EXHIBIT 1.1
WORLD MONITOR TRUST II
$50,000,000 of Series D Interests
$50,000,000 of Series E Interests
$50,000,000 of Series F Interests
New York, New York
, 1999
UNDERWRITING AGREEMENT
Prudential Securities Futures Management Inc., a Delaware
corporation (the "Managing Owner"), is the Managing Owner of
World Monitor Trust II (the "Trust"), a business trust organized
under Chapter 38 of Title 12 of the Delaware Code (the
"Delaware Act"). Wilmington Trust Company (the "Trustee"), a
Delaware banking company, is the Trustee of the Trust and has
delegated all responsibility for the management of the Trust's
business and affairs to the Managing Owner. The Trust has
been formed primarily for the purpose of trading, buying,
selling, spreading or otherwise acquiring, holding or
disposing of a diversified portfolio of commodity futures,
forward and options contracts. Limited interests in the Trust
(the "Interests") will be issuable in multiple series (the
"Series"), each separately managed by a different professional
trading advisor (collectively, the "Trading Advisors"), each
of which is registered as a commodity trading advisor. Each
Series will be separately valued and its assets will be
segregated from the assets of the other Series. Holders of
Interests ("Limited Owners") will have the right to exchange,
through redemption and purchase, Interests of one Series for
Interests of any other Series. The Trust proposes to offer to
the public and to sell to subscribers acceptable to the
Managing Owner the Interests upon the terms and subject to
the conditions set forth in this Underwriting Agreement (the
"Agreement") and in the Registration Statements (and the
Prospectuses included therein) referred to below. A maximum
of $50 million for each of Series D, Series E and Series F
will be offered and sold during the Initial Offering Period
for each Series, and thereafter during the Continuous Offering
Period for each Series. (The "Initial Offering Period" for each
Series begins with the date of the Prospectus and runs for a
period of 120 days, unless the Managing Owner decides otherwise.
After the Initial Offering Period for each Series ends, Interests
in each Series will continue to be sold once each week, during what
is referred to as the "Continuous Offering Period," until each
Series' subscription maximum has been sold, either through sale or
exchange.) The Interests of each Series will be offered at $100
per Interest during the Initial Offering Period and thereafter at
the Net Asset Value (as such term is defined in Section 1.1 of the
First Amended and Restated Trust Agreement, dated as of _______________,
1999, by and among the Managing Owner and the Trustee) per Interest
of the applicable Series (the "Series Net Asset Value").
Prudential Securities Incorporated ("Prudential
Securities") will act as underwriter and sales agent for the
Trust on a "best efforts" basis.
1. The Managing Owner and the Trust, jointly and
severally, represent and warrant to Prudential Securities
that:
a. A separate Registration Statement on Form S-1
for each Series and as a part thereof a combined prospectus
for all Series with respect to all of the Interests being
offered (which Registration Statements together with all
amendments thereto, at the times and in the forms declared
effective by the Securities and Exchange Commission (the
"SEC") shall be referred to herein as the "Registration
Statements," and which prospectus in final form, together with
all amendments and supplements thereto, shall be referred to
herein as the "Prospectus"), prepared in full conformity with
the applicable requirements of the Securities Act of 1933, as
amended (the "1933 Act"), the Commodity Exchange Act, as
amended (the "CE Act"), and the rules, regulations and
instructions promulgated under the 1933 Act and the CE Act,
respectively, has been filed with the SEC, the Commodity
Futures Trading Commission (the "CFTC"), the National
Association of Securities Dealers, Inc. (the "NASD") and the
National Futures Association (the "NFA") pursuant to the 1933
Act, the CE Act and the rules and regulations promulgated,
respectively, thereunder, as well as the rules and regulations
of the NASD and the NFA, in the form heretofore delivered to
Prudential Securities;
b. To the best of their knowledge, no order
preventing or suspending the effectiveness of the Registration
Statements or the use of the Prospectus or any previous prospectus
with respect to the Interests has been issued by the SEC, the
CFTC, the NASD, the NFA or any other federal, state or other
governmental agency or body. Each Registration Statement
contains all statements that are required to be made therein,
conforms in all material respects to the requirements of the
1933 Act and the CE Act and the rules and regulations of the
SEC and the CFTC, respectively, thereunder, and does 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; and, when the Registration Statements
become effective under the 1933 Act and at all times
subsequent thereto up to and including the Initial Closing
Date for each Series, and thereafter up to and including each
Subsequent Closing Date during the Continuous Offering Period,
as such terms are hereinafter defined in Section 6.d., the
Registration Statements and the Prospectus will contain all
material statements and information required to be included
therein by the 1933 Act and the CE Act and the rules and
regulations, respectively, thereunder, as well as the rules
and regulations of the NASD and the NFA, and will conform in
all material respects to the requirements of the 1933 Act, the
CE Act and the rules and regulations, respectively,
thereunder, as well as the rules and regulations of the NASD
and the NFA, and will not include any 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; 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 in writing to the Trust
or the Managing Owner by Prudential Securities, the Trustee or
their respective agents or by or on behalf of the Trading
Advisors or any other commodity trading advisor (an "Other
Advisor") engaged by the Managing Owner on behalf of the Trust
for use therein, all without prejudice to any defense that
Prudential Securities may have based upon its "due diligence"
investigation under the 1933 Act;
c. The Trust was duly formed and is validly
existing as a business trust in good standing under the
Delaware Business Trust Act, with full power and
authority, and all necessary authorizations, approvals and
orders of and from all federal, state and other governmental
or regulatory officials and bodies, to carry out its
obligations under this Agreement, its certificate of trust
(the "Trust Certificate") and its First Amended and Restated
Declaration of Trust and Trust Agreement, dated as of __________,
1999 (the "Trust Agreement"), and to own its properties and
conduct its business as described in the Prospectus;
d. On the date hereof, the Managing Owner is and,
at all times through the Initial Closing Date for each Series
and thereafter through each Subsequent Closing Date, will be
duly incorporated and validly existing as a corporation under
the laws of the State of Delaware with requisite corporate
power and authority, and all necessary authorizations,
approvals and orders of and from all required federal, state
and other governmental or regulatory officials and bodies, to
(i) conduct its business, (ii) enter into the agreements and
(iii) consummate the transactions, each as described in the
Prospectus; and on the date hereof the Managing Owner is and,
at all times through the Initial Closing Date for each Series
and thereafter through each Subsequent Closing Date, will be
duly qualified to conduct business as a foreign corporation in
good standing in every jurisdiction in which the character of
such business requires such qualification and the failure to
be so qualified would materially adversely affect its ability
to act as Managing Owner of the Trust and to perform its
obligations hereunder;
e. The offer and sale of the Interests for each
