EXHIBIT 10.4
EXHIBIT C
REPRESENTATION AGREEMENT CONCERNING THE
REGISTRATION STATEMENT AND THE PROSPECTUS
AGREEMENT dated as of the ___ day of _________, 1998, by
and among World Monitor Trust - Series A (the "Trust"), a
business trust organized under Chapter 38 of Title 12 of the
Delaware Code (the "Delaware Act"), Prudential Securities
Incorporated, a Delaware corporation ("Prudential
Securities"), Prudential Securities Futures Management Inc.,
a Delaware corporation (the "Managing Owner"), Wilmington
Trust Company, a Delaware corporation (the "Trustee") and
Eagle Trading Systems Inc., a Delaware corporation (the
"Advisor").
W I T N E S S E T H :
WHEREAS, the Trust proposes to make an initial public
offering (the "Offering") of limited liability interests in
the Trust (the "Interests") issuable in multiple series (the
"Series"), each separately managed by a different professional
commodity trading advisor through Prudential Securities
Incorporated ("Prudential Securities"), an affiliate of the
Managing Owner and in connection therewith, the Trust intends
to file with the United States Securities and Exchange
Commission (the "SEC"), pursuant to the United States
Securities Act of 1933, as amended (the "1933 Act"), a
registration statement on Form S-1 to register the Interests
in Series A, 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 ________________, 1998
(the "Advisory Agreement"), pursuant to which the Advisor has
agreed to act as a commodity trading advisor to the Trust with
respect to the portion of the Trust Estate represented by
Series A Interests; and
WHEREAS, the parties hereto wish to set forth their duties
and obligations to each other with respect to the Registration
Statement as of its effective date and the Prospectus as of
the date(s) on which subscribers' funds are transferred to the
portion of the Trust Estate represented by Series A Interests
("Closing dates(s)").
NOW, THEREFORE, the parties agree as follows:
1. Representations and Warranties of the Advisor. The
Advisor hereby represents and warrants to Prudential
Securities, the Trust, the Trustee and the Managing Owner
that:
a. All references in the Registration Statement 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 Prospectus as of
each Closing Date contain all information required to be
2
included therein by the Commodity Exchange Act, as
amended (the "CE Act"), and the regulations (including
interpretations thereof) thereunder, and do not contain
an untrue statement of a material fact or omit to state
a material fact required to be stated therein or
necessary to make the statements therein (with respect to
the Prospectus, in light of the circumstances in which
they were made) not misleading. The Advisor also
represents and warrants as to the accuracy and
completeness in all material respects of the underlying
data made available by the Advisor to the Trust and the
Managing Owner for purposes of preparing the Pro Forma
Performance tables, it being understood that no
representation or warranty is being made with respect to
the Pro Forma Performance tables or notes thereto. The
term "principal" in this Agreement shall have the same
meaning as that term in Commodity Futures Trading
Commission (the "CFTC") Regulation S 4.10(e) under the CE
Act.
b. The Advisor will not distribute the Registration
Statement, the Prospectus and/or the selling materials
related thereto.
c. This Agreement and the Advisory Agreement have
been duly and validly authorized, executed and delivered
on behalf of the Advisor and each is a valid and binding
agreement enforceable in accordance with its terms. The
performance of the Advisor's obligations under this
Agreement and the consummation of the transactions set
forth in this Agreement, in the Advisory Agreement and in
the Registration Statement as of its effective date and
Prospectus as of the Closing Date are not contrary to the
provisions of the Advisor's formation documents, or to
the best of its knowledge, any applicable statute, law or
regulation of any jurisdiction, and will not result in
any violation, breach or default under any term or
provision of any undertaking, contract,
3
agreement or order to which the Advisor is a party or by which the
Advisor is bound.
d. The Advisor has all governmental and regulatory
licenses, registrations and approvals required by law as
may be necessary to perform its obligations under the
Advisory Agreement and this Agreement and to act as
described in the Registration Statement as of its
effective date and the Prospectus as of the Closing Date
including, without limitation, registration as a
commodity trading advisor under the CE Act and membership
as a commodity trading advisor with the National Futures
Association (the "NFA") and it will maintain and renew
any required licenses, registrations, approvals or
memberships during the term of the Advisory Agreement.
