Advisor nor any of its principals has
managed, controlled or directed, on an overall discretionary
basis, the trading for any commodity account which is required by
CFTC regulations and the rules and regulations under the 1933 Act
to be disclosed in the Registration Statement as of its effective
date and the Prospectus as of the Closing Date which is not set
forth in the Registration Statement as of its effective date and
in the Prospectus as of the Closing Date as required.
h. The Advisor does not provide any services to any persons
or conduct any business involving advice with respect to
investments other than Commodities (as defined in the Advisory
Agreement), except as has been disclosed in writing to the
Managing Owner. The Advisor is registered as an
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investment adviser under the Investment Advisers Act of
1940, as amended (the "Advisers Act").
i. As of the date hereof, there has been no material adverse
change in the Advisor's Past Performance History as set forth in
the Registration Statement or in the Prospectus under the caption
["SERIES H - Past Performance For All Of Its Clients"] which has
not been communicated in writing to and received by the Managing
Owner and the Selling Agent or their counsel.
j. Except for subsequent performance, as to which no
representation is made, since the date of the Advisory Agreement,
(i) there has not been any material adverse change in the
condition, financial or otherwise, of the Advisor or in the
earnings, affairs or business prospects of the Advisor, whether or
not arising in the ordinary course of business, and (ii) there
have not been any material transactions entered into by the
Advisor other than those in the ordinary course of its business.
k. Except as disclosed in the Registration Statement and in
the Prospectus, there is no pending, or to the best of its
knowledge, threatened or contemplated action, suit or proceeding
before or by any court, governmental, administrative or
self-regulatory body or arbitration panel to which the Advisor or
its principals is a party, or to which any of the assets of the
Advisor is subject which reasonably might be expected to result in
any material adverse change in the condition (financial or
otherwise), business or prospects of the Advisor or which
reasonably might be expected to materially adversely affect any of
the material assets of the Advisor or which reasonably might be
expected to (A)
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impair materially the Advisor's ability to discharge its
obligations to the Trust or (B) result in a matter which would
require disclosure in the Registration Statement and/or
Prospectus; furthermore the Advisor has not received any notice
of an investigation by the NFA regarding non-compliance with
its rules or the CE Act, the CFTC regarding non-compliance with
the CE Act, or the rules and regulations thereunder or any
exchange regarding non-compliance with the rules of such
exchange which investigation reasonably might be expected to
materially impair the Advisor's ability to discharge its
obligations under this Agreement or the Advisory Agreement.
2. Covenants of the Advisor. If, at any time during the term of
the Advisory Agreement, the Advisor discovers any fact, omission or event, or
that a change of circumstances has occurred, which would make the Advisor's
representations and warranties in Section 1 of this Agreement inaccurate or
incomplete in any material respect, or which might reasonably be expected to
render the Registration Statement or Prospectus, with respect to (i) the
Advisor or its principals, (ii) the Advisor's Trading Approach or (iii) the
Advisor's Past Performance History, untrue or misleading in any material
respect, the Advisor will provide prompt written notification to the Trust,
the Managing Owner and the Selling Agent of any such fact, omission, event or
change of circumstance, and the facts related thereto, and it is agreed that
the failure to provide such notification or the failure to continue to be in
compliance with the foregoing representations and warranties during the term
of the Advisory Agreement as soon as possible following such notification
shall be cause for the Trust and the Managing Owner to terminate the Advisory
Agreement with the Advisor on prior written notice to the Advisor. The Advisor
also agrees that, during the term of the Advisory Agreement, from and after
the
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Effective Date of the Registration Statement and for so long as Interests in
the Trust are being offered, whether during the Initial Offering Period or
during the Continuous Offering Period (as those terms are described in the
Prospectus), it will provide the Selling Agent, the Trust and the Managing
Owner with updated month-end information relating to the Advisor's Past
Performance History, as required to be disclosed in the performance tables
relating to the performance of the Advisor in the Prospectus under the caption
["SERIES H - Past Performance For All Of Its Clients"] beyond the periods
disclosed therein. The Advisor shall use its reasonable efforts to provide
such information within a reasonable period of time after the end of the month
to which such updated information relates and the information is available to
it.
3. Modification of Registration Statement or Prospectus. If any
event or circumstance occurs as a result of which it becomes necessary, in the
judgment of the Managing Owner and the Selling Agent, to amend the
Registration Statement in order to make the Registration Statement not
materially misleading or to amend or to supplement the Prospectus in order to
make the Prospectus not materially misleading in light of the circumstances
existing at the time it is delivered to a subscriber, or if it is otherwise
necessary in order to permit the Trust to continue to offer its Interests
subsequent to the Initial Offering Period subject to the limitations set forth
in the Advisory Agreement, the Advisor will furnish such information with
respect to itself and its principals, as well as its Trading Approach and Past
Performance History as the Managing Owner or the Selling Agent may reasonably
request, and will cooperate to the extent reasonably necessary in the
preparation of any required amendments or supplements to the Registration
Statement and/or the Prospectus.