Series have been duly authorized by the Managing Owner on
behalf of the Trust, and the Interests, when issued, will
constitute valid interests in the Trust which conform to the
description thereof contained in the Prospectus; and the
liability of each Limited Owner will be limited as set forth
in the Prospectus and the Trust Agreement, and no Limited
Owner will be subject to personal liability for the debts,
obligations or liabilities of the Trust, other than as
described in the Prospectus and the Trust Agreement, by
reason of his being a Limited Owner of the Trust;
f. This Agreement has been duly and validly
authorized, executed and delivered by the Managing Owner and
the Trust and constitutes a valid and binding agreement of the
Managing Owner and the Trust enforceable in accordance with
its terms. Neither the offer and sale of the Interests, nor
the execution and delivery of this Agreement, nor compliance
by the Trust or the Managing Owner with all of the provisions
of this Agreement will conflict with or result in a breach of
any of the terms or provisions of or result in a default
under the provisions of the Trust Certificate or the Trust
Agreement or the Certificate of Incorporation or By-Laws of
the Managing Owner or the terms of any indenture, mortgage,
deed of trust, loan agreement, other evidence of indebtedness
or other agreement or instrument to which the Trust or the
Managing Owner is a party or by which the Trust or the
Managing Owner is bound or to which any of the property or
assets of the Trust or the Managing Owner is subject, or to
the best of their knowledge, any applicable statute or any
order, rule or regulation of any court or of any federal,
state or other governmental or regulatory agency or body
having jurisdiction over the Trust or the Managing Owner or
any of their properties, nor will any such actions result in
the imposition of any lien, charge or encumbrance upon any of
the property or assets of the Trust or the Managing Owner, and
subsequent to the dates as of which information is given in
the Registration Statements and the Prospectus and except as
set forth or contemplated therein, neither the Trust nor the
Managing Owner has incurred any material liabilities or
obligations (direct or contingent) or entered into any
material transactions not in the ordinary course of its
business, and no consent, approval, authorization, order,
registration or qualification of or with any court or any
federal, state or other governmental or regulatory agency or
body is required for the issue and sale of the Interests or
the consummation of the other transactions contemplated by
this Agreement, except the registration of the Managing Owner
under the CE Act as a commodity pool operator, membership by
the Managing Owner as a commodity pool operator with the NFA,
the registration under the 1933 Act of the Interests,
submission of the Prospectus to the NASD, CFTC and NFA and
such consents, approvals, authorizations, orders,
registrations or qualifications as may be required by
securities or Blue Sky laws in connection with the offer and
sale of the Interests;
g. PricewaterhouseCoopers LLP, who has examined certain
financial statements of the Managing Owner and the Trust, is
an independent public accountant, as required by the CE Act
and the 1933 Act and the rules and regulations of the CFTC and
SEC, respectively, thereunder;
h. The Trust has been capitalized as set forth in
the Prospectus;
i. The Trust and the Managing Owner have complied,
and will continue to comply, with all laws, rules and
regulations having application to its or their business,
including rules and regulations promulgated by the CFTC and
NFA, the violation of which would materially and adversely
affect the business, financial condition or earnings of the
Trust or the Managing Owner; and there are no actions, suits
or proceedings pending or, to the best of the knowledge of the
Trust or the Managing Owner, threatened against it or them, at
law or in equity or before or by any federal, state, municipal
or other governmental or regulatory department, commission,
board, bureau, agency or instrumentality, or by any commodity
or security exchange worldwide in which an adverse decision
would materially and adversely affect the business, financial
condition, earnings or properties of the Trust or the Managing
Owner or their ability to comply with, and perform their
obligations under, this Agreement and which are not adequately
disclosed in the Prospectus;
j. On or before the Initial Closing Date for each
Series, and thereafter, on or before each Subsequent Closing
Date, the Managing Owner shall have purchased or subscribed
for the general interests required of it by the Trust
Agreement and shall have a Net Worth (as defined in the Trust
Agreement) equal to or in excess of the requirements therein;
k. The financial statements of the Managing Owner
and the Trust contained in the Registration Statements and the
Prospectus fairly present the financial condition thereof and
the results of operations as of the dates and for the periods
therein specified; and such financial statements have been
prepared in accordance with generally accepted accounting
principles in the U.S. consistently applied throughout
the periods involved; and no other financial statements
are required by Form S-1 to be included in the Registration
Statements or the Prospectus;
l. There are no contracts or other documents which
are required to be filed as exhibits to the Registration
Statements by the 1933 Act or the CE Act or by the rules and
regulations of the SEC or CFTC, respectively, thereunder, or
by the rules and regulations of the NASD or NFA, which have
not been filed as required; and
m. The Trust has the power and authority to enter
into the various contractual obligations and agreements
referred to in the Prospectus, and the execution and delivery
of such agreements by the Trust and by the Managing Owner on
behalf of the Trust, the consummation of the transactions
contemplated therein and the compliance with all of the terms
thereof by the Trust and the Managing Owner will be in
compliance with all applicable legal requirements to which
either the Trust or the Managing Owner is subject and will not
conflict with or constitute a breach of, or default under, the
terms or provisions of any order of the SEC, the NASD, the
CFTC, the NFA, the Trust Agreement, the Trust Certificate,
the Certificate of Incorporation of the Managing Owner, the
By-Laws of the Managing Owner or any other agreement or
instrument to which either the Trust or the Managing Owner
is a party or by which either is bound;
2. a. Subject to the terms and conditions and on the
basis of the representations, warranties and covenants herein
set forth, the Trust hereby appoints Prudential Securities as
its selling agent and Prudential Securities agrees to use its
best efforts to procure subscribers during the various Initial
and Continuous Offering Periods on the terms and conditions
set forth, and for the periods described, in the Prospectus.
b. The Trust acknowledges that Prudential
Securities has no present intention to retain certain selected
brokers or dealers ("Additional Sellers") but that Prudential
Securities maintains the right to retain Additional Sellers in
the future, which in such case the Additional Sellers, if
located in the U.S., will be members of the NASD and
will execute a selected dealers agreement to be agreed upon
between the parties.
c. During the various Initial and Continuous
Offering Periods, all Prudential Securities branch offices
will be required to forward subscriptions to the Prudential
Securities New York Operational branch office and to the
Managing Owner no later than noon of the first business day
following receipt of an acceptable subscription agreement from
a subscriber for Interests ("Subscriber," or, collectively,
"Subscribers"). The Managing Owner shall have sole
responsibility for determining whether Subscribers are
qualified to become Limited Owners in the Trust and for
accepting subscriptions and determining their validity.
