EXHIBIT 10.2
ADVISORY AGREEMENT
ADVISORY AGREEMENT (this "Agreement"), dated as of the ___ day of
_______, 2004, by and among WORLD MONITOR TRUST III - SERIES G, a separate
series of a Delaware statutory trust (the "Trust"), PREFERRED INVESTMENT
SOLUTIONS CORP., a Connecticut corporation (the "Managing Owner"), and XXXXXX
CAPITAL MANAGEMENT, L.P., a Delaware limited partnership (the "Advisor").
W I T N E S S E T H:
WHEREAS, the Trust has been organized primarily for the purpose of
trading, buying, selling, spreading or otherwise acquiring, holding or
disposing of futures, forward and options contracts with respect to
commodities. Other transactions also may be effected from time to time,
including among others, those as more fully identified in Exhibit A hereto;
the foregoing commodities and other transactions are collectively referred to
as "Commodities"; and
WHEREAS, the Managing Owner is authorized to utilize the services of
one or more professional commodity trading advisors in connection with the
Commodities trading activities of the various Series (as defined below) of the
Trust; and
WHEREAS, the Trust proposes to make an initial public offering (the
"Offering") of units of beneficial interest in the Trust (the "Interests")
issuable in multiple series of Interests (each, a "Series") through [Name of
Selling Agent] (the "Selling Agent"), an affiliate of the Managing Owner, and
in connection therewith, the Trust intends to file with the U. S. Securities
and Exchange Commission (the "SEC"), pursuant to the Securities Act of 1933,
as amended (the "1933 Act"), a registration statement on Form S-1 to register
the Interests, including the Series G Interests, and as part thereof a
prospectus (which registration statement,
together with all amendments thereto, shall be referred to herein as the
"Registration Statement" and which prospectus, in final form, shall be
referred to herein as the "Prospectus"); and
WHEREAS, the Trust will prepare and file applications for
registration of the Interests under the securities or Blue Sky laws of such
jurisdictions as the Managing Owner deems appropriate; and
WHEREAS, the Advisor's present business includes the management of
Commodities accounts for its clients; and
WHEREAS, the Advisor is registered as a commodity trading advisor
under the Commodity Exchange Act, as amended (the "CE Act"), and is a member
of the National Futures Association (the "NFA") as a commodity trading advisor
and will maintain such registration and membership for the term of this
Agreement; and
WHEREAS, the Trust and the Advisor desire to enter into this
Agreement in order to set forth the terms and conditions upon which the
Advisor will render and implement commodity advisory services on behalf of the
Trust during the term of this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Duties of the Advisor.
(a) Appointment. The Trust hereby appoints the Advisor, and the
Advisor hereby accepts appointment, as its limited attorney-in-fact to
exercise discretion to invest and reinvest in Commodities during the term of
this Agreement the portion of the Trust's Net Asset Value (as defined in the
Prospectus) which is comprised of the assets attributable to the Trust's
Series G Interests allocated to the Advisor (the "Series G Allocated Assets")
on the terms and conditions and for the purposes set forth herein. This
limited power-of-attorney is a continuing
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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 Series G Allocated Assets for the term of this Agreement pursuant to the
trading programs, methods, systems, and strategies described in Exhibit A
hereto, which the Trust and the Managing Owner have selected to be utilized by
the Advisor in trading the Series G Allocated Assets (collectively referred to
as the Advisor's "Trading Approach"), subject to the trading policies and
limitations as set forth in the Prospectus and attached hereto as Exhibit B
(the "Trading Policies and Limitations"), as the same may be modified from
time to time and provided in writing to the Advisor. The portion of the Series
G Allocated Assets to be allocated by the Advisor at any point in time to one
or more of the various trading strategies comprising the Advisor's Trading
Approach will be determined as set forth in Exhibit A hereto, as it may be
amended from time to time, with the consent of the parties, it being
understood that trading gains and losses automatically will alter the agreed
upon allocations. Upon receipt of a new allocation, the Advisor will determine
and, if required, adjust its trading in light of the new allocation.
(b) Allocation of Responsibilities. The Managing Owner will have the
responsibility for the management of any portion of the Series G 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 Series G Allocated Assets in compliance with the Trading
Policies and Limitations, and in accordance with the Advisor's Trading
Approach. In the event that the Managing Owner shall, in its sole discretion,
determine in good faith following consultation appropriate under the
circumstances with the Advisor that any trading instruction issued by the
Advisor violates the Trading Policies and Limitations, then the
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Managing Owner, 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 Trust beyond those enumerated in the Prospectus if the Managing Owner
determines that such limitation(s) are necessary or in the best interests of
the Trust, in which case the Advisor will adhere to such limitations following
written notification thereof.
(c) Gains From Trading Approach. The Advisor agrees that at least
90% of the annual gross income and gain, if any, generated by its Trading
Approach for the Series G Allocated Assets will be "qualifying income" within
the meaning of Section 7704(d) of the Code (it being understood that such
income will largely result from buying and selling Commodities). The Advisor
also agrees that it will attempt to trade in such a manner as to allow
non-U.S. Limited Owners to qualify for the safe harbors found in Section
864(b)(2) of the code and as interpreted in the regulations promulgated or
proposed thereunder.
(d) Modification of Trading Approach. In the event the Advisor
requests to use, or the Managing Owner requests the Advisor to use, a trading
program, system, method or strategy other than or in addition to the trading
programs, systems, methods or strategies comprising the Trading Approach in
connection with trading for the Trust (including, without limitation, the
deletion or addition of an agreed upon trading program, system, method or
strategy to the then agreed upon Trading Approach or a modification in the
leverage employed), either in whole or in part, the Advisor may not do so
and/or shall not be required to do so, as appropriate, unless both the
Managing Owner and the Advisor consent thereto in writing.
(e) Notification of Material Changes. The Advisor also agrees to
give the Trust prior written notice of any proposed material change in its
Trading Approach and agrees
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not to make any material change in such Trading Approach (as applied to the
Trust) over the objection of the Managing Owner, it being understood
that the Advisor shall be free to institute non-material changes in its
Trading Approach (as applied to the Trust) without prior written notification.
Without limiting the generality of the foregoing, refinements to the Advisor's
Trading Approach, and the deletion (but not the addition) of commodities
(other than the addition of commodities then being traded (i) on organized
domestic commodities exchanges, (ii) on foreign commodities exchanges
recognized by the Commodity Futures Trading Commission (the "CFTC") as
providing customer protections comparable to those provided on domestic
exchanges or (iii) in the interbank foreign currency market) to or from the
Advisor's Trading Approach shall not be deemed a material change in the
Advisor's Trading Approach, and prior approval of the Managing Owner shall not
be required therefor. The utilization of forward markets in addition to those
enumerated in Exhibit D hereto would be deemed a material change to the
Advisor's Trading Approach and prior approval shall be required therefor.
Subject to adequate assurances of confidentiality, the Advisor
agrees that it will discuss with the Managing Owner upon request any trading
methods, programs, systems or strategies used by it for trading customer
accounts which differ from the Trading Approach used for the Trust, provided
that nothing contained in this Agreement shall require the Advisor to disclose
what it deems to be proprietary or confidential information.
(f) Request for Information. The Advisor agrees to provide the Trust
with any reasonable information concerning the Advisor that the Trust may
reasonably request (other than the identity of its customers or proprietary or
confidential information concerning the Trading Approach), subject to receipt
of adequate assurances of confidentiality by the Trust, including, but not
limited to, information regarding any change in control, key personnel,
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Trading Approach and financial condition which the Trust reasonably deems to
be material to the Trust; the Advisor also shall notify the Trust of any such
matters the Advisor, in its reasonable judgment, believes may be material to
the Trust relating to the Advisor and its Trading Approach. During the term of
this Agreement, the Advisor agrees to provide the Trust with updated monthly
information related to the Advisor's performance results within a reasonable
period of time after the end of the month to which it relates.
(g) Notice of Errors. The Advisor is responsible for promptly
reviewing all oral and written confirmations it receives to determine that the
Commodities trades were made in accordance with the Advisor's instructions. If
the Advisor determines that an error was made in connection with a trade or
that a trade was made other than in accordance with the Advisor's
instructions, the Advisor shall promptly notify the Managing Owner of this
fact and shall utilize its best efforts to cause the error or discrepancy to
be corrected.
(h) Liability. Neither the Advisor nor any employee, partner or
officer of the Advisor, nor any person who controls the Advisor, shall be
liable to the Managing Owner, its officers, directors, shareholders or
employees, or any person who controls the Managing Owner, or the Trust or the
owners of Series G Interests ("Limited Owners"), or any of their respective
successors or assignees under this Agreement, except by reason of acts or
omissions in material breach of this Agreement or due to their misconduct or
negligence or by reason of their not having acted in good faith in the
reasonable belief that such actions or omissions were in the best interests of
the Trust and the Limited Owners; it being understood that the Advisor makes
no guarantee of profit nor offers any protection against loss, and that all
purchases and sales of Commodities shall be for the account and risk of the
Trust, and the Advisor shall incur no
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liability for trading profits or losses resulting therefrom provided the
Advisor would not otherwise be liable to the Trust under the terms hereof.
(i) Initial Allocation. Initially, the Series G Allocated Assets
will total an amount equal to the assets of the Trust allocable to the Series
G Interests, including all cash and cash equivalents held by the Trust in
respect of such Interests reduced by all liabilities of the Trust incurred
specifically in respect of the Series G Interests and further reduced by a
pro-rata share of the total liabilities of the Trust which are not otherwise
specifically allocable to another Series of Interests, at the conclusion of
the Trust's Initial Offering Period (as defined in the Prospectus).
(j) Additional Allocations and Reallocations. Subject to Section 10
below, the Trust may, on a monthly basis during the Trust's Continuous
Offering Period, as described in the Prospectus, (i) allocate additional
assets to the Advisor, (ii) reallocate the Series G Allocated Assets away from
the Advisor to another commodity trading advisor (an "Other Advisor"), (iii)
reallocate assets to the Advisor from an Other Advisor or (iv) allocate
additional capital with respect to the Series G Allocated Assets to an Other
Advisor.
(k) Delivery of Disclosure Document. The Advisor agrees to provide
to the Managing Owner with any amendment or supplement to the Disclosure
Document attached hereto as Exhibit D (an "Update") as soon as such Update is
available for distribution.
2. Indemnification.
(a) The Advisor. Subject to the provisions of Section 3 of this
Agreement, the Advisor, each person who controls the Advisor and each of their
respective partners, members, managers, officers, directors, shareholders and
employees shall be indemnified, defended and held harmless by the Trust and
the Managing Owner, jointly and severally, from and against any
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and all claims, losses, judgments, liabilities, damages, costs, expenses
(including, without limitation, reasonable investigatory and attorneys' fees
and expenses) and amounts paid in settlement of any claims in compliance with
the conditions specified below (collectively, "Losses") sustained by any of
them (i) in connection with any acts or omissions of the Advisor, or any of
its partners, officers or employees relating to its management of the Series G
Allocated Assets, including in connection with this Agreement or otherwise as
a result of the Advisor's performance of services on behalf of the Trust or
its role as trading advisor to Series G Allocated Assets and/or (ii) as a
result of a material breach of this Agreement by the Trust or the Managing
Owner, provided that (i) such Losses were not the result of negligence,
misconduct or a material breach of this Agreement on the part of the Advisor,
and its officers, partners and employees, and each person controlling the
Advisor, (ii) the Advisor, and its officers, partners and employees, and each
person controlling the Advisor, acted in good faith and in a manner reasonably
believed by such person to be in or not opposed to the best interests of the
Trust and the Limited Owners and (iii) any such indemnification will only be
recoverable from the Series G Allocated Assets and the assets of the Managing
Owner and not from any other assets of any other Series of the Trust, and
provided further, that no indemnification shall be permitted under this
Section 2 for amounts paid in settlement if either (A) the Advisor fails to
notify the Trust of the terms of any settlement proposed, at least 15 days
before any amounts are paid or (B) the Trust does not approve the amount of
the settlement within 15 days (such approval not to be withheld unreasonably).
