EXHIBIT 10.3
ADVISORY AGREEMENT
ADVISORY AGREEMENT (this "Agreement"), dated as of the ___ day of
__________, 2005, by and among WMT III - SERIES H/J TRADING VEHICLE LLC, a
Delaware statutory trust (the "Trading Vehicle"), PREFERRED INVESTMENT
SOLUTIONS CORP., a Connecticut corporation (the "Managing Owner"), and
BRIDGEWATER ASSOCIATES, INC., a Connecticut corporation (the "Advisor").
W I T N E S SE T H:
WHEREAS, the Trading Vehicle has been organized primarily for the
purpose of trading, buying, selling, spreading or otherwise acquiring, holding
or disposing of futures, forward and options contracts with respect to
commodities. Other transactions also may be effected from time to time,
including among others, those as more fully identified in Exhibit A hereto;
the foregoing commodities and other transactions are collectively referred to
as "Commodities"; and
WHEREAS, Series H and Series J are the only members ("Members") of
the Trading Vehicle; and
WHEREAS, the Managing Owner is the managing owner of World Monitor
Trust III (the "Trust"), a Delaware statutory trust; and
WHEREAS, the Managing Owner is authorized as managing owner of the
Trust to utilize the services of one or more professional commodity trading
advisors in connection with the Commodities trading activities of the various
trading vehicles that will be owned by certain series of the Trust; and
WHEREAS, the Trust proposes to make an initial public offering (the
"Offering") of units (the "Units") of beneficial interest in the Trust (the
"Interests") issuable in
multiple series of interests (each, a "Series") through Kenmar Securities,
Inc. (the "Selling Agent"), an affiliate of the Managing Owner, and in
connection therewith, the Trust intends to file with the U. S. Securities and
Exchange Commission (the "SEC"), pursuant to the Securities Act of 1933, as
amended (the "1933 Act"), a registration statement on Form S-1 to register the
beneficial interests ("Interests"), including the Series H Interests (Units
relating to the Series H Interests are referred to herein as the "Series H
Units") and Series J Interest (Units relating to the Series J Interests are
referred to herein as the "Series J Units"), and as part thereof a prospectus
(which registration statement, together with all amendments thereto, shall be
referred to herein as the "Registration Statement" and which prospectus, in
final form, shall be referred to herein as the "Prospectus"); and
WHEREAS, the Trust will prepare and file applications for
registration of the Interests under the securities or Blue Sky laws of such
jurisdictions as the Managing Owner deems appropriate; and
WHEREAS, the Advisor's present business includes the management of
Commodities accounts for its clients; and
WHEREAS, the Advisor is registered as a commodity trading advisor
under the Commodity Exchange Act, as amended (the "CE Act"), and is a member
of the National Futures Association (the "NFA") as a commodity trading advisor
and will maintain such registration and membership for the term of this
Agreement; and
WHEREAS, the Trading Vehicle and the Advisor desire to enter into
this Agreement in order to set forth the terms and conditions upon which the
Advisor will render and implement commodity advisory services on behalf of the
Trading Vehicle during the term of this Agreement.
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NOW, THEREFORE, the parties agree as follows:
1. Duties of the Advisor.
(a) Appointment. The Trading Vehicle hereby appoints the Advisor,
and the Advisor hereby accepts appointment, as its limited attorney-in-fact to
exercise discretion to invest and reinvest in Commodities during the term of
this Agreement the portion of the Trading Vehicle's Net Asset Value (as
described in the Prospectus) which is comprised of the assets attributable to
the Trading Vehicle's assets allocated to the Advisor (the "Trading Vehicle
Allocated Assets") on the terms and conditions and for the purposes set forth
herein. This limited power-of-attorney is a continuing power and shall
continue in effect with respect to the Advisor until terminated hereunder. The
Advisor shall have sole authority and responsibility for independently
directing the investment and reinvestment in Commodities of the Trading
Vehicle Allocated Assets for the term of this Agreement pursuant to the
trading programs, methods, systems, and strategies described in Exhibit A
hereto, which Trading Vehicle has selected to be utilized by the Advisor in
trading the Trading Vehicle Allocated Assets (collectively referred to as the
Advisor's "Trading Approach"), subject to the trading limitations and policies
as set forth in the Prospectus and attached hereto as Exhibit B (the "Trading
Limitations and Policies"), as the same may be modified from time to time and
provided in writing to the Advisor. The portion of the Trading Vehicle
Allocated Assets to be allocated by the Advisor at any point in time to one or
more of the various trading strategies comprising the Advisor's Trading
Approach will be determined as set forth in Exhibit A hereto, as it may be
amended from time to time, with the consent of the parties, it being
understood that trading gains and losses automatically will alter the agreed
upon allocations. Upon receipt of a new allocation, the Advisor will determine
and, if required, adjust its trading in light of the new allocation.
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(b) Allocation of Responsibilities. The Trading Vehicle will have
the responsibility for the management of any portion of the Trading Vehicle
Allocated Assets that are not invested in Commodities. The Advisor will use
its good faith and best efforts in determining the investment and reinvestment
in Commodities of the Trading Vehicle Allocated Assets in compliance with the
Trading Limitations and Policies, and in accordance with the Advisor's Trading
Approach. In the event that the Trading Vehicle shall, in its sole discretion,
determine in good faith following consultation appropriate under the
circumstances with the Advisor that any trading instruction issued by the
Advisor violates the Trading Limitations and Policies then the Trading
Vehicle, following reasonable notice to the Advisor appropriate under the
circumstances, may override such trading instruction and shall be responsible
therefor. Nothing herein shall be construed to prevent the Managing Owner from
imposing any limitation(s) on the trading activities of the Trading Vehicle
beyond those enumerated in the Prospectus if the Managing Owner determines
that such limitation(s) are necessary or in the best interests of the Trust or
the Trading Vehicle, in which case the Advisor will adhere to such limitations
following written notification thereof.
(c) Gains From Trading Approach. The Advisor agrees that at least
90% of the annual gross income and gain, if any, generated by its Trading
Approach for the Trading Vehicle Allocated Assets will be "qualifying income"
within the meaning of Section 7704(d) of the Internal Revenue Code (the
"Code") (it being understood that such income will largely result from buying
and selling Commodities and that the Trading Approach is not intended
primarily to generate interest income). The Advisor also agrees that it will
attempt to trade in such a manner as to allow non-U.S. Limited Owners (as
defined below) to qualify for the safe harbors found in Section 864(b)(2) of
the Code and as interpreted in the regulations promulgated or proposed
thereunder.
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(d) Modification of Trading Approach. In the event the Advisor
requests to use, or the Trading Vehicle requests the Advisor to use, a trading
program, system, method or strategy other than or in addition to the trading
programs, systems, methods or strategies comprising the Trading Approach in
connection with trading for the Trading Vehicle (including, without
limitation, the deletion or addition of an agreed upon trading program,
system, method or strategy to the then agreed upon Trading Approach or a
modification in the leverage employed), either in whole or in part, the
Advisor may not do so and/or shall not be required to do so, as appropriate,
unless both the Trading Vehicle and the Advisor consent thereto in writing.
(e) Notification of Material Changes. The Advisor also agrees to
give the Trading Vehicle prior written notice of any proposed material change
in its Trading Approach and agrees not to make any material change in such
Trading Approach (as applied to the Trading Vehicle) over the objection of the
Trading Vehicle, it being understood that the Advisor shall be free to
institute non-material changes in its Trading Approach (as applied to the
Trading Vehicle) without prior written notification. Without limiting the
generality of the foregoing, refinements to the Advisor's Trading Approach,
and the deletion (but not the addition) of Commodities (other than the
addition of Commodities then being traded (i) on organized domestic
commodities exchanges, (ii) on foreign commodities exchanges recognized by the
Commodity Futures Trading Commission (the "CFTC") as providing customer
protections comparable to those provided on domestic exchanges or (iii) in the
interbank foreign currency market) to or from the Advisor's Trading Approach
shall not be deemed a material change in the Advisor's Trading Approach, and
prior approval of the Trading Vehicle shall not be required therefor. The
utilization of forward markets in addition to those enumerated in Exhibit D
hereto would be deemed a material change to the Advisor's Trading Approach and
prior approval shall be required therefor.
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Subject to adequate assurances of confidentiality, the Advisor
agrees that it will discuss with the Trading Vehicle upon request any
alternate trading strategy that the Advisor believes would be beneficial to
the Trading Vehicle, provided that nothing contained in this Agreement shall
require the Advisor to disclose what it deems to be proprietary or
confidential information.
(f) Request for Information. The Advisor agrees to reasonably
consider requests for information from the Trading Vehicle concerning the
Advisor (other than the identity of its customers or proprietary or
confidential information concerning the Advisor), subject to receipt of
adequate assurances of confidentiality by the Trading Vehicle, including, but
not limited to, information regarding any change in control and key personnel
and Trading Approach which the Trading Vehicle reasonably deems to be material
to the Trading Vehicle; the Advisor also shall notify the Trading Vehicle of
any such matters the Advisor, in its reasonable judgment, believes may be
material to the Trading Vehicle relating to the Advisor. During the term of
this Agreement: (i) the Advisor agrees to provide the Trading Vehicle with
updated monthly capsule performance information related to the Advisor's
performance results for the program that the Advisor trades for the Trading
Vehicle within a reasonable period of time after the end of the quarter to
which it relates; and (ii) the Advisor agrees to provide the Trading Vehicle
with updated monthly capsule performance information related to the Advisor's
performance results as to other programs traded by the Advisor, as included in
the Advisor's Disclosure Document, within a reasonable period of time after
the quarter which it relates.
(g) Notice of Errors. The Advisor is responsible for promptly
reviewing all oral and written confirmations it receives to determine that the
Commodities trades were made in accordance with the Advisor's instructions. If
the Advisor determines that an error was made in connection with a trade or
that a trade was made other than in accordance with the Advisor's
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instructions, the Advisor shall promptly notify the Trading Vehicle of this
fact and shall utilize its reasonable efforts to cause the error or
discrepancy to be corrected.
(h) Liability. Neither the Advisor nor any employee, shareholder,
director or officer of the Advisor, nor any person who controls the Advisor,
shall be liable to the Trading Vehicle, its officers, directors, members,
shareholders or employees, or any person who controls the Trading Vehicle or
any of their respective successors or assignees under this Agreement, except
by reason of acts or omissions in material breach of this Agreement or due to
their willful misconduct or gross negligence or by reason of their not having
acted in good faith in the reasonable belief that such actions or omissions
were in, or not opposed to, the best interests of the Trading Vehicle and its
Members; it being understood that the Advisor makes no guarantee of profit nor
guarantee against loss, and that all purchases and sales of Commodities shall
be for the account and risk of the Trading Vehicle, and the Advisor shall
incur no liability for trading profits or losses resulting therefrom provided
the Advisor would not otherwise be liable to the Trading Vehicle under the
terms hereof.
Notwithstanding anything to the contrary, nothing in this Advisory
Agreement shall in any way constitute a waiver or limitation of any rights
that the Trading Vehicle may have under applicable state or federal securities
laws.
