EXHIBIT C
REPRESENTATION AGREEMENT CONCERNING THE
REGISTRATION STATEMENT AND THE PROSPECTUS
REPRESENTATION AGREEMENT ("Agreement") dated as of
the day of September, 1999, by and among World
Monitor Trust II (the "Trust"), a business trust
organized under Chapter 38 of Title 12 of the
Delaware Code (the "Delaware Act"), Prudential
Securities Incorporated, a Delaware corporation
("Prudential Securities"), Prudential Securities
Futures Management Inc., a Delaware corporation
(the "Managing Owner"), Wilmington Trust Company, a
Delaware corporation (the "Trustee") and Xxxxxxxx &
Company, Inc., a Maryland 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 limited
liability interests in the Trust (the "Interests")
issuable in multiple series (the "Series"), each
separately managed by a different professional
commodity trading advisor through Prudential
Securities Incorporated ("Prudential Securities"),
an affiliate of the Managing Owner, and in
connection therewith, the Trust intends to file
with the U.S. Securities and Exchange Commission
(the "SEC"), pursuant to the U.S. Securities Act of
1933, as amended (the "1933 Act"), a registration
statement on Form S-1 to register the Interests in
Series F, and as a part thereof a prospectus
(which registration statement, together with all
amendments thereto, shall be referred to herein as
the "Registration Statement" and which prospectus
in final form, together with all amendments and
supplements thereto, shall be referred to herein as
the "Prospectus"); and
WHEREAS, the Trust and the Managing Owner entered
into an agreement with the Advisor, dated as of
September ___,1999 (the "Advisory Agreement"),
pursuant to which the Advisor has agreed to act as
a commodity trading advisor to the Trust with
respect to the portion of the Trust Estate
represented by Series F Interests; and
WHEREAS, the parties hereto wish to set forth their
duties and obligations to each other with respect
to the Registration Statement as of its effective
date and the Prospectus as of the date(s) on which
subscribers' funds are transferred to the portion
of the Trust Estate represented by Series F
Interests ("Closing Dates(s)").
NOW, THEREFORE, the parties agree as follows:
1. Representations and Warranties of the Advisor.
The Advisor hereby represents and warrants to
Prudential Securities, the Trust, the Trustee 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
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and accurate in all material respects, and as to
such persons, the Advisor's Trading Approach and
the Advisor's Past Performance History, and the
information related thereto in the Registration
Statement as of its effective date and the
Prospectus as of each Closing Date, contain all
information required to be included therein by the
Commodity Exchange Act, as amended (the "CE Act"),
and the regulations (including interpretations
thereof) thereunder, and do not contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein (with
respect to the Prospectus, in light of the
circumstances in which they were made) not
misleading. The Advisor also represents and
warrants as to the accuracy and completeness in all
material respects of the underlying data made
available by the Advisor to the Trust and the
Managing Owner for purposes of preparing the pro
forma performance tables, it being understood that
no representation or warranty is being made with
respect to the pro forma performance tables or
notes thereto. The term "principal" in this
Agreement shall have the same meaning as that term
in Commodity Futures Trading Commission (the
"CFTC") Regulation S 4.10(e) under the CE Act.
b. The Advisor will not distribute the
Registration Statement, the Prospectus and/or the
selling materials related thereto, except as may be
requested by the Managing Owner in connection with
"road show" presentations or otherwise.
c. This Agreement and the Advisory Agreement have
been duly and validly authorized, executed and
delivered on behalf of the Advisor and each is a
valid and binding agreement enforceable in
accordance with its terms. The performance of the
Advisor's obligations under this Agreement and the
consummation of the transactions set forth in this
Agreement, in the Advisory Agreement and in the
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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 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
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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 assurances of
confidentiality, and as requested of the Managing
Owner, the Advisor has supplied to or made
available for review by the Managing Owner and
Prudential Securities (and if requested by the
Managing Owner and Prudential Securities 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.
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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
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 "SERIES F Past Performance For All Of
Its Clients" which has not been communicated in
writing to and received by the Managing Owner and
Prudential Securities 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.
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
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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 Trust or (B)
result in a matter which would require disclosure
in the Registration Statement and/or Prospectus;
furthermore the Advisor has not received any notice
of an investigation by the NFA regarding non-
compliance with its rules or the CE Act, the CFTC
regarding non-compliance with the CE Act, or the
rules and regulations thereunder or any exchange
regarding non-compliance with the rules of such
exchange which investigation reasonably might be
expected to materially impair the Advisor's ability
to discharge its obligations under this Agreement
or the Advisory Agreement.