e. On the date hereof the Advisor is, and at all
times during the term of this Agreement will be, a
corporation duly formed and validly existing and in good
standing under the laws of its jurisdiction of
incorporation and in good standing and qualified to do
business in each jurisdiction in which the nature or
conduct of its business requires such qualifications and
the failure to be so qualified would materially adversely
affect the Advisor's ability to perform its obligations
hereunder or under the Advisory Agreement. The Advisor
has full capacity and authority to conduct its business
and to perform its obligations under this Agreement, and
to act as described in the Registration Statement as of
its effective date and the Prospectus as of the Closing
Date.
f. Subject to adequate assurances of
confidentiality, the Advisor has supplied to or made
available for review by the Managing Owner and Prudential
Securities (and if requested by the Managing Owner and
Prudential Securities to its designated auditor) all
documents, statements, agreements and workpapers
requested by them relating to all accounts covered by the
Advisor's Past Performance History in the Registration
Statement
4
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.
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 Prospectus as of the Closing
Date as required.
h. The Advisor does not provide any services to any
persons or conduct any business involving advice with
respect to investments other than Commodities (as defined
in the Advisory Agreement), except as has been disclosed
in writing to the Managing Owner. The Advisor is not
required to be registered as an investment adviser under
the United States Investment Advisers Act of 1940, as
amended (the "Advisers Act"), but voluntarily may so
register in the future.
i. As of the date hereof, there has been no
material adverse change in the Advisor's Past Performance
History as set forth in the Registration Statement or in
the Prospectus under the caption "Past Performance
Information -- The Series" which has not been
communicated in writing to and received by the Managing
Owner and Prudential Securities or their counsel.
j. Except for subsequent performance, as to which
no representation is made, since the date of the Advisory
Agreement, (i) there has not been any material adverse
change in the condition, financial or otherwise, of the
Advisor or in the earnings, affairs
5
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 reasonably might be expected to materially
adversely affect any of the material assets of the
Advisor or which reasonably might be expected to (A)
impair materially the Advisor's ability to discharge its
obligations to the Trust, or (B) result in a matter which
would require disclosure in the Registration Statement
and/or Prospectus; and the Advisor has not received any
notice of an investigation by (i) the NFA regarding non-
compliance with its rules or the CE Act, (ii) the CFTC
regarding non-compliance with the CE Act, or the rules
and regulations thereunder, or (iii) any exchange
regarding non-compliance with its rules of such exchange
which investigation reasonably might be expected to
materially impair its 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
or omission, or any event or change of circumstances has
occurred which would make the Advisor's representations and
warranties in Section 1
6
inaccurate or incomplete in any
material respect, or which might render the Registration
Statement or Prospectus, with respect to (i) the Advisor or
its principals, (ii) the Advisor's Trading Approach, or (iii)
the Advisor's Past Performance History, untrue or misleading
in any material respect, the Advisor will provide prompt
written notification to the Trust, the Managing Owner and
Prudential Securities of any such fact, omission, event or
change of circumstance, and the facts related thereto, and it
is agreed that the failure to provide such notification or the
failure to continue to be in compliance with the foregoing
representations and warranties during the term of the Advisory
Agreement within a reasonable time 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 any Subsequent Offering
Period (as those terms are defined in the Prospectus), it will
provide Prudential Securities, the Trust and the Managing
Owner with updated month-end information relating to the
Advisor's Past Performance History, as required to be
disclosed in the performance tables relating to the
performance of the Advisor in the Prospectus under the caption
"Past Performance Information - Series A " 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
7
Owner and Prudential Securities, to amend the Registration Statement in
order to make the Registration Statement not materially
misleading or to amend or to supplement the Prospectus in
order to make the Prospectus not materially misleading in
light of the circumstances existing at the time it is
delivered to a subscriber, or if it is otherwise necessary in
order to permit the Trust to continue to offer its Interests
subsequent to the Initial Offering Period subject to the
limitations set forth in the Advisory Agreement, the Advisor
will furnish such information with respect to itself and its
principals, as well as its Trading Approach and Past
Performance History as the Managing Owner or Prudential
Securities may reasonably request, and will cooperate to the
extent reasonably necessary 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 A
Interests (the "Initial Closing Date"), and thereafter, only
if requested, on or prior to each closing date during the
continuous offering of Series A Interests (each a "Subsequent
Closing Date"), the Advisor shall deliver or cause to be
delivered, at the expense of the Advisor, to Prudential
Securities, the Trust and the Managing Owner, the reports,
certificates, documents and opinions described below addressed
to them and, except as may be set forth below, dated the
Initial Closing Date or the Subsequent Closing Date, as
appropriate (provided that the Advisor shall not be obligated
to provide 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",
8
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 "Past Performance Information - Series A " 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 its knowledge, such
figures are complete and accurate in all material
respects.