(i) Initial Allocation. Initially, the Trading Vehicle Allocated
Assets will total an amount equal to the assets of the Trust allocable to the
Trading Vehicle, including all cash and cash equivalents held by the Trust in
respect of the Trading Vehicle reduced by all liabilities of the Trust
incurred specifically in respect of the Trading Vehicle and further reduced by
a pro-rata share of the total liabilities of the Trust which are not otherwise
specifically allocable to another trading vehicle, at the conclusion of the
Trust's Initial Offering Period (as described in the Prospectus).
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(j) Additional Allocations and Reallocations. Subject to Section 10
below, the Trading Vehicle may, on a monthly basis during the Trust's
Continuous Offering Period, as described in the Prospectus, (i) allocate
additional assets to the Advisor, (ii) reallocate the Trading Vehicle
Allocated Assets away from the Advisor to another commodity trading advisor
(an "Other Advisor"), (iii) reallocate assets to the Advisor from an Other
Advisor or (iv) allocate additional capital with respect to the Trading
Vehicle Allocated Assets to an Other Advisor.
(k) Delivery of Disclosure Document. The Advisor agrees to provide
to the Managing Owner with any amendment or supplement to the Disclosure
Document attached hereto as Exhibit D (an "Update") upon request.
2. Indemnification.
(a) The Advisor. Subject to the provisions of Section 3 of this
Agreement, the Advisor, each shareholder, director, officer and employee of
the Advisor, and each person who controls the Advisor, shall be indemnified,
defended and held harmless by the Trading Vehicle, from and against any and
all losses, judgments, liabilities, expenses (including, without limitation,
reasonable attorneys' fees) and amounts paid in settlement of any claims in
compliance with the conditions specified below (collectively, "Losses")
sustained by the Advisor (i) in connection with any acts or omissions of the
Advisor, or any of its directors, officers, shareholders or employees relating
to its management of the Trading Vehicle Allocated Assets and/or (ii) as a
result of a material breach of this Agreement by the Trading Vehicle or the
Managing Owner, provided that (i) such Losses were not the result of
negligence, misconduct or a material breach of this Agreement on the part of
the Advisor, any of its shareholders, directors, officers or employees or any
person controlling the Advisor, (ii) the Advisor, and its shareholders,
directors, officers, employees, and each person controlling the Advisor, acted
or omitted to act in good faith and in a manner reasonably believed by such
person to be in, or not
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opposed to, the best interests of the Trading Vehicle and its Members and
(iii) any such indemnification will only be recoverable from the Trading
Vehicle Allocated Assets and not from any other assets of Series H, Series J
or any other Series of the Trust, and provided further, that no
indemnification shall be permitted under this Section 2 for amounts paid in
settlement if the Trading Vehicle does not approve the amount of the
settlement (such approval not to be withheld unreasonably). Notwithstanding
the foregoing, the Trading Vehicle shall at all times have the right to offer
to settle any matter with the approval of the Advisor (which approval shall
not be withheld unreasonably), and if the Trading Vehicle successfully
negotiates a settlement and tenders payment therefor to the party claiming
indemnification (the "Indemnitee"), the Indemnitee must either use its
reasonable efforts to dispose of the matter in accordance with the terms and
conditions of the proposed settlement or the Indemnitee may refuse to settle
the matter and continue its defense in which latter event the maximum
liability of the Trading Vehicle to the Indemnitee shall be the amount of said
proposed settlement. Any indemnification by the Trading Vehicle under this
Section 2, unless ordered by a court, shall be made only as authorized in the
specific case by the Trading Vehicle.
(b) Default Judgments and Confessions of Judgment. None of the
foregoing provisions for indemnification shall be applicable with respect to
default judgments of which Indemnitee has actual and timely notice or
confessions of judgment entered into by the Indemnitee, with its knowledge,
without the prior consent of the Trading Vehicle.
(c) Procedure. In the event that an Indemnitee under this Section 2
is made a party to an action, suit or proceeding alleging both matters for
which indemnification can be made hereunder and matters for which
indemnification may not be made hereunder, such Indemnitee shall be
indemnified only for that portion of the Losses incurred in such action, suit
or proceeding which relates to the matters for which indemnification can be
made.
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(d) Expenses. Expenses incurred in defending a threatened or pending
civil, administrative or criminal action, suit or proceeding against an
Indemnitee shall be paid by the Trading Vehicle from the Trading Vehicle
Allocated Assets in advance of the final disposition of such action, suit or
proceeding if (i) the legal action, suit or proceeding, if sustained, would
entitle the Indemnitee to indemnification pursuant to the terms of this
Section 2, (ii) the Advisor undertakes to repay the advanced funds to the
Trading Vehicle Allocated Assets in cases in which the Indemnitee is not
entitled to indemnification pursuant to this Section 2.
3. Limits on Claims.
(a) Prohibited Acts. The Advisor agrees that it will not take any of
the following actions against the Trust: (i) seek a decree or order by a court
having jurisdiction in the premises (A) for relief in respect of the Trust in
an involuntary case or proceeding under the federal Bankruptcy Code or any
other federal or state bankruptcy, insolvency, reorganization, rehabilitation,
liquidation or similar law or (B) adjudging the Trust a bankrupt or insolvent
or seeking reorganization, rehabilitation, liquidation, arrangement,
adjustment or composition of or in respect of the Trust under the federal
Bankruptcy Code or any other applicable federal or state law or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Trust or of any substantial part of any of its
properties or ordering the winding up or liquidation of any of its affairs,
(ii) seek a petition for relief, reorganization or to take advantage of any
law referred to in the preceding clause or (iii) file an involuntary petition
for bankruptcy (collectively, "Bankruptcy or Insolvency Action").
(b) Limited Assets Available. In addition, the Advisor agrees that
for any obligations due and owing to it by the Trading Vehicle, the Advisor
will look solely and exclusively to the Trading Vehicle Allocated Assets to
satisfy its claims and will not seek to attach or otherwise assert a claim
against the other assets of the Trust, the Trading Vehicle or any
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Member whether there is a Bankruptcy or Insolvency Action taken or
otherwise. The parties agree that this provision will survive the termination
of this Agreement, whether terminated in a Bankruptcy or Insolvency Action or
otherwise.
(c) No Limited Owner Liability. This Agreement has been made and
executed by and on behalf of the Trading Vehicle for the benefit of the
Trading Vehicle and the obligations of the Trading Vehicle set forth herein
are not binding upon the Members nor any of the owners of any Series ("Limited
Owners") individually but are binding only upon the assets and property
identified above, and no resort shall be had to the assets of any other Series
issued by the Trust or the Limited Owners' personal property for the
satisfaction of any obligation or claim hereunder.
4. Obligations of the Trading Vehicle, the Managing Owner and the
Advisor.
(a) The Registration Statement and Prospectus. Each of the Trading
Vehicle and the Managing Owner agrees to cooperate and use its good faith and
reasonable efforts in connection with (i) the preparation by the Trading
Vehicle of the Registration Statement and the Prospectus (and any amendments
or supplements thereto), (ii) the filing of the Registration Statement and the
Prospectus (and any amendments or supplements thereto) with such governmental
and self-regulatory authorities as the Managing Owner deems appropriate for
the registration and sale of the Interests and the taking of such other
actions not inconsistent with this Agreement as the Managing Owner may
determine to be necessary or advisable in order to make the proposed offer and
sale of Interests lawful in any jurisdiction and (iii) causing the
Registration Statement (and any amendment thereto) to become effective under
the 1933 Act and the Blue Sky securities laws of such jurisdictions as the
Managing Owner may deem appropriate.
The Advisor agrees to make all reasonable and necessary disclosures
regarding itself, its officers and principals, trading performance (not
including any principal accounts,
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except as otherwise required to be disclosed by the Trading Vehicle pursuant
to applicable law or regulation or pursuant to request by any regulatory
authority), Trading Approach, customer accounts (other than the names of
customers, unless such disclosure is required by law or regulation) and
otherwise as may be required, in the reasonable judgment of the Managing
Owner, to be made in the Registration Statement and Prospectus and in
applications to any such jurisdictions.
Except as required by applicable law or regulation, no description
of or other information relating to the Advisor may be distributed by the
Managing Owner without the prior written consent of the Advisor, which consent
shall not be unreasonably withheld or delayed; provided that distribution of
performance information relating to the Trading Vehicle account shall not
require consent of the Advisor.
(b) Advisor Not A Promoter. The parties acknowledge that the Advisor
has not been, either alone or in conjunction with the Selling Agent or its
affiliates, an organizer or promoter of the Trading Vehicle, and it is not
intended by the parties that the Advisor shall have any liability as such.
(c) Filings. The Advisor acknowledges that the Trust may at any time
determine not to file the Registration Statement with the SEC or withdraw the
Registration Statement from the SEC or any other governmental or
self-regulatory authority with which it is filed or otherwise terminate the
Registration Statement or the offering of Interests. Upon any such withdrawal
or termination, or if the "minimum" (i) aggregate number of Units or (ii)
Series H Units or Series J Units required to be sold pursuant to the
Prospectus is not sold, this Agreement shall terminate and, except for the
payment of expenses as set forth in subparagraph 4(b) above and in paragraph
2, neither the Managing Owner nor the Trading Vehicle shall have
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any obligations to the Advisor with respect to this Agreement nor shall the
Advisor have any obligations to the Managing or the Trading Vehicle with
respect to this Agreement.
(d) Representation Agreement. On or prior to commencement of the
offering of Interests pursuant to the Prospectus, the parties agree to execute
a Representation Agreement relating to the offering of the Series H Interests
and Series J Interests (the "Representation Agreement") substantially in the
form of Exhibit C to this Agreement.
5. Advisor Independence.
(a) Independent Contractor. The Advisor shall for all purposes
herein be deemed to be an independent contractor with respect to the Trading
Vehicle, the Managing Owner and its affiliates and each other commodity
trading advisor that may in the future provide commodity trading advisory
services to the Trading Vehicle and the Managing Owner and its affiliates and
shall, unless otherwise expressly authorized, have no authority to act for or
to represent the Trading Vehicle, the Managing Owner and its affiliates, any
other commodity trading advisor or the Selling Agent in any way or otherwise
be deemed to be a general agent, joint venturer or partner of the Trading
Vehicle, the Managing Owner and its affiliates or any other commodity trading
advisor or in any way be responsible for the acts or omissions of the Trading
Vehicle, the Managing Owner and its affiliates or any other commodity trading
advisor as long as it is acting independently of such persons.
(b) Purchase of Interests. Any of the Advisor, its principals and
employees may, in its discretion, purchase Interests in the Trust.
(c) Confidentiality. The Trading Vehicle and the Managing Owner
acknowledge that the Trading Approach of the Advisor is the confidential
property of the Advisor. Nothing in this Agreement shall require the Advisor
to disclose the confidential or proprietary details of its Trading Approach.
The Trading Vehicle and the Managing Owner
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further agree that they will keep confidential and will not disseminate the
Advisor's trading advice to the Trading Vehicle, except as, and to the extent
that, it may be determined by the Managing Owner to be (i) necessary for the
monitoring or conduct of the business of the Trading Vehicle, including the
performance of brokerage services by the Trading Vehicle commodity broker(s),
or (ii) expressly required by law or regulation.