4. Advisor's Closing Obligations. On or prior to the Closing Date
with respect to the initial offering of Series H Interests (the "Initial
Closing Date"), and thereafter,
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only if requested, on or prior to each closing date during the continuous
offering of Series H Interests (each a "Subsequent Closing Date"), the Advisor
shall deliver or cause to be delivered, at the expense of the Advisor, to the
Selling Agent, the Trust and the Managing Owner, the reports, certificates,
documents and opinions described below addressed to them and, except as may be
set forth below, dated the Initial Closing Date or the Subsequent Closing
Date, as appropriate (provided that the Advisor shall not be obligated to
provide an opinion of its counsel more frequently than once per annum absent
good cause shown). Unless the context otherwise requires, the Initial Closing
Date and each Subsequent Closing Date shall each be referred to as a "Closing
Date."
a. A report from the Advisor which shall present, for the
period from the date after the last day covered by the Advisor's
Past Performance History as set forth under ["SERIES H - Past
Performance For All Of Its Clients"] in the Prospectus to the
latest practicable month-end before the Closing Date, figures
which shall show the actual past performance of the Advisor (or,
if such actual past performance information is unavailable, then
the estimated past performance) for such period, and which shall
certify that, to the best of the Advisor's knowledge, such figures
are complete and accurate in all material respects.
b. A certificate of the Advisor in the form proposed prior
to the Closing Date by counsel to the Selling Agent, the Trust and
the Managing Owner, with such changes in such form as are proposed
by the Advisor or its counsel and as are acceptable to the Selling
Agent, the Trust and the Managing Owner and their counsel so as to
make such form mutually acceptable to the Selling Agent,
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the Trust, the Managing Owner, the Advisor and their respective
counsel, to the effect that:
(i) The representations and warranties of the Advisor
in Section 1 of this Agreement are true and correct in all
material respects on the date of the certificate as though
made on such date.
(ii) Nothing has come to the Advisor's attention which
would cause the Advisor to believe that, at any time from
the time the Registration Statement initially became
effective to the Closing Date, the Registration Statement,
as amended from time to time, or the Prospectus, as amended
or supplemented from time to time, with respect to the
Advisor, or its affiliates, and controlling persons,
shareholders, directors, officers or employees of any of the
foregoing, or with respect to the Advisor's Trading Approach
or Past Performance History, contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein (with respect to the Prospectus, in light
of the circumstances in which they were made) not
misleading.
(iii) The Advisor has performed all covenants and
agreements herein contained to be performed on its part at
or prior to the Closing Date.
c. A certificate of the Advisor (together with such
supporting documents as are set forth in such certificate), in the
form proposed prior to the Closing Date by counsel to the Selling
Agent, the Trust and the Managing Owner,
C-10
with such changes in such form as are proposed by the Advisor
or its counsel and are acceptable to the Selling Agent, the
Trust and the Managing Owner and their counsel so as to make
such form mutually acceptable to the Selling Agent, the Trust,
the Managing Owner, the Advisor and their respective counsel,
with respect to, (i) the continued effectiveness of the
organizational documents of the Advisor, (ii) the continued
effectiveness of the Advisor's registration as a commodity
trading advisor under the CE Act and membership as a commodity
trading advisor with the NFA and (iii) the incumbency and
genuine signature of the President and Secretary of the
Advisor.
d. A certificate from the state of formation of the Advisor,
to be dated at, on or around the Closing Date, as to its formation
and good standing.
e. An opinion of counsel, in form and substance satisfactory
to the Trust, the Managing Owner and the Selling Agent and their
counsel, dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing
corporation in good standing under the laws of the state of
its formation and, if different, the state where it conducts
its primary business activity, and the Advisor has full
corporate power and authority under its Certificate of
Incorporation to perform its obligations under the Advisory
Agreement and under this Agreement and to act as described
in the Registration Statement as of its effective date and
in the Prospectus as of the Closing Date.
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(ii) Each of the Advisory Agreement and this Agreement
have been duly and validly authorized, executed and
delivered on behalf of the Advisor, and assuming the due
execution and delivery of each such Agreement by the Trust,
the Selling Agent and the Managing Owner, as applicable,
each such agreement constitutes the legal, valid and binding
obligations of the Advisor, enforceable in accordance with
their respective terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or
similar laws at the time in effect affecting creditors
rights generally, or by applicable principles of equity,
whether in an action at law or in equity, and except that
the enforceability of the indemnification, exculpation, and
severability provisions may be limited under applicable
federal or state securities, commodities and other laws or
by public policy; and the execution and delivery of such
agreements and the incurrence of the obligations thereunder
and the consummation of the transactions set forth in such
agreements and in the Prospectus will not violate or result
in a breach of the Advisor's formation documents, and, to
the best of such counsel's knowledge, after due inquiry,
will not result in any violation, breach or default under
any term or provision of any undertaking, contract,
agreement or order to which the Advisor is a party or by
which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this Section
4.e., to the best of such counsel's knowledge, after due
inquiry, the Advisor has obtained all required governmental
and regulatory licenses, registrations and
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approvals required by law as may be necessary in order to
perform its obligations under the Advisory Agreement and
under this Agreement and to act as described in the
Registration Statement as of its effective date and the
Prospectus as of the Closing Date (including, without
limitation, registration as a commodity trading advisor
under the CE Act and membership as a commodity trading
advisor with the NFA), and such licenses, registrations
and approvals have not, to the best of such counsel's
knowledge, after due inquiry, been rescinded, revoked or
otherwise removed.
(iv) Assuming that the Trust is operated as described
in the Prospectus, the Advisor is not required to be
licensed or registered as an investment adviser under the
Advisers Act (even if it voluntarily is so registered), or
to such counsel's knowledge, without independent
investigation, as an investment adviser or commodity trading
advisor under the laws of any state of the U.S., in order to
perform its obligations under the Advisory Agreement or
under this Agreement, or to act as described in the
Registration Statement as of its effective date and the
Prospectus as of the Closing Date. The foregoing opinion may
be qualified by the fact that such counsel is not admitted
to practice law in all jurisdictions, and by the fact that
in rendering its opinion such counsel has relied solely upon
an examination of the Blue Sky securities laws and related
rules, regulations, and administrative determinations, if
any, promulgated thereunder, of the various jurisdictions as
reported in
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customarily relied upon standard compilations, and upon
such counsel's understanding of the various conclusions
expressed, formally or informally, by administrative
officials or other employees of the various regulatory or
other governmental agencies or authorities concerned.