Notwithstanding the foregoing, the Trust shall at all times have the right to
offer to settle any matter with the approval of the Advisor (which approval
shall not be withheld unreasonably), and if the Trust successfully negotiates
a settlement and tenders payment therefor to the party claiming
indemnification (the "Indemnitee"), the Indemnitee must
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either use its best efforts to dispose of the matter in accordance with the
terms and conditions of the proposed settlement or the lndemnitee may refuse
to settle the matter and continue its defense in which latter event the
maximum liability of the Trust to the Indemnitee shall be the amount of said
proposed settlement. Any indemnification by the Trust under this Section 2,
unless ordered by a court, shall be made only as authorized in the specific
case by the Managing Owner.
(b) Default Judgments and Confessions of Judgment. None of the
foregoing provisions for indemnification shall be applicable with respect to
default judgments or confessions of judgment entered into by the Indemnitee,
with its knowledge, without the prior consent of the Trust.
(c) Procedure. In the event that an Indemnitee under this Section 2
is made a party to an action, suit or proceeding alleging both matters for
which indemnification can be made hereunder and matters for which
indemnification may not be made hereunder, such Indemnitee shall be
indemnified only for that portion of the Losses incurred in such action, suit
or proceeding which relates to the matters for which indemnification can be
made.
(d) Expenses. Expenses incurred in defending a threatened or pending
civil, administrative or criminal action, suit or proceeding against an
Indemnitee shall be paid by the Trust in advance of the final disposition of
such action, suit or proceeding if (i) the legal action, suit or proceeding,
if sustained, would entitle the Indemnitee to indemnification pursuant to the
terms of this Section 2, (ii) the Advisor undertakes to repay the advanced
funds to the Trust in cases in which the Indemnitee is not entitled to
indemnification pursuant to this Section 2 and (iii) in the case of
advancement of expenses by the Trust, the Managing Owner determines that the
Indemnitee is not likely not to be entitled to indemnification hereunder.
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3. Limits on Claims.
(a) Prohibited Acts. The Advisor agrees that it will not take any of
the following actions against the Trust: (i) seek a decree or order by a court
having jurisdiction in the premises (A) for relief in respect of the Trust in
an involuntary case or proceeding under the federal Bankruptcy Code or any
other federal or state bankruptcy, insolvency, reorganization, rehabilitation,
liquidation or similar law or (B) adjudging the Trust a bankrupt or insolvent
or seeking reorganization, rehabilitation, liquidation, arrangement,
adjustment or composition of or in respect of the Trust under the federal
Bankruptcy Code or any other applicable federal or state law or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Trust or of any substantial part of any of its
properties or ordering the winding up or liquidation of any of its affairs,
(ii) seek a petition for relief, reorganization or to take advantage of any
law referred to in the preceding clause or (iii) file an involuntary petition
for bankruptcy (collectively, "Bankruptcy or Insolvency Action").
(b) Limited Assets Available. In addition, the Advisor agrees that
for any obligations due and owing to it by the Trust, the Advisor will look
solely and exclusively to Series G Allocated Assets or to the assets of the
Managing Owner, if it has liability in its capacity as Managing Owner, to
satisfy its claims and will not seek to attach or otherwise assert a claim
against the other assets of the Trust, whether there is a Bankruptcy or
Insolvency Action taken or otherwise. The parties agree that this provision
will survive the termination of this Agreement, whether terminated in a
Bankruptcy or Insolvency Action or otherwise.
(c) No Limited Owner Liability. This Agreement has been made and
executed by and on behalf of the Trust and the Managing Owner for the benefit
of the Series G Interests of the Trust and the obligations of the Trust and/or
the Managing Owner set forth herein
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are not binding upon any of the Limited Owners individually but are
binding only upon the assets and property identified above, and no resort
shall be had to the assets of other Series issued by the Trust or the Limited
Owners' personal property for the satisfaction of any obligation or claim
hereunder.
(d) Subordination Agreement. The Advisor agrees and consents (the
"Consent") to look solely to each Series for which advisory services are being
performed ("Series G") and assets of Series G (the "Series G Assets") and to
the Managing Owner and its assets for payment. The Series G Assets include
only those funds and other assets that are paid, held or distributed to the
Trust on account of and for the benefit of Series G, including; without
limitation, funds delivered to the Trust for the purchase of interests in
Series G. In furtherance of the Consent, the Advisor agrees that any debts,
liabilities, obligations, indebtedness, expenses and claims of any nature and
of all kinds and descriptions (collectively, "Claims") incurred, contracted
for or otherwise existing arising from, related to or in connection with the
Trust and its assets and Series G and the Series G Assets, shall be subject to
the following limitations:
(1) Subordination of certain claims and rights: (i) except as
set forth below, the Claims, if any, of the Advisor (the
"Subordinated Claims") shall be expressly subordinate and junior in
right of payment to any and all other Claims against the Trust and
any Series thereof and any of their respective assets which may
arise as a matter of law or pursuant to any contract; provided,
however, that the Advisor's Claims (if any) against Series G shall
not be considered Subordinated Claims with respect to enforcement
against and distribution and repayment from Series G, the Series G
Assets and the Managing Owner and its assets; and provided further
that the Advisor's valid Claims, if any, against Series G shall be
pari passu and equal in right of repayment and distribution
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with all other valid Claims against Series G and (ii) the
Advisor will not take, demand or receive from any Series or the
Trust or any of their respective assets (other than Series G, the
Series G Assets and the Managing Owner and its assets) any payment
for the Subordinated Claims;
(2) The Claims of the Advisor with respect to Series G shall
only be asserted and enforceable against Series G, the Series G
Assets and the Managing Owner and its assets, and such Claims shall
not be asserted or enforceable for any reason whatsoever against any
other Series, the Trust generally or any of their respective assets;
(3) If the Claims of the Advisor against Series G or the Trust
are secured in whole or in part, the Advisor hereby waives (under
section 1111(b) of the Bankruptcy Code (11 U.S.C. ss. 111 l(b)) any
right to have any deficiency Claims (which deficiency Claims may
arise in the event such security is inadequate to satisfy such
Claims) treated as unsecured Claims against the Trust or any Series
(other than Series G), as the case may be;
(4) In furtherance of the foregoing, if and to the extent that
the Advisor receives monies in connection with the Subordinated
Claims from a Series or the Trust (or their respective assets),
other than Series G, the Series G Assets and the Managing Owner and
its assets, the Advisor shall be deemed to hold such monies in trust
and shall promptly remit such monies to the Series or the Trust that
paid such amounts for distribution by the Series or the Trust in
accordance with the terms hereof; and
(5) The foregoing Consent shall apply at all times
notwithstanding that the Claims are satisfied and notwithstanding
that the agreements in respect of such Claims are terminated,
rescinded or canceled.
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4. Obligations of the Trust, the Managing Owner and the Advisor.
(a) The Registration Statement and Prospectus. Each of the Trust and
the Managing Owner agrees to cooperate and use its good faith and best efforts
in connection with (i) the preparation by the Trust of the Registration
Statement and the Prospectus (and any amendments or supplements thereto), (ii)
the filing of the Registration Statement and the Prospectus (and any
amendments or supplements thereto) with such governmental and self-regulatory
authorities as the Managing Owner deems appropriate for the registration and
sale of the Interests and the taking of such other actions not inconsistent
with this Agreement as the Managing Owner may determine to be necessary or
advisable in order to make the proposed offer and sale of Interests lawful in
any jurisdiction and (iii) causing the Registration Statement (and any
amendment thereto) to become effective under the 1933 Act and the Blue Sky
securities laws of such jurisdictions as the Managing Owner may deem
appropriate. The Advisor agrees to make all necessary disclosures regarding
itself, its officers and principals, trading performance, Trading Approach,
customer accounts (other than the names of customers, unless such disclosure
is required by law or regulation) and otherwise as may be required, in the
reasonable judgment of the Managing Owner, to be made in the Registration
Statement and Prospectus and in applications to any such jurisdictions. No
description of or other information relating to the Advisor may be distributed
by the Managing Owner without the prior written consent of the Advisor, which
consent shall not be unreasonably withheld or delayed; provided that
distribution of performance information relating to Series G's account shall
not require consent of the Advisor.
(b) Road Shows. The Advisor agrees to make representatives of its
marketing department available to participate in "road show" and similar
presentations in connection with
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the offering of the Series G Interests to the extent reasonably requested
by the Managing Owner, on the following conditions: (i) all expenses
incurred by the Advisor in the course of such participation will be shared
between and among the Advisor, the Managing Owner and/or the Selling Agent, in
such amounts as shall be agreed among the parties, (ii) the Advisor shall not
be obligated to take any action which might require registration as a
broker-dealer or investment adviser under any applicable federal or state law
and (iii) the Advisor shall not be required to assist in "road show" or
similar presentations to the extent that it reasonably believes that doing so
would interfere with its trading, marketing or other activities.
(c) Advisor Not A Promoter. The parties acknowledge that the Advisor
has not been, either alone or in conjunction with the Selling Agent or its
affiliates, an organizer or promoter of the Trust, and it is not intended by
the parties that the Advisor shall have any liability as such.
(d) Filings. The Trust may at any time determine not to file the
Registration Statement with the SEC or withdraw the Registration Statement
from the SEC or any other governmental or self-regulatory authority with which
it is filed or otherwise terminate the Registration Statement or the offering
of Interests. Upon any such withdrawal or termination, or if the "minimum" (i)
aggregate number of Interests or (ii) Series G Interests required to be sold
pursuant to the Prospectus is not sold, this Agreement shall terminate and,
except for the payment of expenses as set forth in subparagraph 4(b) above and
in paragraph 2, neither the Trust nor the Managing Owner shall have any
obligations to the Advisor with respect to this Agreement nor shall the
Advisor have any obligations to the Trust or the Managing Owner with respect
to this Agreement.
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(e) Representation Agreement. On or prior to commencement of the
offering of Interests pursuant to the Prospectus, the parties agree to execute
a Representation Agreement relating to the offering of the Interests (the
"Representation Agreement") substantially in the form of Exhibit C to this
Agreement.
5. Advisor Independence.
(a) Independent Contractor. The Advisor shall for all purposes
herein be deemed to be an independent contractor with respect to the Trust,
the Managing Owner and its affiliates and each other commodity trading advisor
that may in the future provide commodity trading advisory services to the
Trust and the Managing Owner and its affiliates and shall, unless otherwise
expressly authorized, have no authority to act for or to represent the Trust,
the Managing Owner and its affiliates, any other commodity trading advisor in
any way or otherwise be deemed to be a general agent, joint venturer or
partner of the Trust, the Managing Owner and its affiliates or any other
commodity trading advisor or in any way be responsible for the acts or
omissions of the Trust, the Managing Owner and its affiliates or any other
commodity trading advisor as long as it is acting independently of such
persons.
(b) Unauthorized Activities. Without limiting the obligations of the
Trust set forth under this Agreement, nothing herein contained shall be deemed
to require the Trust to take any action contrary to its Declaration of Trust
and Trust Agreement or Certificate of Trust or any applicable statute,
regulation or rule of any exchange or self-regulatory organization.
(c) Purchase of Interests. Any of the Advisor, its principals and
employees may, in its discretion, purchase Interests in the Trust.
(d) Confidentiality. The Trust and the Managing Owner acknowledge
that the Trading Approach of the Advisor is the confidential property of the
Advisor. Nothing in this
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Agreement shall require the Advisor to disclose the confidential or
proprietary details of its Trading Approach. The Trust and the Managing Owner
further agree that they will keep confidential and will not disseminate the
Advisor's trading advice to the Trust, except as, and to the extent that, it
may be determined by the Managing Owner to be (i) necessary for the monitoring
of the business of the Trust, including the performance of brokerage services
by the Trust's commodity broker(s), or (ii) expressly required by law or
regulation.
6. Commodity Broker.
All Commodities traded for the account of the Trust shall be made
through such commodity broker or brokers, or counterparty or counterparties,
as the Managing Owner directs or otherwise in accordance with such order
execution procedures as are agreed upon between the Advisor and the Managing
Owner. Except as set forth below, the Advisor shall not have any authority or
responsibility in selecting or supervising any floor brokers or counterparties
for execution of Commodities trades of the Trust or for negotiating floor
brokerage commission rates or other compensation to be charged therefor. The
Advisor shall not be responsible for determining that any such broker or
counterparty used in connection with any Commodities transactions meets the
financial requirements or standards imposed by the Trust's Trading Policies
and Limitations. At the present time, it is contemplated that the Trust will
execute and clear all Commodities trades through UBS Securities LLC and its
affiliates. The Advisor may, however, with the consent of the Managing Owner,
such consent not to be unreasonably withheld, execute transactions at such
other firm(s) and upon such terms and conditions as the Advisor and the
Managing Owner agree if such firm(s) agree to "give up" all such transactions
to UBS Securities LLC for clearance. To the extent that the Trust determines
to utilize a broker or counterparty other than UBS Securities LLC, it will
consult with the Advisor prior to directing it
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to utilize such broker or counterparty and will not retain the services of
such firm over the reasonable objection of the Advisor.