6. Commodity Broker.
The Managing Owner consents and agrees that, to the extent permitted
by applicable law, the Adviser may (but is not required to) aggregate
Commodity sale and purchase orders for the Trading Vehicle with similar orders
being made contemporaneously for other accounts managed by the Adviser or with
proprietary accounts of the Adviser and its affiliates if, in the Adviser's
reasonable judgment, such aggregation is reasonably likely to result in an
overall economic benefit to the Trading Vehicle, based on an evaluation that
the Trading Vehicle is benefited by relatively better purchase or sale prices,
lower commission expenses or beneficial timing of transactions, or a
combination of these and other factors. In many instances, the purchase or
sale of Commodities for the Trading Vehicle shall be effected substantially
simultaneously with the purchase or sale of like investments for the accounts
of other clients of the Adviser, as well as proprietary accounts of the
Adviser and its affiliates.
All Commodities traded for the account of the Trading Vehicle shall
be made through such commodity broker or brokers, or counterparty or
counterparties, as the Managing Owner directs or otherwise in accordance with
such order execution procedures as are agreed upon between the Advisor and the
Trading Vehicle. Except as set forth below, the Advisor shall not have any
authority or responsibility in selecting or supervising any floor brokers or
counterparties for execution of Commodities trades of the Trading Vehicle or
for negotiating floor brokerage commission rates or other compensation to be
charged therefor. The Advisor
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shall not be responsible for determining that any such broker or counterparty
used in connection with any Commodities transactions meets the financial
requirements or standards imposed by the Trading Vehicle Trading Policies and
Limitations. At the present time, it is contemplated that the Trading Vehicle
will execute and clear all Commodities trades through UBS Securities LLC or
its affiliates. The Advisor may, however, with the consent of the Trading
Vehicle, such consent not to be unreasonably withheld, execute transactions at
such other firm(s) and upon such terms and conditions as the Advisor and the
Trading Vehicle agree if such firm(s) agree to "give up" all such transactions
to UBS Securities LLC for clearance. To the extent that the Trading Vehicle
determines to utilize a broker or counterparty other than UBS Securities LLC
or its affiliates, the Trading Vehicle will consult with the Advisor prior to
directing it to utilize such broker or counterparty and will not retain the
services of such firm over the reasonable objection of the Advisor. To the
extent that the Trading Vehicle does not agree to the use of futures give-ups,
the floor brokers, or foreign exchange counterparties selected by the Advisor,
the Trading Vehicle may be disadvantaged because the Advisor will execute all
block trades first. The Advisor will have no liability for the results of
implementing such procedure.
7. Fees.
In consideration of and in compensation for the performance of the
Advisor's services under this Agreement, the Advisor shall receive from the
Trading Vehicle Allocated Assets a monthly management fee (the "Management
Fee") and a quarterly incentive fee (the "Incentive Fee") based on the Trading
Vehicle Allocated Assets, as follows:
(a) A Management Fee equal to 1/12% of 3% (0.25%) of the Trading
Vehicle Allocated Assets determined as of the close of business on the last
day of each month (an annual rate of 3%). For purposes of determining the
Management Fee, any distributions, redemptions, or reallocation of the Trading
Vehicle Allocated Assets made as of the last day of a month shall
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be added back to the Trading Vehicle Allocated Assets and there shall be no
reduction for (i) any accrued but unpaid Incentive Fees due the Advisor (under
paragraph (b) below) for the quarter in which such fees are being computed, or
(ii) any accrued but unpaid extraordinary expenses (as described in the
Trust's Declaration Of Trust And Trust Agreement). The Management Fee
determined for any month in which an Advisor manages the Trading Vehicle
Allocated Assets for less than a full month shall be pro rated, such proration
to be calculated on the basis of the number of days in the month the Trading
Vehicle Allocated Assets were under the Advisor's management as compared to
the total number of days in such month, with such proration to include
appropriate adjustments for any funds taken away from the Advisor's management
during the month for reasons other than distributions or redemptions.
(b) An Incentive Fee of twenty per cent (20%) (the "Incentive Fee")
of "New High Net Trading Profits" (as hereinafter defined) generated on the
Trading Vehicle Allocated Assets, including realized and unrealized gains and
losses thereon, as of the close of business on the last day of each calendar
quarter (the "Incentive Measurement Date").
New High Net Trading Profits (for purposes of calculating the
Advisor's Incentive Fee only) will be computed as of the Incentive Measurement
Date and will include such profits (as outlined below) since the immediately
preceding Incentive Measurement Date (or, with respect to the first Incentive
Measurement Date, since commencement of operations of the Trading Vehicle)
(each an "Incentive Measurement Period").
New High Net Trading Profits for any Incentive Measurement Period
will be the net profits, if any, from trading the Trading Vehicle Allocated
Assets during such period (including (i) realized trading profit (loss) plus
or minus (ii) the change in unrealized trading profit (loss) on open
positions), and will be calculated after the determination of (reduction for)
(x) the fees charged to the Trading Vehicle for brokerage commissions
(including the related
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exchange fees, clearing fees, pit brokerage fees, give-up fees, and NFA fees)
and (y) the Advisor's Management Fee, but before deduction of any Incentive
Fees payable during the Incentive Measurement Period. New High Net Trading
Profits will not include interest earned or credited on the Trading Vehicle
Allocated Assets. New High Net Trading Profits will be generated only to the
extent that the Advisor's cumulative New High Net Trading Profits exceed the
highest level of cumulative New High Net Trading Profits achieved by the
Advisor as of a previous Incentive Measurement Date. Except as set forth
below, net losses from prior quarters must be recouped before New High Net
Trading Profits can again be generated. If a withdrawal or distribution occurs
or if this Agreement is terminated at any date that is not an Incentive
Measurement Date, the date of the withdrawal or distribution or termination
will be treated as if it were an Incentive Measurement Date, but any Incentive
Fee accrued in respect of the withdrawn assets on such date shall not be paid
to the Advisor until the next scheduled Incentive Measurement Date. New High
Net Trading Profits for an Incentive Measurement Period shall exclude capital
contributions to the Trading Vehicle in an Incentive Measurement Period,
distributions or redemptions paid or payable by the Trading Vehicle during an
Incentive Measurement Period, as well as losses, if any, associated with
redemptions, distributions, and reallocations of assets during the Incentive
Measurement Period and prior to the Incentive Measurement Date (i.e., to the
extent that assets are allocated away from the Advisor through redemptions,
distributions or allocations caused by the Trading Vehicle), any loss
carryforward attributable to the Advisor shall be reduced in the same
proportion that the value of the assets allocated away from the Advisor
comprises of the value of the Trading Vehicle Allocated Assets prior to such
allocation away from the Advisor. In calculating New High Net Trading Profits,
Incentive Fees paid for a previous Incentive Measurement Period will not
reduce cumulative New High Net Trading Profits in subsequent periods.
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(c) Timing of Payment. Management Fees and Incentive Fees shall be
paid generally within 15 business days following the end of the period for
which they are payable. The first Incentive Fee which may be due and owing to
the Advisor in respect of any New High Net Trading Profits will be due and
owing as of the end of the first calendar quarter during which the Trading
Advisor managed the Trading Vehicle Allocated Assets for at least 45 days. If
an Incentive Fee shall have been paid by the Trading Vehicle to the Advisor in
respect of any calendar quarter and the Advisor shall incur subsequent losses
on the Trading Vehicle Allocated Assets, the Advisor shall nevertheless be
entitled to retain amounts previously paid to it in respect of New High Net
Trading Profits.
(d) Fee Data. The Trading Vehicle will provide the Advisor with the
data used by the Trading Vehicle to compute the foregoing fees generally
within 15 business days of the end of the relevant period.
(e) Third Party Payments. Neither the Advisor nor any of its
officers, directors, employees or stockholders shall receive any commissions,
compensation, remuneration or payments whatsoever from any broker with which
the Trading Vehicle carries an account for transactions executed in the
Trading Vehicle's account. The parties acknowledge that a spouse of any of the
foregoing persons may receive floor brokerage commissions in respect of trades
effected pursuant to the Advisor's Trading Approach on behalf of the Trading
Vehicle, which payment shall not violate the preceding sentence.
8. Term and Termination.
(a) Term. This Agreement shall commence on the date hereof and,
unless sooner terminated pursuant to paragraph (b), (c), or (d) of this
Section 8, shall continue in effect until the close of business on the last
day of the month ending twelve full months following the commencement of the
Trading Vehicle's trading activities. Thereafter, unless this Agreement is
18
terminated pursuant to paragraphs (b), (c), or (d) of this Section 8, this
Agreement shall be renewed automatically on the same terms and conditions set
forth herein for successive additional one-year terms, each of which shall
commence on the first day of the month subsequent to the conclusion of the
preceding term. Subject to Section 8(d) hereof, the automatic renewal(s) set
forth in the preceding sentence hereof shall not be affected by (i) any
allocation of the Trading Vehicle Allocated Assets away from the Advisor
pursuant to this Agreement or (ii) the retention of Other Advisors following a
reallocation or otherwise.
(b) Automatic Termination. This Agreement shall terminate
automatically in the event that the Trading Vehicle is terminated or the Trust
is terminated. In addition, this Agreement shall terminate automatically in
the event that the Net Asset Value of the Trading Vehicle Allocated Assets
decline as of the end of any business day by at least 40% from the Net Asset
Value of the Trading Vehicle Allocated Assets (i) as of the beginning of the
first day of this Agreement or (ii) as of the beginning of the first day of
any calendar year, as adjusted on an ongoing basis by (A) any decline(s) in
the Trading Vehicle Allocated Assets caused by distributions, redemptions,
reallocations and withdrawals, and (B) additions to the Trading Vehicle
Allocated Assets caused by additional allocations.
(c) Optional Termination Right of the Trading Vehicle. This
Agreement may be terminated at any time at the election of the Trading Vehicle
in its sole discretion upon at least 30 days' prior written notice to the
Advisor. This Agreement also may be terminated at the election of the Trading
Vehicle upon prior written notice to the Advisor in the event that: (i) the
Trading Vehicle determines in good faith that the Advisor is unable to use its
agreed upon Trading Approach to any material extent, as such Trading Approach
may be refined or modified in the future in accordance with the terms of this
Agreement for the benefit of the Trading Vehicle; (ii) the Advisor's
registration as a commodity trading advisor under the CE Act or
19
membership as a commodity trading advisor with the NFA is revoked, suspended,
terminated or not renewed; (iii) the Trading Vehicle determines in good faith
that the Advisor has failed to conform, and after receipt of written notice,
continues to fail to conform in any material respect, to (A) any of the
Trading Vehicle's Trading Limitations and Policies or (B) the Advisor's
Trading Approach; (iv) there is an unauthorized assignment of this Agreement
by the Advisor; (v) the Advisor dissolves, merges or consolidates with another
entity, sells or transfers a substantial portion of its assets or its business
goodwill, or sells or transfers any portion of its Trading Approach utilized
with respect to the Trading Vehicle, in each instance without the consent of
the Trading Vehicle; (vi) Xxxxxxx X. Xxxxx is not in control of the Advisor's
trading activities for the Trading Vehicle; (vii) the Advisor becomes bankrupt
(admitted or decreed) or insolvent; (viii) for any other reason if the Trading
Vehicle determines in good faith that such termination is essential for the
protection of the Trading Vehicle or any Member, including, without
limitation, a good faith determination by the Trading Vehicle that the Advisor
has breached a material obligation to the Trading Vehicle under this Agreement
relating to the trading of the Trading Vehicle Allocated Assets.