(v) To such counsel's knowledge without independent
investigation, except as described in the Prospectus or in a
schedule delivered by counsel to the Selling Agent and the
Managing Owner prior to the date hereof, there is no pending
or threatened suit or proceeding, known to such counsel,
before or by any court, governmental or regulatory body or
arbitration panel to which the Advisor or any of the assets
of the Advisor or any of its principals is subject and which
reasonably might be expected to result in any material
adverse change in the condition (financial or otherwise),
business or prospects of the Advisor or any of its
principals or which reasonably might be expected materially
adversely to affect any of the assets of the Advisor or any
of its principals or which reasonably might be expected to
(A) impair materially the Advisor's ability to discharge its
obligations to the Trust or (B) result in a matter which
would require disclosure in the Registration Statement or
Prospectus; and, to the best of such counsel's knowledge,
neither the Advisor nor any of its principals has received
any notice of an investigation by (i) the NFA regarding
non-compliance with its rules or the CE Act, (ii) the CFTC
regarding non-compliance with the CE Act or (iii) any
exchange, regarding non-compliance with its rules, which
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investigation reasonably might be expected to (A) impair
materially the Advisor's ability to discharge its
obligations to the Trust or (B) result in a matter which
would require disclosure in the Registration Statement or
Prospectus.
(vi) With respect to the Advisor and its affiliates,
and controlling persons, shareholders, directors, officers
and employees of any of the foregoing, and with respect to
the Advisor's Trading Approach, nothing has come to the
attention of such counsel that leads such counsel to believe
that the Registration Statement (at the time it initially
became effective and at the time any post-effective
amendment thereto became effective) or the Prospectus
contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or which
is necessary to make the statements therein (with respect to
the Prospectus, in light of the circumstances in which they
are made) not misleading, except that such counsel is not
required to express any opinion or belief as to the
financial statements or other financial or statistical data,
past performance tables, notes, or descriptions thereto or
other past performance information contained in the
Registration Statement or the Prospectus.
In rendering the foregoing opinions, such counsel may rely (i) as
to matters of fact, on a certificate of an officer of the Advisor, unless such
counsel has actual knowledge otherwise, and (ii) as to matters of law of
states other than that in which they are licensed to practice law, upon the
opinions of other counsel, in each case satisfactory in form and substance
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to counsel to the Managing Owner and the Selling Agent, and such counsel shall
state that they believe the Managing Owner and the Selling Agent may rely on
them.
5. Advisor Acknowledgements. The Advisor acknowledges that: (i) it
may be a condition to each closing under the Selling Agreement that the
Selling Agent shall have received, at no cost to the Advisor, letter(s) from
certified public accountants or other reputable professionals selected by the
Selling Agent with respect to the Past Performance History of the Advisor as
set forth in the Underwriting Agreement and (ii) the Trust may at any time
withdraw the Registration Statement from the SEC or otherwise terminate the
Registration Statement or the offering of Interests, and upon any such
withdrawal or termination or if the "minimum" number of Interests, as
described in the Prospectus, is not sold, this Agreement shall terminate and
none of the parties hereto shall have any obligation to any other party
pursuant to this Agreement, except pursuant to Section 10 of this Agreement to
the extent that such section is applicable.
6. Representations and Warranties of the Trust and the Managing
Owner. The Managing Owner hereby represents and warrants (on its own behalf
and on behalf of the Trust, as applicable) to the Advisor that:
a. On the date hereof, the Trust is, and at all times during
the term of this Agreement and the Advisory Agreement will be, a
duly formed and validly existing statutory trust in good standing
under the laws of the State of Delaware and at all times during
the term of this Agreement and the Advisory Agreement will be in
good standing and qualified to do business in each jurisdiction in
which the nature or conduct of its business requires such
qualifications and the failure to be so qualified materially
adversely would affect its ability to perform its
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obligations under this Agreement and the Advisory Agreement and
to operate as described in the Prospectus, and the Managing
Owner is, and at all times during the term of this Agreement
and the Advisory Agreement will be, a duly formed and validly
existing corporation in good standing under the laws of the
State of Connecticut and is, and at all times during the term
of this Agreement and the Advisory Agreement will be, in good
standing and qualified to do business as a foreign corporation
in each other jurisdiction in which the nature or conduct of
its business requires such qualifications and in which the
failure to be so qualified materially adversely would affect
its ability to act as Managing Owner of the Trust and to
perform its obligations hereunder and under the Advisory
Agreement, and each has full capacity and authority to conduct
its business and to perform its obligations under this
Agreement and the Advisory Agreement and to act as described in
the Registration Statement as of its effective date and the
Prospectus as of the Closing Date.
b. Each of this Agreement and the Advisory Agreement has
been duly and validly authorized, executed and delivered on behalf
of the Trust and the Managing Owner, is a valid and binding
agreement of the Trust and the Managing Owner and is enforceable
in accordance with its terms. The performance of the Trust's and
the Managing Owner's obligations under this Agreement and under
the Advisory Agreement, and the consummation of the transactions
set forth in this Agreement and the Advisory Agreement, and in the
Registration Statement as of its effective date and Prospectus as
of the Closing Date are not contrary to the provisions of the
Trust's Declaration of Trust and Trust Agreement, as it may be
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amended from time to time (the "Trust Agreement"), Certificate of
Trust or the Managing Owner's [Articles] of Incorporation or
By-Laws, respectively, any applicable statute, law or regulation
of any jurisdiction and will not result in any violation, breach
or default under any term or provision of any undertaking,
contract, agreement or order, to which the Trust or the Managing
Owner, is a party or by which the Trust or the Managing Owner is
bound.