7. Fees.
In consideration of and in compensation for the performance of the
Advisor's services under this Agreement, the Advisor shall receive from Series
G a management fee (the "Management Fee") and an incentive fee (the "Incentive
Fee") based on the Series G Allocated Assets, as follows:
(a) Management Fee [RESERVED]
(b) Incentive Fee [RESERVED]
(c) Timing of Payment. Management Fees and Incentive Fees shall be
paid generally within 15 business days following the end of the period for
which they are payable. The first incentive fee which may be due and owing to
the Advisor in respect of any New Trading Profits will be due and owing as of
the last Friday of the first calendar quarter during which the Trading Advisor
managed the Allocated Assets for at least 45 days. If an Incentive Fee shall
have been paid by the Trust to the Advisor in respect of any calendar quarter
and the Advisor shall incur subsequent losses on the Series G Allocated
Assets, the Advisor shall nevertheless be entitled to retain amounts
previously paid to it in respect of New High Net Trading Profits.
(d) Fee Data. The Managing Owner will provide the Advisor with the
data used by the Managing Owner to compute the foregoing fees including a
statement of the actual execution costs attributable to the Series G Allocated
Assets generally within 15 business days of the end of the relevant period.
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(e) Third Party Payments. Neither the Advisor nor any of its
officers, directors, employees or stockholders shall receive any commissions,
compensation, remuneration or payments whatsoever from any broker with which
the Trust carries an account for transactions executed in the Trust's account.
The parties acknowledge that a spouse of any of the foregoing persons may
receive floor brokerage commissions in respect of trades effected pursuant to
the Advisor's Trading Approach on behalf of the Trust, which payment shall not
violate the preceding sentence.
8. Term and Termination.
(a) Term. This Agreement shall commence on the date hereof and,
unless sooner terminated pursuant to paragraph (b), (c), or (d) of this
Section 8, shall continue in effect until the close of business on the last
day of the month ending twelve full months following the commencement of
Series G's trading activities. Thereafter, unless this Agreement is terminated
pursuant to paragraphs (b), (c), or (d) of this Section 8, this Agreement
shall be renewed automatically on the same terms and conditions set
forth herein for successive additional 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 Series G Allocated Assets away from the Advisor pursuant to
this Agreement or (ii) the retention of Other Advisors following a
reallocation or otherwise.
(b) Automatic Termination. This Agreement shall terminate
automatically in the event that the Trust is terminated. In addition, this
Agreement shall terminate automatically in the event that the Series G
Allocated Assets decline as of the end of any business day by at least 40%
from the Series G Allocated Assets (i) as of the first day of this Agreement
or (ii) as of
18
the first day of any calendar year, as adjusted on an ongoing basis by (A) any
decline(s) in the Series G Allocated Assets caused by distributions,
redemptions, distributions, reallocations and withdrawals, and (B) additions
to the Series G Allocated Assets caused by additional allocations.
(c) Optional Termination Right of Trust. This Agreement may be
terminated at any time at the election of the Managing Owner in its sole
discretion upon at least 30 days' prior written notice to the Advisor. The
Managing Owner will use its best efforts to cause any termination to occur as
of a month-end. This Agreement also may be terminated upon prior written
notice, appropriate under the circumstances, to the Advisor in the event that:
(i) the Managing Owner determines in good faith following consultation
appropriate under the circumstances with the Advisor that the Advisor is
unable to use its agreed upon Trading Approach to any material extent, as such
Trading Approach may be refined or modified in the future in accordance with
the terms of this Agreement for the benefit of the Trust; (ii) the
Advisor's registration as a commodity trading advisor under the CE Act or
membership as a commodity trading advisor with the NFA is revoked, suspended,
terminated or not renewed; (iii) the Managing Owner determines in good faith
following consultation appropriate under the circumstances with the Advisor
that the Advisor has failed to conform, and after receipt of written notice,
continues to fail to conform in any material respect, to (A) any of the
Trust's Trading Policies and Limitations or (B) the Advisor's Trading
Approach; (iv) there is an unauthorized assignment of this Agreement by the
Advisor; (v) the Advisor dissolves, merges or consolidates with another entity
or sells a substantial portion of its assets, any portion of its Trading
Approach utilized by the Trust or its business goodwill, in each instance
without the consent of the Managing Owner; (vi) Xxxxxxx X. Xxxxxx is not in
control of the Advisor's trading activities for the Trust; (vii) the Advisor
becomes bankrupt (admitted or decreed) or
19
insolvent; (viii) for any other reason, the Managing Owner determines in good
faith that such termination is essential for the protection of the Trust and
the Series G Interests, including, without limitation a good faith
determination by the Managing Owner that the Advisor has breached a material
obligation to the Trust under this Agreement relating to the trading of the
Series G Allocated Assets.
(d) Optional Termination Right of Advisor. The Advisor shall have
the right to terminate this Agreement at any time upon written notice to the
Trust, appropriate under the circumstances, in the event: (i) of the receipt
by the Advisor of an opinion of independent counsel satisfactory to the
Advisor and the Trust that by reason of the Advisor's activities with respect
to the Trust it is required to register as an investment adviser under the
Investment Advisers Act of 1940 and it is not so registered; (ii) that the
registration of the Managing Owner as a commodity pool operator under the CE
Act or its NFA membership as a commodity pool operator is revoked, suspended,
terminated or not renewed; (iii) that the Managing Owner (A) imposes
additional trading limitation(s) pursuant to Section 1 of this Agreement which
the Advisor does not agree to follow in its management of the Series G
Allocated Assets or (B) overrides trading instructions of the Advisor or does
not consent to a material change to the Trading Approach requested by the
Advisor; (iv) the amount of the Series G Allocated Assets decreases to less
than [$4 million] as the result of redemptions, distributions, reallocations
of Series G Allocated Assets, or deleveraging initiated by the Trust or
Managing Owner but not trading losses, as of the close of business on any
Friday; (v) the Managing Owner elects (pursuant to Section 1 of this
Agreement) to have the Advisor use a different Trading Approach in the
Advisor's management of Trust assets from that which the Advisor is then using
to manage such assets and the Advisor objects to using such different Trading
Approach; (vi) there
20
is an unauthorized assignment of this Agreement by the Trust or the Managing
Owner; (vii) there is a material breach of this Agreement by the Trust and/or
the Managing Owner and after giving written notice to the Managing Owner which
identifies such breach, such material breach has not been cured within ten
days following receipt of such notice by the Managing Owner; (viii) an Other
Advisor is allocated a portion of the Series G Assets; (ix) the Advisor
provides the Managing Owner with written notice, at least 90 days' prior to
the end of the then current term, of the Advisor's desire and intention to
terminate this Agreement as of the end of the then current term; or (x) other
good cause is shown and the written consent of the Managing Owner 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 Managing
Owner allocates the Trust's assets to Other Advisors, the Advisor shall be
entitled to, and the Trust shall pay, the Management Fee and the Incentive
Fee, if any, which shall be computed (i) with respect to the Management Fee,
on a pro rata basis, based upon the portion of the month for which the Advisor
had the Series G 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.
21
9. Liquidation of Positions.
The Advisor agrees to liquidate open positions in the amount that
the Managing Owner informs the Advisor, in writing via facsimile or other
equivalent means, that the Managing Owner considers necessary or advisable to
liquidate in order to (i) effect any termination or reallocation pursuant to
Sections 1 or 8, respectively or (ii) fund its pro rata share of any
redemption, distribution or Trust expense. The Managing Owner shall not,
however, have authority to instruct the Advisor as to which specific open
positions to liquidate, except as provided in Section 1 hereof. The Managing
Owner shall provide the Advisor with such reasonable prior notice of such
liquidation as is practicable under the circumstances and will endeavor to
provide at least one day prior notice. In the event that losses incurred by
the Advisor exceed the amount of the Series G Allocated Assets, the Managing
Owner agrees to cover such excess losses from its assets, but in no event from
the assets of the other Series issued by the Trust.
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 Trust, so long as in the Advisor's
reasonable 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 Trust pursuant to this Agreement or (ii)
create a reasonable likelihood of the Advisor having to modify materially its
22
agreed upon Trading Approach being used for the Trust in a manner which might
reasonably be expected to have a material adverse effect on the Trust. The
aggregate amount of capital referred to in the preceding sentence hereinafter
shall be called "Advisor's Capacity," and currently is estimated by the
Advisor to be $1 billion. The Advisor shall not be required to accept capital
from the Trust in an amount which exceeds $50 million if such excess amount
will cause the Advisor to be managing or trading funds pursuant to its Trading
Approach which exceed the Advisor's Capacity.
(b) Acceptance of Non-Trust Capital. So long as the Advisor is
performing services for the Trust, it agrees that it will not manage or trade
funds which exceed the Advisor's Capacity. Without limiting the generality of
the foregoing, it is understood that this paragraph shall not prohibit routine
adjustments to trading patterns in order to comply with speculative position
limits or daily trading limits. The Advisor agrees to notify the Managing
Owner when the Advisor's Capacity is likely to be reached, and when it agrees
to manage or trade additional funds of at least $100 million.
(c) Equitable Treatment of Accounts. The Advisor agrees, in its
management of accounts other than the account of the Trust, that it will not
knowingly or deliberately favor any other account managed or controlled by it
or any of its principals or affiliates (in whole or in part) over the Trust.
The preceding sentence shall not be interpreted to preclude (i) the Advisor
from charging another client fees which differ from the fees to be paid to it
hereunder or (ii) an adjustment by the Advisor in the implementation of any
agreed upon Trading Approach in accordance with the procedures set forth in
Section 1 hereof which is undertaken by the Advisor in good faith in order to
accommodate additional accounts. Notwithstanding the foregoing, the Advisor
also shall not be deemed to be favoring another commodity interest account
over the
23
Trust's account if the Advisor, in accordance with specific instructions of
the owner of such account, shall trade such account at a degree of leverage or
in accordance with trading policies which shall be different from that which
would normally be applied or if the Advisor, in accordance with the Advisor's
money management principles, shall not trade certain commodity interest
contracts for an account based on the amount of equity in such account. The
Advisor, upon reasonable request and receipt of adequate assurances of
confidentiality, shall provide the Managing Owner with an explanation of the
differences, if any, in performance between the Trust and any other similar
account pursuant to the same Trading Approach for which the Advisor or any of
its principals or affiliates acts as a commodity trading advisor (in whole or
in part), provided, however, that the Advisor may, in its discretion, withhold
from any such inspection the identity of the client for whom any such account
is maintained.
(d) Inspection of Records. Upon the reasonable request of and upon
reasonable notice from the Managing Owner, the Advisor shall permit the
Managing Owner to review at the Advisor's offices during normal business hours
such trading records as it reasonably may request for the purpose of
confirming that the Trust has been treated equitably with respect to advice
rendered during the term of this Agreement by the Advisor for other accounts
managed by the Advisor, which the parties acknowledge to mean that the
Managing Owner may inspect, subject to such restrictions as the Advisor may
reasonably deem necessary or advisable so as to preserve the confidentiality
of proprietary information and the identity of its clients, all trading
records of the Advisor as it reasonably may request during normal business
hours. The Advisor may, in its discretion, withhold from any such report or
inspection the identity of the client for whom any such account is maintained
and in any event the Trust and the Managing Owner shall keep all such
information obtained by them from the Advisor confidential
24
unless disclosure thereof legally is required or has been made public. Such
right will terminate one year after the termination of this Agreement and does
not permit access to computer programs, records, or other information used in
determining trading decisions.