(d) Optional Termination Right of Advisor. The Advisor shall have
the right to terminate this Agreement at any time upon written notice to the
Trading Vehicle, in the event: (i) of the receipt by the Advisor of an opinion
of independent counsel satisfactory to the Advisor and the Trading Vehicle
that by reason of the Advisor's activities with respect to the Trading Vehicle
it is required to register as an investment adviser under the Investment
Advisers Act of 1940 and it is not so registered; (ii) that the registration
of the Managing Owner as a commodity pool operator under the CE Act or its NFA
membership as a commodity pool operator is revoked, suspended, terminated or
not renewed; (iii) that the Trading Vehicle (A) imposes additional trading
limitation(s) pursuant to Section 1 of this Agreement which the Advisor does
20
not agree to follow in its management of the Trading Vehicle Allocated Assets
or (B) overrides trading instructions of the Advisor; (iv) the amount of the
Trading Vehicle Allocated Assets decreases to less than $10 million as the
result of redemptions, distributions, reallocations of Trading Vehicle
Allocated Assets, or deleveraging initiated by the Trading Vehicle but not
trading losses, as of the close of business on any Friday; (v) the Trading
Vehicle elects (pursuant to Section 1 of this Agreement) to have the Advisor
use a different Trading Approach in the Advisor's management of Trading
Vehicle assets from that which the Advisor is then using to manage such assets
and the Advisor objects to using such different Trading Approach; (vi) there
is an unauthorized assignment of this Agreement by the Trading Vehicle; (vii)
there is a material breach of this Agreement by the Trading Vehicle or the
Managing Owner and after giving written notice to the Trading Vehicle or the
Managing Owner (as the case may be) which identifies such breach, such
material breach has not been cured within ten days following receipt of such
notice by the Trading Vehicle or the Managing Owner (as the case may be);
(viii) the Advisor provides the Trading Vehicle with written notice, at least
60 days' prior to the end of the then current term (other than with respect to
any such notice delivered prior to the end of the initial term, for which
there shall be at least 90 days' notice), of the Advisor's desire and
intention to terminate this Agreement as of the end of the then current term;
or (ix) other good cause is shown and the written consent of the Trading
Vehicle is obtained (which shall not be withheld or delayed unreasonably).
(e) Termination Fees. In the event that this Agreement is terminated
with respect to, or by, the Advisor pursuant to this Section 8 or the Trading
Vehicle allocates the Trading Vehicle's assets to Other Advisors, the Advisor
shall be entitled to, and the Trading Vehicle shall pay, the Management Fee
and the Incentive Fee, if any, which shall be computed (i) with respect to the
Management Fee, on a pro rata basis, based upon the portion of the month
21
for which the Advisor had the Trading Vehicle Allocated Assets under
management, and (ii) with respect to the Incentive Fee, if any, as if the
effective date of termination was the last day of the then current calendar
quarter. The rights of the Advisor to fees earned through the earlier to occur
of the date of expiration or termination shall survive this Agreement until
satisfied.
(f) Termination and Open Positions. Once terminated, the Advisor
shall have no responsibility for existing positions, including delivery
issues, if any, which may result from such positions.
9. Liquidation of Positions.
The Advisor agrees to liquidate open positions in the amount that
the Trading Vehicle informs the Advisor, in writing via facsimile or other
equivalent means, that the Trading Vehicle considers necessary or advisable to
liquidate in order to (i) effect any termination or reallocation pursuant to
Sections 1 or 8, respectively or (ii) fund its pro rata share of any
redemption, distribution or Trading Vehicle expense. The Trading Vehicle shall
not, however, have authority to instruct the Advisor as to which specific open
positions to liquidate, except as provided in Section 1 hereof. The Trading
Vehicle shall provide the Advisor with such reasonable prior notice of such
liquidation as is practicable under the circumstances and will endeavor to
provide at least two days prior notice.
10. Other Accounts of the Advisor.
(a) Management of Other Accounts and Trading of Proprietary Capital.
Subject to paragraph (c) of this Section 10, the Advisor shall be free to (i)
manage and trade accounts for other investors (including other public and
private commodity pools), and (ii) trade for its own account, and for the
accounts of its partners, shareholders, directors, officers and employees, as
applicable, using the same or other information and Trading Approach utilized
in the performance of services for the Trading Vehicle, so long as in the
Advisor's reasonable
22
judgment the aggregate amount of capital being managed or traded by the
Adviser does not (i) materially impair the Advisor's ability to carry out its
obligations and duties to the Trading Vehicle pursuant to this Agreement or
(ii) create a reasonable likelihood of the Advisor having to modify materially
its agreed upon Trading Approach being used for the Trading Vehicle in a
manner which might reasonably be expected to have a material adverse effect on
the Trading Vehicle. The aggregate amount of capital referred to in the
preceding sentence hereinafter shall be called "Advisor's Capacity". The
Advisor shall not be required to accept capital from the Trading Vehicle in an
amount which exceeds $135 million if such excess amount will cause the Advisor
to be managing or trading funds pursuant to its Trading Approach which exceed
the Advisor's Capacity.
(b) Equitable Treatment of Accounts. The Advisor agrees, in its
management of accounts other than the account of the Trading Vehicle, that it
will not knowingly or deliberately favor any other account managed or
controlled by it or any of its principals or affiliates (in whole or in part)
over the Trading Vehicle. The preceding sentence shall not be interpreted to
preclude (i) the Advisor from charging another client fees which differ from
the fees to be paid to it hereunder or (ii) an adjustment by the Advisor in
the implementation of any agreed upon Trading Approach in accordance with the
procedures set forth in Section 1 hereof which is undertaken by the Advisor in
good faith in order to accommodate additional accounts. Notwithstanding the
foregoing, the Advisor also shall not be deemed to be favoring another
commodity interest account over the Trading Vehicle's account if the Advisor,
in accordance with specific instructions of the owner of such account, shall
trade such account at a degree of leverage or in accordance with trading
policies which shall be different from that which would normally be applied or
if the Advisor, in accordance with the Advisor's money management principles,
shall not trade certain commodity interest contracts for an account based on
the
23
amount of equity in such account. The Advisor, upon reasonable request and
receipt of adequate assurances of confidentiality, shall provide the Trading
Vehicle with an explanation of the material differences, if any, in
performance between the Trading Vehicle and any other similar account pursuant
to the same Trading Approach for which the Advisor or any of its principals or
affiliates acts as a commodity trading advisor (in whole or in part),
provided, however, that the Advisor may, in its discretion, withhold from any
such inspection the identity of the client for whom any such account is
maintained.
The Managing Owner recognizes, on behalf of itself and the Trading
Vehicle, that investment performance results will vary between accounts for a
variety of reasons, including, but not limited to, the following: (i) the
period during which accounts are active; (ii) the trading approach -- used
although all accounts may be traded in accordance with the same trading
approach, such approach can and does change periodically as a result of an
ongoing program of research and development by the Currency Overlay Manager;
(iii) the size of accounts -- which influences the trading activity of the
account; (iv) investor's goals and policies by which accounts are traded --
some accounts are more highly leveraged at the investors' request producing
commensurately larger gains or losses than other accounts; (v) the rates of
brokerage commissions paid by accounts and when such commissions are charged
to accounts; (vi) the amount of interest income, if earned by accounts, which
will depend on the portion of the account's assets invested in interest
bearing obiligations such as United States Treasury Bills; (vii) the rate of
management and/or incentive fees and amount of administrative cost paid by
accounts -- some pay management and incentive fees, some pay management or
incentive fees only, and some pay no fees at all; (viii) the timing of orders
to open or close positions; (ix) the market conditions in which accounts are
traded, which in part determines the quality of trade
24
executions; (x) different inflows or outflows of equity; and (xi) client
restrictions on permitted executing brokers, dealers or counterparties.
(c) Inspection of Records. Upon the reasonable request of and upon
reasonable notice from the Trading Vehicle or the Managing Owner from time to
time, the Advisor shall permit each of the Trading Vehicle or the Managing
Owner or its representatives (which representatives shall be subject to the
prior approval of the Advisor, such approval not to be unreasonably withheld
or delayed) to review at the Advisor's offices during normal business hours
such trading records pertaining to the account of the Trading Vehicle, or
pertaining to the Advisor's covenants or obligations with respect to this
Agreement. The Advisor may, in its discretion, withhold from any such report
or inspection information that the Advisor deems to be confidential or
proprietary and the Trading Vehicle and the Managing Owner and/or such
representatives shall keep all such information obtained by them from the
Advisor confidential unless disclosure thereof legally is required or has been
made public. Such right will terminate one year after the termination of this
Agreement and does not permit access to computer programs, records, or other
information used in determining trading decisions.
11. Speculative Position Limits.
If, at any time during the term of this Agreement, it appears to the
Advisor that it may be required to aggregate the Trading Vehicle's Commodities
positions with the positions of any other accounts it owns or controls for
purposes of applying the speculative position limits of the CFTC, any
exchange, self-regulatory body or governmental authority, the Advisor promptly
will notify the Trading Vehicle if the Trading Vehicle's positions under its
management are included in an aggregate amount which equals or exceeds the
applicable speculative limit. The Advisor agrees that if its trading
recommendations pursuant to its agreed upon Trading Approach are altered
because of the potential application of speculative position limits, the
Advisor will
25
modify its trading instructions to the Trading Vehicle and its other accounts
in a good faith effort to achieve an equitable treatment of all accounts; to
wit, the Advisor will liquidate Commodities positions and/or limit the taking
of new positions in all accounts it manages, including the Trading Vehicle, as
nearly as possible in proportion to the assets available for trading of the
respective accounts (including "notional" equity) to the extent necessary to
comply with applicable speculative position limits. The Advisor presently
believes that its Trading Approach for the management of the Trading Vehicle's
account, assuming that the allocation is not more than $135 million, can be
implemented for the benefit of the Trading Vehicle notwithstanding the
possibility that, from time to time, speculative position limits may become
applicable.
12. Redemptions, Distributions, Reallocations and Additional Allocations.
(a) Notice. The Trading Vehicle agrees to give the Advisor at least
two business days prior notice of any proposed redemptions, exchanges,
distributions, reallocations, additional allocations or withdrawals affecting
the Trading Vehicle Allocated Assets.
(b) Allocations. Redemptions, exchanges, withdrawals and
distributions of Trading Vehicle interests shall be charged against the
Trading Vehicle Allocated Assets.