c. Each of the Trust and the Managing Owner has obtained all
required governmental and regulatory licenses, registrations and
approvals required by law as may be necessary to perform their
obligations under this Agreement and under the Advisory Agreement
and to act as described in the Registration Statement as of its
effective date and in the Prospectus as of the Closing Date
(including, without limitation, the Managing Owner's registration
as a commodity pool operator under the CE Act and membership as a
commodity pool operator with the NFA) and will maintain and renew
any required licenses, registrations, approvals and memberships
required during the term of this Agreement and the Advisory
Agreement.
d. The Trust is not required to be registered as an
investment company under the Investment Company Act of 1940, as
amended (the "Investment Company Act").
e. All authorizations, consents or orders of any court or of
any federal, state or other governmental or regulatory agency or
body required for the valid authorization, issuance, offer and
sale of the Interests have been obtained, and no order preventing
or suspending the use of the Prospectus with respect to
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the Interests has been issued by the SEC, the CFTC or the NFA.
The Registration Statement as of its effective date and the
Prospectus as of the Closing Date contain all statements which
are required to be made therein, conform in all material
respects with the requirements of the 1933 Act and the CE Act,
and the rules and regulations of the SEC and the CFTC,
respectively, thereunder, and with the rules of the NFA and do
not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein (with respect to the
Prospectus, in light of the circumstances in which they are
made) not misleading; and at all times subsequent hereto up to
and including the date of termination of the Initial Offering
Period and any Subsequent Offering Period, the Registration
Statement as of its effective date and the Prospectus as of the
Closing Date will contain all statements required to be made
therein and will conform in all material respects with the
requirements of the 1933 Act and the CE Act, and the rules and
regulations of the SEC and the CFTC, respectively, thereunder,
and with the rules of the NFA and will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein (with respect to the Prospectus,
in light of the circumstances in which they are made) not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished to
the Managing Owner, the Trust or to the Selling Agent by or on
behalf of the Advisor for the express purpose of inclusion in
the Registration Statement or the Prospectus including, without
limitation, references to the Advisor and its
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affiliates, and controlling persons, shareholders, directors,
officers and employees, as well as to the Advisor's Trading
Approach and Past Performance History provided such references
have been approved.
f. The Registration Statement as of its effective date and
the Prospectus as of the Closing Date have been delivered to the
Advisor.
g. There is no pending, or to its knowledge, threatened or
contemplated action, suit or proceeding before any court or
arbitration panel or before or by any governmental, administrative
or self-regulatory body to which the Trust, the Managing Owner or
the principals of either is a party, or to which any of the assets
of any of the foregoing persons is subject, which might reasonably
be expected to result in any material adverse change in their
condition (financial or otherwise), business or prospects or
reasonably might be expected to affect adversely in any material
respect any of their assets or which reasonably might be expected
to materially impair their ability to discharge their obligations
under this Agreement or under the Advisory Agreement; and neither
the Trust nor the Managing Owner has received any notice of an
investigation by (i) the NFA regarding non-compliance with NFA
rules or the CE Act, (ii) the CFTC regarding non-compliance with
the CE Act or the rules and regulations thereunder or (iii) any
exchange regarding non-compliance with the rules of such exchange
which investigation reasonably might be expected to materially
impair the ability of each of the Trust and the Managing Owner to
discharge its obligations under this Agreement or under the
Advisory Agreement.
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7. Covenants of the Managing Owner and the Trust. If, at any time
during the term of the Advisory Agreement, the Managing Owner or the Trust
discovers any fact, omission or event or that a change of circumstance has
occurred which would make the Managing Owner's or the Trust's representations
and warranties in Section 6 of this Agreement inaccurate or incomplete in any
material respect, the Trust or the Managing Owner, as appropriate, promptly
will provide written notification to the Advisor of such fact, omission, event
or change of circumstance and the facts related thereto. The Managing Owner
and the Trust shall provide the Advisor with a copy of each amendment to the
Registration Statement and amendment or supplement to the Prospectus, and no
amendment to the Registration Statement or amendment or supplement to the
Prospectus which contains any statement or information regarding the Advisor
will be filed or used unless the Advisor has received reasonable prior notice
and a copy thereof and has consented in writing to such statement or
information being filed and used.
8. Trust's and Managing Owner's Closing Obligations. On or prior
to the Initial Closing Date, and thereafter on or prior to each Subsequent
Closing Date, if the Trust and the Managing Owner have requested that the
Advisor provide certificates, documents and opinions pursuant to Section 4 of
this Agreement, the Trust and the Managing Owner shall deliver or cause to be
delivered to the Advisor, the certificates, documents and opinions described
below addressed to the Advisor and, except as may be set forth below, dated
each such Closing Date:
a. Certificates of the Trust and the Managing Owner,
addressed to the Advisor, in the form proposed prior to the
Closing Date by counsel to the Trust and the Managing Owner with
such changes in such form as are proposed by the
C-21
Advisor or its counsel and are acceptable to the Trust, the
Managing Owner and their counsel so as to make such form
mutually acceptable to the Trust, the Managing Owner, the
Advisor and their respective counsel, with respect to, as
applicable, (i) the continued effectiveness of the Trust
Agreement and the [Articles] of Trust of the Trust and the
Certificate of Incorporation and By-Laws of the Managing Owner,
(ii) the continued effectiveness of the registration of the
Managing Owner as a commodity pool operator under the CE Act
and membership as a commodity pool operator with the NFA and
(iii) the incumbency and genuine signature of the President and
Secretary of the Managing Owner.
b. Certificates from the States of Delaware and Connecticut
with respect to the Trust and the Managing Owner, respectively, to
be dated at, on or around the Closing Date as to the formation and
good standing of the Trust and the Managing Owner, respectively.