11. Speculative Position Limits.
If, at any time during the term of this Agreement, it appears to the
Advisor that it may be required to aggregate the Trust's Commodities positions
with the positions of any other accounts it owns or controls for purposes of
applying the speculative position limits of the CFTC, any exchange,
self-regulatory body or governmental authority, the Advisor promptly will
notify the Managing Owner if the Trust's positions under its management are
included in an aggregate amount which equals or exceeds the applicable
speculative limit. The Advisor agrees that if its trading recommendations
pursuant to its agreed upon Trading Approach are altered because of the
potential application of speculative position limits, the Advisor will modify
its trading instructions to the Trust and its other accounts in a good faith
effort to achieve an equitable treatment of all accounts; to wit, the Advisor
will liquidate Commodities positions and/or limit the taking of new positions
in all accounts it manages, including the Trust, as nearly as possible in
proportion to the assets available for trading of the respective accounts
(including "notional" equity) to the extent necessary to comply with
applicable speculative position limits. The Advisor presently believes that
its Trading Approach for the management of the Trust's account, assuming that
the allocation is not more than $50 million, can be implemented for the
benefit of the Trust notwithstanding the possibility that, from time to time,
speculative position limits may become applicable.
25
12. Redemptions, Distributions. Reallocations and Additional
Allocations.
(a) Notice. The Managing Owner agrees to give the Advisor at least
one business day prior notice of any proposed redemptions, exchanges,
distributions, reallocations, additional allocations or withdrawals affecting
the Series G Allocated Assets.
(b) Allocations. Redemptions, exchanges, withdrawals and
distributions of Series G Interests shall be charged against the Series G
Allocated Assets.
13. Brokerage Confirmations and Reports.
The Managing Owner will instruct the Trust's brokers and
counterparties to furnish the Advisor with copies of all trade confirmations,
daily equity runs and monthly trading statements relating to the Series G
Allocated Assets. The Advisor will maintain records and will monitor all open
positions relating thereto; provided, however, that the Advisor shall not be
responsible for any errors by the Trust's brokers or counterparties. The
Managing Owner also will furnish the Advisor with a copy of the form of all
reports, including but not limited to, monthly, quarterly and annual reports,
sent to the Limited Owners and copies of all reports filed with the SEC, the
CFTC and the NFA. The Advisor shall, at the Managing Owner's request, make a
good faith effort to provide the Managing Owner with copies of all trade
confirmations, daily equity runs, monthly trading reports or other reports
sent to the Advisor by the Trust's commodity broker regarding the Trust and in
the Advisor's possession or control as the Managing Owner deems appropriate if
the Managing Owner cannot obtain such copies on its own behalf. Upon request,
the Managing Owner will provide the Advisor with accurate information with
respect to the Series G Allocated Assets.
14. The Advisor's Representations and Warranties.
The Advisor represents and warrants that:
26
(a) it has full capacity and authority to enter into this Agreement
and to provide the services required of it hereunder;
(b) it will not by entering into this Agreement and by acting as a
commodity trading advisor to the Trust (i) be required to take any action
contrary to its incorporating or other formation documents or, to the best of
its knowledge, any applicable statute, law or regulation of any jurisdiction
or (ii) breach or cause to be breached, to the best of its knowledge, any
undertaking, agreement, contract, statute, rule or regulation to which it is a
party or by which it is bound which, in the case of (i) or (ii), would
materially limit or materially adversely affect its ability to perform its
duties under this Agreement;
(c) it is duly registered as a commodity trading advisor under the
CE Act and is a member of the NFA as a commodity trading advisor and it will
maintain and renew such registration and membership during the term of this
Agreement;
(d) a copy of its most recent Commodity Trading Advisor Disclosure
Document as required by Part 4 of the CFTC's regulations has been provided to
the Managing Owner on behalf of the Trust in the form of Exhibit D hereto (and
the Managing Owner acknowledges receipt of such Disclosure Document on behalf
of the Trust) and, except as disclosed in such Disclosure Document, all
information in such Disclosure Document (including, but not limited to,
background, performance, trading methods and trading systems) is true,
complete and accurate in all material respects and is in conformity in all
material respects with the provisions of the CE Act, including the rules and
regulations thereunder, as well as all rules and regulations of the National
Futures Association;
(e) assuming that the Series G Allocated Assets equal not more than
$30 million as of the commencement of trading, the amount of such assets
should not, in the
27
reasonable judgment of the Advisor, result in the Advisor being required to
manage funds in an amount which will exceed the Advisor's Capacity; and
(f) neither the Advisor nor its stockholders, directors, officers,
employees, agents, principals, affiliates nor any of its or their respective
successors or assigns: (i) shall knowingly use or distribute for any purpose
whatsoever any list containing the names and/or residence addresses of, and/or
other information about, the Limited Owners of the Trust nor (ii) shall
solicit any person it or they know is a Limited Owner of the Trust for the
purpose of soliciting commodity business from such Limited Owner, unless such
Limited Owner shall have first contacted the Advisor or is already a client of
the Advisor or a prospective client with which the Advisor has commenced
discussions or is introduced to or referred to the Advisor by an unaffiliated
agent other than in violation of clause (i).
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
Trust in writing thereof.
15. The Managing Owner's Representations and Warranties.
The Managing Owner represents and warrants on behalf of the Trust
and itself that:
(a) each has the full capacity and authority to enter into this
Agreement and to perform its obligations hereunder;
(b) it will not, by acting as managing owner to the Trust or by
entering into this Agreement, and the Trust will not (i) be required to take
any action contrary to its incorporating or other formation documents or any
applicable statute, law or regulation of any jurisdiction or (ii) breach or
cause to be breached (A) any undertaking, agreement, contract,
28
statute, rule or regulation to which it or the Trust is a party or by which it
or the Trust is bound or (B) any order of any court or governmental or
regulatory agency having jurisdiction over it or the Trust, which in the case
of (i) or (ii) would materially limit or materially adversely affect the
performance of its or the Trust's duties under this Agreement;
(c) it is registered as a commodity pool operator under the CE Act
and is a commodity pool operator member of the NFA, and it will maintain and
renew such registration and membership during the term of this Agreement;
(d) this Agreement has been duly and validly authorized, executed
and delivered and is a valid and binding agreement, enforceable against each
of them, in accordance with its terms; and
(e) on the date hereof, it is, and during the term of this
Agreement, it will be (i) in the case of the Trust, a duly formed and validly
existing Delaware statutory trust and (ii) in the case of the Managing Owner,
a duly formed and validly existing corporation, in each case, in good standing
under the laws of the State of Delaware and the State of Connecticut,
respectively, and in good standing and qualified to do business in each
jurisdiction in which the nature and conduct of its business requires such
qualification and where the failure to be so qualified would materially
adversely affect its ability to perform its obligations under this Agreement.
The within representations and warranties shall be continuing during
the tern of this Agreement, and if at any time any event has occurred which
would make or tend to make any of the foregoing not true in any material
respect, the Managing Owner promptly will notify the Advisor in writing.
29
16. Assignment.
This Agreement may not be assigned by any of the parties hereto
without the express prior written consent of the other parties hereto, except
that the Advisor need not obtain the consent of any Other Advisor.
17. Successors.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and the successors and permitted assignees of each of them, and
no other person (except as otherwise provided herein) shall have any right or
obligation under this Agreement. The terms "successors" and "assignees" shall
not include any purchasers, as such, of Interests.
18. Amendment or Modification or Waiver.
(a) Changes to Agreement. This Agreement may not be amended or
modified, nor may any of its provisions be waived, except upon the prior
written consent of the parties hereto, except that an amendment to, a
modification of or a waiver of any provision of the Agreement as to the
Advisor need not be consented to by any Other Advisor.
(b) No Waiver. No failure or delay on the part of any party hereto
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. Any waiver granted hereunder must be in writing
and shall be valid only in the specific instance in which given.
19. Notices.
Except as otherwise provided herein, all notices required to be
delivered under this Agreement shall be effective only if in writing and shall
be deemed given by the party required to provide notice when received by the
party to whom notice is required to be given and
30
shall be delivered personally or by registered mail, postage prepaid, return
receipt requested or by facsimile, as follows (or to such other address as the
party entitled to notice shall hereafter designate by written notice to the
other parties):
If to the Managing Owner or the Trust:
Preferred Investment Solutions Corp.
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (203) ___-____
with a copy to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Advisor:
Xxxxxx Capital Management, L.P.
Stamford Harbor Park
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Capital Management, L.P.
Stamford Harbor Park
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
20. Governing Law.
Each party agrees that this Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard
to the conflict of laws principles thereof.
31
21. Survival.
The provisions of this Agreement shall survive the termination of
this Agreement with respect to any matter arising while this Agreement was in
effect.
22. Promotional Literature.
Each party agrees that prior to using any promotional literature in
which reference to the other parties hereto is made, it shall furnish in
advance a copy of such information to the other parties and will not make use
of any promotional literature containing references to such other parties to
which such other parties object, except as otherwise required by law or
regulation.
23. No Liability of Limited Owners.
This Agreement has been made and executed by and on behalf of the
Trust, and the obligations of the Trust and/or the Managing Owner set forth
herein are not binding upon any of the Limited Owners individually, but
rather, are binding only upon the assets and property of the Trust and, to the
extent provided herein, upon the assets and property of the Managing Owner.
24. Headings.
Headings to sections herein are for the convenience of the parties
only and are not intended to be or to affect the meaning or interpretation of
this Agreement.
25. Complete Agreement.
Except as otherwise provided herein, this Agreement and the
Representation Agreement constitute the entire agreement between the parties
with respect to the matters referred to herein, and no other agreement, verbal
or otherwise, shall be binding upon the parties hereto.
32
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. Series Disclaimer.
The parties hereto acknowledge and agree that the Trust is organized
in series pursuant to Sections 3804(a) and 3806(b)(2) of the Delaware
Statutory Trust Act. As such, the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to each series of
the Trust shall be enforceable against the assets of such series of the Trust
only, and not against the assets of the Trust generally or the assets of any
other series of the Trust or against the trustee of the Trust. There may be
several series of the Trust created pursuant to the Declaration of Trust and
Trust Agreement of the Trust.
33
IN WITNESS WHEREOF, this Agreement has been executed for and on
behalf of the undersigned as of the day and year first above written.
WORLD MONITOR TRUST III- SERIES G
By: PREFERRED INVESTMENT SOLUTIONS
CORP., its sole Managing Owner
By:
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
PREFERRED INVESTMENT SOLUTIONS
CORP., its sole Managing Owner
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
XXXXXX CAPITAL MANAGEMENT, L.P.
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
34
EXHIBIT 10.2
EXHIBIT A
SERIES G TRADING APPROACH
-------------------------
GLOBAL DIVERSIFIED PROGRAM
The Advisor will make its trading decisions for Series G according
to its Global Diversified Program as described in Exhibit D as amended from
time to time and will trade the Series G Allocated Assets at a trading level
of 1.5 times the Series G Allocated Assets.
A-1
EXHIBIT 10.2
EXHIBIT B
TRADING LIMITATIONS AND POLICIES
The following limitations and policies are applicable to assets
representing the Series G Allocated Assets of the Trust as a whole and at the
outset to the Advisor individually; since the Advisor initially will manage
100% of the Trust's Series G Allocated Assets, such application of the
limitations and policies is identical initially for the Series G Allocated
Assets of the Trust and the Advisor. The Advisor sometimes may be prohibited
from taking positions for the Series G Allocated Assets which it would
otherwise acquire due to the need to comply with these limitations and
policies. The Managing Owner will monitor compliance with the trading
limitations and policies set forth below, and it may impose additional
restrictions (through modification of such limitations and policies) upon the
trading activities of the Advisor as it, in good faith, deems appropriate in
the best interests of Series G of the Trust, subject to the terms of the
Advisory Agreement.
The Managing Owner will not approve a material change in the
following trading limitations and policies without obtaining the prior written
approval of Limited Owners owning more than 50% of the Series G Interests. The
Managing Owner may, however, impose additional trading limitations on the
trading activities of the Series G Interests of the Trust without obtaining
such approval if the Managing Owner determines such additional limitations to
be necessary in the best interests of Series G of the Trust.