2. Covenants of the Advisor. If, at any time
during the term of the Advisory Agreement, the
Advisor discovers any fact, omission or event, or
that a change of circumstances has occurred, which
would make the Advisor's representations and
warranties in Section 1 of this Agreement
inaccurate or incomplete in any material respect,
or which might reasonably be expected to render the
Registration Statement or Prospectus, with respect
to (i) the Advisor or its principals, (ii) the
Advisor's Trading Approach or (iii) the Advisor's
Past Performance History, untrue or misleading in
any material respect, the Advisor will provide
prompt written notification to the Trust, the
Managing Owner and Prudential Securities 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
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compliance with the foregoing representations and
warranties during the term of the Advisory
Agreement as soon as practicable following such
notification shall be cause for the Trust and the
Managing Owner to terminate the Advisory Agreement
with the Advisor on prior written notice to the
Advisor. The Advisor also agrees that, during the
term of the Advisory Agreement, from and after the
Effective Date of the Registration Statement and
for so long as Interests in the Trust are being
offered, whether during the Initial Offering Period
or during the Continuous Offering Period (as those
terms are described in the Prospectus), it will
provide Prudential Securities, the Trust and the
Managing Owner with updated month-end information
relating to the Advisor's Past Performance History,
as required to be disclosed in the performance
tables relating to the performance of the Advisor
in the Prospectus under the caption "SERIES F --
Past Performance For All Of Its Clients" 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.
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 Prudential
Securities, 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
Prudential Securities may reasonably request, and
will cooperate to the extent reasonably necessary
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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 F Interests (the "Initial
Closing Date"), and thereafter, only if requested,
on or prior to each closing date during the
continuous offering of Series F Interests (each a
"Subsequent Closing Date"), the Advisor shall
deliver or cause to be delivered, at the expense of
the Advisor, to Prudential Securities, the Trust
and the Managing Owner, the reports, certificates,
documents and opinions described below addressed to
them and, except as may be set forth below, dated
the Initial Closing Date or the Subsequent Closing
Date, as appropriate (provided that the Advisor
shall not be obligated to provide 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 requires, the
Initial Closing Date and each Subsequent Closing
Date shall each be referred to as a "Closing Date."
a. A report from the Advisor which shall present,
for the period from the date after the last day
covered by the Advisor's Past Performance History
as set forth under "SERIES F -- Past Performance For
All Of Its Clients" in the Prospectus to the latest
practicable month-end before the Closing Date,
figures which shall show the actual past
performance of the Advisor (or, if such actual past
performance information is unavailable, then the
estimated past performance) for such period, and
which shall certify that, to the best of the
Advisor's knowledge, such figures are complete and
accurate in all material respects.
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b. A certificate of the Advisor in the form
proposed prior to the Closing Date by counsel to
Prudential Securities, the Trust and the Managing
Owner, with such changes in such form as are
proposed by the Advisor or its counsel and as are
acceptable to Prudential Securities, the Trust and
the Managing Owner and their counsel so as to make
such form mutually acceptable to Prudential
Securities, the Trust, the Managing Owner, the
Advisor and their respective counsel, to the effect
that:
(i) The representations and warranties of
the Advisor in Section 1 of this Agreement are true
and correct in all material respects on the date of
the certificate as though made on such date.
(ii) Nothing has come to the Advisor's
attention which would cause the Advisor to believe
that, at any time from the time the Registration
Statement initially became effective to the Closing
Date, the Registration Statement, as amended from
time to time, or the Prospectus, as amended or
supplemented from time to time, with respect to the
Advisor, or its affiliates, and controlling
persons, shareholders, directors, officers or
employees of any of the foregoing, or with respect
to the Advisor's Trading Approach or Past
Performance History, contained an untrue statement
of a material fact or omitted to state a material
fact required to be stated therein or necessary to
make the statements therein (with respect to the
Prospectus, in light of the circumstances in which
they were made) not misleading.
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(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 Prudential Securities,
the Trust and the Managing Owner, with such changes
in such form as are proposed by the Advisor or its
counsel and are acceptable to Prudential
Securities, the Trust and the Managing Owner and
their counsel so as to make such form mutually
acceptable to Prudential Securities, the Trust, the
Managing Owner, the Advisor and their respective
counsel, with respect to, (i) the continued
effectiveness of the organizational documents of
the Advisor, (ii) the continued effectiveness of
the Advisor's registration as a commodity trading
advisor under the CE Act and membership as a
commodity trading advisor with the NFA and (iii)
the incumbency and genuine signature of the
President and Secretary of the Advisor.
d. A certificate from the state of formation of
the Advisor, to be dated at, on or around the
Closing Date, as to its formation and good
standing.