c. Certificates of the Trust and the Managing Owner in the
form proposed prior to the Closing Date by counsel to the Trust
and the Managing Owner with such changes in such form as are
proposed by the Advisor or its counsel and are acceptable to the
Trust, the Managing Owner and their counsel so as to make such
form mutually acceptable to the Trust, the Managing Owner, the
Advisor and their respective counsel, to the effect that:
(i) The representations and warranties in Section 6 of
this Agreement are true and correct in all material respects
on the date of the certificates as though made on such date,
and
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(ii) The Trust and the Managing Owner have each
performed all covenants and agreements herein contained to
be performed on their part at or prior to the Closing Date.
d. An opinion letter of counsel to the Trust and the
Managing Owner, dated the Closing Date, in form and substances
satisfactory to the Advisor, as follows:
(i) The Trust is a duly created and validly existing
statutory trust in good standing under the Delaware Act,
with requisite power and authority under the Delaware Act,
its Trust Agreement and its Certificate of Trust to perform
its obligations under this Agreement and under the Advisory
Agreement and to act as described in the Registration
Statement as of its effective date and the Prospectus as of
the Closing Date.
(ii) The Managing Owner is a duly formed and validly
existing corporation in good standing under the laws of the
State of Connecticut. The Managing Owner has full corporate
power and authority under its [Articles] of Incorporation,
By-Laws and the [General Corporation Law] of the State of
Connecticut to perform its obligations under this Agreement
and under the Advisory Agreement and to act as described in
the Registration Statement as of its effective date and the
Prospectus as of the Closing Date.
(iii) Each of this Agreement and the Advisory
Agreement has been duly and validly authorized or ratified,
executed and delivered on behalf of each of the Trust and
the Managing Owner, and, assuming due
C-23
execution and delivery of each such Agreement by the Advisor,
each agreement constitutes the legal, valid and binding
obligations of the Trust and the Managing Owner, respectively,
enforceable in accordance with their respective terms, except
as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws at the time in
effect affecting creditors rights generally, or by applicable
principles of equity, whether in an action at law or in equity,
and except that the enforceability of the indemnification
provisions may be limited under applicable federal or state
securities, commodities and other laws or by public policy; and
the execution and delivery of such agreements and incurrence of
the obligations thereunder and the consummation of the
transactions set forth in such agreements and in the Prospectus
will not violate or result in a breach of their formation
documents, and, to the best of such counsel's knowledge, after
due inquiry, will not result in any violation, breach or
default under any term or provision of any undertaking,
contract, agreement or order to which they are parties or by
which they are bound.
(iv) The Trust is not required to be registered as an
investment company under the Investment Company Act in order
to act as described in the Registration Statement as of its
effective date and in the Prospectus as of the Closing Date
or to perform its obligations under this Agreement or the
Advisory Agreement.
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(v) To the best of such counsel's knowledge, after due
inquiry, all authorizations, consents or orders of any court
or of any federal, state or other governmental or regulatory
agency or body required for the valid authorization,
issuance, offer and sale of Interests have been obtained,
including such as may be required under the 1933 Act,
including the rules and regulations thereunder, the CE Act,
including the rules and regulations thereunder, the rules
and regulations of the NFA or the Blue Sky securities laws
of any state or of any jurisdiction in which offers and
sales were made, and, to the extent of such counsel's
knowledge, no order suspending the effectiveness of the
Registration Statement or the use of the Prospectus has been
issued by the SEC, the CFTC, the NFA or any state in which
offers and sales of Interests were made nor has any
proceeding for the issuance of such an order been instituted
or threatened by the SEC, the CFTC, the NFA or any such
state. The foregoing may be qualified by the fact that such
counsel is not admitted to practice law in all jurisdictions
and that in rendering its opinion such counsel shall rely
solely upon an examination of the Blue Sky securities laws
and related rules, regulations and administrative
determinations, if any, promulgated thereunder, of the
various jurisdictions as reported in customarily relied upon
standard compilations, and upon such counsel's understanding
of the various conclusions expressed, formally or
informally, by administrative officials or other employees
of the various regulatory or other governmental agencies or
authorities concerned.
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(vi) To the best of such counsel's knowledge, after
due inquiry, each of the Trust and the Managing Owner has
obtained all required governmental and regulatory licenses,
registrations and approvals required by law as may be
necessary in order for each of the Trust and the Managing
Owner to perform its obligations under this Agreement and
under the Advisory Agreement and to act as described in the
Registration Statement as of its effective date and the
Prospectus as of the Closing Date (including, without
limitation, the Managing Owner's registration as a commodity
pool operator under the CE Act and membership as a commodity
pool operator with the NFA) and such licenses, registrations
and approvals have not, to the best of such counsel's
knowledge, after due inquiry, been rescinded, revoked or
otherwise removed.
(vii) To such counsel's knowledge without independent
investigation, except as described in the Prospectus, or in
a schedule delivered by counsel to the Selling Agent and the
Managing Owner prior to the date hereof, there is no pending
or threatened suit or proceeding known to such counsel,
before or by any court, governmental or regulatory body or
arbitration panel to which the Trust and the Managing Owner
or any of the assets of the Trust or the Managing Owner or
any of their principals is subject and which reasonably
might be expected to result in any material adverse change
in the condition (financial or otherwise), business or
prospects of the Trust or Managing Owner or any of their
principals or which reasonably might be expected materially
adversely to
C-26
affect any of the assets of the Trust or Managing Owner or
any of their principals or which reasonably might be
expected to (A) impair materially the Trust's or Managing
Owner's ability to discharge their obligations to the
Advisor or (B) result in a matter which would require
disclosure in the Registration Statement or Prospectus
which is not so disclosed; and, to the extent of such
counsel's knowledge, neither the Trust or Managing Owner,
nor any of their principals has received any notice of an
investigation by (i) the NFA regarding non-compliance with
its rules or the CE Act, (ii) the CFTC regarding
non-compliance with the CE Act or (iii) any exchange,
regarding non-compliance with its rules, which
investigation reasonably might be expected to (A) impair
materially the Trust's or Managing Owner's ability to
discharge its obligations to the Advisor or (B) result in
a matter which would require disclosure in the
Registration Statement or Prospectus which is not so
disclosed.
