EXHIBIT 10.4
ADVISORY AGREEMENT
ADVISORY AGREEMENT (this "Agreement") dated as of the ____ day of
_________, 2005, by and among WMT III- Series I/J, a Delaware limited liabiliy
company (the "Trading Vehicle"), Preferred Investment Solutions Corp., a
Connecticut corporation (the "Managing Owner") and Eagle Trading Systems,
Inc., a Delaware corporation (the "Advisor").
W I T N E S S E T H:
WHEREAS, the Trading Vehicle has been organized primarily for the
purpose of trading, buying, selling, spreading or otherwise acquiring, holding
or disposing of futures, forward and options contracts. Other transactions
also may be effected from time to time, including among others, those as more
fully identified in Exhibit A hereto; the foregoing commodities and other
transactions are collectively referred to as "Commodities"; and
WHEREAS, Series I and Series J are the only members ("Members") of
the Trading Vehicle; and
WHEREAS, the Managing Owner is the managing owner of World Monitor
Trust III (the "Trust"), a Delaware statutory trust; 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 trading vehicles that will be
owned by certain series of the Trust; and
WHEREAS, the Advisor's present business includes the management of
Commodities accounts for its clients; and
WHEREAS, the Advisor is registered as a commodity trading advisor
under the United States Commodity Exchange Act, as amended (the "CE Act"), and
is a member of the National Futures Association (the "NFA") as a commodity
trading advisor and will maintain such registration and membership for the
term of this Agreement; and
WHEREAS, the Trust proposes to make an initial public offering (the
"Offering") of limited liability beneficial interests in the Trust (the
"Interests") evidenced by different series of Interests (each, a "Series")
through Kenmar Securities, Inc., as Selling Agent, 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
beneficial interests (the "Interests"), including the Series I Interest (Units
relating to the Series I Interests are referred to herein as the "Series I
Units") and the Series J Interests (Units relating to the Series J Interests
are referred to herein as the "Series J Units") 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 Trading Vehicle 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
Trading Vehicle during the term of this Agreement;
2
NOW, THEREFORE, the parties agree as follows:
1. Duties of the Advisor.
(a) Appointment. The Trading Vehicle 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 Trading Vehicle's Net Asset Value (as
defined in the Prospectus), which is comprised of the assets attributable to
the Trading Vehicle's assets allocated to the Advisor which initially shall
not be less than $10 million (the "Trading Vehicle Allocated Assets") on the
terms and conditions and for the purposes set forth herein. This limited
power-of-attorney is a continuing power and shall continue in effect with
respect to the Advisor until terminated hereunder. The Advisor shall have sole
authority and responsibility for independently directing the investment and
reinvestment in Commodities of the Trading Vehicle Allocated Assets for the
term of this Agreement pursuant to the trading programs, methods, systems, and
strategies described in Exhibit A hereto, which the Trading Vehicle and the
Managing Owner have selected to be utilized by the Advisor in trading the
Trading Vehicle 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 Trading Vehicle
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
3
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 Trading Vehicle will have the
responsibility for the management of any portion of the Trading Vehicle
Allocated Assets that are not invested in Commodities. The Advisor will use
its good faith and best efforts in determining the investment and reinvestment
in Commodities of the Trading Vehicle Allocated Assets in compliance with the
Trading Policies and Limitations, and in accordance with the Advisor's Trading
Approach. In the event that the Trading Vehicle 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 Vehicle Trading Policies and Limitations, then
the Trading Vehicle, following reasonable notice to the Advisor appropriate
under the circumstances, may override such trading instruction and shall be
responsible therefor. Nothing herein shall be construed to prevent the
Managing Owner from imposing any limitation(s) on the trading activities of
the Trading Vehicle 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 or the Trading Vehicle, 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 annual gross income and gain, if any, generated by its Trading Approach
for Trading Vehicle Allocated Assets will be "qualifying income" within the
meaning of Section 7704(d) of the Code (it being understood that such income
will largely result from buying and selling Commodities and that the Trading
Approach is not intended primarily to generate interest income). The Advisor
also agrees that it will attempt to trade in such a manner as to allow
non-U.S. Limited
4
Owners (as defined below) 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 Trading Vehicle 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 Trading Vehicle (including, without
limitation, the deletion or addition of an agreed upon trading program,
system, method or strategy to the then agreed upon Trading Approach), either
in whole or in part, the Advisor may not do so and/or shall not be required to
do so, as appropriate, unless both the Trading Vehicle and the Advisor consent
thereto in writing.
(e) Notification of Material Changes. The Advisor also agrees to give
the Trading Vehicle 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 Trading Vehicle) over the objection of the
Trading Vehicle, it being understood that the Advisor shall be free to
institute non-material changes in its Trading Approach (as applied to the
Trading Vehicle) without prior written 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, and variations in the leverage principles and policies
5
utilized by the Advisor, shall not be deemed a material change in the
Advisor's Trading Approach, and prior approval of the Trading Vehicle shall
not be required therefor.
Subject to adequate assurances of confidentiality, the Advisor agrees
that it will discuss with the Trading Vehicle 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 Trading Vehicle,
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
Trading Vehicle with any reasonable information concerning the Advisor that
the Trading Vehicle 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
Trading Vehicle, including, but not limited to, information regarding any
change in control, key personnel, Trading Approach and financial condition
which the Trading Vehicle reasonably deems to be material to the Trading
Vehicle; the Advisor also shall notify the Trading Vehicle of any such matters
the Advisor, in its reasonable judgment, believes may be material to the
Trading Vehicle relating to the Advisor and its Trading Approach. During the
term of this Agreement, the Advisor agrees to provide the Trading Vehicle with
updated monthly information related to the Advisor's performance results
within a reasonable period of time after the end of the month to which it
relates.
(g) Notice of Errors. The Advisor is responsible for promptly
reviewing all oral and written confirmations it receives to determine that the
Commodities trades were made in accordance with the Advisor's instructions. If
the Advisor determines that an error was made in
6
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 Trading
Vehicle of this fact and shall utilize its commercially 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 Trading Vehicle, its officers, directors,
members, shareholders or employees, or any person who controls the Trading
Vehicle, 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 willful misconduct or gross 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 Trading Vehicle and its
Members; 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 Trading Vehicle, and the
Advisor shall incur no liability for trading profits or losses resulting
therefrom provided the Advisor would not otherwise be liable to the Trading
Vehicle under the terms hereof.
(i) Initial Allocation, Additional Allocations, and Reallocations.
Initially, the Trading Vehicle Allocated Assets will total an amount equal to
the assets of the Trust allocable to the Trading Vehicle, including all cash
and cash equivalents held by the Trust in respect of the Trading Vehicle
reduced by all liabilities of the Trust incurred specifically in respect of
the Trading Vehicle and further reduced by the Trading Vehicle Allocated
Assets' pro-rata share of the total liabilities of the Trust which are not
otherwise specifically allocable to another trading vehicle, at the conclusion
of the Trust's Initial Offering Period (as described in the Prospectus).