Prudential Securities agrees to use its best efforts to cause
subscribers to prepare their subscriptions in proper form.
Prudential Securities shall deposit the subscription proceeds
from the sale of Interests in each Series (the "Proceeds")
during the Initial Offering Periods in escrow accounts designated
by Series at The Chase Manhattan Bank in New York,
New York (the "Escrow Agent"), for the separate benefit of the
Subscribers of each Series, not later than noon of the second
business day following the receipt by the Managing Owner of
completed subscription agreements accompanied by such Proceeds.
Proceeds will be transferred to the escrow accounts at the
Escrow Agent from the Subscriber's account with Prudential
Securities (or from the Subscriber's account at an Additional
Seller), which funds must be in the Subscriber's account with
Prudential Securities (or at an Additional Seller) at the time
of the subscription. The Managing Owner will determine
whether to accept or reject all subscriptions within four
business days following receipt of subscription documents from
Prudential Securities. Upon notification by the Managing
Owner to the Escrow Agent that a subscription for Interests of
a Subscriber has been rejected, for whatever reason, or in the
event that the Subscriber rescinds its subscription in
conformity with the requirements of the North American
Securities Administrators Association Inc. Guidelines for
Registration of Commodity Pool Programs, the Escrow Agent
shall, by wire transfer, return any Proceeds held in escrow,
excluding any interest thereon, to Prudential Securities, in
which case Prudential Securities shall credit the Subscriber's
account with Prudential Securities as soon thereafter as may
be practicable. The Escrow Agent shall make interest payments
to the Subscribers by delivering a check in the amount equal
to the interest allocable by Series to each Subscriber. In
the case of Individual Retirement Accounts ("IRAs"),
interest payments will be forwarded to Prudential Securities
for deposit into the subscriber's Prudential Securities
account. If subscriptions for the minimum number of
Interests in a Series set forth in the Prospectus (after
taking into account the Managing Owner's contribution) have
not been made by the conclusion of the Initial Offering Period
for a Series, then all Proceeds deposited in the escrow
account designated for that Series, and any interest earned
thereon, shall be returned (in the same way described above in
the case of a rejected or rescinded subscription) to the
Subscribers on a pro rata basis (and taking into account the
amount and time of deposit) no later than ten business
days after the termination of the Initial Offering Period for
the affected Series, or as soon thereafter as practicable if
payment cannot be made in such time period.
d. During the Continuous Offering Period, the
Managing Owner also will determine whether to accept or reject
all subscriptions received and will do so (i) within one
business day following receipt from Prudential Securities of
an "Exchange Request" (in the form attached to the
Prospectus as Exhibit C) or a "Subscription Agreement" (in
the form attached to the Prospectus as Exhibit D) with
respect to a Limited Owner in an existing Series and (ii)
within four business days following receipt of
subscription documents from Prudential Securities for a new
Subscriber. For subscriptions which are accepted, proceeds
will be transferred to the applicable Series account with The
Chase Manhattan Bank in New York, New York from the Subscriber's
account with Prudential Securities (or from the Subscriber's
account at an Additional Seller), which funds must be in
the Subscriber's account with Prudential Securities
(or an Additional Seller) at the time of the
subscription. For an existing Limited Owner, such
transfer will occur on the Subsequent Closing Date which first
follows the date on which the Managing Owner accepts the
subscription. For a new Subscriber, such transfer will occur
on the Subsequent Closing Date which first occurs five
business days after the subscription documents are delivered
by the Subscriber to Prudential Securities (or an Additional
Seller).
e. On the Initial Closing Date for a Series, and
thereafter on each Subsequent Closing Date with respect to
that Series, the acceptance, delivery and receipt of
subscriptions for Interests will be subject to the terms and
conditions set forth in this Agreement, including, but not
limited to, (i) the payment of the full subscription price for
Interests and delivery of a properly completed Subscription
Agreement/Power of Attorney by each subscriber, (ii) the fact
that a new subscriber's subscription will not be final and
binding until five business days following the
Subscriber's delivery of his subscription documents to
Prudential Securities (or an Additional Seller) and (iii)
compliance with Section 5 of this Agreement. Upon the satisfaction
of such terms and conditions, the aggregate subscription price
for Interests (exclusive of any interest earned on such
subscriptions while held in escrow which is payable to the
subscribers) will be paid and delivered to the Trust in
accordance with the Escrow Agreement.
f. Prudential Securities represents and warrants
that: (i) it is a duly organized and validly existing
corporation and is in good standing and qualified to transact
its business in the jurisdictions where it shall sell the
Interests; (ii) it has all requisite corporate power and
authority to act as selling agent in the manner contemplated
by this Agreement, the Prospectus and the Registration
Statements; (iii) with respect to the offer and sale of the
Interests, all references to it in the Prospectus are accurate
in all material respects and such information does 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, in light of the circumstances in
which they were made, not misleading; and (iv) this Agreement
has been duly authorized, executed and delivered on behalf of
it and is a valid and binding agreement enforceable in
accordance with its terms;
g. No selling commissions shall be paid to
Prudential Securities by the Trust or the Managing Owner in
connection with the transactions contemplated hereby.
Prudential Securities will, however, provide the branch office
from which a Limited Owner was sold an Interest during the
Initial and Continuous Offering Periods with a per Interest
sales credit. From this sales credit the branch office
normally will pay not more than 2.5% of the applicable Series
Net Asset Value per Interest to each of its employees (as may
be agreed upon by Prudential Securities and such employee)
with respect to Interests sold by such employee; provided,
however, that Prudential Securities will only pay such amounts
to employees who have all appropriate federal and state
securities registrations. Aggregate expenses incurred in
connection with retail salaries, expense reimbursement, sales
seminars, bonus and sales incentives will not exceed the
limitation imposed on such expenses by the NASD.