e. An opinion or opinions of counsel, in form and
substance satisfactory to the Trust, the Managing
Owner and Prudential Securities and their counsel
(which they will not unreasonably object to), 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
11
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,
Prudential Securities, 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 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
12
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 New York and Maryland, in order to perform its
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obligations under the Advisory Agreement or under
this Agreement, or to act as described in the
Registration Statement as of its effective date and
the Prospectus as of the Closing Date. The
foregoing opinion may be qualified by the fact that
such counsel is not admitted to practice law in all
jurisdictions, and by the fact that in rendering
its opinion such counsel has relied solely upon an
examination of the Blue Sky securities laws and
related rules, regulations, and administrative
determinations, if any, promulgated thereunder, of
the various jurisdictions as reported in
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 Prudential Securities 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
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the assets of the Advisor or any of its principals
or which reasonably might be expected to (A) impair
materially the Advisor's ability to discharge its
obligations to the Trust or (B) result in a matter
which would require disclosure in the Registration
Statement or Prospectus; and, to the best of such
counsel's knowledge, neither the Advisor nor any of
its principals has received any notice of an
investigation by (i) the NFA regarding non-
compliance with its rules or the CE Act, (ii) the
CFTC regarding non-compliance with the CE Act or
(iii) any exchange, regarding non-compliance with
its rules, which investigation reasonably might be
expected to (A) impair materially the Advisor's
ability to discharge its obligations to the Trust
or (B) result in a matter which would require
disclosure in the Registration Statement or
Prospectus.
(vi) With respect to the Advisor and
its affiliates, and controlling persons,
shareholders, directors, officers and employees of
any of the foregoing, and with respect to the
Advisor's Trading Approach, nothing has come to the
attention of such counsel that leads such counsel
to believe that the Registration Statement (at the
time it initially became effective and at the time
any post-effective amendment thereto became
effective) or the Prospectus contains any untrue
statement of a material fact or omits to state a
material fact required to be stated therein or
which is necessary to make the statements therein
(with respect to the Prospectus, in light of the
circumstances in which they are made) not
misleading, except that such counsel is not
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required to express any opinion or belief as to the
financial statements or other financial or
statistical data, past performance tables, notes,
or descriptions thereto or other past performance
information contained in the Registration Statement
or the Prospectus.
In rendering the foregoing opinions, such counsel
may rely (i) as to matters of fact, on a
certificate of an officer of the Advisor, unless
such counsel has actual knowledge otherwise, and
(ii) as to matters of law of states other than that
in which they are licensed to practice law, upon
the opinions of other counsel, in each case
satisfactory in form and substance to counsel to
the Managing Owner and Prudential Securities, and
such counsel shall state that they believe the
Managing Owner and Prudential Securities may rely
on them.
5. Advisor Acknowledgements. The Advisor
acknowledges that: (i) it may be a condition to
each closing under the Underwriting Agreement that
Prudential Securities shall have received, at no
cost to the Advisor, letter(s) from certified
public accountants or other reputable professionals
selected by Prudential Securities with respect to
the Past Performance History of the Advisor as set
forth in the Underwriting Agreement, (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.
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6. Representations and Warranties of the Trust and
the Managing Owner. The Managing Owner hereby
represents and warrants (on its own behalf and on
behalf of the Trust, as applicable) to the Advisor
that:
a. On the date hereof, the Trust is, and at all
times during the term of this Agreement and the
Advisory Agreement will be, a duly formed and
validly existing business trust in good standing
under the laws of the State of Delaware and at all
times during the term of this Agreement and the
Advisory Agreement will be in good standing and
qualified to do business in each jurisdiction in
which the nature or conduct of its business
requires such qualifications and the failure to be
so qualified materially adversely would affect its
ability to perform its 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
Delaware 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 the State of New York
and 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
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Advisory Agreement and to act as described in the
Registration Statement as of its effective date and
the Prospectus as of the Closing Date.
b. Each of this Agreement and the Advisory
Agreement has been duly and validly authorized,
executed and delivered on behalf of the Trust and
the Managing Owner, is a valid and binding
agreement of the Trust and the Managing Owner and
is enforceable in accordance with its terms. The
performance of the Trust's and the Managing Owner's
obligations under this Agreement and under the
Advisory Agreement, and the consummation of the
transactions set forth in this Agreement and the
Advisory Agreement, and in the Registration
Statement as of its effective date and Prospectus
as of the Closing Date are not contrary to the
provisions of the Trust's First Amended and
Restated Declaration of Trust and Trust Agreement
(the "Trust Agreement"), Certificate of Trust or
the Managing Owner's Certificate of Incorporation
or By-Laws, respectively, any applicable statute,
law or regulation of any jurisdiction and will not
result in any violation, breach or default under
any term or provision of any undertaking, contract,
agreement or order, to which the Trust or the
Managing Owner, is a party or by which the Trust or
the Managing Owner is bound.