b. A certificate of the Advisor in the form
proposed prior to the Closing Date by counsel to
Prudential Securities, the Trust and the Managing Owner,
with such changes in such form as are proposed by the
Advisor or its counsel and are acceptable to Prudential
Securities, the Trust and the Managing Owner and their
counsel so as to make such form mutually acceptable to
Prudential Securities, the Trust, the Managing Owner, the
Advisor, and their respective counsel, to the effect
that:
(i) The representations and warranties of the
Advisor in Section 1 above are true and correct in
all material respects on the date of the certificate
as though made on such date.
(ii) Nothing has come to the Advisor's
attention which would cause the Advisor to believe
that, at any time from the time the Registration
Statement initially became effective to the Closing
Date, the Registration Statement, as amended from
time to time, or the Prospectus, as amended or
supplemented from time to time, with respect to the
Advisor, or the affiliates, 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
9
an untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein (with respect to the Prospectus, in light of
the circumstances in which they were made) not
misleading.
(iii) The Advisor has performed all covenants
and agreements herein contained to be performed on
its part at or prior to the Closing Date.
c. A certificate of the Advisor (together with such
supporting documents as are set forth in the
certificate), in the form proposed prior to the Closing
Date by counsel to Prudential Securities, the Trust and
the Managing Owner, with such changes in such form as are
proposed by the Advisor or its counsel and are acceptable
to Prudential Securities, the Trust and the Managing
Owner and their counsel so as to make such form mutually
acceptable to Prudential Securities, the Trust, the
Managing Owner, the Advisor, and their respective
counsel, with respect to, (i) the continued effectiveness
of the organizational documents of the Advisor, (ii) the
continued effectiveness of the Advisor's registration as
a commodity trading advisor under the CE Act and
membership as a commodity trading advisor with the NFA
and (iii) the incumbency and genuine signature of the
President and Secretary of the Advisor.
d. A certificate from the state of formation of the
Advisor, to be dated at, on or around the Closing Date,
as to its formation and good standing.
e. An opinion of counsel, in form and substance
satisfactory to the Trust, the Managing Owner and
Prudential Securities and their counsel, dated the
Closing Date, to the following effect:
10
(i) The Advisor is a duly formed and validly
existing corporation in good standing under the laws
of the state of its formation and, if different, the
state where it conducts its primary business
activity. The Advisor has full corporate power and
authority under its Certificate of Incorporation 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.
(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 and the Managing Owner, 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 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 undertaking, contract,
agreement or order to
11
which the Advisor is a party or by which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this
Section 4e, 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 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 Blue Sky securities laws of any state of the
United States, in order to perform its obligations
under the Advisory Agreement or this Agreement, or to
act as described in the Registration Statement as of
its effective date and the Prospectus as of the
Closing Date. The foregoing opinion may be qualified
by the fact that such counsel is not admitted to
practice law in all jurisdictions, and that in
rendering its opinion such counsel has relied solely
upon an examination of the Blue Sky securities laws
and related rules and regulations, if any,
promulgated thereunder, of the various jurisdictions
as reported
12
in customarily relied upon standard
compilations.