Notwithstanding the foregoing, the Trust understands that so
long as Prudential Securities is registered as a futures
commission merchant ("FCM"), Prudential Securities will,
commencing 12 months after the effective date of the sale
of each Interest, compensate each of its employees who have
sold such Interests who (i) is or will be registered as an
Associated Person ("AP") under the CE Act and be qualified to
do futures brokerage (in addition to having all applicable
federal and state securities registrations) and (ii) performs
or will perform certain administrative services specified in
the Prospectus on an ongoing basis for the Limited Owners who
purchased such Interests ("Continuous Compensation"). No
compensation set forth in this Section 2.g. will be paid in
respect of Interests sold to IRAs of Prudential Securities
employees.
h. As compensation for the brokerage services it will
perform for the Trust once trading commences, Prudential
Securities will receive a monthly brokerage fee from each
Series, which on an annual basis will equal 6% of its Series
Net Asset Value, from which Prudential Securities will
compensate its employees as described above in the immediately
preceding paragraph. There will be no material change related
to such brokerage fee except upon 20 business days' notice to
Limited Owners, and no increase in such fee shall take effect
except at the beginning of a quarter.
i. Prudential Securities will not pay any portion of
Continuous Compensation to any individual who it no longer
employs, but it may pay such compensation to certain of its
employees who, although not responsible for the sale of an
outstanding Interest, provide certain continuous
administrative services to Limited Owners in place of the
individual who was responsible for such sale, provided that
such replacement individual has the appropriate AP
registration and is qualified to do futures brokerage as set
forth above. Any Additional Sellers retained by the Trust, so
long as they are registered as FCMs, also will receive
Continuous Compensation, with any employees of Additional U.S.
Sellers being required to be registered as APs under the CE
Act and be futures qualified as set forth above. All APs,
whether or not affiliated with Prudential Securities,
receiving Continuous Compensation must either have passed the
Series 3 or Series 31 Commodity Brokerage Exam or be
"grandfathered" as an AP qualified to do futures brokerage.
j. Prudential Securities agrees that it will not
take any of the following actions against the Trust: (i) seek
a decree or order by a court having jurisdiction in the
premises (A) for relief in respect of the Trust in an
involuntary case or proceeding under the U.S. Bankruptcy
Code or any other federal or state bankruptcy, insolvency,
reorganization, rehabilitation, liquidation or similar law or
(B) adjudging the Trust a bankrupt or insolvent, or seeking
reorganization, rehabilitation, liquidation, arrangement,
adjustment or composition of or in respect of the Trust under
the U.S. Bankruptcy Code or any other applicable federal or
state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of
the Trust or of any substantial part of any of its properties,
or ordering the winding up or liquidation of any of its
affairs, (ii) seek a petition for relief, reorganization or
to take advantage of any law referred to in the preceding
clause or (iii) file an involuntary petition for bankruptcy
(collectively "Bankruptcy or Insolvency Action").
k. In addition, Prudential Securities agrees that
for any obligations due and owing to it by any Series,
Prudential Securities will look solely and exclusively to the
assets of such Series or the Managing Owner, if it has
liability in its capacity as Managing Owner, to satisfy its
claims and will not seek to attach or otherwise assert a claim
against the other assets of the Trust, whether or not 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.
l. This Agreement has been made and executed by and
on behalf of the Trust and the Managing Owner, and the
obligations of the Trust and/or the Managing Owner set forth
herein are not binding upon any of the Limited Owners
individually but are binding only upon the assets and property
identified above, and no resort shall be had to the assets of
other Series issued by the Trust or to the Limited Owners'
personal property for the satisfaction of any obligation or
claim hereunder.
m. Prudential Securities agrees that, to the extent
applicable, it will comply with the Rule 2300 Series of the
Conduct Rules of the NASD in connection with its sale of
Interests including, without limitation, Rule 2310 thereof
which impose on Prudential Securities, among other things, the
following requirements:
(i) That it have reasonable grounds to believe,
on the basis of information obtained from each
prospective subscriber concerning his financial situation
and needs, each prospective investor's tax status, his
or its investment objectives, his or its other investments
and any other information known by Prudential Securities that:
(A) the subscriber is or will be in a
financial position appropriate to enable him to
realize to a significant extent the benefits
described in the Prospectus;
(B) the subscriber has a fair market
net worth sufficient to sustain the risks inherent
in the program, including loss of investment and
lack of liquidity; and
(C) the program is otherwise suitable for
the subscriber.
(ii) That Prudential Securities maintain in its
files documents disclosing the basis upon which the
determination of suitability was reached as to each
subscriber.
(iii) That notwithstanding the requirements of (i)
and (ii) above, Prudential Securities will not execute any
transaction in connection with the sale, resale or
transfer of Interests in any discretionary account
without prior written approval of the transaction by the
customer.
(iv) That Prudential Securities has reasonable
grounds to believe, based on information made available
to it by the Managing Owner through the Prospectus, that
all material facts are adequately and accurately
disclosed therein and provide a basis for evaluating the
program.
(v) That in determining the adequacy of
disclosed facts pursuant to (iv) above, Prudential
Securities obtain information on all material facts
relating, at a minimum, to the following, if relevant:
(A) items of compensation;
(B) physical properties;
(C) tax aspects;
(D) financial stability and experience
of the Managing Owner;
(E) the Trust's conflicts and risk
factors; and
(F) all pertinent reports.
(vi) That prior to executing a transaction for
the purchase of Interests, Prudential Securities will
inform any prospective subscriber of all pertinent facts
relating to the liquidity and marketability of the
Interests during the term of the investment.
3. The Trust and Managing Owner each agree with
Prudential Securities:
a. To advise Prudential Securities, promptly after
it receives notice thereof, of (i) the time when each Registration
Statement becomes effective or any Prospectus has been filed
with the SEC, the CFTC, the NASD, the NFA or any other
federal, state or other governmental or regulatory or self-
regulatory agency or body, (ii) the issuance by the SEC, the
CFTC, the NASD, the NFA or any other federal, state or other
governmental or regulatory or self-regulatory agency or body
of any stop order or of any order to prevent or suspend the
use of the Prospectus, or the initiation or threat of any
proceeding for any such purpose or (iii) any request by the
SEC, the CFTC, the NASD, the NFA or any other federal,
state or other governmental or regulatory or self-regulatory
agency or body to amend or supplement the Registration Statements
or Prospectus or for additional information; and in the event of
the issuance of any stop order or of any order preventing or
suspending the use of the Prospectus or suspending any such
qualification, promptly to use its best efforts to obtain its
withdrawal;
b. To furnish Prudential Securities with copies of
the Prospectus in such quantities as Prudential Securities may
from time to time reasonably request, and if delivery of a
Prospectus is required at any time prior to the expiration of
nine months after the date of any Prospectus and in such
time any event shall have occurred as a result of which such
Prospectus would include an untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made
when such Prospectus was delivered to Prudential Securities,
not misleading, or if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to
comply with the 1933 Act, the CE Act or any other law, rule
or regulation of any federal, state or other governmental,
regulatory or self-regulatory agency or body including, but
not limited to, such amendments and supplements as may be
required because of the selection of any Other Advisor, to
notify Prudential Securities and upon Prudential Securities'
request to prepare and furnish, without charge to Prudential
Securities, as many copies as Prudential Securities may from
time to time reasonably request of an amended Prospectus or a
supplement to such Prospectus which will correct such
misstatement or omission or effect such compliance;
c. Promptly from time to time to take such action
as Prudential Securities may reasonably request to use its
best efforts to qualify the Interests for offering and sale
under the securities or Blue Sky laws of such jurisdictions as
Prudential Securities may request and to comply with such laws
so as to permit the continuance of sales in such jurisdictions
for so long as may be necessary to complete the distribution
thereof;
d. To make generally available to its security
holders as soon as practicable, but in any event not later
than the 15th month following the month in which the Initial
Closing Date occurs, an earnings statement of the Trust (which
need not be audited) complying with Section 11(a) of the 1933
Act and covering a period of at least 12 consecutive
months beginning after the effective date of the applicable
Registration Statements;
e. To furnish Prudential Securities with copies of
all reports or other communications (financial or other)
furnished to the Limited Owners and to deliver to Prudential
Securities, as soon as they are available, copies of any
reports and financial statements furnished to or filed with
the SEC, the CFTC, the NASD, the NFA and any other federal,
state or other governmental or regulatory or self-regulatory
agency or body; and
f. To furnish, without charge to Prudential
Securities, two signed copies of each Registration
Statements, including all financial statements and exhibits
thereto, and such number of conformed copies of each
Registration Statement, including all financial statements,
as Prudential Securities may reasonably request.