c. Each of the Trust and the Managing Owner has
obtained all required governmental and regulatory
licenses, registrations and approvals required by
law as may be necessary to perform their
obligations under this Agreement and under the
Advisory Agreement and to act as described in the
Registration Statement as of its effective date and
in the Prospectus as of the Closing Date
(including, without limitation, the Managing
Owner's registration as a commodity pool operator
18
under the CE Act and membership as a commodity pool
operator with the NFA) and will maintain and renew
any required licenses, registrations, approvals and
memberships required during the term of this
Agreement and the Advisory Agreement.
d. The Trust is not required to be registered as
an investment company under the Investment Company
Act of 1940, as amended (the "Investment Company
Act").
e. All authorizations, consents or orders of any
court or of any federal, state or other
governmental or regulatory agency or body required
for the valid authorization, issuance, offer and
sale of the Interests have been obtained, and no
order preventing or suspending the use of the
Prospectus with respect to the Interests has been
issued by the SEC, the CFTC or the NFA. The
Registration Statement as of its effective date and
the Prospectus as of the Closing Date contain all
statements which are required to be made therein,
conform in all material respects with the
requirements of the 1933 Act and the CE Act, and
the rules and regulations of the SEC and the CFTC,
respectively, thereunder, and with the rules of the
NFA and do not contain an untrue statement of a
material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein (with respect to the
Prospectus, in light of the circumstances in which
they are made) not misleading; and at all times
subsequent hereto up to and including the date of
termination of the Initial Offering Period and any
Subsequent Offering Period, the Registration
Statement as of its effective date and the
Prospectus as of the Closing Date will contain all
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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
Prudential Securities 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.
f. The Registration Statement as of its effective
date and the Prospectus as of the Closing Date have
been delivered to the Advisor.
g. There is no pending, or to its knowledge,
threatened or contemplated action, suit or
proceeding before any court or arbitration panel or
before or by any governmental, administrative or
self-regulatory body to which the Trust, the
Managing Owner or the principals of either is a
party, or to which any of the assets of any of the
foregoing persons is subject, which might
reasonably be expected to result in any material
adverse change in their condition (financial or
otherwise), business or prospects or reasonably
might be expected to affect adversely in any
21
material respect any of their assets or which
reasonably might be expected to materially impair
their ability to discharge their obligations under
this Agreement or under the Advisory Agreement; and
neither the Trust nor the Managing Owner has
received any notice of an investigation by (i) the
NFA regarding non-compliance with NFA rules or the
CE Act, (ii) the CFTC regarding non-compliance with
the CE Act or the rules and regulations thereunder
or (iii) any exchange regarding non-compliance with
the rules of such exchange which investigation
reasonably might be expected to materially impair
the ability of each of the Trust and the Managing
Owner to discharge its obligations under this
Agreement or under the Advisory Agreement.
7. Covenants of the Managing Owner and the Trust.
If, at any time during the term of the Advisory
Agreement, the Managing Owner or the Trust
discovers any fact, omission or event or that a
change of circumstance has occurred which would
make the Managing Owner's or the Trust's
representations and warranties in Section 6 of this
Agreement inaccurate or incomplete in any material
respect, the Trust or the Managing Owner, as
appropriate, promptly will provide written
notification to the Advisor of such fact, omission,
event or change of circumstance and the facts
related thereto. The Managing Owner and the Trust
shall provide the Advisor with a copy of each
amendment to the Registration Statement and
amendment or supplement to the Prospectus, and no
amendment to the Registration Statement or
amendment or supplement to the Prospectus which
contains any statement or information regarding the
Advisor will be filed or used unless the Advisor
has received reasonable prior notice and a copy
thereof and has consented in writing to such
statement or information being filed and used.
22
8. Trust's and Managing Owner's Closing
Obligations. On or prior to the Initial Closing
Date, and thereafter on or prior to each Subsequent
Closing Date, if the Trust and the Managing Owner
have requested that the Advisor provide
certificates, documents and opinions pursuant to
Section 4 of this Agreement, the Trust and the
Managing Owner shall deliver or cause to be
delivered to the Advisor, the certificates,
documents and opinions described below addressed to
the Advisor and, except as may be set forth below,
dated each such Closing Date:
a. Certificates of the Trust and the Managing
Owner, addressed to the Advisor, in the form
proposed prior to the Closing Date by counsel to
the Trust and the Managing Owner with such changes
in such form as are proposed by the Advisor or its
counsel and are acceptable to the Trust, the
Managing Owner and their counsel so as to make such
form mutually acceptable to the Trust, the Managing
Owner, the Advisor and their respective counsel,
with respect to, as applicable, (i) the continued
effectiveness of the Trust Agreement and the
Certificate of Trust of the Trust and the
Certificate of Incorporation and By-Laws of the
Managing Owner, (ii) the continued effectiveness of
the registration of the Managing Owner as a
commodity pool operator under the CE Act and
membership as a commodity pool operator with the
NFA and (iii) the incumbency and genuine signature
of the President and Secretary of the Managing
Owner.
b. Certificates from the States of Delaware and
New York with respect to each of the Trust and the
Managing Owner to be dated at, on or around the
Closing Date as to the formation and good standing
of the Trust and the Managing Owner.