Trading Limitations
Series G of the Trust will not: (i) engage in pyramiding its
commodities positions (i.e., the use of unrealized profits on existing
positions to provide margin for the acquisition of additional positions in the
same or a related commodity provided, however, unrealized profits may be
considered in determining the current Allocated Assets) but may take into
account open trading equity on existing positions in determining generally
whether to acquire additional commodities positions; (ii) borrow or loan money
(except with respect to the initiation or maintenance of commodities positions
or obtaining lines of credit for the trading of forward currency contracts;
provided, however, that Series G of the Trust is prohibited from including any
indebtedness on a non-recourse basis); (iii) permit rebates to be received by
the Managing Owner or its affiliates or permit the Managing Owner or any
affiliate to engage in any reciprocal business arrangements which would
circumvent the foregoing prohibition; (iv) permit the Advisor to share in any
portion of the commodity brokerage fees paid by the Series G Interests of the
Trust; (v) commingle its assets, except as permitted by law; or (vi) permit
the churning of its commodity accounts.
Series G of the Trust will conform in all respects to the rules,
regulations and guidelines of the markets on which its trades are executed.
Trading Policies
Subject to the foregoing limitations, the Advisor has agreed to abide
by the trading policies of Series G of the Trust, which currently are as
follows:
B-1
(1) Series G 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) Series G of the Trust generally will not initiate an open
position in a futures contract (other than a cash settlement contract) during
any delivery month in that contract, except when required by exchange rules,
law or exigent market circumstances. This policy does not apply to forward and
cash market transactions.
(4) Series G of the Trust may occasionally make or accept delivery of
a commodity including, without limitation, currencies. Series G of the Trust
also may engage in EFP transactions involving currencies and metals and other
commodities.
(5) Series G of the Trust may, from time to time, employ trading
techniques such as spreads, straddles and conversions.
(6) Series G of the Trust will not initiate open futures or option
positions which would result in net long or short positions requiring as
margin or premium for outstanding positions in excess of 15% of the Trust's
Series G Allocated Assets for any one commodity or in excess of 662/3% of the
Trust's Series G Allocated Assets for all commodities combined. Under certain
market conditions, such as an inability to liquidate open commodities
positions because of daily price fluctuations, the Managing Owner may be
required to commit Allocated Assets as margin in excess of the foregoing
limits, and in such case the Managing Owner will cause the Advisor to reduce
its open futures and option positions to comply to these limits before
initiating new commodities positions.
(7) To the extent Series G of the Trust engages in transactions in
forward currency contracts other than with or through UBS Securities LLC,
Series G of the Trust will only engage in such transactions with or through a
bank which as of the end of its last fiscal year had an aggregate balance in
its capital, surplus and related accounts of at least $100 million, as shown
by its published financial statements for such year and through other
broker-dealer firms with an aggregate balance in its capital, surplus and
related accounts of at least $50 million.
B-2
EXHIBIT 10.2
EXHIBIT C
REPRESENTATION AGREEMENT CONCERNING THE
REGISTRATION STATEMENT AND THE PROSPECTUS
-----------------------------------------
REPRESENTATION AGREEMENT ("Agreement") dated as of the ____ day of
___________, 2004, by and among WORLD MONITOR TRUST III - SERIES G (the
"Trust"), a separate series of a statutory trust organized under Chapter 38 of
Title 12 of the Delaware Code (the "Delaware Act"), [NAME OF SELLING AGENT], a
________ corporation (the "Selling Agent"), PREFERRED INVESTMENT SOLUTIONS
CORP., a Connecticut corporation (the "Managing Owner"), and XXXXXX CAPITAL
MANAGEMENT, L.P., a Delaware limited partnership (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 G Interests, and as a part thereof a
prospectus (which registration statement, together with all amendments
thereto, shall be referred to herein as the "Registration Statement" and which
prospectus in final form, together with all amendments and supplements
thereto, shall be referred to herein as the "Prospectus"); and
WHEREAS, the Trust and the Managing Owner entered into an agreement
with the Advisor, dated as of __________, 2004 (the "Advisory Agreement"),
pursuant to which the
Advisor has agreed to act as a commodity trading advisor to the Trust with
respect to trust estate represented by Series G Interests; and
WHEREAS, the parties hereto wish to set forth their duties and
obligations to each other with respect to the Registration Statement as of its
effective date and the Prospectus as of the date(s) on which subscribers'
funds are transferred to the trust estate represented by Series G Interests
("Closing Dates(s)").
NOW, THEREFORE, the parties agree as follows:
1. Representations and Warranties of the Advisor. The Advisor hereby
represents and warrants to the Selling Agent, the Trust and the Managing Owner
that:
a. All references in the Registration Statement, consented to in
writing by the Advisor in the form attached hereto as Exhibit A, as
of its effective date and the Prospectus as of the Closing Date to
(i) the Advisor and its affiliates, and the controlling persons,
shareholders, directors, officers and employees of any of the
foregoing, (ii) the Advisor's Trading Approach (as defined in the
Advisory Agreement) and (iii) the actual past performance of
discretionary accounts directed by the Advisor or any principal
thereof, including the notes to the tables reflecting such actual
past performance (hereinafter referred to as the Advisor's "Past
Performance History") are complete and accurate in all material
respects, and as to such persons, the Advisor's Trading Approach and
the Advisor's Past Performance History, the Registration Statement
as of its effective date and the Prospectus as of each Closing Date
contain all information required to be included therein by the
Commodity Exchange Act, as amended (the "CE Act"), and the
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regulations (including interpretations thereof) thereunder, and do
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein (with respect to the Prospectus, in light of
the circumstances in which they were made) not misleading, except
that the Advisor calculates all performance data by including
"notional equity" in determining the account size of partially
funded accounts. In addition, the Advisor represents and warrants
that the Global Diversified Program performance for the account of
[Xxxxxx Global Investment Fund Ltd. (the "GGIF Account")] is the
account of the Advisor that presents results that are most
reflective of the type of performance that Series G would have
achieved had it been trading during the same time period and that
the use of the GGIF Account is appropriate for the pro forma
presentation. 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
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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 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 limited partnership duly 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
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hereunder or under the Advisory Agreement. The Advisor has full
capacity and authority to conduct its business and to perform its
obligations under this Agreement and to act as described in the
Registration Statement as of its effective date and the Prospectus
as of the Closing Date.
f. Subject to adequate assurances of confidentiality, and as
requested of the Managing Owner, the Advisor has supplied to or made
available for review by the Managing Owner and the Selling Agent
(and if requested by the Managing Owner and the Selling Agent to its
designated auditor) all documents, statements, agreements and
workpapers requested by them relating to all accounts covered by the
Advisor's Past Performance History in the Registration Statement as
of its effective date and the Prospectus as of the Closing Date
which are in the Advisor's possession or to which it has access;
provided, however, that the Advisor may, in its sole discretion
withhold from any such inspection the identity of the clients for
whom any such accounts are maintained.
g. Without limiting the generality of paragraph a. of this Section
1, neither the Advisor nor any of its principals has managed,
controlled or directed, on an overall discretionary basis, the
trading for any commodity account which is required by CFTC
regulations and the rules and regulations under the 1933 Act to be
disclosed in the Registration Statement as of its effective date and
the Prospectus as of the Closing Date which is not set forth in the
Registration Statement as of its effective date and in the
Prospectus as of the Closing Date as required.
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h. The Advisor does not provide any services to any persons or
conduct any business involving advice with respect to investments
other than Commodities (as defined in the Advisory Agreement),
except as has been disclosed in writing to the Managing Owner. The
Advisor is not required to be registered as an investment adviser
under the Investment Advisers Act of 1940, as amended (the "Advisers
Act"), but voluntarily may so register in the future,
i. As of the date hereof, there has been no material adverse change
in the Advisor's Past Performance History as set forth in the
Registration Statement or in the Prospectus under the caption
["SERIES G Past Performance For All Of Its Clients"] which has not
been communicated in writing to and received by the Managing Owner
and the Selling Agent or their counsel.
j. Except for subsequent performance, as to which no representation
is made, since the date of the Advisory Agreement, (i) there has not
been any material adverse change in the condition, financial or
otherwise, of the Advisor or in the earnings, affairs or business
prospects of the Advisor, whether or not arising in the ordinary
course of business, and (ii) there have not been any material
transactions entered into by the Advisor other than those in the
ordinary course of its business.
k. Except as disclosed in the Registration Statement and in the
Prospectus, there is no pending, or to the best of its knowledge,
threatened or contemplated action, suit or proceeding before or by
any court, governmental, administrative or self-regulatory body or
arbitration panel to which the Advisor or its principals is a party,
or to which any of the assets of the Advisor is subject which
reasonably might be expected to result in any material adverse
change in the condition (financial or otherwise), business or
prospects of the Advisor or which reasonably
6
might be expected to materially adversely affect any of the material
assets of the Advisor or which reasonably might be expected to (A)
impair materially the Advisor's ability to discharge its obligations
to the Trust or (B) result in a matter which would require
disclosure in the Registration Statement and/or Prospectus;
furthermore the Advisor has not received any notice of an
investigation by the NFA regarding non-compliance with its rules or
the CE Act, the CFTC regarding non-compliance with the CE Act, or
the rules and regulations thereunder or any exchange regarding
non-compliance with the rules of such exchange which investigation
reasonably might be expected to materially impair the Advisor's
ability to discharge its obligations under this Agreement or the
Advisory Agreement.
2. Covenants of the Advisor. If, at any time during the term of the
Advisory Agreement, the Advisor discovers any fact, omission or event, or that
a change of circumstances has occurred, which would make the Advisor's
representations and warranties in Section 1 of this Agreement inaccurate or
incomplete in any material respect, or which might reasonably be expected to
render the Registration Statement or Prospectus, with respect to (i) the
Advisor or its principals, (ii) the Advisor's Trading Approach or (iii) the
Advisor's Past Performance History, untrue or misleading in any material
respect, the Advisor will provide prompt written notification to the Trust,
the Managing Owner and the Selling Agent of any such fact, omission, event or
change of circumstance, and the facts related thereto, and it is agreed that
the failure to provide such notification or the failure to continue to be in
compliance with the
7
Foregoing representations and warranties during the term of the Advisory
Agreement as soon as possible following such notification shall be
cause for the Trust and the Managing Owner to terminate the Advisory Agreement
with the Advisor on prior written notice to the Advisor. The Advisor also
agrees that, during the term of the Advisory Agreement, from and after the
Effective Date of the Registration Statement and for so long as Interests in
the Trust are being offered, whether during the Initial Offering Period or
during the Continuous Offering Period (as those terms are described in the
Prospectus), it will provide the Selling Agent, the Trust and the Managing
Owner with updated month-end information relating to the Advisor's Past
Performance History, as required to be disclosed in the performance tables
relating to the performance of the Advisor in the Prospectus under the caption
"SERIES G - Past Performance For All Of Its Clients" beyond the periods
disclosed therein. The Advisor shall use its best efforts to provide such
information within a reasonable period of time after the end of the month to
which such updated information relates and the information is available to it.
3. Modification of Registration Statement or Prospectus. If any
event or circumstance occurs as a result of which it becomes necessary, in the
judgment of the Managing Owner and 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
8
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 G Interests (the "Initial
Closing Date"), and thereafter, only if requested, on or prior to each closing
date during the continuous offering of Series G Interests (each a "Subsequent
Closing Date"), the Advisor shall deliver or cause to be delivered, at the
expense of the Advisor, to the Selling Agent, the Trust and the Managing
Owner, the reports, certificates, documents and opinions described below
addressed to them and, except as may be set forth below, dated the Initial
Closing Date or the Subsequent Closing Date, as appropriate (provided that the
Advisor shall not be obligated to provide an opinion of its counsel more
frequently than once per annum absent good cause shown). Unless the context
otherwise requires, the Initial Closing Date and each Subsequent Closing Date
shall each be referred to as a "Closing Date."
a. A report from the Advisor which shall present, for the period
from the date after the last day covered by the Advisor's Past
Performance History as set forth under ["SERIES G - Past Performance
For All Of Its Clients"] in the Prospectus to the latest practicable
month-end before the Closing Date, figures which shall show the
actual past performance of the Advisor (or, if such actual past
performance information is unavailable, then the estimated past
performance) for such period, and which shall certify that, to the
best of the Advisor's knowledge, such figures are complete and
accurate in all material respects.