4. Prudential Securities covenants and agrees with the
Managing Owner that Prudential Securities or an affiliate will
pay or cause to be paid all Organization and Offering expenses
(as defined in Section 4.7 of the Trust Agreement) and all
other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically
provided for in this Section 4, subject to the terms,
conditions and limitations described in the Prospectus.
5. The obligations of Prudential Securities hereunder
shall be subject, in its discretion, to the condition that all
representations, warranties, covenants and other statements of
the Trust and the Managing Owner herein are, at and as of the
time of effectiveness of each Registration Statement, true and
correct, the condition that each of the Trust and the Managing
Owner shall have performed all of its and their obligations
hereunder theretofore to be performed and the following
additional conditions:
a. The Registration Statements shall have become
effective, and Prudential Securities shall have received
notice thereof; no stop order suspending the effectiveness of
the Registration Statements shall have been issued, and no
proceeding for that or any similar purpose shall have been
initiated or threatened by the SEC, the CFTC, the NASD or the
NFA; and all requests for additional information on the part
of the SEC, the NASD, the NFA and/or the CFTC shall have been
complied with to the reasonable satisfaction of Prudential
Securities and its counsel.
b. Prudential Securities shall have received a
certificate of the Managing Owner, dated the Initial Closing
Date with respect to each Series, and thereafter, only if
Prudential Securities specifically requests such certificate
as of any Subsequent Closing Date with respect to a Series, to
the effect that:
(i) The representations and warranties of the
Trust and the Managing Owner contained herein are true
and correct at and as of the Initial Closing Date, or as
of a Subsequent Closing Date, as the case may be, and
each of the Trust and the Managing Owner have complied
with all the agreements and satisfied all the conditions
on its or their part to be performed or satisfied at or
prior to the Initial Closing Date or thereafter, at or
prior to any Subsequent Closing Date, as the case may be;
(ii) No stop order suspending the effectiveness
of the Registration Statements has been issued and no
proceedings for that or any similar purpose have been
instituted or are pending, or, to the best of its
knowledge, are contemplated or threatened under the 1933
Act. No order preventing or suspending the use of the
Prospectus has been issued by the SEC, the NASD, the
CFTC or the NFA, and no proceedings for that purpose have
been instituted or are pending or, to the best of the
knowledge of the Managing Owner, are contemplated or
threatened under the 1933 Act or the CE Act or under any
law, rule or regulation of any federal, state or other
governmental, regulatory or self-regulatory agency or
body.
(iii) The Registration Statement and the
Prospectus contain all statements and information
required to be included therein. Neither the
Registration Statement nor the Prospectus contains an
untrue statement of a material fact or omits to state any
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, and since the effective date
of the Registration Statement, no event has occurred or
has been discovered which is required to be set forth in
the Registration Statement or Prospectus which has not
been so set forth in an amendment to the Registration
Statements or an amendment or supplement to the
Prospectus; provided, however, that this certification
shall not apply to any statements or omissions made in
reliance upon and in conformity with information
furnished in writing to the Trust or the Managing Owner
by Prudential Securities or by any Trading Advisors or
any Other Advisor specifically for use therein.
(iv) The Managing Owner has made the capital
contribution to the Trust and has met the Net Worth
standard required of it by the Trust Agreement.