(v) To such counsel's knowledge without
independent investigation, except as described in the
Prospectus, or in a schedule delivered by counsel to
Prudential Securities and the Managing Owner prior to
the date hereof, there is no pending, or threatened,
suit or proceeding, known to such counsel, before or
by any court, governmental or regulatory body or
arbitration panel to which the Advisor or any of the
assets of the Advisor or any of its principals is
subject and which reasonably might be expected to
result in any material adverse change in the
condition (financial or otherwise), business or
prospects of the Advisor or any of its principals or
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 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 the
affiliates, controlling persons, shareholders,
directors, officers and employees of any of the
foregoing, and with
13
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 and notes thereto or other
past performance information contained in the
Registration Statement or the Prospectus.
In rendering the foregoing opinions, such counsel may
rely, as to matters of law of states other than that in which
they are licensed to practice law, upon the opinions of other
counsel, in each case satisfactory in form and substance to
counsel to the Managing Owner and Prudential Securities, and
such counsel shall state that they believe the Managing Owner
and Prudential Securities may rely on them.
5. Advisor Acknowledgements. The Advisor acknowledges
that: (i) it may be a condition to each closing under the
Underwriting Agreement that Prudential Securities shall have
received, at no cost to the Advisor, letter(s) from certified
public accountants or other reputable professionals selected
by Prudential Securities with respect to the Past Performance
History of the Advisor as set forth in the Underwriting
Agreement, (ii) the Trust may at any time withdraw the
Registration Statement from the SEC or otherwise terminate the
Registration Statement or the
14
offering of Interests, and upon
any such withdrawal or termination or if the "minimum" number
of Interests, as described in the Prospectus, is not sold,
this Agreement shall terminate and none of the parties hereto
shall have any obligation to any other party pursuant to this
Agreement, except pursuant to Section 10 of this Agreement to
the extent that such section is applicable.
6. Representations and Warranties of the Trust and the
Managing Owner. The Managing Owner hereby represents and
warrants (on its own behalf and on behalf of the Trust, as
applicable) to the Advisor that:
a. On the date hereof the Trust is, and at all
times during the term of this Agreement and the Advisory
Agreement will be, a duly formed and validly existing
business trust in good standing under the laws of the
State of Delaware, and at all times during the term of
this Agreement and the Advisory Agreement will be in good
standing and qualified to do business in each
jurisdiction in which the nature or conduct of its
business requires such qualifications and the failure to
be so qualified materially adversely would affect its
ability to perform its obligations under this Agreement
and the Advisory Agreement and to operate as described in
the Prospectus, and the Managing Owner is, and at all
times during the term of this Agreement and the Advisory
Agreement will be, a duly formed and validly existing
corporation in good standing under the laws of the State
of Delaware, and is, and at all times during the term of
this Agreement and the Advisory Agreement will be, in
good standing and qualified to do business as a foreign
corporation in the State of New York and each other
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 act as Managing Owner of the Trust and perform
its
15
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 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 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 Trust
Agreement, Certificate of Trust or the Managing Owner's
Certificate of Incorporation or By-Laws, respectively,
any applicable statute, law or regulation of any
jurisdiction and will not result in any violation, breach
or default under any term or provision of any
undertaking, contract, agreement or order, to which the
Trust or the Managing Owner, is a party or by which the
Trust or the Managing Owner is bound.
c. Each of the Trust and the Managing Owner has
obtained all required governmental and regulatory
licenses, registrations and approvals required by law as
may be necessary to perform their obligations under this
Agreement and 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
16
a commodity pool operator with the
NFA) and will maintain and renew any required licenses,
registrations, approvals and memberships required during
the term of this Agreement and the Advisory Agreement.
d. The Trust is not required to be registered as an
investment company under the United States Investment
Company Act of 1940, as amended (the "Investment Company
Act").