9
b. A certificate of the Advisor in the form proposed prior to the
Closing Date by counsel to the Selling Agent, the Trust and the
Managing Owner, with such changes in such form as are proposed by
the Advisor or its counsel and as are acceptable to the Selling
Agent, the Trust and the Managing Owner and their counsel so as to
make such form mutually acceptable to the Selling Agent, the Trust,
the Managing Owner, the Advisor and their respective counsel, to the
effect that:
(i) The representations and warranties of the Advisor in
Section 1 of this Agreement are true and correct in all
material respects on the date of the certificate as though made
on such date.
(ii) Nothing has come to the Advisor's attention which
would cause the Advisor to believe that, at any time from the
time the Registration Statement initially became effective to
the Closing Date, the Registration Statement, as amended from
time to time, or the Prospectus, as amended or supplemented
from time to time, with respect to the Advisor, or its
affiliates, and controlling persons, shareholders, directors,
officers or employees of any of the foregoing, or with respect
to the Advisor's Trading Approach or Past Performance History,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein (with respect to the
Prospectus, in light of the circumstances in which they were
made) not misleading.
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(iii) The Advisor has performed all covenants and
agreements herein contained to be performed on its part at or
prior to the Closing Date.
c. A certificate of the Advisor (together with such supporting
documents as are set forth in such certificate), in the form
proposed prior to the Closing Date by counsel to the Selling Agent,
the Trust and the Managing Owner, with such changes in such form as
are proposed by the Advisor or its counsel and are acceptable to the
Selling Agent, the Trust and the Managing Owner and their counsel so
as to make such form mutually acceptable to the Selling Agent, the
Trust, the Managing Owner, the Advisor and their respective counsel,
with respect to, (i) the continued effectiveness of the
organizational documents of the Advisor, (ii) the continued
effectiveness of the Advisor's registration as a commodity trading
advisor under the CE Act and membership as a commodity trading
advisor with the NFA and (iii) the incumbency and genuine signature
of the President and Secretary of the Advisor.
d. A certificate from the state of formation of the Advisor, to be
dated at, on or around the Closing Date, as to its formation and
good standing.
e. An opinion of counsel, in form and substance satisfactory to the
Trust, the Managing Owner and the Selling Agent and their counsel,
dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing
limited partnership in good standing under the laws of the
state of its formation and, if different, the state where it
conducts its primary business activity,
11
and the Advisor has full corporate power and authority
under its organizing documents to perform its obligations under
the Advisory Agreement and under this Agreement and to act as
described in the Registration Statement as of its effective
date and in the Prospectus as of the Closing Date.
(ii) Each of the Advisory Agreement and this Agreement
have been duly and validly authorized, executed and delivered
on behalf of the Advisor, and assuming the due execution and
delivery of each such Agreement by the Trust, the Selling Agent
and the Managing Owner, as applicable, each such agreement
constitutes the legal, valid and binding obligations of the
Advisor, enforceable in accordance with their respective terms,
except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws at the time in
effect affecting creditors rights generally, or by applicable
principles of equity, whether in an action at law or in equity,
and except that the enforceability of the indemnification,
exculpation, and severability provisions may be limited under
applicable federal or state securities, commodities and other
laws or by public policy; and the execution and delivery of
such agreements and the incurrence of the obligations
thereunder and the consummation of the transactions set forth
in such agreements and in the Prospectus will not violate or
result in a breach of the Advisor's formation documents, and,
to the best of such counsel's knowledge, after due inquiry,
will not result in any violation, breach or default under any
term or provision of any
12
undertaking, contract, agreement or order to which the
Advisor is a party or by which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this Section 4.e, to
the best of such counsel's knowledge, after due inquiry, the
Advisor has obtained all required governmental and regulatory
licenses, registrations and approvals required by law as may be
necessary in order to perform its obligations under the
Advisory Agreement and under this Agreement and to act as
described in the Registration Statement as of its effective
date and the Prospectus as of the Closing Date (including,
without limitation, registration as a commodity trading advisor
under the CE Act and membership as a commodity trading advisor
with the NFA), and such licenses, registrations and approvals
have not, to the best of such counsel's knowledge, after due
inquiry, been rescinded, revoked or otherwise removed.
(iv) Assuming that the Trust is operated as described in
the Prospectus, the Advisor is not required to be licensed or
registered as an investment adviser under the Advisers Act
(even if it voluntarily is so registered), or to such counsel's
knowledge, without independent investigation, as an investment
adviser or commodity trading advisor under the laws of any
state of the U.S., in order to perform its obligations under
the Advisory Agreement or under this Agreement, or to act as
described in the Registration Statement as of its effective
date and the Prospectus as of the Closing Date. The foregoing
opinion may be qualified
13
by the fact that such counsel is not admitted to practice
law in all jurisdictions, and by the fact that in rendering its
opinion such counsel has relied solely upon an examination of
the Blue Sky securities laws and related rules, regulations,
and administrative determinations, if any, promulgated
thereunder, of the various jurisdictions as reported in
customarily relied upon standard compilations, and upon such
counsel's understanding of the various conclusions expressed,
formally or informally, by administrative officials or other
employees of the various regulatory or other governmental
agencies or authorities concerned.
(v) To such counsel's knowledge without independent
investigation, except as described in the Prospectus or in a
schedule delivered by counsel to the Selling Agent and the
Managing Owner prior to the date hereof, there is no pending or
threatened suit or proceeding, known to such counsel, before or
by any court, governmental or regulatory body or arbitration
panel to which the Advisor or any of the assets of the Advisor
or any of its principals is subject and which reasonably might
be expected to result in any material adverse change in the
condition (financial or otherwise), business or prospects of
the Advisor or any of its principals or which reasonably might
be expected materially adversely to affect any of the assets of
the Advisor or any of its principals or which reasonably might
be expected to (A) impair materially the Advisor's ability to
discharge its obligations to the Trust or (B) result in a
matter which would require disclosure in the Registration
Statement or
14
Prospectus; and, to the best of such counsel's knowledge,
neither the Advisor nor any of its principals has received any
notice of an investigation by (i) the NFA regarding
non-compliance with its rules or the CE Act, (ii) the CFTC
regarding non-compliance with the CE Act or (iii) any exchange,
regarding non-compliance with its rules, which investigation
reasonably might be expected to (A) impair materially the
Advisor's ability to discharge its obligations to the Trust or
(B) result in a matter which would require disclosure in the
Registration Statement or Prospectus.
(vi) With respect to the Advisor and its affiliates, and
controlling persons, shareholders, directors, officers and
employees of any of the foregoing, and with respect to the
Advisor's Trading Approach, nothing has come to the attention
of such counsel that leads such counsel to believe that the
Registration Statement (at the time it initially became
effective and at the time any post-effective amendment thereto
became effective) or the Prospectus contains any untrue
statement of a material fact or omits to state a material fact
required to be stated therein or which is necessary to make the
statements therein (with respect to the Prospectus, in light of
the circumstances in which they are made) not misleading,
except that such counsel is not required to express any opinion
or belief as to the financial statements or other financial or
statistical data, past performance tables, notes, or
descriptions thereto or other past
15
performance information contained in the Registration
Statement or the Prospectus.
In rendering the foregoing opinions, such counsel may rely (i) as to
matters of fact, on a certificate of an officer of the Advisor, unless such
counsel has actual knowledge otherwise, and (ii) as to matters of law of
states other than that in which they are licensed to practice law, upon the
opinions of other counsel, in each case satisfactory in form and substance to
counsel to the Managing Owner and the Selling Agent, and such counsel shall
state that they believe the Managing Owner and the Selling Agent may rely on
them.
5. Advisor Acknowledgements. The Advisor acknowledges that: (i) it
may be a condition to each closing under the Selling Agreement that the
Selling Agent shall have received, at no cost to the Advisor, letter(s) from
certified public accountants or other reputable professionals selected by the
Selling Agent with respect to the Past Performance History of the Advisor as
set forth in the 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 Trust and the Managing Owner. The Managing
Owner hereby represents and warrants (on its own behalf and on behalf of the
Trust, as applicable) to the Advisor that:
16
a. On the date hereof, the Trust is, and at all times during the
term of this Agreement and the Advisory Agreement will be, a duly
formed and validly existing statutory trust in good standing under
the laws of the State of Delaware and at all times during the term
of this Agreement and the Advisory Agreement will be in good
standing and qualified to do business in each jurisdiction in which
the nature or conduct of its business requires such qualifications
and the failure to be so qualified materially adversely would affect
its ability to perform its obligations under this Agreement and the
Advisory Agreement and to operate as described in the Prospectus,
and the Managing Owner is, and at all times during the term of this
Agreement and the Advisory Agreement will be, a duly formed and
validly existing corporation in good standing under the laws of the
State of Connecticut and is, and at all times during the term of
this Agreement and the Advisory Agreement will be, in good standing
and qualified to do business as a foreign corporation in each other
jurisdiction in which the nature or conduct of its business requires
such qualifications and in which the failure to be so qualified
materially adversely would affect its ability to act as Managing
Owner of the Trust and to perform its obligations hereunder and
under the Advisory Agreement, and each has full capacity and
authority to conduct its business and to perform its obligations
under this Agreement and the Advisory Agreement and to act as
described in the Registration Statement as of its effective date and
the Prospectus as of the Closing Date.
b. Each of this Agreement and the Advisory Agreement has been duly
and validly authorized, executed and delivered on behalf of the
Trust and the
17
Managing Owner, is a valid and binding agreement of the Trust and
the Managing Owner and is enforceable in accordance with its terms.
The performance of the Trust's and the Managing Owner's obligations
under this Agreement and under the Advisory Agreement, and the
consummation of the transactions set forth in this Agreement and the
Advisory Agreement, and in the Registration Statement as of its
effective date and Prospectus as of the Closing Date are not
contrary to the provisions of the Trust's Declaration of Trust and
Trust Agreement, as it may be amended from time to time (the "Trust
Agreement"), Certificate of Trust or the Managing Owner's [Articles]
of Incorporation or By-Laws, respectively, any applicable statute,
law or regulation of any jurisdiction and will not result in any
violation, breach or default under any term or provision of any
undertaking, contract, agreement or order, to which the Trust or the
Managing Owner, is a party or by which the Trust or the Managing
Owner is bound.
c. Each of the Trust and the Managing Owner has obtained all
required governmental and regulatory licenses, registrations and
approvals required by law as may be necessary to perform their
obligations under this Agreement and under the Advisory Agreement
and to act as described in the Registration Statement as of its
effective date and in the Prospectus as of the Closing Date
(including, without limitation, the Managing Owner's registration as
a commodity pool operator under the CE Act and membership as a
commodity pool operator with the NFA) and will maintain and renew
any required licenses, registrations, approvals and memberships
required during the term of this Agreement and the Advisory
Agreement.
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d. The Trust is not required to be registered as an investment
company under the Investment Company Act of 1940, as amended (the
"Investment Company Act").
e. All authorizations, consents or orders of any court or of any
federal, state or other governmental or regulatory agency or body
required for the valid authorization, issuance, offer and sale of
the Interests have been obtained, and no order preventing or
suspending the use of the Prospectus with respect to the Interests
has been issued by the SEC, the CFTC or the NFA. The Registration
Statement as of its effective date and the Prospectus as of the
Closing Date contain all statements which are required to be made
therein, conform in all material respects with the requirements of
the 1933 Act and the CE Act, and the rules and regulations of the
SEC and the CFTC, respectively, thereunder, and with the rules of
the NFA and do not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein (with respect to the
Prospectus, in light of the circumstances in which they are made)
not misleading; and at all times subsequent hereto up to and
including the date of termination of the Initial Offering Period and
any Subsequent Offering Period, the Registration Statement as of its
effective date and the Prospectus as of the Closing Date will
contain all statements required to be made therein and will conform
in all material respects with the requirements of the 1933 Act and
the CE Act, and the rules and regulations of the SEC and the CFTC,
respectively, thereunder, and with the rules of the NFA and will not
contain any untrue statement of a material fact or omit to state a
material fact
19
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 Trust, the Managing Owner or
the principals of either is a party, or to which any of the assets
of any of the foregoing persons is subject, which might reasonably
be expected to result in any material adverse change in their
condition (financial or otherwise), business or prospects or
reasonably might be expected to affect adversely in any material
respect any of their assets or which reasonably might be expected to
materially impair their ability to discharge their obligations under
this Agreement or under the Advisory Agreement; and neither the
Trust nor the Managing Owner has received any notice of an
investigation by (i) the NFA
20
regarding non-compliance with NFA rules or the CE Act,
(ii) the CFTC regarding non-compliance with the CE Act or the
rules and regulations thereunder or (iii) any exchange
regarding non-compliance with the rules of such exchange which
investigation reasonably might be expected to materially impair
the ability of each of the Trust and the Managing Owner to
discharge its obligations under this Agreement or under the
Advisory Agreement.