7
(j) Additional Allocations and Reallocations. Subject to Section
10(a) below, the Trading Vehicle 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 Trading Vehicle
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 Trading
Vehicle Allocated Assets to an Other Advisor.
(k) Delivery of Disclosure Document. The Advisor agrees to provide to
the Managing Owner any amendment, or supplement, to the Disclosure Document
attached hereto as Exhibit D (an "Update") as soon as such Update is available
for distribution following the filing of such update in final form with the
NFA.
2. Indemnification.
(a) Trust Indemnification of the Advisor. Subject to the provisions
of Section 3 of this Agreement, the Advisor, and each officer, director,
shareholder and employee of the Advisor, and each person who controls the
Advisor, shall be indemnified, defended, and held harmless by the Trading
Vehicle and the Managing Owner, jointly and severally, from and against any
and all claims, losses, judgments, liabilities, damages, costs, expenses
(including, without limitation, reasonable investigatory and attorneys' fees
and expenses) and amounts paid in settlement of any claims in compliance with
the conditions specified below (collectively, "Losses") sustained by the
Advisor (i) in connection with any acts or omissions of the Advisor, or any of
its officers, directors or employees relating to its management of the Trading
Vehicle Allocated Assets, including in connection with this Agreement or
otherwise as a result of the Advisor's performance of services on behalf of
the Trading Vehicle or its role as trading advisor
8
to Trading Vehicle Allocated Assets and (ii) as a result of a material breach
of this Agreement by the Trading Vehicle or the Managing Owner, provided that,
(1) 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 Trading Vehicle and its Members and (iii) any such
indemnification will only be recoverable from the Trading Vehicle Allocated
Assets and the assets of the Managing Owner and not from any other assets of
Series I, Series J or any other Series of the Trust, and 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 Trading
Vehicle of the terms of any settlement proposed, at least fifteen (15) days
before any amounts are paid, or (B) the Trading Vehicle does not approve the
amount of the settlement within fifteen (15) days (such approval not to be
withheld unreasonably). Notwithstanding the foregoing, the Trading Vehicle
shall, at all times, have the right to offer to settle any matter for a
monetary amount with the approval of the Advisor (which approval shall not be
withheld unreasonably) and if the Trading Vehicle successfully negotiates a
monetary settlement and tenders payment therefor to the party claiming
indemnification (the "Indemnitee") the Indemnitee must either use commercially
reasonable 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 Trading Vehicle to the Indemnitee shall be the amount of said
proposed settlement; provided, however, that nothing
9
herein contained shall require the Indemnitee to accept any settlement which
has provisions requiring anything other than payment of a monetary amount.
(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 Trading Vehicle.
(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 Trading Vehicle in advance of the final
disposition of such action, suit or proceeding if (i) the legal action, suit
or proceeding, if sustained, would entitle the Indemnitee to indemnification
pursuant to the terms of this Section 2, and (ii) the Advisor undertakes to
repay the advanced funds to the Trading Vehicle in cases in which the
Indemnitee is not entitled to indemnification pursuant to this Section 2.
3. Limits on Claims.
(a) Prohibited Acts. The Advisor agrees that it will not take any of
the following actions against the Trading Vehicle or any Member: (i) seek a
decree or order by a
10
court having jurisdiction in the premises (A) for relief in respect of the
Trust, Trading Vehicle or any Member 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, the Trading Vehicle or any Member a bankrupt or
insolvent, or seeking reorganization, rehabilitation, liquidation,
arrangement, adjustment or composition of or in respect of the Trust, the
Trading Vehicle or any Member 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, the Trading Vehicle or any Member or of any substantial part of any of
their properties, or ordering the winding up or liquidation of any of their
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 Trading Vehicle, the Advisor
will look solely and exclusively to Trading Vehicle Allocated Assets to
satisfy its claims and will not seek to attach or otherwise assert a claim
against the other assets of the Trust, the Trading Vehicle or any Member,
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 Trading Vehicle for the benefit of the
Trading Vehicle and the obligations of the Trading Vehicle set forth herein
are not binding upon the Members nor any of the owners of any Series ("Limited
Owners") individually, but are binding only upon the assets
11
and property identified above and no resort shall be had to the assets of
Series I, Series J or any other Series issued by the Trust or the Limited
Owners' personal property for the satisfaction of any obligation or claim
hereunder.
4. Obligations of the Trust, the Managing Owner and the Advisor.
(a) The Registration Statement and Prospectus. Each of the Trading
Vehicle and the Managing Owner agrees to cooperate and use its good faith, and
best 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, (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, and (iv) the taking of such other actions as the Managing Owner
may reasonably determine to be necessary or advisable in order to comply with
any other legal or regulatory requirements applicable to the Trust or the
Series I Assets. The Advisor agrees to make all required 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 counsel to the Managing Owner, to be made in the
Registration Statement and Prospectus and in applications to any such
jurisdictions by reason of any law or regulation applicable to the Trust or
the Series I Assets.
12
Except as required by applicable law or regulations, no description of, or
other information relating to, the Advisor may be distributed by the Managing
Owner without the prior written consent of the Advisor; provided that
distribution of performance information relating to the Trading Vehicle's
account shall not require consent of the Advisor.
(b) Road Shows. The Advisor agrees to participate in "road show" and
similar presentations in connection with the offering of the Series I
Interests to the extent reasonably requested by the Trading Vehicle, on the
following conditions: (i) all expenses incurred by the Advisor in the course
of such participation will be paid for by the Trading Vehicle and/or the
Selling Agent, (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 or otherwise would be unduly burdensome to it.
(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 Trading Vehicle, and it is not
intended by the parties that the Advisor shall have any liability as such.
(d) Filings. The Advisor acknowledges that 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 Units or (ii)
Series
13
I Units or Series J Units 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 Trading Vehicle 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 Trading Vehicle or the Managing Owner with respect to this
Agreement.
(e) Representation Agreement. On or prior to the commencement of the
offering of Interests pursuant to the Prospectus, the parties agree to execute
a Representation Agreement (the "Representation Agreement") relating to the
offering of the Series I Interests and Series J Interests 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 Trading Vehicle,
the Managing Owner and each other commodity trading advisor that may in the
future provide commodity trading advisory services to the Trading Vehicle and
the Managing Owner and its affiliates, and shall, unless otherwise expressly
authorized, have no authority to act for or to represent the Trading Vehicle,
the Managing Owner, any other commodity trading advisor or the Selling Agent
in any way or otherwise be deemed to be a general agent, joint venturer or
partner of the Trading Vehicle, the Managing Owner, any other commodity
trading advisor, or in any way be responsible for the acts or omissions of the
Trading Vehicle, the Managing Owner, any other commodity trading advisor as
long as it is acting independently of such persons.
(b) Purchase of Interests. Any of the Advisor, its principals and
employees may, in its discretion, purchase Interests in the Trust.