13. Brokerage Confirmations and Reports.
The Trading Vehicle will instruct the Trading Vehicle's brokers and
counterparties to furnish the Advisor with copies of all trade confirmations,
daily equity runs and monthly trading statements relating to the Trading
Vehicle Allocated Assets. The Advisor will maintain records and will monitor
all open positions relating thereto; provided, however, that the Advisor shall
not be responsible for any errors by the Trading Vehicle's brokers or
counterparties. The Managing Owner also will furnish the Advisor with a copy
of the form of all reports, including but not limited to, monthly, quarterly
and annual reports, sent to the Limited Owners and copies of all reports filed
with the SEC, the CFTC and the NFA. The Advisor shall,
26
at the Trading Vehicle's request, make a good faith effort to provide the
Trading Vehicle with copies of all trade confirmations, daily equity runs,
monthly trading reports or other reports sent to the Advisor by the Trading
Vehicle's commodity broker regarding the Trading Vehicle and in the Advisor's
possession or control as the Trading Vehicle deems appropriate if the Trading
Vehicle cannot obtain such copies on its own behalf. Upon request, the Trading
Vehicle will provide the Advisor with accurate information with respect to the
Trading Vehicle Allocated Assets.
14. The Advisor's Representations and Warranties.
The Advisor represents and warrants that:
(a) it has full capacity and authority to enter into this Agreement
and to provide the services required of it hereunder;
(b) it will not by entering into this Agreement and by acting as a
commodity trading advisor to the Trading Vehicle (i) be required to take any
action contrary to its incorporating or other formation documents or, to the
best of its knowledge, any applicable statute, law or regulation of any
jurisdiction or (ii) breach or cause to be breached, to the best of its
knowledge, any undertaking, agreement, contract, statute, rule or regulation
to which it is a party or by which it is bound which, in the case of (i) or
(ii), would materially limit or materially adversely affect its ability to
perform its duties under this Agreement;
(c) it is duly registered as a commodity trading advisor under the
CE Act and is a member of the NFA as a commodity trading advisor and it will
maintain and renew such registration and membership during the term of this
Agreement;
(d) a copy of its most recent Commodity Trading Advisor Disclosure
Document as required by Part 4 of the CFTC's regulations has been provided to
the Trading Vehicle in the form of Exhibit D hereto (and the Trading Vehicle
acknowledges receipt of such
27
Disclosure Document) and, except as disclosed in such Disclosure Document, all
information in such Disclosure Document (including, but not limited to,
background, performance, trading methods and trading systems) is true,
complete and accurate in all material respects and is in conformity in all
material respects with the provisions of the CE Act, including the rules and
regulations thereunder, as well as all rules and regulations of the National
Futures Association;
(e) assuming that the Trading Vehicle Allocated Assets equal not
more than $135 million as of the commencement of trading, the amount of such
assets should not, in the reasonable judgment of the Advisor, result in the
Advisor being required to manage funds in an amount which will exceed the
Advisor's Capacity; and
(f) except as may be required by any regulatory authority, neither
the Advisor nor its stockholders, directors, officers, employees, agents,
principals, affiliates nor any of its or their respective successors or
assigns: (i) shall knowingly use or distribute for any purpose whatsoever any
list containing the names and/or residence addresses of, and/or other
information about, the Limited Owners nor (ii) shall solicit any person it or
they know is a Limited Owner for the purpose of soliciting commodity business
from such Limited Owner, unless such Limited Owner shall have first contacted
the Advisor or is already a client of the Advisor or a prospective client with
which the Advisor has commenced discussions or is introduced to or referred to
the Advisor by an unaffiliated agent other than in violation of clause (i).
The within representations and warranties shall be continuing during
the term of this Agreement, and if at any time any event has occurred which
would make or tend to make any of the foregoing not true in any material
respect with respect to the Advisor, the Advisor promptly will notify the
Trading Vehicle in writing thereof.
28
15. The Managing Owner's and the Trading Vehicle's Representations and
Warranties.
Each of the Managing Owner and the Trading Vehicle represents and
warrants only as to itself (and, further, provided that only the Managing
Owner is making the representations and warranties in Section 13(c) and
Section 13(e)(ii), and only the Trading Vehicle is making the representations
and warranties in Section 13(e)(i) and Section 13(f)) that:
(a) each has the full capacity and authority to enter into this
Agreement and to perform its obligations hereunder;
(b) it will not (i) be required to take any action contrary to its
incorporating or other formation documents or any applicable statute, law or
regulation of any jurisdiction or (ii) breach or cause to be breached (A) any
undertaking, agreement, contract, statute, rule or regulation to which it is a
party or by which it is bound or (B) any order of any court or governmental or
regulatory agency having jurisdiction over it, which in the case of (i) or
(ii) would materially limit or materially adversely affect the performance of
its duties under this Agreement;
(c) it is registered as a commodity pool operator under the CE Act
and is a commodity pool operator member of the NFA, and it will maintain and
renew such registration and membership during the term of this Agreement;
(d) this Agreement has been duly and validly authorized, executed
and delivered and is a valid and binding agreement, enforceable against each
of them, in accordance with its terms;
(e) on the date hereof, it is, and during the term of this
Agreement, it will be (i) in the case of the Trading Vehicle, a duly formed
and validly existing Delaware limited liability company, in good standing
under the laws of the State of Delaware, and in good
29
standing and qualified to do business in each jurisdiction in which the nature
and conduct of its business requires such qualification and where the failure
to be so qualified would materially adversely affect its ability to perform
its obligations under this Agreement, and (ii) in the case of the Managing
Owner, a duly formed and validly existing corporation, in good standing under
the laws of the State of Connecticut and in good standing and qualified to do
business in each jurisdiction in which the nature and conduct of its business
requires such qualification and where the failure to be so qualified would
materially adversely affect its ability to perform its obligations under this
Agreement; and
(f) it consents to its account being treated by the Adviser as an
exempt account under Commodity Futures Trading Commission rule 4.7.
The within representations and warranties shall be continuing during
the term of this Agreement, and if at any time any event has occurred which
would make or tend to make any of the foregoing not true in any material
respect, the Trading Vehicle in the case of its representations and
warranties, and the Managing Owner in the case of its representations and
warranties, promptly will notify the Advisor in writing.
16. Assignment.
This Agreement may not be assigned by any of the parties hereto
without the express prior written consent of the other parties hereto, except
that the Advisor need not obtain the consent of any Other Advisor.
17. Successors.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and the successors and permitted assignees of each of them, and
no other person (except as otherwise provided herein) shall have any right or
obligation under this Agreement. The terms "successors" and "assignees" shall
not include any purchasers, as such, of Interests.
30
18. Amendment or Modification or Waiver.
(a) Changes to Agreement. This Agreement may not be amended or
modified, nor may any of its provisions be waived, except upon the prior
written consent of the parties hereto, except that an amendment to, a
modification of or a waiver of any provision of the Agreement as to the
Advisor need not be consented to by any Other Advisor.
(b) No Waiver. No failure or delay on the part of any party hereto
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. Any waiver granted hereunder must be in writing
and shall be valid only in the specific instance in which given.
19. Notices.
Any notices, direction, instruction, acknowledgment, or other
communication required or contemplated by this Agreement shall be confirmed in
writing either by facsimile, email or courier service and shall be deemed
given and effective only when acknowledged by the intended recipient, such
acknowledgement not to be unreasonably delayed or withheld. Notices shall be
addressed as follows:
31
If to the Managing Owner or the Trading Vehicle:
Preferred Investment Solutions Corp.
00 Xxxxxx Xxxxxx
Building One South, 2nd Floor
Greenwich, Connecticut 06831
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Advisor:
Bridgewater Associates, Inc.
0 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx R La Tronica
Facsimile: (000) 000-0000
with a copy to:
Bridgewater Associates, Inc.
0 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
or to such other address as the party entitled to notice shall hereafter
designate by written notice to the other parties.
20. Governing Law.
Each party agrees that this Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard
to the conflict of laws principles thereof.
32
21. Survival.
The provisions of this Agreement shall survive the termination of
this Agreement with respect to any matter arising while this Agreement was in
effect.
22. Promotional Literature.
Each party agrees that prior to using any promotional literature in
which reference to the other parties hereto is made, it shall furnish in
advance a copy of such information to the other parties and will not make use
of any promotional literature containing references to such other parties to
which such other parties object, except as otherwise required by law or
regulation.
23. No Liability of Limited Owners.
This Agreement has been made and executed by and on behalf of the
Trading Vehicle, and the obligations of the Trading Vehicle and/or the
Managing Owner set forth herein are not binding upon any of the Members or
Limited Owners individually, but rather, are binding only upon the assets and
property of the Trading Vehicle and, to the extent provided herein, upon the
assets and property of the Managing Owner.
24. Headings.
Headings to sections herein are for the convenience of the parties
only and are not intended to be or to affect the meaning or interpretation of
this Agreement.
25. Complete Agreement.
Except as otherwise provided herein, this Agreement and the
Representation Agreement constitute the entire agreement between the parties
with respect to the matters referred to herein, and no other agreement, verbal
or otherwise, shall be binding upon the parties hereto except as may be set
forth in writing and executed by the parties hereto.
33
26. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which, when taken together, shall
constitute one original instrument.
27. Arbitration, Remedies.
Each party hereto agrees that any dispute relating to the subject
matter of this Agreement shall be settled and determined by arbitration in the
City of New York pursuant to the rules of the NFA or, if the NFA should refuse
to accept the matter, the American Arbitration Association.
28. Anti-Money Laundering.
The Trading Vehicle acknowledges that the Advisor represents that
the Advisor is subject to United States of America and/or European Union
anti-money laundering regulations. As applicable, the Trading Vehicle will use
correspondent selling agents that, in the Trading Vehicle's reasonable belief,
have appropriate procedures in place to comply with any anti-money laundering
laws that apply regarding an investor's subscription for Series H Interests
and Series J Interests. The Trading Vehicle agrees to provide such information
as may be reasonably requested by the Advisor in order to comply with a
request from any applicable regulatory authority.
The Trading Vehicle confirms that, to the best of the Trading Vehicle's
knowledge and belief, the Trading Vehicle's investment moneys are not, in
whole or in part, the proceeds of drug trafficking or other such criminal
activity, nor do they represent, in whole or in part, directly or indirectly,
such proceeds.
34
29. ADV
The Trading Vehicle received Part II of the Form ADV of the Advisor
at least 48 hours prior to the date of this Agreement.
35
PURSUANT TO AN EXEMPTION FROM THE COMMODITY FUTURES TRADING COMMISSION IN
CONNECTION WITH ACCOUNTS OF QUALIFIED ELIGIBLE PERSONS, THIS BROCHURE OR
ACCOUNT DOCUMENT IS NOT REQUIRED TO BE, AND HAS NOT BEEN, FILED WITH THE
COMMISSION. THE COMMODITY FUTURES TRADING COMMISSION DOES NOT PASS UPON THE
MERITS OF PARTICIPATING IN A TRADING PROGRAM OR UPON THE ADEQUACY OR ACCURACY
OF COMMODITY TRADING ADVISOR DISCLOSURE. CONSEQUENTLY, THE COMMODITY FUTURES
TRADING COMMISSION HAS NOT REVIEWED OR APPROVED THIS TRADING PROGRAM OR THIS
BROCHURE OR ACCOUNT DOCUMENT.
IN WITNESS WHEREOF, this Agreement has been executed for and on
behalf of the undersigned as of the day and year first above written.