(viii) The Registration Statement as of its effective
date and the Prospectus as of the Closing Date are
responsive in all material respects to the requirements of
the 1933 Act, including the rules and regulations
thereunder, the CE Act, including the rules and regulations
thereunder, and the rules and regulations of the NFA, and
nothing has come to the attention of such counsel that leads
it to believe that either the Registration Statement (at the
time it initially became effective and at the time any
post-effective amendment thereto became effective) or the
Prospectus contains any untrue statement of a material
C-27
fact or omits to state a material fact required to be
stated therein or which is necessary to make the
statements therein (with respect to the Prospectus, in
light of the circumstances in which they were made) not
misleading, except that such counsel is not required to
express any opinion or belief (A) as to the financial
statements or other financial or statistical data, past
performance tables and notes thereto or other past
performance information contained in the Registration
Statement or the Prospectus or (B) as to any statements or
omissions made in reliance on and in conformity with
information furnished by the Advisor for the express
purpose of inclusion in the Registration Statement or the
Prospectus including, without limitation, references to
the Advisor and its affiliates, controlling persons,
shareholders, directors, officers and employees, as well
as to the Advisor's Trading Approach and Past Performance
History.
In rendering such opinions, such counsel may rely (i) as to
matters of fact, on a certificate of an officer of the Managing Owner, unless
such counsel has actual knowledge otherwise and (ii) as to matters of law of
states other than that in which they are licensed to practice law, upon the
opinions of other counsel, in each case satisfactory in form and substance to
the Advisor and its counsel, and such counsel shall state that they believe
the Advisor may rely on them.
9. Survival of Representations, Warranties and Covenants. All
representations, warranties and covenants in this Agreement or contained in
certificates required to be delivered hereunder shall survive the delivery of
any payment for the Interests under the Underwriting Agreement and the
termination of the Advisory Agreement and this Agreement,
C-28
with respect to any matter arising while the Advisory Agreement or this
Agreement was in effect. Furthermore, all representations, warranties and
covenants hereunder shall inure to the benefit of each of the parties to this
Agreement and to their respective successors and permitted assigns.
10. Indemnification.
a. In any action in which the Selling Agent, the Trust,
Wilmington Trust Company, a Delaware corporation, in its capacity
as trustee of the Trust (in such capacity, the "Trustee") or the
Managing Owner, or their respective controlling persons,
shareholders, partners, members, managers, directors, officers
and/or employees of any of the foregoing (the "Sponsor Indemnified
Parties") are parties, the Advisor agrees to indemnify and hold
harmless the foregoing persons against any loss, claim, damage,
charge, liability or expense (including, without limitation,
reasonable attorneys' and accountants' fees) ("Losses") to which
such persons may become subject, insofar as such Losses arise out
of or are based exclusively upon (i) any misrepresentation or
alleged misrepresentation or material breach or alleged material
breach of any warranty, covenant or agreement of the Advisor
contained in this Agreement or (ii) any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement or the Prospectus or the omission or
alleged omission to state in the Registration Statement or the
Prospectus a material fact required to be stated therein or
necessary to make the statements therein (with respect to the
Prospectus, in light of the circumstances in which they are made)
not misleading, in each case under this subclause (ii) to the
extent, but only to the extent, that such
C-29
untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in material
conformity with information furnished by the Advisor to the
Managing Owner for inclusion in the Registration Statement or
Prospectus and approved in writing by the Advisor, in the form
attached hereto as Exhibit A, including, without limitation,
all information relating to the Advisor and its affiliates,
controlling persons, shareholders, directors, officers and
employees, as well as to the Advisor's Trading Approach and
Past Performance History, provided, however, that in respect of
any Loss regarding (A) an alleged (as opposed to an actual)
misrepresentation or material breach of any warranty, covenant
or agreement of the Advisor contained in this Agreement or (B)
an alleged (as opposed to an actual) untrue statement of any
material fact contained in the Registration Statement or the
Prospectus, or an alleged (as opposed to an actual) omission to
state in the Registration Statement or the Prospectus a
material fact required to be stated therein or necessary to
make the statements therein (with respect to the Prospectus, in
light of the circumstances in which they are made), not
misleading, the Advisor's obligations shall be limited to 40%
of any payments made from time to time by the Sponsor
Indemnified Parties in respect thereof.
b. In any action in which the Advisor, or any of its
controlling persons, shareholders, directors, officers and/or
employees (the "Advisor Indemnified Parties") are parties, the
Managing Owner agrees (A) to indemnify and hold harmless the
Advisor Indemnified Parties against any Losses, insofar as such
Losses arise out of or are based exclusively upon (i) any
misrepresentation or alleged misrepresentation or material breach
or alleged material breach of any
C-30
warranty, covenant or agreement of the Trust or the Managing
Owner contained in this Agreement, or (ii) any untrue statement
or alleged untrue statement of any material fact contained in
the Registration Statement or the Prospectus or the omission or
alleged omission to state in the Registration Statement or the
Prospectus a material fact required to be stated therein or
necessary to make the statements therein (with respect to the
Prospectus, in light of the circumstances in which they are
made) not misleading.
c. None of the indemnifications contained in this Section 10
shall be applicable with respect to default judgments or
confessions of judgment, or to settlements entered into by an
indemnified party claiming indemnification without the prior
written consent of the indemnifying party.
d. Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or dispute or commencement of
any action or litigation, such indemnified party will, if a claim
in respect thereof is to be made against an indemnifying party
under this Section 10, notify the indemnifying party of the
commencement thereof; but the omission to notify the indemnifying
party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 10 except
to the extent, if any, that such failure or delay prejudiced the
indemnifying party in defending against the claim. In case any
such claim, dispute, action or litigation is brought or asserted
against any indemnified party, and it timely notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in the defense therein, and
to the extent that it may wish, to assume such defense
C-31
thereof, with counsel specifically approved in writing by such
indemnified party, such approval not to be unreasonably
withheld, following notice from the indemnifying party to such
indemnified party of its election so to assume the defense
thereof; in which event, the indemnifying party will not be
liable to such indemnified party under this Section 10 for any
legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, but
shall continue to be liable to the indemnified party in all
other respects as heretofore set forth in this Section 10.
Notwithstanding any other provisions of this Section 10, if, in
any claim, dispute, action or litigation as to which indemnity
is or may be available, any indemnified party reasonably
determines that its interests are or may be, in whole or in
part, adverse to the interests of the indemnifying party, the
indemnified party may retain its own counsel in connection with
such claim, dispute, action or litigation and shall continue to
be indemnified by the indemnifying party for any legal or any
other expenses reasonably incurred in connection with
investigating or defending such claim, dispute, action or
litigation.
e. Expenses incurred by an indemnified party in defending a
threatened or asserted claim or a threatened or pending action
shall be paid by the indemnifying party in advance of final
disposition or settlement of such matter, if and to the extent
that the person on whose behalf such expenses are paid shall agree
in writing to reimburse the indemnifying party in the event
indemnification is not permitted under this Section 14 upon final
disposition or settlement.
C-32
f. The parties hereto acknowledge and agree on their own
behalf that the indemnities provided in this Agreement shall be
inapplicable in the event of any loss, claim, damage, charge or
liability arising out of or based upon, but limited to the extent
caused by, any misrepresentation or breach of any warranty,
covenant or agreement of any indemnified party to any indemnifying
party contained in this Agreement.
11. Limits on Claims. The Advisor agrees that it will not take any
of the following actions against the Trust: (i) seek a decree or order by a
court having jurisdiction in the premises (A) for relief in respect of the
Trust in an involuntary case or proceeding under the U.S. Bankruptcy Code or
any other federal or state bankruptcy, insolvency, reorganization,
rehabilitation, liquidation or similar law or (B) adjudging the Trust a
bankrupt or insolvent or seeking reorganization, rehabilitation, liquidation,
arrangement, adjustment or composition of or in respect of the Trust under the
U.S. Bankruptcy Code or any other applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Trust or of any substantial part of any of
its properties, or ordering the winding up or liquidation of any of its
affairs, (ii) seek a petition for relief, reorganization or to take advantage
of any law referred to in the preceding clause or (iii) file an involuntary
petition for bankruptcy (collectively "Bankruptcy or Insolvency Action"). In
addition, the Advisor agrees that for any obligations due and owing to it by
the Trust, the Advisor will look solely and exclusively to the assets of
Series H or the Managing Owner, if it has liability in its capacity as
Managing Owner, to satisfy its claims and will not seek to attach or otherwise
assert a claim against the assets of any other Series or the other assets of
the Trust, whether there is a Bankruptcy or Insolvency Action taken. The
parties agree that this provision will survive the
C-33
termination of this Agreement, whether terminated in a Bankruptcy or
Insolvency Action or otherwise.
12. Subordination Agreement. Each of the Advisor, the Managing
Owner and the Trustee (the "Potential Creditor(s)") agrees and consents (the
"Consent") to look solely to Series H, the Series for which advisory services
are being performed hereunder and assets of Series H (the "Series H Assets")
and to the Managing Owner and its assets for payment. Series H Assets include
only those funds and other assets that are paid, held or distributed to the
Trust on account of and for the benefit of Series H, including, without
limitation, funds delivered to the Trust for the purchase of interests in
Series H. In furtherance of the Consent, the Potential Creditors agree that
(i) any debts, liabilities, obligations, indebtedness, expenses and claims of
any nature and of all kinds and descriptions (collectively, "Claims")
incurred, contracted for or otherwise existing arising from, related to or in
connection with the Trust and its assets and Series H and Series H Assets,
shall be subject to the following limitations:
a. Subordination of certain claims and rights: (i) except as
set forth below, the Claims, if any, of the Potential Creditors
(the "Subordinated Claims") shall be expressly subordinate and
junior in right of payment to any and all other Claims against the
Trust and any Series thereof, and any of their respective assets,
which may arise as a matter of law or pursuant to any contract;
provided, however, that the Potential Creditors' Claims (if any)
against Series H shall not be considered Subordinated Claims with
respect to enforcement against and distribution and repayment from
Series H, the Series H Assets and the Managing Owner and its
assets; and provided further that the Potential Creditors' valid
Claims, if any, against Series H shall be pari passu and equal in
right of
C-34
repayment and distribution with all other valid Claims against
Series H and (ii) the Potential Creditors, individually or
collectively, will not take, demand or receive from any Series
or the Trust or any of their respective assets (other than
Series H, the Series H Assets and the Managing Owner and its
assets) any payment for the Subordinated Claims;
b. The Claims of each of the Potential Creditors with
respect to Series H shall only be asserted and enforceable against
Series H, Series H Assets and the Managing Owner and its assets;
and such Claims shall not be asserted or enforceable for any
reason whatsoever against any other Series, the Trust generally or
any of their respective assets;
c. If the Claims of a Potential Creditor against Series H or
the Trust are secured in whole or in part, each of the Potential
Creditors hereby waives (under section 1111(b) of the U.S.