14
(c) Confidentiality. The Trading Vehicle 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 Trading Vehicle and the
Managing Owner further agree that they will keep confidential and will not
disseminate the Advisor's trading advice to the Trading Vehicle, except as,
and only to the extent that, it may be determined by the Trading Vehicle to be
(i) necessary for the conduct of the business of the Trading Vehicle,
including the performance of brokerage services by the Trading Vehicle's
commodity broker(s), it being understood that in those circumstances the
Trading Vehicle will use commercially reasonable efforts to assure that third
parties to whom such information is provided will maintain the confidentiality
of such information, or (ii) expressly required by law or regulation. The
Trading Vehicle further agrees that it will not, directly or indirectly,
utilize any confidential information obtained from the Advisor in or in
connection with its or its affiliates' own trading systems.
6. Commodity Broker.
All Commodities traded for the account of the Trading Vehicle shall
be made through such commodity broker or brokers or counterparty or
counterparties as the Trading Vehicle directs or otherwise in accordance with
such order execution procedures as are agreed upon between the Advisor and the
Trading Vehicle. Except as set forth below, the Advisor shall not have any
authority or responsibility in selecting or supervising any floor broker or
counterparty for execution of Commodities trades of the Trading Vehicle 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
15
Commodities transactions meets the financial requirements or standards imposed
by the Trading Vehicle's Trading Policies and Limitations. At the present time
it is contemplated that the Trading Vehicle will execute and clear all
Commodities trades through UBS Securities LLC. The Advisor may, however, with
the consent of the Trading Vehicle, 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 Trading Vehicle agree if such firm(s) agree
to "give up" all such transactions to UBS Securities LLC for clearance. To the
extent that the Trading Vehicle determines to utilize a broker or counterparty
other than UBS Securities LLC, the Trading Vehicle will consult with the
Advisor prior to directing it to utilize such broker or counterparty, and will
not retain the services of such firm(s) over the reasonable objection of the
Advisor.
7. Fees.
In consideration of and in compensation for the performance of the
Advisor's services under this Agreement, the Advisor shall receive from the
Trading Vehicle a monthly management fee (the "Management Fee") and a
quarterly incentive fee (the "Incentive Fee") based on the Trading Vehicle
Allocated Assets, which in all events shall be unaffected by the performance
of any other trading vehicle, as follows:
(a) A Management Fee equal to 1/6% of 1% (0.16667%) the Trading
Vehicle Allocated Assets determined as of the close of business on the last
day of each month (an annual rate of 2%). For purposes of determining the
Management Fee, any distributions, redemptions, or reallocation of the the
Trading Vehicle Allocated Assets made as of the last day of a month shall be
added back to the Trading Vehicle Allocated Assets and there shall be no
reduction for (i) any accrued but unpaid incentive fees due the Advisor under
paragraph (b) below for the
16
quarter in which such fees are being computed, or (ii) any accrued but unpaid
extraordinary expenses (as defined in the Trust's Trust Agreement). The
Management Fee determined for any month in which an Advisor manages the the
Trading Vehicle Allocated Assets for less than a full month shall be pro
rated, such proration to be calculated on the basis of the number of days in
the month the the Trading Vehicle Allocated Assets were under the Advisor's
management as compared to the total number of days in such month, with such
proration to include appropriate adjustments for any funds taken away from the
Advisor's management during the month for reasons other than distributions or
redemptions, including but not limited to the reduction of the the Trading
Vehicle Allocated Assets allocated to the Advisor's management resulting from
the payment of extraordinary expenses. Management fees paid pursuant to this
Section are non-refundable.
(b) An Incentive Fee of twenty per cent (20%) (the "Incentive Fee")
of "New High Net Trading Profits" (as hereinafter defined) generated on the
the Trading Vehicle Allocated Assets, including realized and unrealized gains
and losses thereon, as of the close of business on the last day of each
calendar quarter (the "Incentive Measurement Date").
New High Net Trading Profits (for purposes of calculating the
Advisor's Incentive Fee only) will be computed as of the Incentive Measurement
Date and will include such profits (as outlined below) since the immediately
preceding Incentive Measurement Date (or, with respect to the first Incentive
Measurement Date, since commencement of operations of the Trading Vehicle
(each an "Incentive Measurement Period").
New High Net Trading Profits for any Incentive Measurement Period
will be the net profits, if any, from trading the Trading Vehicle Allocated
Assets during such period
17
(including (i) realized trading profit (loss) plus or minus (ii) the change in
unrealized trading profit (loss) on open positions) and will be calculated
after the determination of the Trading Vehicle's transaction costs
attributable to the the Trading Vehicle Allocated Assets, the Advisor's
Management Fee, the operating expenses for which the Trading Vehicle Allocated
Assets are responsible, and any extraordinary expenses (e.g., litigation,
costs or damages) paid during an Incentive Measurement Period which are
specifically related to the Advisor, but before deduction of any Incentive
Fees payable during the Incentive Measurement Period. New High Net Trading
Profits will not include interest earned or credited on Trading Vehicle
Allocated Assets. New High Net Trading Profits will be generated only to the
extent that the Advisor's cumulative New High Net Trading Profits exceed the
highest level of cumulative New High Net Trading Profits achieved by the
Advisor as of a previous Incentive Measurement Date. Except as set forth
below, net losses from prior quarters must be recouped before New High Net
Trading Profits can again be generated. If a withdrawal or distribution occurs
or if this Agreement is terminated at any date that is not an Incentive
Measurement Date, the date of the withdrawal or distribution or termination
will be treated as if it were an Incentive Measurement Date, but any Incentive
Fee accrued in respect of the withdrawn assets on such date shall not be paid
to the Advisor until the next scheduled Incentive Measurement Date. New High
Net Trading Profits for an Incentive Measurement Period shall exclude capital
contributions to the Trading Vehicle in an Incentive Measurement Period,
distributions or redemptions paid or payable by the Trading Vehicle during an
Incentive Measurement Period, as well as losses, if any, associated with
redemptions, distributions, and reallocations of assets during the Incentive
Measurement Period and prior to the Incentive Measurement Date (i.e., to the
extent that assets are allocated away from the Advisor (through redemptions,
distributions or allocations caused by the Trading
18
Vehicle), any loss carryforward attributable to the Advisor shall be reduced
in the same proportion that the value of the assets allocated away from the
Advisor comprises of the value of the Trading Vehicle Allocated Assets prior
to such allocation away from the Advisor. In calculating New High Net Trading
Profits, incentive fees paid for a previous Incentive Measurement Period will
not reduce cumulative New High Net Trading Profits in subsequent periods.
(c) Timing of Payment. Management Fees and Incentive Fees shall be
paid within fifteen (15) business days following the end of the period for
which they are payable. The first incentive fee which may be due and owing to
the Advisor in respect of any New High Net Trading Profits will be due and
owing as of the end of the first calendar quarter during which the Trading
Advisor managed the Trading Vehicle Allocated Assets for at least forty five
(45) days. If an Incentive Fee shall have been paid by the Trust to the
Advisor in respect of any calendar quarter and the Advisor shall incur
subsequent losses on the Trading Vehicle 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 Trading Vehicle will provide the Advisor with the
data used by the Trading Vehicle to compute the foregoing fees within ten (10)
business days of the end of the relevant period. The Advisor shall be free to
contest the calculations if in its reasonable judgment they are inaccurate.