e. All authorizations, consents or orders of any
court, or of any federal, state or other governmental or
regulatory agency or body required for the valid
authorization, issuance, offer and sale of the Interests
have been obtained, and, no order preventing or
suspending the use of the Prospectus with respect to the
Interests has been issued by the SEC, the CFTC or the
NFA. The Registration Statement as of its effective date
and the Prospectus as of the Closing Date contain all
statements which are required to be made therein, conform
in all material respects with the requirements of the
1933 Act and the CE Act, and the rules and regulations of
the SEC and the CFTC, respectively thereunder, and with
the rules of the NFA, and do not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make
the statements therein (with respect to the Prospectus,
in light of the circumstances in which they are made) not
misleading; and at all times subsequent hereto up to and
including the date of termination of the Initial Offering
Period and any Subsequent Offering Period, the
Registration Statement as of its effective date and the
Prospectus as of the Closing Date will contain all
statements required to be made therein and will conform
in all material respects with the requirements of the
1933 Act and the CE Act, and the rules and regulations of
the SEC and the CFTC, respectively thereunder, and with
the rules of the
17
NFA and will not contain any untrue
statement of a material fact or omit to state a material
fact required to be stated therein (with respect to the
Prospectus, in light of the circumstances in which they
are made) not misleading; provided, however, that this
representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished to the Managing
Owner, the Trust or to Prudential Securities by or on
behalf of the Advisor for the express purpose of
inclusion in the Registration Statement or the
Prospectus, including, without limitation, references to
the Advisor and its affiliates, controlling persons,
shareholders, directors, officers and employees, as well
as to the Advisor's Trading Approach and Past Performance
History.
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 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 the Advisory
Agreement; and neither the Trust nor the Managing Owner
has received any notice of an investigation by (i) the
NFA regarding non-compliance with NFA rules or the CE
Act, (ii) the CFTC regarding non-compliance
18
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 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 or omission, or
any event or 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 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
hereof, the Trust and the Managing Owner shall deliver or
cause to be delivered to the Advisor, the certificates,
documents and opinions described below addressed to the
Advisor and, except as may be set forth below, dated each such
Closing Date:
19
a. Certificates of the Trust and the Managing
Owner, addressed to the Advisor, in the form proposed
prior to the Closing Date by counsel to the Trust and the
Managing Owner with such changes in such form as are
proposed by the Advisor or its counsel and are acceptable
to the Trust, the Managing Owner and their counsel so as
to make such form mutually acceptable to the Trust, the
Managing Owner, the Advisor, and their respective
counsel, with respect to, as applicable, (i) the
continued effectiveness of the Trust Agreement and the
Certificate of Trust of the Trust and the Certificate of
Incorporation and By-Laws of the Managing Owner, (ii) the
continued effectiveness of the registration of the
Managing Owner as a commodity pool operator under the CE
Act and membership as a commodity pool operator with the
NFA and (iii) the incumbency and genuine signature of the
President and Secretary of the Managing Owner.
b. Certificates from the States of Delaware and New
York with respect to each of the Trust and the Managing
Owner to be dated at, on or around the Closing Date as to
the formation and good standing of the Trust and the
Managing Owner.
c. Certificates of the Trust and the Managing Owner
in the form proposed prior to the Closing Date by counsel
to the Trust and the Managing Owner with such changes in
such form as are proposed by the Advisor or its counsel
and are acceptable to the Trust, the Managing Owner and
their counsel so as to make such form mutually acceptable
to the Trust, the Managing Owner, the Advisor, and their
respective counsel, to the effect that:
(i) The representations and warranties in
Section 6 above are true and correct in all material
respects on the date of the certificates as though
made on such date, and
20
(ii) The Trust and the Managing Owner have
each performed all covenants and agreements herein
contained to be performed on their part at or prior
to the Closing Date.
d. An opinion letter of Rosenman & Colin LLP, dated
the Closing Date, as follows:
(i) The Trust is a duly created and validly
existing business trust in good standing under the
Delaware Act, with requisite power and authority
under the Delaware Act, its Trust Agreement and its
Certificate of Trust to perform its obligations under
this Agreement and 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 Delaware; and is duly
qualified to conduct business as a foreign
corporation in good standing in the State of New
York. The Managing Owner has full corporate power
and authority under its Certificate of Incorporation,
By-Laws and the General Corporation Law of the State
of Delaware to perform its obligations under this
Agreement and the Advisory Agreement, and to act as
described in the Registration Statement as of its
effective date and the Prospectus as of the Closing
Date.