23
c. Certificates of the Trust and the Managing
Owner in the form proposed prior to the Closing
Date by counsel to the Trust and the Managing Owner
with such changes in such form as are proposed by
the Advisor or its counsel and are acceptable to
the Trust, the Managing Owner and their counsel so
as to make such form mutually acceptable to the
Trust, the Managing Owner, the Advisor and their
respective counsel, to the effect that:
(i) The representations and warranties
in Section 6 of this Agreement are true and correct
in all material respects on the date of the
certificates as though made on such date, and
(ii) The Trust and the Managing Owner
have each performed all covenants and agreements
herein contained to be performed on their part at
or prior to the Closing Date.
d. An opinion letter of Rosenman & Colin LLP,
dated the Closing Date, in form and substance
satisfactory to the Advisor, as follows:
(i) The Trust is a duly created and
validly existing business trust in good standing
under the Delaware Act, with requisite power and
authority under the Delaware Act, its Trust
Agreement and its Certificate of Trust to perform
its obligations under this Agreement and under the
Advisory Agreement and to act as described in the
Registration Statement as of its effective date and
the Prospectus as of the Closing Date.
24
(ii) The Managing Owner is a duly
formed and validly existing corporation in good
standing under the laws of the State of Delaware
and is duly qualified to conduct business as a
foreign corporation in good standing in the State
of New York. The Managing Owner has full corporate
power and authority under its Certificate of
Incorporation, By-Laws and the General Corporation
Law of the State of Delaware to perform its
obligations under this Agreement and under the
Advisory Agreement and to act as described in the
Registration Statement as of its effective date and
the Prospectus as of the Closing Date.
(iii) Each of this Agreement and the
Advisory Agreement has been duly and validly
authorized or ratified, executed and delivered on
behalf of each of the Trust and the Managing Owner,
and, assuming due execution and delivery of each
such Agreement by the Advisor, each agreement
constitutes the legal, valid and binding
obligations of the Trust and the Managing Owner,
respectively, enforceable in accordance with their
respective terms, except as the same may be limited
by bankruptcy, insolvency, reorganization,
moratorium or similar laws at the time in effect
affecting creditors rights generally, or by
applicable principles of equity, whether in an
action at law or in equity, and except that the
enforceability of the indemnification provisions
may be limited under applicable federal or state
securities, commodities and other laws or by public
policy; and the execution and delivery of such
agreements and incurrence of the obligations
thereunder and the consummation of the transactions
set forth in such agreements and in the Prospectus
25
will not violate or result in a breach of their
formation documents, and, to the best of such
counsel's knowledge, after due inquiry, will not
result in any violation, breach or default under
any term or provision of any undertaking,
contract, agreement or order to which they are
parties or by which they are bound.
(iv) The Trust is not required to be
registered as an investment company under the
Investment Company Act in order to act as described
in the Registration Statement as of its effective
date and in the Prospectus as of the Closing Date
or to perform its obligations under this Agreement
or the Advisory Agreement.
(v) To the best of such counsel's
knowledge, after due inquiry, all authorizations,
consents or orders of any court or of any federal,
state or other governmental or regulatory agency or
body required for the valid authorization,
issuance, offer and sale of Interests have been
obtained, including such as may be required under
the 1933 Act, including the rules and regulations
thereunder, the CE Act, including the rules and
regulations thereunder, the rules and regulations
of the NFA or the Blue Sky securities laws of any
state or of any jurisdiction in which offers and
sales were made, and, to the extent of such
counsel's knowledge, after reasonable inquiry, 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, to the extent
of such counsel's knowledge threatened by the SEC,
the CFTC, the NFA or any such state. The foregoing
26
may be qualified by the fact that such counsel is
not admitted to practice law in all jurisdictions
and that in rendering its opinion such counsel
shall rely solely upon an examination of the Blue
Sky securities laws and related rules, regulations
and administrative determinations, if any,
promulgated thereunder, of the various
jurisdictions as reported in customarily relied
upon standard compilations, and upon such counsel's
understanding of the various conclusions expressed,
formally or informally, by administrative officials
or other employees of the various regulatory or
other governmental agencies or authorities
concerned.