WMT III SERIES H/J TRADING VEHICLE LLC
By: WORLD MONITOR TRUST III- SERIES H
Its: Member
By: PREFERRED INVESTMENT SOLUTIONS CORP.,
its sole Managing Owner
By: _____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
By: WORLD MONITOR TRUST III- SERIES J
Its: Member
By: PREFERRED INVESTMENT SOLUTIONS CORP.,
its sole Managing Owner
By: _____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
36
PREFERRED INVESTMENT SOLUTIONS CORP.
By: _____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
BRIDGEWATER ASSOCIATES, INC.
By: _____________________________________
Name: Xxxxx X. La Tronica
Title: Vice President
37
EXHIBIT A
TRADING VEHICLE TRADING APPROACH
--------------------------------
AGGRESSIVE PURE ALPHA FUTURES ONLY - A, NO BENCHMARK
The Advisor will make its trading decisions for the Trading Vehicle
according to its Aggressive Pure Alpha Futures Only-A, No Benchmark trading
system as described in Exhibits A and D as amended from time to time. For
purposes of this Agreement, the Aggressive Pure Alpha Futures Only-A, No
Benchmark strategy will trade the Trading Vehicle Allocated Assets at 1.5
times the normal Pure Alpha Strategy level.
A-1
EXHIBIT B
TRADING LIMITATIONS AND POLICIES
The following limitations and policies are applicable to assets
representing the Trading Vehicle Allocated Assets as a whole and at the outset
to the Advisor individually; since the Advisor initially will manage 100% of
the Trading Vehicle Allocated Assets, such application of the limitations and
policies is identical initially for the Trading Vehicle and the Advisor. The
Advisor sometimes may be prohibited from taking positions for the Trading
Vehicle Allocated Assets which it would otherwise acquire due to the need to
comply with these limitations and policies. The Trading Vehicle or the
Managing Owner will monitor compliance with the trading limitations and
policies set forth below, and the Trading Vehicle may impose additional
restrictions (through modification of such limitations and policies) upon the
trading activities of the Advisor as it, in good faith, deems appropriate in
the best interests of the Trading Vehicle, subject to the terms of the
Advisory Agreement.
The Trading Vehicle will not approve a material change in the following
trading limitations and policies without obtaining the prior written approval
of Limited Owners owning more than 50% of the Series H Interests. The Trading
Vehicle may, however, impose additional trading limitations on the trading
activities of the Trading Vehicle without obtaining such approval if the
Trading Vehicle or the Managing Owner determines such additional limitations
to be necessary in the best interests of the Members.
Investment Objective
To maximize total return with a target tracking error of 18% per year
(tracking error is defined as the annualized standard deviation of returns).
Permitted Investments
o fixed income derivatives and fixed income index derivatives.
o currency spot and derivative instruments
o equity derivatives and equity index derivatives
o commodity derivatives and commodity index derivatives
o derivatives are limited to CFTC approved futures, options and
currency forwards
Trading Limitations
The Trading Vehicle will not: (i) engage in pyramiding its commodities
positions (i.e., the use of unrealized profits on existing positions to
provide margin for the acquisition of additional positions in the same or a
related commodity provided, however, unrealized profits may be considered in
determining the current Trading Vehicle Allocated Assets) but may take into
account open trading equity on existing positions in determining generally
whether to acquire additional commodities positions; (ii) borrow or loan money
(except with respect to the initiation or maintenance of commodities positions
or obtaining lines of credit for the trading of forward currency contracts;
provided, however, that the Trading Vehicle is prohibited from incurring any
indebtedness on a non-recourse basis); (iii) permit rebates to be received by
the
B-1
Trading Vehicle or its affiliates or permit the Trading Vehicle or any
affiliate to engage in any reciprocal business arrangements which would
circumvent the foregoing prohibition; (iv) permit the Advisor to share in any
portion of the commodity brokerage fees paid by the Trading Vehicle; (v)
commingle its assets, except as permitted by law; or (vi) permit the churning
of its commodity accounts.
The Trading Vehicle will conform in all respects to the rules,
regulations and guidelines of the markets on which its trades are executed.
Trading Policies
Subject to the foregoing limitations, the Advisor has agreed to abide by
the trading policies of the Trading Vehicle, which currently are as follows:
(1) The Trading Vehicle Allocated Assets will generally be invested in
contracts which are traded in sufficient volume which, at the time such trades
are initiated, are reasonably expected to permit entering and liquidating
positions.
(2) Stop or limit orders may, in the Advisor's discretion, be given with
respect to initiating or liquidating positions in order to attempt to limit
losses or secure profits. If stop or limit orders are used, no assurance can
be given, however, that the clearing broker will be able to liquidate a
position at a specified stop or limit order price, due to either the
volatility of the market or the inability to trade because of market
limitations.
(3) The Trading Vehicle may engage in EFP transactions involving
currencies and metals and other commodities.
(4) The Trading Vehicle may, from time to time, employ trading techniques
such as spreads, straddles and conversions.
(5) The Trading Vehicle will not initiate open futures or option
positions which would result in net long or short positions requiring as
margin or premium for outstanding positions in excess of 15% of the Trading
Vehicle Allocated Assets for any one commodity or in excess of 662/3% of the
Trading Vehicle Allocated Assets for all commodities combined. Under certain
market conditions, such as an inability to liquidate open commodities
positions because of daily price fluctuations, the Trading Vehicle may be
required to commit the Trading Vehicle Allocated Assets as margin in excess of
the foregoing limits, and in such case the Trading Vehicle will cause the
Advisor to reduce its open futures and option positions to comply to these
limits before initiating new commodities positions.
(6) To the extent the Trading Vehicle engages in transactions in forward
currency contracts other than with or through UBS Securities LLC or its
affiliates, the Trading Vehicle will only engage in such transactions with
counterparties that have a short term credit rating of at least A-1 or P-1.
The Advisor may enter into netting agreements with these counterparties. In
the event that the counterparty is an unrated guaranteed affiliate of the
parent company, the parent's credit rating shall apply.
B-2
EXHIBIT C
REPRESENTATION AGREEMENT CONCERNING THE
REGISTRATION STATEMENT AND THE PROSPECTUS
-----------------------------------------
REPRESENTATION AGREEMENT ("Agreement") dated as of the ____ day of
____________, 2005, by and among WMT III SERIES H/J TRADING VEHICLE LLC, a
Delaware limited liability company (the "Trading Vehicle"), WORLD MONITOR
TRUST III - SERIES H and WORLD MONITOR TRUST III - SERIES J (individually and
collectively a "Trust"), each a separate series of a statutory trust organized
under Chapter 38 of Title 12 of the Delaware Code (the "Delaware Act"), KENMAR
SECURITIES, INC., A Connecticutt corporation (the "Selling Agent"), PREFERRED
INVESTMENT SOLUTIONS CORP., a Connecticut corporation (the "Managing Owner"),
and BRIDGEWATER ASSOCIATES, INC., a Connecticut corporation (the "Advisor").
W I T N E S S E T H:
WHEREAS, the Trust proposes to make an initial public offering (the
"Offering") of units of beneficial interest in the Trust (the "Interests")
issuable in multiple series of Interests (the "Series"), each separately
managed by a different professional commodity trading advisor through the
Selling Agent, 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, including the Series H Interests and the Series J Interests, and as
a part thereof a prospectus (which registration statement, together with all
amendments thereto, shall be referred to herein as the "Registration
Statement" and which prospectus in final form, together with all amendments
and supplements thereto, shall be referred to herein as the "Prospectus"); and
WHEREAS, the Trading Vehicle and the Managing Owner entered into an
agreement with the Advisor, dated as of _________, 2005 (the "Advisory
Agreement"), pursuant to which the Advisor has agreed to act as a commodity
trading advisor to the Trading Vehicle; and
WHEREAS, Series H and Series J are the only Members of the Trading
Vehicle; and
WHEREAS, the parties hereto wish to set forth their duties and
obligations to each other with respect to the Registration Statement as of its
effective date and the Prospectus as of the date(s) on which subscribers'
funds are transferred to the trust estate represented by Series H Interests
and Series J Interests ("Closing Dates(s)").
NOW, THEREFORE, the parties agree as follows:
1. Representations and Warranties of the Advisor. The Advisor hereby
represents and warrants to the Selling Agent, the Trading Vehicle, the Trust
and the Managing Owner that:
(a) All references in the Registration Statement, consented to in
writing by the Advisor in the form attached hereto as Exhibit A, as of its
effective date and the Prospectus as of the Closing Date to (i) the Advisor
and its affiliates, and the controlling persons, shareholders, directors,
officers and employees of any of the foregoing, (ii) the Advisor's Trading
Approach (as defined in the Advisory Agreement) and (iii) the actual past
performance of discretionary accounts directed by the Advisor or any principal
thereof, including the notes to the tables reflecting such actual past
performance (hereinafter referred to as the Advisor's "Past Performance
History") are complete and accurate in all material respects, and as to such
persons,
2
the Advisor's Trading Approach and the Advisor's past performance history, the
Registration Statement as of its effective date and the Prospectus as of each
Closing Date contain all information requested by the Managing Owner, 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. Except as specifically stated
herein, it is understood that no representation or warranty is being made with
respect to the calculations used to create the pro forma performance table or
notes thereto. The term "principal" in this Agreement shall have the same
meaning as that term in Commodity Futures Trading Commission (the "CFTC")
Regulation ss. 4.10(e) under the CE Act.
(b) The Advisor will not distribute the Registration Statement, the
Prospectus and/or the selling materials related thereto, except as may be
requested by the Managing Owner in connection with "road show" presentations
or otherwise.
(c) This Agreement and the Advisory Agreement have been duly and
validly authorized, executed and delivered on behalf of the Advisor and each
is a valid and binding agreement enforceable in accordance with its terms. The
performance of the Advisor's obligations under this Agreement and the
consummation of the transactions set forth in this Agreement, in the Advisory
Agreement and in the Registration Statement as of its effective date and
Prospectus as of the Closing Date are not contrary to the provisions of the
Advisor's formation documents, or to the best of its knowledge, any applicable
statute, law or regulation of any jurisdiction, and will not result in any
violation, breach or default under any term or
3
provision of any undertaking, contract, agreement or order to which the
Advisor is a party or by which the Advisor is bound.
(d) The Advisor has all governmental and regulatory licenses,
registrations and approvals required by law as may be necessary to perform its
obligations under the Advisory Agreement and this Agreement and to act as
described in the Registration Statement as of its effective date and the
Prospectus as of the Closing Date including, without limitation, registration
as a commodity trading advisor under the CE Act and membership as a commodity
trading advisor with the National Futures Association (the "NFA"), and it will
maintain and renew any required licenses, registrations, approvals or
memberships during the term of the Advisory Agreement.
(e) On the date hereof, the Advisor is, and at all times during the
term of this Agreement will be, a corporation formed and validly existing and
in good standing under the laws of its jurisdiction of formation and in good
standing and qualified to do business in each jurisdiction in which the nature
or conduct of its business requires such qualifications and the failure to be
so qualified would materially adversely affect the Advisor's ability to
perform its obligations hereunder or under the Advisory Agreement. The Advisor
has full capacity and authority to conduct its business and to perform its
obligations under this Agreement and to act as described in the Registration
Statement as of its effective date and the Prospectus as of the Closing Date.