(iii) Each of this Agreement and the Advisory
Agreement has been duly and validly authorized or
ratified, executed and delivered on behalf of each of
the Trust and the Managing Owner, and, assuming due
execution and delivery of each such Agreement by the
Advisor, each agreement constitutes the legal, valid
and
21
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.
(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 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
22
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 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
23
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
Prudential Securities and the Managing Owner prior to
the date hereof, there is no pending, or threatened,
suit or proceeding, known to such counsel, before or
by any court, governmental or regulatory body or
arbitration panel to which the Trust and the Managing
Owner or any of the assets of the Trust or the
Managing Owner or any of their principals is subject
and which reasonably might be expected to result in
any material adverse change in the condition
(financial or otherwise), business or prospects of
the Trust or Managing Owner or any of their
principals or 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
24
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, 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
25
and Past Performance History.
In rendering such opinions, such counsel may rely, 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 the Advisor
and its counsel, and such counsel shall state that they
believe the Advisor may rely on them.
9. Survival of Representations, Warranties and
Covenants. All representations, warranties and covenants in
this Agreement, or contained in certificates required to be
delivered hereunder, shall survive the delivery of any payment
for the Interests under the Underwriting Agreement and the
termination of the Advisory Agreement and this Agreement, with
respect to any matter arising while the Advisory Agreement or
this Agreement was in effect. Furthermore, all
representations, warranties and covenants hereunder shall
inure to the benefit of each of the parties to this Agreement
and their respective successors and permitted assigns.
10. Indemnification.
a. In any action in which Prudential Securities,
the Trust, the Trustee or the Managing Owner, or the
controlling persons, shareholders, partners, directors,
officers and/or employees of any of the foregoing are
parties, the Advisor agrees (A) 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)
to which such persons may become subject ("Losses"),
insofar as such Losses arise out of or are based
exclusively upon (i) any misrepresentation or material
breach of any warranty, covenant or agreement of the
Advisor contained in this Agreement or (ii) any
26
untrue
statement of any material fact contained in the
Registration Statement or the Prospectus or the omission
to state in the Registration Statement or the Prospectus
a material fact required to be stated therein or
necessary to make the statements therein (with respect to
the Prospectus, in light of the circumstances in which
they are made), not misleading in each case under this
subclause (ii) to the extent, but only to the extent,
that such untrue statement or omission was made in
reliance upon and in material conformity with information
furnished by the Advisor to the Managing Owner for
inclusion in the Registration Statement or Prospectus,
including, without limitation, all information relating
to the Advisor and its affiliates, controlling persons,
shareholders, directors, officers and employees, as well
as to the Advisor's Trading Approach and Past Performance
History, and including, but not limited to, any
notification by the Advisor to any such person and given
under this Agreement, including liabilities under the
1933 Act, the Exchange Act and the CE Act, and (B) to
reimburse each of the foregoing persons for any legal or
other fees or expenses reasonably incurred in connection
with investigating or defending any action or claim
arising out of or based upon any of the foregoing.