x. Xxxxxxxx & Xxxxx LLP shall have furnished
Prudential Securities with its written opinion, dated the
Initial Closing Date for each Series, or as soon thereafter as
reasonably practicable; such written opinion will be
furnished to Prudential Securities thereafter, as of any
Subsequent Closing Date, upon Prudential Securities' specific
request, to the effect that:
(i) The Trust is (A) a duly created and validly
existing trust in good standing under the Delaware Act,
with requisite power and authority under the Delaware
Act, the Trust Certificate and the Trust Agreement as it
shall have been amended and/or restated at the time of
such opinion, to carry out its obligations under this
Agreement, the Trust Certificate and the Trust Agreement
and to own properties and conduct business as described
in the Trust Agreement; and (B) validly existing, in good
standing and qualified to do business in each other
jurisdiction in which the nature or conduct of its
business requires such qualification and in which the
failure to be duly qualified would materially adversely
affect the Trust's ability to perform its obligations
hereunder;
(ii) The Trust's authorized capitalization is as
set forth in the Prospectus, the Interests conform in all
material respects to the descriptions thereof contained
in the Prospectus and the offer and sale of the
Interests have been duly and validly authorized by the
Trust under the Trust Agreement and the Delaware Business
Trust Act;
(iii) The Managing Owner is a duly incorporated
and validly existing corporation in good standing under
the laws of the State of Delaware with requisite
corporate power and authority under its Certificate of
Incorporation, By-Laws and the General Corporation Law
of the State of Delaware to carry out its obligations
under this Agreement, the Trust Certificate and the Trust
Agreement and to conduct its business as described in the
Prospectus, and it is duly qualified to conduct business
as a foreign corporation in good standing in the State of
New York;
(iv) The various agreements referred to in the
Prospectus, the Trust Certificate, the Trust Agreement
and this Agreement have been duly and validly authorized
or ratified, executed and delivered, and each constitutes
the legal, valid and binding obligation of the Trust and
is enforceable in accordance with its terms, except (A) as
the same may be limited by bankruptcy or insolvency,
reorganization, moratorium or similar laws at the time in
effect affecting creditors' rights generally or (B) by
applicable principles of equity, whether in an action at
law or equity, and except that the enforceability of the
indemnification provisions may be limited under
applicable federal or state securities, commodities or
other laws or by public policy;
(v) Assuming (A) that after the issuance of
Interests under the Prospectus and the Trust Agreement,
the number of Interests reserved for issuance and issued
by the Trust will not exceed the maximum number of
Interests which may be issued by the Trust under the
Prospectus and the Trust Agreement, (B) that the Trust
Agreement constitutes the entire agreement among the
parties thereto with respect to the subject matter
thereof including with respect to the admission of
Limited Owners to, and the creation, operation and
termination of, the Trust and that the Trust Agreement
(including all amendments thereto) and the Trust
Certificate are in full force and effect, have not been
amended subsequent to the date hereof and no amendment of
the Trust Agreement or the Trust Certificate is pending
or has been proposed, (C) that the Managing Owner has
taken all corporate action required to be taken by it to
authorize the issuance and sale of the Interests to each
Subscriber for Interests who is to be admitted to the
Trust as a Limited Owner and to authorize the admission
to the Trust of the Subscribers as Limited Owners of the
Trust, (D) the due authorization, execution and delivery
of a Subscription Agreement by each Subscriber, (E) that
the Managing Owner has duly accepted a Subscription
Agreement from each Subscriber and the admission of the
Subscribers as Limited Owners to the Trust at least five
business days following each Subscriber's receipt of
a Prospectus, (F) the payment by each Subscriber of the
full consideration due from it for the number of
Interests subscribed for by it, (G) the due
authorization, execution and delivery by all parties
thereto of the Trust Agreement, (H) that the books and
records of the Trust set forth all information required
by the Trust Agreement and the Delaware Act, including
all information with respect to all persons and entities
to be admitted as Limited Owners and their capital
contributions and (I) the Interests are offered and sold
as described in the Prospectus and the Trust Agreement,
the Subscribers will be Limited Owners of the Trust
entitled to all of the benefits of beneficial owners of
a Delaware business trust to the extent permitted under
the Delaware Business Trust Act;
(vi) Subject to the assumptions set forth in
paragraph (v) above, the Interests sold pursuant to the
Registration Statement will, when issued to the
Subscriber, be legally issued, fully paid and non-
assessable in conformity with the description thereof in
the Prospectus;
(vii) The offer and sale of the Interests and the
compliance by the Trust with all of the provisions of
this Agreement do not conflict with or result in a breach
of any of the terms or provisions of, or constitute a
default under, the Trust Certificate or Trust Agreement,
or to the extent of such counsel's knowledge, any
indenture, mortgage, deed of trust, loan agreement or
other instrument or agreement to which the Trust is a
party or by which it is bound, or to the extent of such
counsel's knowledge, any statute, order, rule or
regulation applicable to the Trust of any court or
governmental or regulatory authority, agency or body
having jurisdiction over the Trust;
(viii) The Registration Statement has become
effective under the 1933 Act and was filed with the CFTC,
the NFA and the NASD as required by Part 4 of the
regulations under the CE Act, NFA Compliance Rule 2-13
and the Filing Requirements set forth in the
Interpretation of the Board of Governors-Review of
Corporate Financing with respect to Article III, Section
I of the NASD's Rules of Fair Practice, respectively, and,
to the extent of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration
Statement has been issued nor has any proceeding for the
issuance of such an order or any similar purpose been
initiated or threatened by the SEC, the CFTC, the NFA,
the NASD or any state in which offers and sales of
Interests are contemplated;
(ix) To the best of such counsel's knowledge,
after due inquiry and subject to paragraph (x) below,
all authorizations, consents or orders of any court or
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, including such as may be required under the
1933 Act and the CE Act, including the rules and
regulations, respectively, thereunder, the rules and
regulations of the NASD and the NFA and the securities or
Blue Sky laws of any state in which offers and sales of
Interests are contemplated, and subject to the
qualifications set forth in paragraph (xiii) below;
(x) The Trust is not required to be
registered as an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, in
order to act as described in the Registration Statement
and the Prospectus, subject to such conditions and
limitations as may be noted in the opinion;
(xi) To the best of such counsel's
knowledge, after due inquiry, the Trust and the Managing
Owner have each obtained all required governmental and
regulatory licenses, registrations and approvals required
by law as may be necessary in order for the Trust and the
Managing Owner to act as described in the Registration
Statement and the Prospectus (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 other authorizations have
not, to the best of such counsel's knowledge, after due
inquiry, been rescinded, revoked or otherwise removed;
(xii) The statements in the Prospectus under
the caption "U.S. FEDERAL INCOME TAX CONSEQUENCES" have
been reviewed by such counsel and such statements are
correct in all material respects as to matters of law
and legal conclusions, and it has rendered the opinion
therein referred to;
(xiii) The Interests have been registered or
otherwise approved for sale under the Blue Sky securities
laws of certain states and jurisdictions itemized on an
exhibit attached to the opinion required by this Section
5.c. of this Agreement and to the best of such counsel's
knowledge, after due inquiry, may lawfully be offered and
sold to residents thereof or from places of business
therein in the amounts specified and subject to such
conditions and limitations as may be noted in the
opinion;
(xiv) Subject to such conditions and
limitations as may be noted in the opinion, the
Registration Statement and Prospectus appear on their
faces to be appropriately responsive in all material
respects to the requirements of the 1933 Act and the CE
Act, including the rules and regulations under each such
act, 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 or
at the time that any post-effective amendment to the
Registration Statement became effective) or the
Prospectus (if and as required to be filed pursuant to
Rule 424(b) and 424(c) of the 1933 Act or as of the date
hereof) 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 as to (A) the financial statements or other
financial or statistical data, past performance, pro
forma and/or historical performance tables and notes
thereto or other past performance, pro forma and/or
historical information contained in the Registration
Statement or the Prospectus or (B) any statements or
omissions made in reliance on or in conformity with
information furnished by or on behalf of the Trading
Advisors (or, if applicable, any Other Advisor) or
Prudential Securities, or any controlling persons,
shareholders, directors, officers or employees of any of
the foregoing, including, without limitation, all
references to the Trading Advisors (and, if applicable,
any Other Advisor), Prudential Securities and their
affiliates, controlling persons, shareholders, directors,
officers and employees, as well as all past performance
information on the Trading Advisors (or, if applicable,
any Other Advisor) and prior Prudential Securities-
sponsored funds;
(xv) Such counsel does not know of any
pending or threatened action, suit or proceeding before
any court or other governmental or regulatory agency,
authority or body, involving the Trust or the Managing
Owner, of a character required to be disclosed in the
Registration Statement, which is not adequately described
in the Prospectus, nor of any contracts or other
documents of a character required to be described in or
filed as an exhibit to the Registration Statement or the
Prospectus, which is not described and filed as required;
In rendering such opinion, Xxxxxxxx & Xxxxx
LLP may rely upon other opinions of counsel of firms
qualified to render such opinions as to matters of law
of the State of Delaware and any other jurisdiction where
an opinion is required to be given, and Xxxxxxxx & Xxxxx
LLP shall state that they believe Prudential Securities
may rely on them.