Bankruptcy Code (11 U.S.C. ss. 1111(b)) any right to have any
deficiency Claims (which deficiency Claims may arise in the event
such security is inadequate to satisfy such Claims) treated as
unsecured Claims against the Trust or any Series (other than
Series H), as the case may be;
d. In furtherance of the foregoing, if and to the extent
that the Potential Creditors receive monies in connection with the
Subordinated Claims from a Series or the Trust (or their
respective assets), other than Series H, Series H Assets and the
Managing Owner and its assets, the Potential Creditors shall be
deemed to hold such monies in trust and shall promptly remit such
monies to the Series or the Trust that paid such amounts for
distribution by the Series or the Trust in accordance with the
terms hereof; and
C-35
e. The foregoing Consent shall apply at all times
notwithstanding that the Claims are satisfied and notwithstanding
that the agreements in respect of such Claims are terminated,
rescinded or canceled.
13. Notices. Any notices under this Agreement required to be given
shall be effective only if given or confirmed in writing, shall be deemed
given by the party providing notice when received by the party to whom notice
is being given and shall be sent certified mail, postage prepaid, or hand
delivered, to the following address, or to such other address as a party may
specify by written notice to each of the other parties hereto:
If to the Selling Agent:
[Name of Selling Agent]
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: ______________
Facsimile: (203) [___-____]
If to the Managing Owner or the Trust:
Preferred Investment Solutions Corp.
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (203) [___-____]
with a copy to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Advisor:
Bridgewater Associates, Inc.
0 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
C-36
with a copy to:
Bridgewater Associates, Inc.
0 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx La Tronica
Facsimile: (000) 000-0000
14. Governing Law. This Agreement shall be deemed to be made under
the laws of the State of New York applicable to contracts made and to be
performed in that State and shall be governed by and construed in accordance
with the laws of that State, without regard to the conflict of laws
principles.
15. Arbitration, Remedies. Each party hereto agrees that any
dispute relating to the subject matter of this Agreement shall be settled and
determined by arbitration in the City of New York pursuant to the rules of NFA
or, if NFA should refuse to accept the matter, the American Arbitration
Association. The parties also agree that the award of the arbitrators shall be
final and may be enforced in the courts of New York and in any other courts
having jurisdiction over the parties.
16. Assignment. This Agreement may not be assigned by any party
without the express prior written consent of each of the other parties hereto.
17. Amendment or Modification or Waiver. This Agreement may not be
amended or modified except by the written consent of each of the parties
hereto.
18. Successors. Except as set forth in Section 10 of this
Agreement, this Agreement is made solely for the benefit of and shall be
binding upon the Trust, the Managing Owner, the Selling Agent, the Advisor and
the respective successors and permitted assigns of each of them, and no other
person shall have any right or obligation under this Agreement. The terms
"successors" and "assigns" shall not include any purchasers, as such, of
Interests.
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19. Survival. The provisions of this Agreement shall survive the
termination of this Agreement with respect to any matter arising while this
Agreement was in effect.
20. No Waiver. No failure or delay on the part of any party hereto
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. Any waiver granted hereunder must be in writing
and shall be valid only in the specific instance in which given.
21. No Liability of Limited Owners. This Agreement has been made
and executed by and on behalf of the Trust and the Managing Owner, and the
obligations of the Trust and/or the Managing Owner set forth in this Agreement
are not binding upon any of the Limited Owners individually, but rather, are
binding only upon the assets and property of the Trust and, to the extent
provided herein, upon the assets and property of the Managing Owner.
22. Headings. Headings to the Sections in this Agreement are for
the convenience of the parties only and are not intended to be or to affect
the meaning or interpretation of this Agreement.
23. Complete Agreement. Except as otherwise provided herein, this
Agreement and the Advisory Agreement constitute the entire agreement among the
parties with respect to the matters referred to herein, and no other
agreement, verbal or otherwise, shall be binding upon the parties hereto.
24. Counterparts. This Agreement may be executed in one or more
counterparts, all of which, when taken together, shall be deemed to constitute
one original instrument.
25. Series Disclaimer.
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The parties hereto acknowledge and agree that the Trust is
organized in series pursuant to Sections 3804(a) and 3806(b)(2) of the
Delaware Statutory Trust Act. As such, the debt, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to each
series of the Trust shall be enforceable against the assets of such series of
the Trust only, and not against the assets of the Trust generally or the
assets of any other series of the Trust or against the Trustee. There may be
several series of the Trust created pursuant to the Declaration of Trust and
Trust Agreement of the Trust.
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IN WITNESS WHEREOF, this Agreement has been executed as of the day
and year first above written.
[NAME OF SELLING AGENT]
By:
------------------------------------
Name:
Title:
PREFERRED INVESTMENT SOLUTIONS CORP.
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
WORLD MONITOR TRUST III - SERIES H
By: PREFERRED INVESTMENT SOLUTIONS
CORP., as sole Managing Owner
By:
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
BRIDGEWATER ASSOCIATES, INC.
By:
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Operating Officer
C-40
Exhibit A
Consent
The undersigned Advisor has reviewed the Prospectus dated ______,
2004 of World Monitor Trust III with respect to the information contained
therein relating to the undersigned Advisor and, in accordance with the
Representation Agreement among us dated as of the ____ day of _________, 2004
("Representation Agreement"), hereby consents to all provisions to which it is
required to consent pursuant to the Representation Agreement and also consents
to the distribution of such Prospectus.
BRIDGEWATER ASSOCIATES, INC.
By:
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Name: Xxxxxxx Xxxxxx
Title: Chief Operating Officer
C-41
EXHIBIT D
(ATTACH LATEST DISCLOSURE DOCUMENT]
D-1