7. Covenants of the Managing Owner and the Trust. If, at any time
during the term of the Advisory Agreement, the Managing Owner or the Trust
discovers any fact, omission or event or that a change of circumstance has
occurred which would make the Managing Owner's or the Trust's representations
and warranties in Section 6 of this Agreement inaccurate or incomplete in any
material respect, the Trust or the Managing Owner, as appropriate, promptly
will provide written notification to the Advisor of such fact, omission, event
or change of circumstance and the facts related thereto. The Managing Owner
and the Trust shall provide the Advisor with a copy of each amendment to the
Registration Statement and amendment or supplement to the Prospectus, and no
amendment to the Registration Statement or amendment or supplement to the
Prospectus which contains any statement or information regarding the Advisor
will be filed or used unless the Advisor has received reasonable prior notice
and a copy thereof and has consented in writing to such statement or
information being filed and used.
8. Trust's and Managing Owner's Closing Obligations. On or prior to
the Initial Closing Date, and thereafter on or prior to each Subsequent
Closing Date, if the Trust and the Managing Owner have requested that the
Advisor provide certificates, documents and opinions pursuant to Section 4 of
this Agreement, the Trust and the Managing Owner shall
21
deliver or cause to be delivered to the Advisor, the certificates, documents
and opinions described below addressed to the Advisor and, except as may be
set forth below, dated each such Closing Date:
a. Certificates of the Trust and the Managing Owner, addressed to
the Advisor, in the form proposed prior to the Closing Date by
counsel to the Trust and the Managing Owner with such changes in
such form as are proposed by the Advisor or its counsel and are
acceptable to the Trust, the Managing Owner and their counsel so as
to make such form mutually acceptable to the Trust, the Managing
Owner, the Advisor and their respective counsel, with respect to, as
applicable, (i) the continued effectiveness of the Trust Agreement
and the Certificate of Trust of the Trust and the [Articles] of
Incorporation and By-Laws of the Managing Owner, (ii) the continued
effectiveness of the registration of the Managing Owner as a
commodity pool operator under the CE Act and membership as a
commodity pool operator with the NFA and (iii) the incumbency and
genuine signature of the President and Secretary of the Managing
Owner.
b. Certificates from the States of Delaware and Connecticut with
respect to the Trust and the Managing Owner, respectively, to be
dated at, on or around the Closing Date as to the formation and good
standing of the Trust and the Managing Owner, respectively.
c. Certificates of the Trust and the Managing Owner in the form
proposed prior to the Closing Date by counsel to the Trust and the
Managing Owner with such changes in such form as are proposed by the
Advisor or its counsel and are acceptable to the Trust, the Managing
Owner and their counsel so as to make such
22
form mutually acceptable to the Trust, the Managing Owner, the
Advisor and their respective counsel, to the effect that:
(i) The representations and warranties in Section 6 of
this Agreement are true and correct in all material respects on
the date of the certificates as though made on such date, and
(ii) The Trust and the Managing Owner have each performed
all covenants and agreements herein contained to be performed
on their part at or prior to the Closing Date.
d. An opinion letter of counsel to the Trust and the Managing Owner,
dated the Closing Date, in form and substance satisfactory to the
Advisor, as follows:
(i) The Trust is a duly created and validly existing
statutory trust in good standing under the Delaware Act, with
requisite power and authority under the Delaware Act, its Trust
Agreement and its Certificate of Trust to perform its
obligations under this Agreement and under the Advisory
Agreement and to act as described in the Registration Statement
as of its effective date and the Prospectus as of the Closing
Date.
(ii) The Managing Owner is a duly formed and validly
existing corporation in good standing under the laws of the
State of Connecticut. The Managing Owner has full corporate
power and authority under its [Articles] of Incorporation,
By-Laws and the [General Corporation Law] of the State of
Connecticut to perform its obligations under this Agreement and
under the Advisory Agreement and to act as described in
23
the Registration Statement as of its effective date and the
Prospectus as of the Closing Date.
(iii) Each of this Agreement and the Advisory Agreement
has been duly and validly authorized or ratified, executed and
delivered on behalf of each of the Trust and the Managing
Owner, and, assuming due execution and delivery of each such
Agreement by the Advisor, each agreement constitutes the legal,
valid and binding obligations of the Trust and the Managing
Owner, respectively, enforceable in accordance with their
respective terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws at the time in effect affecting creditors, rights
generally, or by applicable principles of equity, whether in an
action at law or in equity, and except that the enforceability
of the indemnification provisions may be limited under
applicable federal or state securities, commodities and other
laws or by public policy; and the execution and delivery of
such agreements and incurrence of the obligations thereunder
and the consummation of the transactions set forth in such
agreements and in the Prospectus will not violate or result in
a breach of their formation documents, and, to the best of such
counsel's knowledge, after due inquiry, will not result in any
violation, breach or default under any term or provision of any
undertaking, contract, agreement or order to which they are
parties or by which they are bound.
24
(iv) The Trust is not required to be registered as an
investment company under the Investment Company Act in order to
act as described in the Registration Statement as of its
effective date and in the Prospectus as of the Closing Date or
to perform its obligations under this Agreement or the Advisory
Agreement.
(v) To the best of such counsel's knowledge, after due
inquiry, all authorizations, consents or orders of any court or
of any federal, state or other governmental or regulatory
agency or body required for the valid authorization, issuance,
offer and sale of Interests have been obtained, including such
as may be required under the 1933 Act, including the rules and
regulations thereunder, the CE Act, including the rules and
regulations thereunder, the rules and regulations of the NFA or
the Blue Sky securities laws of any state or of any
jurisdiction in which offers and sales were made, and, to the
extent of such counsel's knowledge, no order suspending the
effectiveness of the Registration Statement or the use of the
Prospectus has been issued by the SEC, the CFTC, the NFA or any
state in which offers and sales of Interests were made nor has
any proceeding for the issuance of such an order been
instituted or threatened by the SEC, the CFTC, the NFA or any
such state. The foregoing may be qualified by the fact that
such counsel is not admitted to practice law in all
jurisdictions and that in rendering its opinion such counsel
shall rely solely upon an examination of the Blue Sky
securities laws and related rules, regulations and
administrative determinations, if any, promulgated thereunder,
of the
25
various jurisdictions as reported in customarily relied
upon standard compilations, and upon such counsel's
understanding of the various conclusions expressed, formally or
informally, by administrative officials or other employees of
the various regulatory or other governmental agencies or
authorities concerned.
(vi) To the best of such counsel's knowledge, after due
inquiry, each of the Trust and the Managing Owner has obtained
all required governmental and regulatory licenses,
registrations and approvals required by law as may be necessary
in order for each of the Trust and the Managing Owner to
perform its obligations under this Agreement and under the
Advisory Agreement and to act as described in the Registration
Statement as of its effective date and the Prospectus as of the
Closing Date (including, without limitation, the Managing
Owner's registration as a commodity pool operator under the CE
Act and membership as a commodity pool operator with the NFA)
and such licenses, registrations and approvals have not, to the
best of such counsel's knowledge, after due inquiry, been
rescinded, revoked or otherwise removed.
(vii) To such counsel's knowledge without independent
investigation, except as described in the Prospectus, or in a
schedule delivered by counsel to the Selling Agent and the
Managing Owner prior to the date hereof, there is no pending or
threatened suit or proceeding known to such counsel, before or
by any court, governmental or regulatory body or arbitration
panel to which the Trust and the Managing Owner or
26
any of the assets of the Trust or the Managing Owner or
any of their principals is subject and which reasonably might
be expected to result in any material adverse change in the
condition (financial or otherwise), business or prospects of
the Trust or Managing Owner or any of their principals or which
reasonably might be expected materially adversely to affect any
of the assets of the Trust or Managing Owner or any of their
principals or which reasonably might be expected to (A) impair
materially the Trust's or Managing Owner's ability to discharge
their obligations to the Advisor or (B) result in a matter
which would require disclosure in the Registration Statement or
Prospectus which is not so disclosed; and, to the extent of
such counsel's knowledge, neither the Trust or Managing Owner,
nor any of their principals has received any notice of an
investigation by (i) the NFA regarding non-compliance with its
rules or the CE Act, (ii) the CFTC regarding non-compliance
with the CE Act or (iii) any exchange, regarding non-compliance
with its rules, which investigation reasonably might be
expected to (A) impair materially the Trust's or Managing
Owner's ability to discharge its obligations to the Advisor or
(B) result in a matter which would require disclosure in the
Registration Statement or Prospectus which is not so disclosed.
(viii) The Registration Statement as of its effective date
and the Prospectus as of the Closing Date are responsive in all
material respects to the requirements of the 1933 Act,
including the rules and regulations thereunder, the CE Act,
including the rules and regulations thereunder,
27
and the rules and regulations of the NFA, and nothing has
come to the attention of such counsel that leads it to believe
that either the Registration Statement (at the time it
initially became effective and at the time any post-effective
amendment thereto became effective) or the Prospectus contains
any untrue statement of a material fact or omits to state a
material fact required to be stated therein or which is
necessary to make the statements therein (with respect to the
Prospectus, in light of the circumstances in which they were
made) not misleading, except that such counsel is not required
to express any opinion or belief (A) as to the financial
statements or other financial or statistical data, past
performance tables and notes thereto or other past performance
information contained in the Registration Statement or the
Prospectus or (B) as to any statements or omissions made in
reliance on and in conformity with information furnished by the
Advisor for the express purpose of inclusion in the
Registration Statement or the Prospectus including, without
limitation, references to the Advisor and its affiliates,
controlling persons, shareholders, directors, officers and
employees, as well as to the Advisor's Trading Approach and
Past Performance History.
In rendering such opinions, such counsel may rely (i) as to matters
of fact, on a certificate of an officer of the Managing Owner, unless such
counsel has actual knowledge otherwise and (ii) as to matters of law of states
other than that in which they are licensed to practice law, upon the opinions
of other counsel, in each case satisfactory in form and substance
28
to the Advisor and its counsel, and such counsel shall state that they believe
the Advisor may rely on them.
9. Survival of Representations, Warranties and Covenants. All
representations, warranties and covenants in this Agreement or contained in
certificates required to be delivered hereunder shall survive the delivery of
any payment for the Interests under the Underwriting Agreement and the
termination of the Advisory Agreement and this Agreement, with respect to any
matter arising while the Advisory Agreement or this Agreement was in effect.
Furthermore, all representations, warranties and covenants hereunder shall
inure to the benefit of each of the parties to this Agreement and to their
respective successors and permitted assigns.