d. PricewaterhouseCoopers LLP, independent public
accountants to the Trust and the Managing Owner, will have
furnished to Prudential Securities a letter, dated the Initial
Closing Date for each Series, and if requested by Prudential
Securities, a letter dated as of any Subsequent Closing Date,
and in form and substance satisfactory to Prudential
Securities, to the effect that:
(i) Such accountant is an independent certified
public accountant within the meaning of the 1933 Act, the
CE Act and the rules and regulations under such Acts
with respect to the Trust and the Managing Owner, and the
answer to Item 10 of Form S-1 set forth in the
Registration Statements are correct insofar as they
relate to such firm;
(ii) In such firm's opinion, the statements of
financial condition of the Trust and the Managing Owner
and the notes thereto included in the Prospectus and
examined by it comply as to form in all material respects
with the applicable accounting requirements of the 1933
Act, the CE Act and the rules and regulations under such
Acts;
(iii) On the basis of limited procedures not
constituting an audit, including inquiries of officials
of the Managing Owner having responsibility for financial
and accounting matters pertaining to the Trust and such
other inquiries and procedures as may be specified in
such letter, nothing has come to such accountant's
attention which causes it to believe that, as of a
specified date not more than five business days prior to
the Initial Closing Date of each Series, or a Subsequent
Closing Date, as the case may be, there has been any
decrease in the net assets of the Trust as compared to
net assets set forth in the statement of financial
condition of the Trust included in the Prospectus, except
as may be disclosed in such letter;
(iv) On the basis of limited procedures, not
constituting an audit, including a reading of the latest
available financial statements of the Managing Owner,
inspection of the minute book of the Managing Owner since
the date of the latest audited financial statements of
the Managing Owner, inquiries of officials of the
Managing Owner having responsibility for financial and
accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing
has come to such accountant's attention that causes it to
believe that, as of a specified date not more than five
business days prior to the Initial Closing Date of each
Series, or a Subsequent Closing Date, as the case may be,
there has been any decrease in the Managing Owner's
stockholder's equity as compared to stockholder's equity
set forth in the statement of financial condition of the
Managing Owner included in the Prospectus, except as may
be disclosed in such letter.
e. All documents, certificates and opinions of
counsel required to be delivered to Prudential Securities on
the Initial Closing Date of a Series or on the appropriate
Subsequent Closing Date, as the case may be, by the Trading
Advisor to each Series of the Trust disclosed in the
Prospectus, pursuant to an agreement entered into by
Prudential Securities, the Trust and the Managing Owner with
the Trading Advisors entitled "REPRESENTATION AGREEMENT
CONCERNING THE REGISTRATION STATEMENT AND THE PROSPECTUS,"
such agreement being dated on or about the date of the initial
Prospectus, shall have been delivered in form and substance
satisfactory to Prudential Securities and its counsel; and
there shall have been no material changes in the Registration
Statement or the Prospectus concerning the applicable Trading
Advisor subsequent to the date hereto to which the applicable
Trading Advisor shall not have agreed.
6. a. This Agreement shall be terminated at the
conclusion of the Continuous Offering Period with respect to
each Series.
b. Until such time as this Agreement shall
terminate with respect to each Series pursuant to
Section 6.a. of this Agreement, this Agreement may be terminated by
Prudential Securities, at Prudential Securities' option, by
giving notice to the Trust and the Managing Owner, if:
(i) there shall have been, since the respective
dates as of which information is given in the
Registration Statements, any material adverse change in
the condition, financial or otherwise, of the Trust or
the Managing Owner which change, in the judgment of
Prudential Securities, shall render it inadvisable to
proceed with the offer and sale of the Interests; or
(ii) the Registration Statements and/or the
Prospectus is not amended promptly after written request
by Prudential Securities for it to be so amended because
an event has occurred which, in the opinion of counsel
for Prudential Securities, should be set forth in the
Registration Statements or the Prospectus in order to
make the statements therein not misleading; or
(iii) any of the conditions specified in Section
5 of this Agreement shall not have been fulfilled when and as
required by this Agreement to be fulfilled; or
(iv) there shall have been an outbreak of
hostilities between the U.S. and any foreign
sovereign or there shall have occurred any insurrection or
other armed conflict involving the U.S. which,
in the opinion of Prudential Securities, makes it
impractical or inadvisable to offer or sell the
Interests; or
(v) there shall have been (A) a general
suspension of, or a general limitation on prices for,
trading in (i) commodity futures or option contracts on
commodity exchanges in the U.S., or (ii) other
commodities instruments or (B) any other national or
international calamity or crisis in the financial markets
of the U.S. to the extent that it is determined
by Prudential Securities, in its discretion, that such
limitations would materially impede the Trust's trading
activities or make the offering or delivery of the
Interests impossible or impractical; or
(vi) there shall have been a declaration of a
banking moratorium by federal, New York or Delaware
authorities.
c. In addition to Section 6.b. of this Agreement,
this Agreement may be terminated with respect to a Series by
written agreement among the parties hereto. The termination
of this Agreement for any reason set forth in this Section 6
shall not affect the obligations of the Trust contained in
Sections 4 or 7 of this Agreement; nor shall the termination of this
Agreement with respect to one Series for any reason affect the
obligations of the parties with respect to any other Series.
d. The Initial Closing Date with respect to a
Series shall be a date selected by Prudential Securities on
written notice to the Managing Owner, not less than five
and not more than 15 business days following the
termination of the Initial Offering Period with respect to
that Series referred to in Section 2.a. of this Agreement. Each
Subsequent Closing Date with respect to a Series shall be the
date of the first business day of any calendar week during the
Continuous Offering Period with respect to that Series
referred to in Section 2.a. of this Agreement. Notwithstanding anything
to the contrary herein, each Closing with respect to a Series
shall be held on such date, at such time and at such place as
the Managing Owner and Prudential Securities may agree upon.