(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 Trading Vehicle carries
19
an account for transactions executed in the Trading Vehicle's account. The
parties acknowledge that a spouse of any of the foregoing persons may receive
floor brokerage commissions in respect of trades effected pursuant to the
Advisor's Trading Approach on behalf of the Trading Vehicle, 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 paragraphs (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 12 full months following the commencement of the
Trading Vehicle's trading activities. 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 12 month terms, each of which shall
commence on the first day of the month subsequent to the conclusion of the
preceding 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 Trading Vehicle Allocated Assets away from the Advisor
pursuant to this Agreement, or (ii) the retention of Other Advisors following
a reallocation, or otherwise.
(b) Automatic Termination. This Agreement shall terminate
automatically in the event that the Trust or the Trading Vehicle is
terminated. In addition, this Agreement shall terminate automatically in the
event that the Trading Vehicle Allocated Assets decline as of the end of any
business day by at least 40% from the Trading Vehicle 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
Trading Vehicle Allocated Assets caused by
20
distributions, redemptions, reallocations, and withdrawals, and (B) additions
to the Trading Vehicle Allocated Assets caused by additional allocations.
(c) Optional Termination Right of the Trading Vehicle. This Agreement
may be terminated at any time at the election of the Trading Vehicle in its
sole discretion upon at least thirty (30) days' prior written notice to the
Advisor. The Trading Vehicle will use its best efforts to cause any
termination to occur as of a month-end. This Agreement also may be terminated
upon prior written notice, appropriate under the circumstances, to the Advisor
in the event that: (i) the Trading Vehicle 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 Trading
Vehicle; (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 Trading Vehicle
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 Trading Vehicle'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 Trading Vehicle or
its business goodwill, in each instance without the consent of the Trading
Vehicle; (vi) Xxxxxxxx Xxxxxxxxx is not in control of the Advisor's trading
activities for the Trading Vehicle; (vii) the Advisor becomes bankrupt
(admitted or decreed) or insolvent, (viii) for any other reason, the Trading
Vehicle determines in
21
good faith that such termination is essential for the protection of the
Trading Vehicle, including without limitation a good faith determination by
the Trading Vehicle that the Advisor has breached a material obligation to the
Trading Vehicle under this Agreement relating to the trading of the Trading
Vehicle 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
Trading Vehicle, appropriate under the circumstances, in the event: (i) of the
receipt by the Advisor of an opinion of independent counsel reasonably
satisfactory to the Advisor and the Trading Vehicle that by reason of the
Advisor's activities with respect to the Trading Vehicle 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 Trading Vehicle (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 Trading Vehicle 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 Trading Vehicle Allocated Assets decreases to less than $10
million as the result of redemptions, distributions, reallocations of Trading
Vehicle Allocated Assets or deleveraging initiated by the Trading Vehicle, but
not trading losses, as of the close of business on any Friday; (v) the Trading
Vehicle elects (pursuant to Section 1 of this Agreement) to have the Advisor
use a different Trading Approach in the Advisor's management of Trading
Vehicle Allocated 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
22
the Trading Vehicle; (vii) there is a material breach of this Agreement by the
Trading Vehicle and after giving written notice to the Trading Vehicle which
identifies such breach and such material breach has not been cured within 10
days following receipt of such notice by the Trading Vehicle; (viii) an Other
Advisor is allocated a portion of the Trading Vehicle's assets; or (ix) the
Advisor provides the Trading Vehicle with written notice, at least 90 days
prior to the end of the then current term, of the Advisor's desire and
intention to terminate this Agreement as of the end of the then current term;
or (x) other good cause is shown and the written consent of the Trading
Vehicle is obtained (which shall not be withheld or delayed unreasonably).
(e) Termination Fees. In the event that this Agreement is terminated
with respect to, or by, the Advisor pursuant to this Section 8 or the Trading
Vehicle allocates the Trading Vehicle's assets to Other Advisors, the Advisor
shall be entitled to, and the Trading Vehicle 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 Trading Vehicle Allocated Assets under management,
and (ii) with respect to the Incentive Fee, if any, as if the effective date
of termination was the last day of the then current calendar quarter. The
rights of the Advisor to fees earned through the earlier to occur of the date
of expiration or termination shall survive this Agreement until satisfied.
(f) Termination and Open Positions. Once terminated, the Advisor
shall have no responsibility for existing positions, including delivery
issues, if any, which may result from such positions.
23
9. Liquidation of Positions.
The Advisor agrees to liquidate open positions in the amount that the
Trading Vehicle informs the Advisor, in writing via facsimile or other
equivalent means, that the Trading Vehicle considers necessary or advisable to
liquidate in order to (i) effect any termination or reallocation pursuant to
Sections 1 or 8, respectively, or (ii) fund its pro rata share of any
redemption, distribution or Trading Vehicle expense. The Trading Vehicle 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 Trading
Vehicle shall provide the Advisor with such reasonable prior notice of such
liquidation as is practicable under the circumstances and will endeavor to
provide at least three (3) days' prior notice. In the event that losses
incurred as a result of such liquidation by the Advisor exceed the amount of
the Trading Vehicle Allocated Assets, the Trading Vehicle 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 such
losses.
10. Other Accounts of the Advisor.
(a) Management of Other Accounts and Trading Proprietary Capital.
Subject to paragraph (c) of this Section 10, 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 partners, shareholders, directors, officers and employees, as
applicable, using the same or other information and Trading Approach utilized
in the performance of services for the Trading Vehicle, so long as in the
Advisor's reasonable judgment the aggregate amount of capital being managed or
traded by the Adviser pursuant to
24
the Trading Approach being used by the Trading Vehicle does not (A) materially
impair the Advisor's ability to carry out its obligations and duties to the
Trading Vehicle pursuant to this Agreement, or (B) create a reasonable
likelihood of the Advisor having to modify materially its agreed upon Trading
Approach being used for the Trading Vehicle in a manner which might reasonably
be expected to have a material adverse effect on the Trading Vehicle. The
aggregate amount of capital referred to in the preceding sentence hereinafter
shall be called "Advisor's Capacity," and currently is estimated by the
Advisor to be $500 million or in the future such greater amount or amounts as
the Advisor may, in its judgment, believe it can trade. The Advisor shall not
be required to accept capital from the Trading Vehicle in an amount which
exceeds $75 million if such excess amount will cause the Advisor to be
managing or trading funds pursuant to its Trading Approach which exceed the
Advisor's Capacity.