(f) 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
4
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.
(g) The Advisor is required to be registered as an investment
adviser under the United States Investment Advisers Act of 1940, as amended
(the "Advisers Act"), and is so registered.
(h) 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 "BRIDGEWATER ASSOCIATES,
INC." which has not been communicated in writing to and received by the
Managing Owner and the Selling Agent or their counsel.
(i) Except for subsequent performance, as to which no representation
is made, since the date of the Advisory Agreement, (i) there has not been any
material adverse change in the condition, financial or otherwise, of the
Advisor or in the earnings, affairs or business prospects of the Advisor,
whether or not arising in the ordinary course of business, and (ii) there have
not been any material transactions entered into by the Advisor other than
those in the ordinary course of its business.
(j) Except as disclosed in the Registration Statement and in the
Prospectus, there is no pending, or to the best of its knowledge, threatened
or contemplated action, suit or proceeding before or by any court,
governmental, administrative or self-regulatory body or arbitration panel to
which the Advisor or its principals is a party, or to which any of the assets
of the Advisor is subject which reasonably might be expected to result in any
material adverse change in the condition (financial or otherwise), business or
prospects of the Advisor or which reasonably might be expected to materially
adversely affect any of the material assets of the Advisor or which reasonably
might be expected to (A) impair materially the Advisor's ability to
5
discharge its obligations to the Trading Vehicle or (B) result in a matter
which would require disclosure in the Registration Statement and/or
Prospectus; furthermore the Advisor has not received any notice of an
investigation by (i) the NFA regarding non-compliance with its rules or the CE
Act, (ii) the CFTC regarding non-compliance with the CE Act, or the rules and
regulations thereunder or (iii) any exchange regarding non-compliance with the
rules of such exchange which investigation reasonably might be expected to
materially impair the Advisor's ability to discharge its obligations under
this Agreement or the Advisory Agreement.
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 Trading
Vehicle, the Managing Owner and the Selling Agent of any such fact, omission,
event or change of circumstance, and the facts related thereto, and it is
agreed that the failure to provide such notification or the failure to
continue to be in compliance with the foregoing representations and warranties
during the term of the Advisory Agreement as soon as possible following such
notification shall be cause for the Trading Vehicle to terminate the Advisory
Agreement with the Advisor on prior written notice to the Advisor. The Advisor
also agrees that, during the term of the Advisory Agreement, from and after
the Effective Date of the Registration Statement and for so long as Interests
in the Trust are being offered, whether during the Initial Offering Period or
during any Continuous Offering Period (as
6
those terms are described in the Prospectus), it will provide the Selling
Agent, the Trading Vehicle and the Managing Owner with updated month-end
capsule performance 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 "BRIDGEWATER
ASSOCIATES, INC." beyond the periods disclosed therein. The Advisor shall use
its best efforts to provide such information within a reasonable period of
time after the information is available to it. Concurrently herewith the
Advisor shall execute and deliver a consent, in the form and substance of
Exhibit A hereto, with respect to the Prospectus.
3. Modification of Registration Statement or Prospectus. If any
event or circumstance occurs as a result of which it becomes necessary, in the
judgment of the Managing Owner and the Selling Agent, to amend the
Registration Statement in order to make the Registration Statement not
materially misleading or to amend or to supplement the Prospectus in order to
make the Prospectus not materially misleading in light of the circumstances
existing at the time it is delivered to a subscriber, or if it is otherwise
necessary in order to permit the Trust to continue to offer its Interests
subsequent to the Initial Offering Period subject to the limitations set forth
in the Advisory Agreement, the Advisor will furnish such information with
respect to itself and its principals, as well as its Trading Approach and past
performance history as the Managing Owner or the Selling Agent may reasonably
request, and will cooperate to the extent reasonably necessary in the
preparation of any required amendments or supplements to the Registration
Statement and/or the Prospectus.
4. Advisor's Closing Obligations. On or prior to the Closing Date
with respect to the initial offering of Series H Interests and Series J
Interests (the "Initial Closing Date"), and thereafter, only if requested, on
or prior to each closing date during the continuous
7
offering of Series H Interests and Series J Interests (each a "Subsequent
Closing Date"), the Advisor shall deliver or cause to be delivered, at the
expense of the Advisor, to the Selling Agent, the Trading Vehicle, the Trust
and the Managing Owner, a certificate of the Advisor in a form reasonably
acceptable to the Selling Agent, the Trading Vehicle, the Managing Owner and
the Advisor, to the effect that:
(a) 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.
(b) 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.
(c) The Advisor has performed all covenants and agreements herein
contained to be performed on its part at or prior to the Closing Date.
5. Advisor Acknowledgements. The Advisor acknowledges that: (i) it
may be a condition to each closing under the Selling Agreement that the
Selling Agent shall have received, at no cost to the Advisor, letter(s) from
certified public accountants or other reputable professionals selected by the
Selling Agent with respect to the past performance history of the
8
Advisor as set forth in the Selling Agreement and (ii) the Trust may at any
time withdraw the Registration Statement from the SEC or otherwise terminate
the Registration Statement or the offering of Interests, and upon any such
withdrawal or termination or if the "minimum" number of Interests, as
described in the Prospectus, is not sold, this Agreement shall terminate and
none of the parties hereto shall have any obligation to any other party
pursuant to this Agreement, except pursuant to Section 10 of this Agreement to
the extent that such section is applicable.
6. Warranties of the Trading Vehicle and the Managing Owner. The
Managing Owner hereby only represents and warrants as to itself and the Trust
(as applicable), and the Trading Vehicle hereby only represents and warrants
as to itself, to the Advisor that:
(a) On the date hereof, the Trading Vehicle is, and at all times
during the term of this Agreement and the Advisory Agreement will be, a duly
formed and validly existing limited liability company in good standing under
the laws of the State of Delaware and at all times during the term of this
Agreement and the Advisory Agreement will be in good standing and qualified to
do business in each jurisdiction in which the nature or conduct of its
business 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
Connecticut and is, and at all times during the term of this Agreement and the
Advisory Agreement will be, in good standing and qualified to do business as a
foreign corporation in each other jurisdiction in which the nature or conduct
of its business requires such qualifications and in which the failure to be so
qualified materially adversely would affect its ability to act as Managing
Owner of the Trust and to
9
perform its obligations hereunder and under the Advisory Agreement, and each
has full capacity and authority to conduct its business and to perform its
obligations under this Agreement and the Advisory Agreement and to act as
described in the Registration Statement as of its effective date and the
Prospectus as of the Closing Date.
(b) Each of this Agreement and the Advisory Agreement has been duly
and validly authorized, executed and delivered on behalf of the Trading
Vehicle and the Managing Owner, is a valid and binding agreement of the
Trading Vehicle and the Managing Owner and is enforceable in accordance with
its terms. The performance of the Trading Vehicle's and the Managing Owner's
obligations under this Agreement and under the Advisory Agreement, and the
consummation of the transactions set forth in this Agreement and the Advisory
Agreement, and in the Registration Statement as of its effective date and
Prospectus as of the Closing Date are not contrary to the provisions of the
Trust's Declaration of Trust and Trust Agreement, as it may be amended from
time to time (the "Trust Agreement"), or Certificate of Trust, the Managing
Owner's Articles of Incorporation or By-Laws, or the Trading Vehicle's
Certificate of Formation or Limited Liability Company Agreement, 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 Trading Vehicle, the
Trust or the Managing Owner, is a party or by which the Trading Vehicle, the
Trust or the Managing Owner is bound.
(c) Each of the Trading Vehicle, the Trust and the Managing Owner
(as the case may be) has obtained all required governmental and regulatory
licenses, registrations and approvals required by law as may be necessary to
perform their obligations under this Agreement and under the Advisory
Agreement and to act as described in the Registration Statement as of its
10
effective date and in the Prospectus as of the Closing Date (including,
without limitation, the Managing Owner's registration as a commodity pool
operator under the CE Act and membership as a commodity pool operator with the
NFA) and will maintain and renew any required licenses, registrations,
approvals and memberships required during the term of this Agreement and the
Advisory Agreement.
(d) The Trading Vehicle is not required to be registered as an
investment company under the United States Investment Company Act of 1940, as
amended (the "Investment Company Act").
(e) All authorizations, consents or orders of any court or of any
federal, state or other governmental or regulatory agency or body required for
the valid authorization, issuance, offer and sale of the Interests have been
obtained, and no order preventing or suspending the use of the Prospectus with
respect to the Interests has been issued by the SEC, the CFTC or the NFA. The
Registration Statement as of its effective date and the Prospectus as of the
Closing Date contain all statements which are required to be made therein,
conform in all material respects with the requirements of the 1933 Act and the
CE Act, and the rules and regulations of the SEC and the CFTC, respectively,
thereunder, and with the rules of the NFA and do not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein (with respect to
the Prospectus, in light of the circumstances in which they are made) not
misleading; and at all times subsequent hereto up to and including the date of
termination of the Initial Offering Period and any Subsequent Offering Period,
the Registration Statement as of its effective date and the Prospectus as of
the Closing Date will contain all statements required to be made therein and
will conform in all material respects with the requirements of the 1933 Act
and the CE Act, and the
11
rules and regulations of the SEC and the CFTC, respectively, thereunder, and
with the rules of the NFA and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
(with respect to the Prospectus, in light of the circumstances in which they
are made) not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished to the Managing Owner, the Trust
or to the Selling Agent by or on behalf of the Advisor for the express purpose
of inclusion in the Registration Statement or the Prospectus, including
without limitation references to the Advisor and its affiliates, and
controlling persons, shareholders, directors, officers and employees, as well
as to the Advisor's Trading Approach and past performance history provided
such references have been approved.
(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 Trading Vehicle, the Trust or the Managing Owner or the principals
of any is a party, or to which any of the assets of any of the foregoing
persons is subject, which might reasonably be expected to result in any
material adverse change in their condition (financial or otherwise), business
or prospects or reasonably might be expected to affect adversely in any
material respect any of their assets or which reasonably might be expected to
materially impair their ability to discharge their obligations under this
Agreement or under the Advisory Agreement; and neither the Trading Vehicle,
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
12
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 Trading Vehicle, 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 Trading Vehicle. If, at
any time during the term of the Advisory Agreement, the Managing Owner or the
Trading Vehicle discovers any fact, omission or event or that a change of
circumstance has occurred which would make its representations and warranties
in Section 6 of this Agreement inaccurate or incomplete in any material
respect, the Trading Vehicle or the Managing Owner (as the case may be), 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 shall provide the Advisor with a copy of each amendment to
the Registration Statement and amendment or supplement to the Prospectus, and
no amendment to the Registration Statement or amendment or supplement to the
Prospectus which contains any statement or information regarding the Advisor
will be filed or used unless the Advisor has received reasonable prior notice
and a copy thereof and has consented in writing to such statement or
information being filed and used.