(vi) To the best of such counsel's
knowledge, after due inquiry, each of the Trust and
the Managing Owner has obtained all required
governmental and regulatory licenses, registrations
and approvals required by law as may be necessary
in order for each of the Trust and the Managing
Owner to perform its obligations under this
Agreement and under the Advisory Agreement and to
act as described in the Registration Statement as
of its effective date and the Prospectus as of the
Closing Date (including, without limitation, the
Managing Owner's registration as a commodity pool
operator under the CE Act and membership as a
commodity pool operator with the NFA) and such
licenses, registrations and approvals have not, to
the best of such counsel's knowledge, after due
inquiry, been rescinded, revoked or otherwise
removed.
(vii) To such counsel's knowledge without
independent investigation, except as described in
the Prospectus, or in a schedule delivered by
27
counsel to Prudential Securities and the Managing
Owner prior to the date hereof, there is no pending
or threatened suit or proceeding known to such
counsel, before or by any court, governmental or
regulatory body or arbitration panel to which the
Trust and the Managing Owner or any of the assets
of the Trust or the Managing Owner or any of their
principals is subject and which reasonably might be
expected to result in any material adverse change
in the condition (financial or otherwise), business
or prospects of the Trust or Managing Owner or any
of their principals or which reasonably might be
expected materially adversely to affect any of the
assets of the Trust or Managing Owner or any of
their principals or which reasonably might be
expected to (A) impair materially the Trust's or
Managing Owner's ability to discharge their
obligations to the Advisor or (B) result in a
matter which would require disclosure in the
Registration Statement or Prospectus which is not
so disclosed; and, to the extent of such counsel's
knowledge, neither the Trust or Managing Owner, nor
any of their principals has received any notice of
an investigation by (i) the NFA regarding non-
compliance with its rules or the CE Act, (ii) the
CFTC regarding non-compliance with the CE Act or
(iii) any exchange, regarding non-compliance with
its rules, which investigation reasonably might be
expected to (A) impair materially the Trust's or
Managing Owner's ability to discharge its
obligations to the Advisor or (B) result in a
matter which would require disclosure in the
Registration Statement or Prospectus which is not
so disclosed.
28
(viii) The Registration Statement as of its
effective date and the Prospectus as of the Closing
Date comply as to form 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
29
matters of law of states other than that in which
they are licensed to practice law, upon the
opinions of other counsel, in each case
satisfactory in form and substance to the Advisor
and its counsel, and such counsel shall state that
they believe the Advisor may rely on them.
9. Survival of Representations, Warranties and
Covenants. All representations, warranties and
covenants in this Agreement or contained in
certificates required to be delivered hereunder
shall survive the delivery of any payment for the
Interests under the Underwriting Agreement and the
termination of the Advisory Agreement and this
Agreement, with respect to any matter arising while
the Advisory Agreement or this Agreement was in
effect. Furthermore, all representations,
warranties and covenants hereunder shall inure to
the benefit of each of the parties to this
Agreement and to their respective successors and
permitted assigns.
10. Indemnification.
a. In any action in which Prudential Securities,
the Trust, the Trustee or the Managing Owner, or
its controlling persons, shareholders, partners,
directors, officers and/or employees of any of the
foregoing (the "PSI Indemnified Parties") are
parties, the Advisor agrees to indemnify and hold
harmless the foregoing persons against any loss,
claim, damage, charge, liability or expense
(including, without limitation, reasonable
attorneys' and accountants' fees) ("Losses") to
which such persons may become subject, insofar as
such Losses arise out of or are based exclusively
upon (i) any misrepresentation or material breach
of any warranty, covenant or agreement of the
30
Advisor contained in this Agreement or (ii) any
untrue statement of any material fact contained in
the Registration Statement or the Prospectus or the
omission to state in the Registration Statement or
the Prospectus a material fact required to be
stated therein or necessary to make the statements
therein (with respect to the Prospectus, in light
of the circumstances in which they are made) not
misleading, in each case under this subclause (ii)
to the extent, but only to the extent, that such
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
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, and (B) to
reimburse each of the foregoing persons for any
31
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.
b. In any action in which the Advisor, or any of
its controlling persons, shareholders, directors,
officers and/or employees (the "Advisor Indemnified
Parties") are parties, the Managing Owner agrees
(A) to indemnify and hold harmless the Advisor
Indemnified Parties against any Losses, insofar as
such Losses arise out of or are based exclusively
upon (i) any misrepresentation or material breach
of any warranty, covenant or agreement of the Trust
or the Managing Owner contained in this Agreement,
(ii) any untrue statement of any material fact
contained in the Registration Statement or the
Prospectus or the omission to state in the
Registration Statement or the Prospectus a material
fact required to be stated therein or necessary to
make the statements therein (with respect to the
Prospectus, in light of the circumstances in which
they are made) not misleading, (iii) any failure to
comply with any legal requirements relating to the
Offering of the Interests (including without
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) or (iii) 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 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.