(b) Acceptance of Non-Trading Vehicle Capital. So long as the Advisor
is performing services for the Trading Vehicle, it agrees that it will not
accept additional capital for management which, together with the Trading
Vehicle Allocated Assets, exceeds the Advisor's Capacity. Without limiting the
generality of the foregoing, it is understood that this paragraph shall not
prohibit the acceptance of additional capital, which acceptance requires only
routine adjustments to trading patterns in order to comply with speculative
position limits or daily trading limits. The Advisor agrees to notify the
Trading Vehicle when the Advisor's Capacity is likely to be reached.
(c) Equitable Treatment of Accounts. The Advisor agrees, in its
management of accounts other than the account of the Trading Vehicle pursuant
to the Trading Approach being used by the Trading Vehicle, 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
25
the Trading Vehicle. 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 Trading Vehicle'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 Trading
Vehicle with an explanation of the differences, if any, in performance between
the Trading Vehicle and any other similar account pursuant to the same Trading
Approach for which the Advisor or any of its principals or affiliates acts as
a commodity trading advisor (in whole or in part), provided, however, that the
Advisor may, in its discretion, withhold from any such inspection the identity
of the client for whom any such account is maintained.
(d) Inspection of Records. Upon the reasonable request of, and upon
reasonable notice from, the Trading Vehicle or the Managing Owner, the Advisor
shall permit the Trading Vehicle or 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 Trading Vehicle has been treated equitably with respect to
advice rendered during the term of this Agreement by the Advisor for other
accounts managed
26
by the Advisor, which the parties acknowledge to mean that the Trading Vehicle
or the Managing Owner may inspect, subject to such restrictions as the Advisor
may reasonably deem necessary or advisable so as to preserve the
confidentiality of proprietary information and the identity of its clients,
all trading records of the Advisor as it reasonably may request during normal
business hours. The Advisor may, in its discretion, withhold from any such
report or inspection the identity of the client for whom any such account is
maintained and in any event, the Trading Vehicle or the Managing Owner (as
applicable) 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 Trading Vehicle'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 Trading Vehicle if the Trading Vehicle's positions
under its management are included in an aggregate amount which equals or
exceeds the applicable speculative limit. The Advisor agrees that, if its
trading recommendations pursuant to its agreed upon Trading Approach are
altered because of the potential application of speculative position limits,
the Advisor will modify its trading instructions to the Trading Vehicle and
its other accounts in a good faith effort to achieve an equitable treatment of
all accounts; to wit, the Advisor will liquidate Commodities positions and/or
limit the taking of new positions in all accounts it
27
manages, including the Trading Vehicle, 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 Trading Vehicle's account can be
implemented for the benefit of the Trading Vehicle notwithstanding the
possibility that, from time to time, speculative position limits may become
applicable.
12. Redemptions, Distributions, Reallocations and Additional Allocations.
(a) Notice. The Trading Vehicle agrees to give the Advisor at least
one (1) business day prior notice of any proposed redemptions, exchanges,
distributions, reallocations, additional allocations, or withdrawals affecting
the Trading Vehicle Allocated Assets.
(b) Allocations. Redemptions, exchanges, withdrawals, and
distributions of Trading Vehicle interests shall be charged against the
Trading Vehicle Allocated Assets.
13. Brokerage Confirmations and Reports.
The Trading Vehicle will instruct the Trading Vehicle's brokers and
counterparties to furnish the Advisor with copies of all trade confirmations,
daily equity runs, and monthly trading statements relating to the Trading
Vehicle 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 Trading Vehicle's brokers or
counterparties. The Trading Vehicle also will furnish the Advisor with a copy
of the form of all reports, including but not limited to, monthly, quarterly
and annual reports, sent to the Limited Owners and copies of all reports filed
with the SEC, the CFTC and the NFA. The Advisor shall,
28
at the Trading Vehicle's request, make a good faith effort to provide the
Trading Vehicle with copies of all trade confirmations, daily equity runs,
monthly trading reports or other reports sent to the Advisor by the Trading
Vehicle's commodity broker regarding the Trading Vehicle, and in the Advisor's
possession or control, as the Trading Vehicle deems appropriate if the Trading
Vehicle cannot obtain such copies on its own behalf. Upon request, the Trading
Vehicle will provide the Advisor with accurate information with respect to the
Trading Vehicle 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 Trading Vehicle, (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 any undertaking,
agreement, contract or to the best of its knowledge, 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;
29
(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 Trading Vehicle in the form of Exhibit D hereto (and the Trading Vehicle
acknowledges receipt of such Disclosure Document) 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;
(e) assuming that the Trading Vehicle Allocated Assets equal not more
than $75 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 manage funds in an amount which will exceed the Advisor's
Capacity; 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; nor (ii) shall solicit any person
it or they know is a Limited Owner 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).
30
The within representations and warranties shall be continuing during
the term of this Agreement, and, if at any time, any event has occurred which
would make or tend to make any of the foregoing not true in any material
respect with respect to the Advisor, the Advisor promptly will notify the
Trading Vehicle in writing thereof.
15. The Managing Owner's and the Trading Vehicle's Representations and
Warranties.
Each of the Managing Owner and the Trading Vehicle represents and
warrants only as to itself (and, further, provided that only the Managing
Owner is making the representations and warranties in Section 15(c) and
Section 15(e)(ii), and only the Trading Vehicle is making the representations
and warranties in Section 15(e)(i)) that:
(a) each has the full capacity and authority to enter into this
Agreement and to perform its obligations hereunder;
(b) it 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 is a
party or by which it is bound or (B) any order of any court or governmental or
regulatory agency having jurisdiction over it, which in the case of (i) or
(ii) would materially limit or materially adversely affect the performance of
its duties under this Agreement;
31
(c) it is registered as a commodity pool operator under the CE Act
and is a commodity pool operator member of the NFA, and it will maintain and
renew such registration and membership during the term of this Agreement;
(d) this Agreement has been duly and validly authorized, executed and
delivered, and is a valid and binding agreement, enforceable against each of
them, in accordance with its terms; and
(e) on the date hereof, it is, and during the term of this Agreement,
it will be (i) in the case of the Trading Vehicle, a duly formed and validly
existing Delaware limited liability company, in good standing under the laws
of the State of Delaware, and in good standing and qualified to do business in
each jurisdiction in which the nature and conduct of its business requires
such qualification and where the failure to be so qualified would materially
adversely affect its ability to perform its obligations under this Agreement,
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
Connecticut 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 Trading Vehicle in the case of its representations and
warranties, and the Managing Owner in the case of its representations and
warranties, promptly will notify the Advisor in writing.
32
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 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.
33
19. Notices.
Except as otherwise provided herein, all notices required to be
delivered under this Agreement shall be effective only if in writing and shall
be deemed given by the party required to provide notice when received by the
party to whom notice is required to be given and shall be delivered personally
or by registered mail, postage prepaid, return receipt requested, or by
telecopy, as follows (or to such other address as the party entitled to notice
shall hereafter designate by written notice to the other parties):
If to the Managing Owner or the Trading Vehicle:
Preferred Investment Solutions Corp.