10. Indemnification.
a. In any action in which the Selling Agent, the Trust, Wilmington
Trust Company, a Delaware corporation, in its capacity as trustee of
the Trust (in such capacity, the "Trustee") or the Managing Owner,
or their respective controlling persons, shareholders, partners,
members, managers, directors, officers and/or employees of any of
the foregoing (the "Sponsor Indemnified Parties") are parties, the
Advisor agrees to indemnify and hold harmless the foregoing persons
against any loss, claim, damage, charge, liability or expense
(including, without limitation, reasonable attorneys' and
accountants' fees) ("Losses") to which such persons may become
subject, insofar as such Losses arise out of or are based
exclusively upon (i) any misrepresentation or alleged
misrepresentation or material breach or alleged material breach of
any warranty, covenant or
29
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 to the Managing
Owner for inclusion in the Registration Statement or Prospectus and
approved in writing by the Advisor, in the form attached hereto as
Exhibit A, including, without limitation, all information relating
to the Advisor and its affiliates, controlling persons,
shareholders, directors, officers and employees, as well as to the
Advisor's Trading Approach and Past Performance History, provided,
however, that in respect of any Loss regarding (A) an alleged (as
opposed to an actual) misrepresentation or material breach of any
warranty, covenant or agreement of the Advisor contained in this
Agreement or (B) an alleged (as opposed to an actual) untrue
statement of any material fact contained in the Registration
Statement or the Prospectus, or an alleged (as opposed to an actual)
omission to state in the Registration Statement or the Prospectus a
material fact required to be stated therein or necessary to make the
statements therein (with
30
respect to the Prospectus, in light of the circumstances in which
they are made), not misleading, the Advisor's obligations shall be
limited to 40% of any payments made from time to time by the Sponsor
Indemnified Parties in respect thereof.
b. In any action in which the Advisor, or its controlling persons,
or any of their respective shareholders, directors, officers and/or
employees (the "Advisor Indemnified Parties") are parties, the
Managing Owner agrees (A) to indemnify and hold harmless the Advisor
Indemnified Parties against any Losses, insofar as such Losses arise
out of or are based exclusively upon (i) any misrepresentation or
alleged misrepresentation or material breach or alleged material
breach of any warranty, covenant or agreement of the Trust or the
Managing Owner contained in this Agreement, or (ii) any untrue
statement or alleged untrue statement of any material fact contained
in the Registration Statement or the Prospectus or the omission or
alleged omission to state in the Registration Statement or the
Prospectus a material fact required to be stated therein or
necessary to make the statements therein (with respect to the
Prospectus, in light of the circumstances in which they are made)
not misleading.
c. None of the indemnifications contained in this Section 10 shall
be applicable with respect to default judgments or confessions of
judgment, or to settlements entered into by an indemnified party
claiming indemnification without the prior written consent of the
indemnifying party.
d. Promptly after receipt by an indemnified party under this Section
10 of notice of any claim or dispute or commencement of any action
or litigation, such indemnified party will, if a claim in respect
thereof is to be made against an
31
indemnifying party under this Section 10, notify the indemnifying
party of the commencement thereof; but the omission to notify the
indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section
10 except to the extent, if any, that such failure or delay
prejudiced the indemnifying party in defending against the claim. In
case any such claim, dispute, action or litigation is brought or
asserted against any indemnified party, and it timely notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in the defense therein, and to
the extent that it may wish, to assume such defense thereof, with
counsel specifically approved in writing by such indemnified party,
such approval not to be unreasonably withheld, following notice from
the indemnifying party to such indemnified party of its election so
to assume the defense thereof, in which event, the indemnifying
party will not be liable to such indemnified party under this
Section 10 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof, but
shall continue to be liable to the indemnified party in all other
respects as heretofore set forth in this Section 10. Notwithstanding
any other provisions of this Section 10, if, in any claim, dispute,
action or litigation as to which indemnity is or may be available,
any indemnified party reasonably determines that its interests are
or may be, in whole or in part, adverse to the interests of the
indemnifying party, the indemnified party may retain its own counsel
in connection with such claim, dispute, action or litigation and
shall continue to be indemnified by the indemnifying party for any
legal or any other
32
expenses reasonably incurred in connection with investigating or
defending such claim, dispute, action or litigation.
e. Expenses incurred by an indemnified party in defending a
threatened or asserted claim or a threatened or pending action shall
be paid by the indemnifying party in advance of final disposition or
settlement of such matter, if and to the extent that the person on
whose behalf such expenses are paid shall agree in writing to
reimburse the indemnifying party in the event indemnification is not
permitted under this Section 10 upon final disposition or
settlement.
f. The parties hereto acknowledge and agree on their own behalf that
the indemnities provided in this Agreement shall be inapplicable in
the event of any loss, claim, damage, charge or liability arising
out of or based upon, but limited to the extent caused by, any
misrepresentation or breach of any warranty, covenant or agreement
of any indemnified party to any indemnifying party contained in this
Agreement.
11. Limits on Claims. The Advisor agrees that it will not take any
of the following actions against the Trust: (i) seek a decree or order by a
court having jurisdiction in the premises (A) for relief in respect of the
Trust in an involuntary case or proceeding under the 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
33
winding up or liquidation of any of its affairs, (ii) seek a petition
for relief, reorganization or to take advantage of any law referred
to in the preceding clause or (iii) file an involuntary petition for
bankruptcy (collectively, "Bankruptcy or Insolvency Action"). In addition, the
Advisor agrees that for any obligations due and owing to it by the Trust, the
Advisor will look solely and exclusively to the assets of Series G or the
Managing Owner, if it has liability in its capacity as Managing Owner, to
satisfy its claims and will not seek to attach or otherwise assert a claim
against the assets of any other Series or the other assets of the Trust,
whether there is a Bankruptcy or Insolvency Action taken. The parties agree
that this provision will survive the termination of this Agreement, whether
terminated in a Bankruptcy or Insolvency Action or otherwise.
12. Subordination Agreement. Each of the Advisor, the Managing Owner
and the Trustee (the "Potential Creditor(s)") agrees and consents (the
"Consent") to look solely to Series G, the Series for which advisory services
are being performed hereunder and assets of Series G (the "Series G Assets")
and to the Managing Owner and its assets for payment. Series G Assets include
only those funds and other assets that are paid, held or distributed to the
Trust on account of and for the benefit of Series G, including, without
limitation, funds delivered to the Trust for the purchase of interests in
Series G. In furtherance of the Consent, the Potential Creditors agree that
(1) any debts, liabilities, obligations, indebtedness, expenses and claims of
any nature and of all kinds and descriptions (collectively, "Claims")
incurred, contracted for or otherwise existing arising from, related to or in
connection with the Trust and its assets and Series G and Series G Assets,
shall be subject to the following limitations:
a. Subordination of certain claims and rights: (i) except as
set forth below, the Claims, if any, of the Potential Creditors (the
"Subordinated Claims") shall be
34
expressly subordinate and junior in right of payment to any and
all other Claims against the Trust and any Series thereof, and any
of their respective assets, which may arise as a matter of law or
pursuant to any contract; provided, however, that the Potential
Creditors' Claims (if any) against Series G shall not be considered
Subordinated Claims with respect to enforcement against and
distribution and repayment from Series G, the Series G Assets and
the Managing Owner and its assets; and provided further that the
Potential Creditors' valid Claims, if any, against Series G shall be
pari passu and equal in right of repayment and distribution with all
other valid Claims against Series G and (ii) the Potential
Creditors, individually or collectively, will not take, demand or
receive from any Series or the Trust or any of their respective
assets (other than Series G, the Series G Assets and the Managing
Owner and its assets) any payment for the Subordinated Claims;
b. The Claims of each of the Potential Creditors with respect
to Series G shall only be asserted and enforceable against Series G,
Series G Assets and the Managing Owner and its assets; and such
Claims shall not be asserted or enforceable for any reason
whatsoever against any other Series, the Trust generally or any of
their respective assets;
c. If the Claims of a Potential Creditor against Series G or
the Trust are secured in whole or in part, each of the Potential
Creditors hereby waives (under section 1111(b) of the U.S.
Bankruptcy Code (11 U.S.C. ss. 1111(b)) any right to have any
deficiency Claims (which deficiency Claims may arise in the event
such security is inadequate to satisfy such Claims) treated as
unsecured Claims against the Trust or any Series (other than Series
G), as the case may be;
35
d. In furtherance of the foregoing, if and to the extent that
the Potential Creditors receive monies in connection with the
Subordinated Claims from a Series or the Trust (or their respective
assets), other than Series G, Series G Assets and the Managing Owner
and its assets, the Potential Creditors shall be deemed to hold such
monies in trust and shall promptly remit such monies to the Series
or the Trust that paid such amounts for distribution by the Series
or the Trust in accordance with the terms hereof; and
e. The foregoing Consent shall apply at all times
notwithstanding that the Claims are satisfied and notwithstanding
that the agreements in respect of such Claims are terminated,
rescinded or canceled.
13. Notices. Any notices under this Agreement required to be given
shall be effective only if given or confirmed in writing, shall be deemed
given by the party providing notice when received by the party to whom notice
is being given and shall be sent certified mail, postage prepaid, or hand
delivered, to the following address, or to such other address as a party may
specify by written notice to each of the other parties hereto:
If to the Selling Agent:
[Name of the Selling Agent]
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention:
If to the Managing Owner or the Trust:
Preferred Investment Solutions Corp.
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
36
Attention: General Counsel
Facsimile: (203) ___-____
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:
Xxxxxx Capital Management, L.P.
Stamford Harbor Park
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Capital Management, L.P.
Stamford Harbor Park
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
14. Governing Law. This Agreement shall be deemed to be made under
the laws of the State of New York applicable to contracts made and to be
performed in that State and shall be governed by and construed in accordance
with the laws of that State, without regard to the conflict of laws
principles.
15. Arbitration, Remedies. Each party hereto agrees that any dispute
relating to the subject matter of this Agreement shall be settled and
determined by arbitration in the City of New York pursuant to the rules of NFA
or, if NFA should refuse to accept the matter, the American Arbitration
Association. The parties also agree that the award of the arbitrators
37
shall be final and may be enforced in the courts of New York and in any other
courts having jurisdiction over the parties.
16. Assignment. This Agreement may not be assigned by any party
without the express prior written consent of each of the other parties hereto.
17. Amendment or Modification or Waiver. This Agreement may not be
amended or modified except by the written consent of each of the parties
hereto.
18. Successors. Except as set forth in Section 10 of this Agreement,
this Agreement is made solely for the benefit of and shall be binding upon the
Trust, the Managing Owner, the Selling Agent, the Advisor and the respective
successors and permitted assigns of each of them, and no other person shall
have any right or obligation under this Agreement. The terms "successors" and
"assigns" shall not include any purchasers, as such, of Interests.
19. Survival. The provisions of this Agreement shall survive the
termination of this Agreement with respect to any matter arising while this
Agreement was in effect.
20. No Waiver. No failure or delay on the part of any party hereto
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. Any waiver granted hereunder must be in writing
and shall be valid only in the specific instance in which given.
21. No Liability of Limited Owners. This Agreement has been made and
executed by and on behalf of the Trust and the Managing Owner, and the
obligations of the Trust and/or the Managing Owner set forth in this Agreement
are not binding upon any of the Limited
38
Owners individually, but rather, are binding only upon the assets and
property of the Trust and, to the extent provided herein, upon the assets
and property of the Managing Owner.
22. Headings. Headings to the Sections in this Agreement are for the
convenience of the parties only and are not intended to be or to affect the
meaning or interpretation of this Agreement.
23. Complete Agreement. Except as otherwise provided herein, this
Agreement and the Advisory Agreement constitute the entire agreement among the
parties with respect to the matters referred to herein, and no other
agreement, verbal or otherwise, shall be binding upon the parties hereto.
24. Counterparts. This Agreement may be executed in one or more
counterparts, all of which, when taken together, shall be deemed to constitute
one original instrument.
25. Series Disclaimer. The parties hereto acknowledge and agree that
the Trust is organized in series pursuant to Sections 3804(a) and 3806(b)(2)
of the Delaware Statutory Trust Act. As such, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to each series of the Trust shall be enforceable against the assets of
such series of the Trust only, and not against the assets of the Trust
generally or the assets of any other series of the Trust or against the
Trustee. There may be several series of the Trust created pursuant to the
Declaration of Trust and Trust Agreement of the Trust.
IN WITNESS WHEREOF, this Agreement has been executed as of the day
and year first above written.
39
[NAME OF SELLING AGENT]
By:
----------------------------------
Name:
Title:
PREFERRED INVESTMENT SOLUTIONS CORP.
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
WORLD MONITOR TRUST III - SERIES G
By: PREFERRED INVESTMENT SOLUTIONS
CORP., as sole Managing Owner
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Senior Executive Vice President
XXXXXX CAPITAL MANAGEMENT, L.P.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
40
Exhibit A
Consent
The undersigned Advisor has reviewed the Prospectus dated
___________, 2004 of World Monitor Trust III with respect to the information
contained therein relating to the undersigned Advisor and, in accordance with
the Representation Agreement among us dated as of the ____ day of ________,
2004 ("Representation Agreement"), hereby consents to all provisions to which
it is required to consent pursuant to the Representation Agreement and also
consents to the distribution of such Prospectus.
XXXXXX CAPITAL MANAGEMENT, L.P.
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
41
EXHIBIT 10.2
EXHIBIT D
[ATTACH LATEST DISCLOSURE DOCUMENT]
D-1