32
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, 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.
33
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 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,
34
sequestrator (or other similar official) of the
Trust or of any substantial part of any of its
properties, or ordering the winding up or
liquidation of any of its affairs, (ii) seek a
petition for relief, reorganization or to take
advantage of any law referred to in the preceding
clause or (iii) file an involuntary petition for
bankruptcy (collectively "Bankruptcy or Insolvency
Action"). In addition, the Advisor agrees that for
any obligations due and owing to it by the Trust,
the Advisor will look solely and exclusively to the
assets of Series F or the Managing Owner, if it has
liability in its capacity as Managing Owner, to
satisfy its claims and will not seek to attach or
otherwise assert a claim against the assets of any
other Series or the other assets of the Trust,
whether there is a Bankruptcy or Insolvency Action
taken. The parties agree that this provision will
survive the termination of this Agreement, whether
terminated in a Bankruptcy or Insolvency Action or
otherwise.
12. Subordination Agreement. Each of the Advisor,
the Managing Owner and the Trustee (the "Potential
Creditor(s)") agrees and consents (the "Consent")
to look solely to Series F, the Series For which
advisory services are being performed hereunder and
assets of Series F (the "Series F Assets") and to
the Managing Owner and its assets for payment.
Series F Assets include only those funds and other
assets that are paid, held or distributed to the
Trust on account of and for the benefit of
Series F, including, without limitation, funds
delivered to the Trust for the purchase of
interests in Series F. In furtherance of the
Consent, the Potential Creditors agree that (i) any
debts, liabilities, obligations, indebtedness,
expenses and claims of any nature and of all kinds
and descriptions (collectively, "Claims") incurred,
contracted for or otherwise existing arising from,
related to or in connection with the Trust and its
assets and Series F and Series F Assets, shall be
subject to the following limitations:
35
a. Subordination of certain claims and rights:
(i) except as set forth below, the Claims, if any,
of the Potential Creditors (the "Subordinated
Claims") shall be expressly subordinate and junior
in right of payment to any and all other Claims
against the Trust and any Series thereof, and any
of their respective assets, which may arise as a
matter of law or pursuant to any contract;
provided, however, that the Potential Creditors'
Claims (if any) against Series F shall not be
considered Subordinated Claims with respect to
enforcement against and distribution and repayment
from Series F, the Series F Assets and the
Managing Owner and its assets; and provided further
that the Potential Creditors' valid Claims, if any,
against Series F shall be pari passu and equal in
right of repayment and distribution with all other
valid Claims against Series F and (ii) the
Potential Creditors, individually or collectively,
will not take, demand or receive from any Series or
the Trust or any of their respective assets (other
than Series F, the Series F Assets and the
Managing Owner and its assets) any payment for the
Subordinated Claims;
b. The Claims of each of the Potential Creditors
with respect to Series F shall only be asserted and
enforceable against Series F, Series F Assets and
the Managing Owner and its assets; and such Claims
shall not be asserted or enforceable for any reason
whatsoever against any other Series, the Trust
generally or any of their respective assets;
c. If the Claims of a Potential Creditor against
Series F or the Trust are secured in whole or in
part, each of the Potential Creditors hereby waives
(under section 1111(b) of the U.S. Bankruptcy Code
(11 U.S.C. S 1111(b)) any right to have any
deficiency Claims (which deficiency Claims may
arise in the event such security is inadequate to
satisfy such Claims) treated as unsecured Claims
against the Trust or any Series (other than
Series F), as the case may be;
36
d. In furtherance of the foregoing, if and to the
extent that the Potential Creditors receive monies
in connection with the Subordinated Claims from a
Series or the Trust (or their respective assets),
other than Series F, Series F Assets and the
Managing Owner and its assets, the Potential
Creditors shall be deemed to hold such monies in
trust and shall promptly remit such monies to the
Series or the Trust that paid such amounts for
distribution by the Series or the Trust in
accordance with the terms hereof; and
e. The foregoing Consent shall apply at all times
notwithstanding that the Claims are satisfied and
notwithstanding that the agreements in respect of
such Claims are terminated, rescinded or canceled.