00 Xxxxxx Xxxxxx
Building One South, 2nd Floor
Greenwich, Connecticut 06830
Attention: General Counsel
Facsimile: (000) 000-0000
and in either case 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:
Eagle Trading Systems Inc.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
34
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 (other than Other Advisors) 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
Trading Vehicle, and the obligations of the Trading Vehicle and/or the
Managing Owner set forth herein are not binding upon any of the Members or
Limited Owners individually, but rather, are binding only upon the assets and
property of the Trading Vehicle, and, to the extent provided herein, upon the
assets and property of the Managing Owner.
35
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.
36
IN WITNESS WHEREOF, this Agreement has been executed for and on
behalf of the undersigned as of the day and year first above written.
WMT III SERIES H/J TRADING VEHICLE LLC
By: WORLD MONITOR TRUST III- SERIES I
Its: Member
By: PREFERRED INVESTMENT SOLUTIONS CORP.,
its sole Managing Owner
By: _____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
By: WORLD MONITOR TRUST III- SERIES J
Its: Member
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
EAGLE TRADING SYSTEMS INC.
By: _____________________________________
Name: Xxxxxxxx Xxxxxxxxx
Title: Chairman
37
EXHIBIT A
EAGLE MOMENTUM PROGRAM
The Advisor will make its trading decisions for the Trading Vehicle
according to its Eagle-Momentum Program as described in Exhibit D as amended
from time to time.
EXHIBIT B
TRADING LIMITATIONS AND POLICIES
The following limitations and policies are applicable to assets
representing the Trading Vehicle Allocated Assets of the Trading Vehicle as a
whole and at the outset to the Advisor individually; since the Advisor
initially will manage 100% of the Trading Vehicle's Trading Vehicle Allocated
Assets, such application of the limitations and policies is identical
initially for the Trading Vehicle and the Advisor. The Advisor sometimes may
be prohibited from taking positions for the Trading Vehicle Allocated Assets
which it would otherwise acquire due to the need to comply with these
limitations and policies. The Trading Vehicle 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 Trading Vehicle, subject to the terms of the
Advisory Agreement.
The Trading Vehicle 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 I Interests. The
Trading Vehicle may, however, impose additional trading limitations on the
trading activities of the Trading Vehicle without obtaining such approval if
the Trading Vehicle or the Managing Owner determines such additional
limitations to be necessary in the best interests of the Trading Vehicle.
Trading Limitations
The Trading Vehicle will not: (i) engage in pyramiding its
commodities positions (i.e., the use of unrealized profits on existing
positions to provide margin for the acquisition of additional positions in the
same or a related commodity), but may take into account open trading equity on
existing positions in determining generally whether to acquire additional
commodities positions; (ii) borrow or loan money (except with respect to the
initiation or maintenance of commodities positions or obtaining lines of
credit for the trading of forward currency contracts; provided, however, that
the Trading Vehicle is prohibited from incurring any indebtedness on a
non-recourse basis); (iii) permit rebates to be received by the Trading
Vehicle or its affiliates, or permit the Trading Vehicle 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 Trading Vehicle; (v) commingle its
assets, except as permitted by law; or (vi) permit the churning of its
commodity accounts.
The Trading Vehicle 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 Trading Vehicle, which currently are as
follows:
(1) Trading Vehicle 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 Trading Vehicle 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 Trading Vehicle may occasionally make or accept delivery of a
commodity including, without limitation, currencies. The Trading Vehicle also
may engage in EFP transactions involving currencies and metals and other
commodities.
(5) The Trading Vehicle may, from time to time, employ trading
techniques such as spreads, straddles and conversions.
(6) The Trading Vehicle 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 Trading
Vehicle Allocated Assets for any one commodity, or in excess of 66 2/3% of the
Trading Vehicle 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 Trading Vehicle may be
required to commit Trading Vehicle Allocated Assets as margin in excess of the
foregoing limits and in such case the Trading Vehicle 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 Trading Vehicle engages in transactions in
forward currency contracts other than with or through UBS Securities LLC, the
Trading Vehicle will only engage in such transactions with or through a bank
which as of the end of its last fiscal year had an aggregate balance in its
capital, surplus and related accounts of at least $100,000,000, as shown by
its published financial statements for such year, and through other
broker-dealer firms with an aggregate balance in its capital, surplus and
related accounts of at least $50,000,000.
2
EXHIBIT C
REPRESENTATION AGREEMENT CONCERNING
THE REGISTRATION STATEMENT AND THE PROSPECTUS
---------------------------------------------
REPRESENTATION AGREEMENT (this "Agreement") dated as of the ____ day of
_________, 2005, by and among WMT III Series I/J Trading Vehicle LLC, a
Delaware limited liability company (the "Trading Vehicle"), World Monitor
Trust III - Series I and World Monitor Trust III - Series J (individually and
collectively a "Trust"), each a separate series of a statutory trust organized
under Chapter 38 of Title 12 of the Delaware Code (the "Delaware Act"), Kenmar
Securities, Inc., a Connecticut corporation (the "Selling Agent"), Preferred
Investment Solutions Corp., a Connecticut corporation (the "Managing Owner"),
and Eagle Trading Systems Inc., a Delaware corporation (the "Advisor").
W I T N E S S E T H:
WHEREAS, the Trust 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 (the "Series"), each separately
managed by a different professional commodity trading advisor through the
Selling Agent, and in connection therewith, the Trust intends to file with the
United States Securities and Exchange Commission (the "SEC"), pursuant to the
United States Securities Act of 1933, as amended (the "1933 Act"), a
registration statement on Form S-1 to register the Interests, including the
Series I Interests and the Series J 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 as the "Prospectus"); and
WHEREAS, the Trading Vehicle and the Managing Owner entered into an
agreement with the Advisor, dated as of ___________, 2005 (the "Advisory
Agreement"), pursuant to which the Advisor has agreed to act as a commodity
trading advisor to the Trading Vehicle; and
WHEREAS, Series H and Series J are the only members of the Trading
Vehicle; 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 trust estate represented by Series I Interests
and Series J Interests ("Closing Date(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 Trading Vehicle, 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
2
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 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 calculations used to execute 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.
(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
statute, law or regulation of any jurisdiction, and will not result in any
violation, breach or default under any term or
3
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.
(f) Subject to adequate written 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
4
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 not required to be
registered as an investment adviser under the United States Investment
Advisers Act of 1940, as amended (the "Advisers Act"), but voluntarily may so
register in the future.
(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 "EAGLE TRADING SYSTEMS, INC."
which has not been
5
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) impair materially the Advisor's ability to discharge
its obligations to the Trading Vehicle 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
(i) the NFA regarding non-compliance with its 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 Advisor's ability to discharge its obligations under this Agreement
or the Advisory Agreement.
6
2. Covenants of the Advisor. If, at any time during the term of the
Advisory Agreement, the Advisor discovers any fact, omission, 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 Trading
Vehicle, 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 Trading Vehicle 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 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 any 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
"EAGLE TRADING SYSTEMS, INC." beyond the periods disclosed therein. The
Advisor shall use its best 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.