8. Trading Vehicle's and Managing Owner's Closing Obligations. On or
prior to the Initial Closing Date, and thereafter on or prior to each
Subsequent Closing Date, if the Trading Vehicle and the Managing Owner have
requested that the Advisor provide certificates and documents pursuant to
Section 4 of this Agreement, the Trading Vehicle and the Managing Owner shall
deliver or cause to be delivered to the Advisor, certificates of the Trading
Vehicle and the Managing Owner in the form proposed prior to the Closing Date
by counsel to
13
the Trading Vehicle and the Managing Owner with such changes in such form as
are proposed by the Advisor or its counsel and are acceptable to the Trading
Vehicle, the Managing Owner and their counsel so as to make such form mutually
acceptable to the Trading Vehicle, the Managing Owner, the Advisor and their
respective counsel, to the effect that:
(a) Its 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.
(b) It performed all covenants and agreements herein contained to be
performed on its part at or prior to the Closing Date.
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 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 the Selling Agent, the Trust, the Trading
Vehicle, Wilmington Trust Company, a Delaware corporation, in its capacity as
trustee of the Trust (in such capacity, the "Trustee") or the Managing Owner,
or their respective controlling persons, shareholders, partners, members,
managers, directors, officers and/or employees of any of the foregoing are
parties (individually and collectively, the "Sponsor Indemnified Parties"),
the Advisor agrees to indemnify and hold harmless the Sponsor Indemnified
Parties against any loss,
14
claim, damage, charge, liability (including without limitation any liability
arising under the 1933 Act or the CE Act) or expense (including without
limitation, reasonable attorneys' and accountants' fees) ("Losses") to which
the Sponsor Indemnified Parties may become subject, to the extent that such
Losses arise directly out or result directly from (i) any misrepresentation or
alleged misrepresentation or material breach or alleged material breach of any
warranty, covenant or agreement of the Advisor contained in this Agreement;
(ii) a breach of the disclosure requirements under the CE Act that relates to
the Advisor's past performance history; or (iii) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement or the Prospectus or the omission or alleged omission to state in
the Registration Statement or the Prospectus a material fact required to be
stated therein or necessary to make the statements therein (with respect to
the Prospectus, in light of the circumstances in which they are made) not
misleading, in each case under this subclause (iii) to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in material conformity with
information furnished by the Advisor or its representatives to the Trust, the
Managing Owner or their respective representatives for inclusion in the
Registration Statement or Prospectus including without limitation any
information relating to the Advisor or its affiliates, controlling persons,
shareholders, partners, directors, officers and employees, as well as to the
Advisor's Trading Approach and past performance history.
(b) In any action in which the Advisor, or its controlling persons,
or any of their respective shareholders, partners, directors, officers and/or
employees (individually and collectively, the "Advisor Indemnified Parties")
are parties, the Managing Owner agrees (A) to indemnify and hold harmless the
Advisor Indemnified Parties against any Losses, to the extent that such Losses
arise directly out of or result directly from (i) any misrepresentation or
alleged
15
misrepresentation or material breach or alleged material breach of any
warranty, covenant or agreement of the Trust or the Managing Owner regarding
the Managing Owner contained in this Agreement, or (ii) any untrue statement
or alleged untrue statement of any material fact regarding the Managing Owner
contained in the Registration Statement or the Prospectus or the omission or
alleged omission to state in the Registration Statement or the Prospectus a
material fact regarding the Managing Owner required to be stated therein or
necessary to make the statements therein (with respect to the Prospectus, in
light of the circumstances in which they are made) not misleading.
(c) None of the indemnifications contained in this Section 10 shall
be applicable with respect to default judgments or confessions of judgment, or
to settlements entered into by an indemnified party claiming indemnification
without the prior written consent of the indemnifying party.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or dispute or commencement of any action or
litigation, such indemnified party will, if a claim in respect thereof is to
be made against an indemnifying party under this Section 10, notify the
indemnifying party of the commencement thereof; but the omission to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 10 except to the
extent, if any, that such failure or delay prejudiced the indemnifying party
in defending against the claim. In case any such claim, dispute, action or
litigation is brought or asserted against any indemnified party, and it timely
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in the defense therein, and to the
extent that it may wish, to assume such defense thereof, with counsel
specifically approved in writing by such indemnified party,
16
such approval not to be unreasonably withheld, following notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, in which event, the indemnifying party will not be liable to
such indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, but shall continue to be liable to the indemnified party in all other
respects as heretofore set forth in this Section 10. Notwithstanding any other
provisions of this Section 10, if, in any claim, dispute, action or litigation
as to which indemnity is or may be available, any indemnified party reasonably
determines that its interests are or may be, in whole or in part, adverse to
the interests of the indemnifying party, the indemnified party may retain its
own counsel in connection with such claim, dispute, action or litigation and
shall continue to be indemnified by the indemnifying party for any legal or
any other expenses reasonably incurred in connection with investigating or
defending such claim, dispute, action or litigation.
(e) Expenses incurred by an indemnified party in defending a
threatened or asserted claim or a threatened or pending action shall be paid
by the indemnifying party in advance of final disposition or settlement of
such matter, if and to the extent that the person on whose behalf such
expenses are paid shall agree in writing to reimburse the indemnifying party
in the event indemnification is not permitted under this Section 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.
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11. Limits on Claims. The Advisor agrees that it will not take any
of the following actions against the Trust: (i) seek a decree or order by a
court having jurisdiction in the premises (A) for relief in respect of the
Trust in an involuntary case or proceeding under the U.S. Bankruptcy Code or
any other federal or state bankruptcy, insolvency, reorganization,
rehabilitation, liquidation or similar law or (B) adjudging the Trust a
bankrupt or insolvent or seeking reorganization, rehabilitation, liquidation,
arrangement, adjustment or composition of or in respect of the Trust under the
U.S. Bankruptcy Code or any other applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Trust or of any substantial part of any of
its properties, or ordering the winding up or liquidation of any of its
affairs, (ii) seek a petition for relief, reorganization or to take advantage
of any law referred to in the preceding clause or (iii) file an involuntary
petition for bankruptcy (collectively, "Bankruptcy or Insolvency Action"). In
addition, the Advisor agrees that for any obligations due and owing to it by
the Trading Vehicle, the Advisor will look solely and exclusively to the
assets of the Trading Vehicle to satisfy its claims and will not seek to
attach or otherwise assert a claim against the assets of any other Series or
the other assets of the Trust, whether there is a Bankruptcy or Insolvency
Action taken. The parties agree that this provision will survive the
termination of this Agreement, whether terminated in a Bankruptcy or
Insolvency Action or otherwise.
12. Notices. Any notices under this Agreement required to be given
shall be effective only if given or confirmed in writing, shall be deemed
given by the party providing notice when received by the party to whom notice
is being given and shall be sent certified mail, postage prepaid, or hand
delivered, to the following address, or to such other address as a party may
specify by written notice to each of the other parties hereto:
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If to the Selling Agent:
Kenmar Securities, Inc.
00 Xxxxxx Xxxxxx
Building One South, 2nd Floor
Greenwich, Connecticut 06831
Attention: General Counsel
If to the Managing Owner, the Trading Vehicle or
the Trust:
Preferred Investment Solutions Corp.
00 Xxxxxx Xxxxxx
Building One South, 2nd Floor
Greenwich, Connecticut 06831
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxxxxxxxx, Esq.
Xxxxxx Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
If to the Advisor:
Bridgewater Associates, Inc.
0 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. La Tronica
Facsimile: (000) 000-0000
With a copy to:
Bridgewater Associates, Inc.
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0 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Legal
Facsimile: (000) 000-0000
13. Governing Law. This Agreement shall be deemed to be made under
the laws of the State of New York applicable to contracts made and to be
performed in that State and shall be governed by and construed in accordance
with the laws of that State, without regard to the conflict of laws
principles.
14. Arbitration, Remedies. Each party hereto agrees that any dispute
relating to the subject matter of this Agreement shall be settled and
determined by 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.
15. Assignment. This Agreement may not be assigned by any party
without the express prior written consent of each of the other parties hereto.
16. Amendment or Modification or Waiver. This Agreement may not be
amended or modified except by the written consent of each of the parties
hereto.
17. Successors. Except as set forth in Section 10 of this Agreement,
this Agreement is made solely for the benefit of and shall be binding upon the
Trading Vehicle, the Trust, the Managing Owner, the Selling Agent, the Advisor
and the respective successors and permitted assigns of each of them, and no
other person shall have any right or obligation under
20
this Agreement. The terms "successors" and "assigns" shall not include any
purchasers, as such, of Interests.
18. Survival. The provisions of this Agreement shall survive the
termination of this Agreement with respect to any matter arising while this
Agreement was in effect.
19. No Waiver. No failure or delay on the part of any party hereto
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. Any waiver granted hereunder must be in writing
and shall be valid only in the specific instance in which given.
20. No Liability of Limited Owners. This Agreement has been made and
executed by and on behalf of the Trading Vehicle, the Trust and the Managing
Owner, and the obligations of the Trading Vehicle and/or the Managing Owner
set forth in this Agreement are not binding upon any of the Limited Owners,
Series H, Series J or any other Series, individually, but rather, are binding
only upon the assets and property of the Trading Vehicle and, to the extent
provided herein, upon the assets and property of the Managing Owner.
21. Headings. Headings to 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.
22. Complete Agreement. Except as otherwise provided herein, this
Agreement and the Advisory Agreement constitute the entire agreement among the
parties with
21
respect to the matters referred to herein, and no other agreement, verbal or
otherwise, shall be binding upon the parties hereto.
23. Counterparts. This Agreement may be executed in one or more
counterparts, all of which, when taken together, shall be deemed to constitute
one original instrument.
22
IN WITNESS WHEREOF, this Agreement has been executed as of the day
and year first above written.
WMT III SERIES H/J TRADING VEHICLE LLC
By: WORLD MONITOR TRUST III- SERIES H
Its: Member
By: PREFERRED INVESTMENT SOLUTIONS CORP.,
its sole Managing Owner
By: _____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
By: WORLD MONITOR TRUST III- SERIES J
Its: Member
By: PREFERRED INVESTMENT SOLUTIONS CORP.,
its sole Managing Owner
By: _____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
KENMAR SECURITIES, INC.
By: _____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
PREFERRED INVESTMENT SOLUTIONS CORP.
By: _____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
23
WORLD MONITOR TRUST III - SERIES H
By: PREFERRED INVESTMENT SOLUTIONS CORP.,
as sole Managing Owner
By: _____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
WORLD MONITOR TRUST III - SERIES J
By: PREFERRED INVESTMENT SOLUTIONS CORP.,
as sole Managing Owner
By: _____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
BRIDGEWATER ASSOCIATES, INC.
By: _____________________________________
Name: Xxxxx X. La Tronica
Title: Vice President
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Exhibit A
Consent
The undersigned Advisor has reviewed the Prospectus dated _______,
2005 of World Monitor Trust III with respect to the information contained
therein relating to the undersigned Advisor and, in accordance with the
Representation Agreement among us dated as of the ____ day of _________, 2005
("Representation Agreement"), hereby consents to all provisions to which it is
required to consent pursuant to the Representation Agreement and also consents
to the distribution of such Prospectus.
BRIDGEWATER ASSOCIATES, INC.
By: ___________________________________
Name: Xxxxx X. La Tronica
Title: Vice President
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EXHIBIT D
[ATTACH LATEST DISCLOSURE DOCUMENT]