13. Notices. Any notices under this Agreement
required to be given shall be effective only if
given or confirmed in writing, shall be deemed
given by the party providing notice when received
by the party to whom notice is being given and
shall be sent certified mail, postage prepaid, or
hand delivered, to the following address, or to
such other address as a party may specify by
written notice to each of the other parties hereto:
If to Prudential Securities: If to the Trustee:
Prudential Securities Incorporated Wilmington Trust Company
Xxx Xxxxxxx Xxxxx Xxxxxx Xxxxxx Xxxxx
000 Xxxxx Xxxxxx 0000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxxx Attention: Corporate Trust
Administration
37
If to the Managing Owner or the Trust:
Prudential Securities Futures
Management Inc
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx and
Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
in any case with a copy to each of:
Xxxx X. Xxxxx, Esq. Xxxxx Xxxxxxxxx
Rosenman & Colin LLP Prudential Securities Inc.
000 Xxxxxxx Xxxxxx One Xxxxxxx Xxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxx Xxxxxx
Facsimile: (000) 000-0000 Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
If to the Advisor: with a copy to:
Xxxxxxxx & Company, Inc. Sidley & Austin
000 Xxxx Xxxxxxxxxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxx 000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx, Xxxxxxxx 00000 Attention: Xxxxxxx X. Xxxxxxxxxxxxx, Esq.
Attention: Xxxxxxx X. Xxxxxxx Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
14. Governing Law. This Agreement shall be deemed
to be made under the laws of the State of New York
applicable to contracts made and to be performed in
that State and shall be governed by and construed
in accordance with the laws of that State, without
regard to the conflict of laws principles.
15. Arbitration, Remedies. Each party hereto
agrees that any dispute relating to the subject
matter of this Agreement shall be settled and
determined by arbitration in the City of New York
pursuant to the rules of NFA or, if NFA should
refuse to accept the matter, the American
Arbitration Association. The parties also agree
that the award of the arbitrators shall be final
and may be enforced in the courts of New York and
in any other courts having jurisdiction over the
parties.
38
16. Assignment. This Agreement may not be assigned
by any party without the express prior written
consent of each of the other parties hereto.
17. Amendment or Modification or Waiver. This
Agreement may not be amended or modified except by
the written consent of each of the parties hereto.
18. Successors. Except as set forth in Section 10
of this Agreement, this Agreement is made solely
for the benefit of and shall be binding upon the
Trust, the Managing Owner, Prudential Securities,
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.
19. Survival. The provisions of this Agreement
shall survive the termination of this Agreement
with respect to any matter arising while this
Agreement was in effect.
20. No Waiver. No failure or delay on the part of
any party hereto in exercising any right, power or
remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any
such right, power or remedy preclude any other or
further exercise thereof or the exercise of any
other right, power or remedy. Any waiver granted
hereunder must be in writing and shall be valid
only in the specific instance in which given.
21. No Liability of Limited Owners. This Agreement
has been made and executed by and on behalf of the
Trust and the Managing Owner, and the obligations
of the Trust and/or the Managing Owner set forth in
this Agreement are not binding upon any of the
Limited Owners individually, but rather, are
39
binding only upon the assets and property of the
Trust and, to the extent provided herein, upon the
assets and property of the Managing Owner.
22. Headings. Headings to the Sections in this
Agreement are for the convenience of the parties
only and are not intended to be or to affect the
meaning or interpretation of this Agreement.
23. Complete Agreement. Except as otherwise
provided herein, this Agreement and the Advisory
Agreement constitute the entire agreement among the
parties with respect to the matters referred to
herein, and no other agreement, verbal or
otherwise, shall be binding upon the parties
hereto.
24. Counterparts. This Agreement may be executed
in one or more counterparts, all of which, when
taken together, shall be deemed to constitute one
original instrument.
40
IN WITNESS WHEREOF, this Agreement has been
executed as of the day and year first above
written.
PRUDENTIAL SECURITIES INCORPORATED
By:
Name:
Title:
PRUDENTIAL SECURITIES FUTURES
MANAGEMENT INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
WORLD MONITOR TRUST II
By: PRUDENTIAL SECURITIES FUTURES
MANAGEMENT INC., as Managing Owner
By:
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
WILMINGTON TRUST COMPANY
By:
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
XXXXXXXX & COMPANY, INC.
By:
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
41
Exhibit A
Consent
The undersigned Advisor has reviewed the Prospectus
dated ______________________, 1999 of World Monitor
Trust II with respect to the information contained
therein relating to the undersigned Advisor and, in
accordance with the Representation Agreement among
us dated as of the _____ day of September, 1999
("Representation Agreement"), hereby consents to
all provisions to which it is required to consent
pursuant to the Representation Agreement and also
consents to the distribution of such Prospectus.
XXXXXXXX & COMPANY, INC.
By:
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