7
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 I Interests and Series J Interests
(the "Initial Closing Date"), and thereafter, only if requested, on or prior
to each closing date during the continuous offering of Series I Interests and
Series J 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, the Trading Vehicle 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 either a certificate of good standing or an
opinion of its counsel more frequently than once per annum absent good cause
shown). Unless the context otherwise
8
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 "EAGLE TRADING SYSTEMS, INC." 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, the Trading Vehicle
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,
the Trading Vehicle and the Managing Owner and their counsel so as to make
such form mutually acceptable to the Selling Agent, the Trust, the Trading
Vehicle, 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 above 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
9
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, the Trading
Vehicle and the Managing Owner, with such changes in such form as are proposed
by the Advisor or its counsel and are acceptable to the Selling Agent, the
Trust, the Trading Vehicle and the Managing Owner and their counsel so as to
make such form mutually acceptable to the Selling Agent, the Trust, the
Trading Vehicle, 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.
10
(e) An opinion of counsel, in form and substance satisfactory to the
Trust, the Trading Vehicle, 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.
(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, the Trading Vehicle,
the Trustee 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
11
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 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
12
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 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, the Trading
Vehicle 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 Trading Vehicle 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
13
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
investigation reasonably might be expected to (A) impair materially
the Advisor's ability to discharge its obligations to the Trading
Vehicle 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 in 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
14
the opinions of other counsel, in each case satisfactory in form and substance
to counsel to the Managing Owner, the Trading Vehicle and the Selling Agent,
and such counsel shall state that they believe the Managing Owner, the Trading
Vehicle 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 Selling 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 Trading Vehicle and the Managing
Owner. The Managing Owner hereby only represents and warrants as to itself and
the Trust (as applicable), and the Trading Vehicle hereby only represents and
warrants as to itself, to the Advisor that:
(a) On the date hereof the Trading Vehicle is, and at all times
during the term of this Agreement and the Advisory Agreement will be, a duly
formed and validly existing limited liability company 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
15
requires such qualifications and in which the failure to be so qualified
materially adversely would affect its ability to perform its 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 Trading
Vehicle and the Managing Owner, is a valid and binding agreement of the
Trading Vehicle and the Managing Owner, and is enforceable in accordance with
its terms. The performance of the Trading Vehicle'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
Trading Vehicle's Certificate of Formation or Limited Liability Company
Agreement 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
16
any violation, breach or default under any term or provision of any
undertaking, contract, agreement or order, to which the Trading Vehicle or the
Managing Owner, is a party or by which the Trading Vehicle or the Managing
Owner is bound.
(c) Each of the Trading Vehicle and the Managing Owner (as the case
may be) 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 Trading Vehicle is not required to be registered as an
investment company under the United States 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 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
17
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 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 by the Advisor in accordance with this
Agreement.
(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,
18
administrative or self-regulatory body to which the Trust, the Trading
Vehicle, the Managing Owner or the principals of any 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, the Trading Vehicle 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, the Trading Vehicle and the Managing Owner to
discharge its obligations under this Agreement or under the Advisory
Agreement.
7. Covenants of the Managing Owner and the Trading Vehicle. If, at any
time during the term of the Advisory Agreement, the Managing Owner or the
Trading Vehicle discovers any fact, omission, or event or that a change of
circumstance has occurred which would make the Managing Owner's or the Trading
Vehicle's representations and warranties in Section 6 of this Agreement
inaccurate or incomplete in any material respect, the Trading Vehicle 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 Trading Vehicle 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
19
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. Trading Vehicle'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 Trading Vehicle and the Managing Owner have
requested that the Advisor provide certificates, documents and opinions
pursuant to Section 4 of this Agreement, the Trading Vehicle 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 Trading Vehicle and the Managing Owner,
addressed to the Advisor, in the form proposed prior to the Closing Date by
counsel to the Trading Vehicle and the Managing Owner with such changes in
such form as are proposed by the Advisor or its counsel and are acceptable to
the Trading Vehicle, the Managing Owner and their counsel so as to make such
form mutually acceptable to the Trading Vehicle, the Managing Owner, the
Advisor and their respective counsel, with respect to, as applicable, (i) the
continued effectiveness of the Trading Vehicle's Certificate of Formation or
Limited Liability Company Agreement and the Articles 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.
20
(b) Certificates from the States of Delaware and Connecticut with
respect to the Trading Vehicle and the Managing Owner, respectively, to be
dated at, on or around the Closing Date as to the formation and good standing
of the Trading Vehicle and the Managing Owner, respectively.
(c) Certificates of the Trading Vehicle and the Managing Owner in
the form proposed prior to the Closing Date by counsel to the Trading Vehicle
and the Managing Owner with such changes in such form as are proposed by the
Advisor or its counsel and are acceptable to the Trading Vehicle, the Managing
Owner and their counsel so as to make such form mutually acceptable to the
Trading Vehicle, 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
(ii) The Trading Vehicle 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 Trading Vehicle and the
Managing Owner, dated the Closing Date, as follows:
(i) The Trading Vehicle is a duly created and validly existing
limited liability company in good standing under the Delaware Act,
with requisite power and authority under the Delaware Act, its
Certificate of Formation and its Limited
21
Liability Company Agreement 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 Trading Vehicle and the Managing Owner,
and, assuming due execution and delivery of each such Agreement by
the Advisor, each agreement constitutes the legal, valid and binding
obligations of the Trading Vehicle 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
22
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 Trading Vehicle 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.
(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 best 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
23
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.
(vi) To the best of such counsel's knowledge, after due
inquiry, each of the Trading Vehicle 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 Trading Vehicle 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, the Trading
Vehicle and the Managing Owner prior to the date hereof, there is no
pending or threatened, suit or proceeding, known to such
24
counsel, before or by any court, governmental or regulatory body or
arbitration panel to which the Trading Vehicle and the Managing
Owner or any of the assets of the Trading Vehicle 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
Trading Vehicle or Managing Owner or any of their principals or
which reasonably might be expected materially adversely to affect
any of the assets of the Trading Vehicle or Managing Owner or any of
their principals or which reasonably might be expected to (A) impair
materially the Tradinng Vehicle'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 such counsel's
knowledge, based solely on a representation of a senior officer of
the Managing Owner and without having undertaken any independent
investigation, neither the Trading Vehicle 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 Trading Vehicle'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.
25
(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 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
26
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, 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 their
respective successors and permitted assigns.
10. Indemnification.
(a) By the Advisor. In any action in which the Selling Agent, the
Trust, the Trading Vehicle, 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 are parties, the Advisor agrees to indemnify and hold harmless
the foregoing persons against any loss, 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 result from (i) any misrepresentation or material breach of
any warranty, covenant or agreement of the Advisor contained in this Agreement
or (ii) any untrue statement of any material fact contained in the
Registration Statement or in the Prospectus or the omission to state in the
Registration Statement or in the Prospectus a material fact required to be
stated therein or necessary to make the
27
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 untrue
statement or 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 in the 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, and
including, but not limited to, any notification by the Advisor to any such
person and given under this Agreement, including liabilities under the 1933
Act, the Exchange Act and the CE Act.