7. Each of the Managing Owner and Prudential Securities
agrees and consents (the "Consent") to look solely to each
Series that is being offered pursuant to this Agreement (the
"Contracting Series") and the assets (the "Contracting Series
Assets") of the Contracting Series and to the Managing Owner
and its assets for payment. The Contracting Series Assets
include only those funds and other assets that are paid, held
or distributed to the Trust on account of and for the benefit
of the Contracting Series including, without limitation,
funds delivered to the Trust for the purchase of interests in
a Series. In furtherance of the Consent, each of the Managing
Owner and Prudential Securities agrees that any debts,
liabilities, obligations, indebtedness, expenses and claims of
any nature and of all kinds and descriptions (collectively,
"Claims") incurred, contracted for or otherwise existing
arising from, related to or in connection with the Trust and
its assets and the Contracting Series and the Contracting
Series Assets, shall be subject to the following limitations:
a. subordination of certain claims and rights: (i)
except as set forth below, the Claims, if any, of the Managing
Owner or Prudential Securities (the "Subordinated Claims")
shall be expressly subordinate and junior in right of payment
to any and all other Claims against the Trust and any Series
thereof, and any of their respective assets, which may arise
as a matter of law or pursuant to any contract; provided,
however, that the Claims of each of the Managing Owner and
Prudential Securities (if any) against the Contracting Series
shall not be considered Subordinated Claims with respect to
enforcement against and distribution and repayment from the
Contracting Series, the Contracting Series Assets and the
Managing Owner and its assets; and provided further that the
valid Claims of either the Managing Owner or Prudential
Securities, if any, against the Contracting Series shall be
pari passu and equal in right of repayment and distribution
with all other valid Claims against the Contracting Series,
and (ii) the Managing Owner and Prudential Securities will not
take, demand or receive from any Series or the Trust or any of
their respective assets (other than the Contracting Series,
the Contracting Series Assets and the Managing Owner and its
assets) any payment for the Subordinated Claims;
b. the Claims of each of the Managing Owner and
Prudential Securities with respect to the Contracting Series
shall only be asserted and enforceable against the Contracting
Series, the Contracting Series Assets and the Managing Owner
and its assets; and such Claims shall not be asserted or
enforceable for any reason whatsoever against any other
Series, the Trust generally or any of their respective assets;
c. if the Claims of the Managing Owner or
Prudential Securities against the Contracting Series or the
Trust are secured in whole or in part, each of the Managing
Owner and Prudential Securities hereby waives (under section
1111(b) of the U.S. Bankruptcy Code (11 U.S.C. S 1111(b)) any right
to have any deficiency Claims (which deficiency Claims may
arise in the event such security is inadequate to satisfy such
Claims) treated as unsecured Claims against the Trust or any
Series (other than the Contracting Series), as the case may
be;
d. in furtherance of the foregoing, if and to the
extent that the Managing Owner and Prudential Securities
receives monies in connection with the Subordinated Claims
from a Series or the Trust (or their respective assets), other
than the Contracting Series, the Contracting Series Assets and
the Managing Owner and its assets, the Managing Owner and
Prudential Securities shall be deemed to hold such monies in
trust and shall promptly remit such monies to the Series or
the Trust that paid such amounts for distribution by the
Series or the Trust in accordance with the terms hereof; and
e. the foregoing Consent shall apply at all times
notwithstanding that the Claims are satisfied and
notwithstanding that the agreements in respect of such Claims
are terminated, rescinded or canceled.
8. a. All representations, warranties, covenants and
agreements contained in this Agreement shall remain operative
and in full force and effect regardless of (i) any
investigations made by or on behalf of Prudential Securities,
the Trustee, the Trust or the Managing Owner, (ii) delivery of
any payment for the Interests or (iii) termination of this
Agreement.
b. This Agreement is made solely for the benefit
of, and shall be binding upon, Prudential Securities, the
Trust and the Managing Owner and the respective successors and
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 from the Trust.
c. This Agreement may not be assigned by any party
hereto without the prior express written consent of all other
parties, and this Agreement may not be amended except by the
express written consent of all parties hereto.
d. All notices required or desired to be given
under the provisions of this Agreement must be in writing and
will be effective when given personally on the date delivered
or, when given by mail, on the date of receipt, addressed as
follows (or to such other address as the party entitled to
notice hereafter designates in accordance with the terms
hereof): (i) if to Prudential Securities, One New York
Plaza, 13th Floor, New York, New York 10292, Attention: Xxx
Xxxxxxxx, with a copy to Xxxx X. Xxxxx, Esq., Xxxxxxxx & Colin
LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and (ii) if
to the Trust or the Managing Owner, c/o Prudential Securities
Futures Management Inc., One New York Plaza, 13th floor, New
York, New York 10292, Attention: Xxxxxx X. Xxxxxxxxx and
Xxxxxxx X. Xxxxxx, with a copy to Xxxx X. Xxxxx, Esq., Xxxxxxxx & Colin LLP,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
e. Prudential Securities is not authorized by the
Trust to give any information or to make any representation in
connection with the offering of Interests other than those
contained in the Prospectus and such sales literature the use
of which has been authorized in writing by the Trust.
f. This Agreement has been made and executed by and
on behalf of the Trust and the Managing Owner and the
obligations of the Trust and/or the Managing Owner set forth
herein are not binding upon any of the Limited Owners
individually but are binding upon the assets and property of
each Series of the Trust individually and exclusively to the
extent that the obligations apply to such Series and, to the
extent provided herein, upon the assets and property of the
Managing Owner, and no resort shall be had to the assets of
any Series to which such obligation has no relationship or to
the Limited Owners' personal property for the satisfaction of
any obligation or claim herein.
(g) This Agreement shall be governed by and
construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed in that
State, without giving effect to the principles of conflict of
laws thereof.
9. Each of Prudential Securities and the Managing Owner
represent to the Trust that its business operations and any
services provided pursuant to this Agreement will not be
materially interrupted by the advent of the Year 2000 date.
IN WITNESS WHEREOF, each of the parties hereto has executed
this Agreement as of the day and year first above written.
WORLD MONITOR TRUST II
By: Prudential Securities Futures
Management Inc., its Managing Owner
By:_____________________________
Name:_________________________
Title:________________________
PRUDENTIAL SECURITIES FUTURES
MANAGEMENT INC.
By:_____________________________
Name:_________________________
Title:________________________
Accepted as of the date of this
Agreement first above written:
PRUDENTIAL SECURITIES INCORPORATED
By: _______________________________
Name:__________________________
Title:_________________________