(b) Of the Advisor. In any action in which the Advisor, or its
controlling persons, or any of the respective 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 loss, claim, damage, charge, liability, or
expense (including reasonable attorneys and accountants fees) ("Advisor
Losses"), insofar as such Advisor Losses arise out of or result from or are
based upon (i) any actual or alleged misrepresentation or material breach of
any warranty, covenant or agreement of the Trust or the Managing Owner
contained in this Agreement, (ii) any actual or alleged untrue statement of
any material fact contained in the Registration Statement or in the Prospectus
or the actual or alleged omission to state in the Registration Statement or in
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, (iii) any actual or
alleged failure to comply with any legal requirements relating to the Offering
of the Interests (including without
28
limitation, any noncompliance with the requirements of the Exchange Act,
and/or the 1933 Act, and/or the CE Act, including the rules and regulations
thereunder, and or the rules and regulation of the NFA, in each case with
respect to the Offering of Interests), or (iv) any claim relating to or
involving the Advisor that is not substantiated, resolved or otherwise finally
determined, in each case under subclauses (ii), (iii) or (iv) hereof, except
to the extent that such untrue statement, omission or failure 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
the Prospectus 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, and including but not limited to, any notification
required and given under this Agreement, including liabilities under the 1933
Act, the Exchange Act and the CE Act, and (B) to reimburse each of the Advisor
Indemnified Parties for any legal or other fees or expenses reasonably
incurred in connection with investigating or defending any action or claim
arising out of or based upon any of the foregoing. With respect to subclause
(iv) above only, the Advisor and the Managing Owner agree to negotiate in good
faith a reduction, if any, in the indemnification amount required to be paid
pursuant to subclause (iv) above to the Advisor based upon the relative
responsibility of the Advisor for circumstances giving rise to the Advisor
Losses for which indemnification is sought (including, but not limited to, the
parties' assessment of the merits of the claim), provided that in the event
the Managing Owner and the Advisor fail to agree on the amount of any such
reduction after good faith negotiations, they shall submit the matter to
binding arbitration in accordance with Section 15 of this Agreement for the
purpose of determining whether the Advisor should bear any
29
responsibility for the Advisor Losses or whether the Advisor is entitled to
indemnification for such Advisor Losses in full.
(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 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,
30
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 10 upon final
disposition or settlement.
(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 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
31
seeking reorganization, rehabilitation, liquidation, arrangement, adjustment
or composition of or in respect of the Trust under the Federal Bankruptcy Code
or any other applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Trust or of any substantial part of any of its properties, or
ordering the winding up or liquidation of any of its affairs, or (ii) seek a
petition for relief, reorganization or to take advantage of any law referred
to in the preceding clause or (iii) file an involuntary petition for
bankruptcy (collectively "Bankruptcy or Insolvency Action"). In addition, the
Advisor agrees that for any obligations due and owing to it by the Trading
Vehicle, the Advisor will look solely and exclusively to the assets of the
Trading Vehicle to satisfy its claims and will not seek to attach or otherwise
assert a claim against the assets of Series I, Series J or 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
termination of this Agreement, whether terminated in a Bankruptcy or
Insolvency Action or otherwise.
12. 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:
Kenmar Securities, Inc.
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
If to the Managing Owner, the Trading Vehicle or the Trust:
32
Preferred Investment Solutions Corp.
00 Xxxxxx Xxxxxx
Building One South, 2nd FLoor
Greenwich, Connecticut 06830
Attention: General Counsel
Facsimile: (000) 000-0000
in either case with a copy to:
Xxxxxxx X. Xxxxxxxxxxxxx, Esq.
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
If to the Advisor:
Eagle Trading Systems Inc.
00 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxx X. Xxxxx, Esq.
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
13. 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.
14. Arbitration, Remedies. Each party hereto agrees that any dispute
relating to the subject matter of this Agreement shall be settled and
determined by non-binding mediation for a period of at least 60 days and,
failing that, by arbitration in the City of New York pursuant to the
33
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.
15. Assignment. This Agreement may not be assigned by any party without
the express prior written consent of each of the other parties hereto.
16. Amendment or Modification or Waiver. This Agreement may not be
amended or modified except by the written consent of each of the parties
hereto.
17. Successors. Except as set forth in Section 10 of this Agreement is
made solely for the benefit of and shall be binding upon the Trust, the
Trading Vehicle, 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.
18. 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.
19. 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.
20. No Liability of Limited Owners. This Agreement has been made and
executed by and on behalf of the Trading Vehicle, the Trust and the Managing
Owner, and the obligations
34
of the Trading Vehicle and/or the Managing Owner set forth in this Agreement
are not binding upon any of the Limited Owners, Series I, Series J or any
other Series individually, but rather, are binding only upon the assets and
property of the Trading Vehicle, and, to the extent provided herein, upon the
assets and property of the Managing Owner.
21. Headings. Headings to 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.
22. 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.
23. 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.
35
IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first above written.
WMT III SERIES H/J TRADING VEHICLE LLC
By: WORLD MONITOR TRUST III- SERIES I
Its: Member
By: PREFERRED INVESTMENT SOLUTIONS CORP.,
its sole Managing Owner
By: ___________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
By: WORLD MONITOR TRUST III- SERIES J
Its: Member
By: PREFERRED INVESTMENT SOLUTIONS CORP.,
its sole Managing Owner
By: ___________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
KENMAR SECURITIES, INC.
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
EAGLE TRADING SYSTEMS INC.
By: ___________________________________
Name: Xxxxxxxx Xxxxxxxxx
Title: Chairman
36
Exhibit A
Form of Consent and Approval
Reference is hereby made to the Representation Agreement Concerning
the Registration Statement and the Prospectus, dated as of [date] (the
"Agreement"), by and among WMT III Series I/J Trading Vehicle LLC (the
"Trading Vehicle"), World Monitor Trust III, Series I and World Monitor Trust
III - Series J (individually and collectively a "Trust"), Kenmar Securities,
Inc. (the "Selling Agent") and Preferred Investment Solutions Corp. (the
"Managing Owner"). Capitalized terms used but not defined herein have the
meaning given thereto in the Agreement.
The undersigned, Eagle Trading Systems, Inc., hereby consents to the
use, filing and distribution by the Trust, the Trading Vehicle, the Selling
Agent and the Managing Owner of the information described below and attached
hereto, as contemplated by the Agreement and, in particular, Sections 1.a. and
10.a. thereof.
Description: [Sections of the Registration Statement and Prospectus
of the Trust, dated [date], relating to the undersigned, the Eagle Momentum
Program and related matters.]
EAGLE TRADING SYSTEMS INC.
By: ____________________________
Xxxxxxxx Xxxxxxxxx
Chairman
37