b. In any action in which the Advisor, or the
controlling persons, shareholders, directors, officers
and/or employees of any of the foregoing (the "Advisor
Indemnified Parties") are parties, the Managing Owner
agrees (A) 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) to which
such persons may become subject ("Losses"), insofar as
such Losses arise out of or are based exclusively upon
(i) any misrepresentation or material breach of any
warranty, covenant or agreement of the Trust or the
Managing Owner contained in this Agreement, (ii) any
untrue
27
statement of any material fact contained in the
Registration Statement or the Prospectus or the omission
to state in the Registration Statement or the Prospectus
a material fact required to be stated therein or
necessary to make the statements therein (with respect to
the Prospectus, in light of the circumstances in which
they are made), not misleading, (iii) any failure to
comply with any legal requirements relating to the
Offering of the Interests (including without limitation,
any noncompliance with the requirements of the Exchange
Act, and/or the 1933 Act, and/or the CE Act, including
the rules and regulations thereunder, and or the rules
and regulation of the NFA, in each case with respect to
the Offering of Interests), or (iv) any claim relating to
or involving the Advisor that is not substantiated,
resolved or otherwise finally determined, in each case
under subclauses (ii), (iii) or (iv) hereof, except to
the extent that such untrue statement, omission or
failure was made in reliance upon and in material
conformity with information furnished by the Advisor to
the Managing Owner for inclusion in the Registration
Statement or the Prospectus including, without
limitation, all information relating to the Advisor and
its affiliates, controlling persons, shareholders,
directors, officers and employees, as well as to the
Advisor's Trading Approach and Past Performance History,
and including but not limited to, any notification
required and given under this Agreement, including
liabilities under the 1933 Act, the Exchange Act and the
CE Act, and (B) to reimburse each of the Advisor
Indemnified Parties for any legal or other fees or
expenses reasonably incurred in connection with
investigating or defending any action or claim arising
out of or based upon any of the foregoing. With respect
to subclause (iv) above only, the Advisor and the
Managing Owner agree to negotiate in good faith a
reduction, if any, in the indemnification amount required
to be paid to the Advisor based upon the relative
28
responsibility of the Advisor for circumstances giving
rise to the Losses for which indemnification is sought
(including, but not limited to, the parties' assessment
of the merits of the claim), provided that in the event
the Managing Owner and the Advisor fail to agree on the
amount of such reductions, they shall submit the matter
to arbitration in accordance with Section 15 of this
Agreement.
c. None of the indemnifications contained in this
Section 10 shall be applicable with respect to default
judgments or confessions of judgment, or to settlements
entered into by an indemnified party claiming
indemnification without the prior written consent of the
indemnifying party.
d. Promptly after receipt by an indemnified party
under this Section 10 of notice of any claim or dispute
or commencement of any action or litigation, such
indemnified party will, if a claim in respect thereof is
to be made against an indemnifying party under this
Section 10, notify the indemnifying party of the
commencement thereof; but the omission to notify the
indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than
under this Section 10 except to the extent, if any, that
such failure or delay prejudiced the indemnifying party
in defending against the claim. In case any such claim,
dispute, action or litigation is brought or asserted
against any indemnified party, and it timely notifies the
indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in the
defense therein, and to the extent that it may wish, to
assume such defense thereof, with counsel specifically
approved in writing by such indemnified party, such
approval not to be unreasonably withheld, following
notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof;
in which event, the
29
indemnifying party will not be liable
to such indemnified party under this Section 10 for any
legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof,
but shall continue to be liable to the indemnified party
in all other respects as heretofore set forth in this
Section 10. Notwithstanding any other provisions of this
Section 10, if, in any claim, dispute, action or
litigation as to which indemnity is or may be available,
any indemnified party reasonably determines that its
interests are or may be, in whole or in part, adverse to
the interests of the indemnifying party, the indemnified
party may retain its own counsel in connection with such
claim, dispute, action or litigation and shall continue
to be indemnified by the indemnifying party for any legal
or any other expenses reasonably incurred in connection
with investigating or defending such claim, dispute,
action or litigation.
e. Expenses incurred by an indemnified party in
defending a threatened or asserted claim or a threatened
or pending action shall be paid by the indemnifying party
in advance of final disposition or settlement of such
matter, if and to the extent that the person on whose
behalf such expenses are paid shall agree in writing to
reimburse the indemnifying party in the event
indemnification is not permitted under this Section 10
upon final disposition or settlement.
f. The parties hereto acknowledge and agree on
their own behalf that the indemnities provided in this
Agreement shall be inapplicable in the event of any loss,
claim, damage, charge or liability arising out of or
based upon, but limited to the extent caused by, any
misrepresentation or breach of any warranty, covenant or
agreement of any indemnified party to any indemnifying
party contained in this Agreement.
30
11. Limits on Claims. The Advisor agrees that it will
not take any of the following actions against the Trust: (i)
seek a decree or order by a court having jurisdiction in the
premises (A) for relief in respect of the Trust in an
involuntary case or proceeding under the Federal Bankruptcy
Code or any other federal or state bankruptcy, insolvency,
reorganization, rehabilitation, liquidation or similar law or
(B) adjudging the Trust a bankrupt or insolvent, or seeking
reorganization, rehabilitation, liquidation, arrangement,
adjustment or composition of or in respect of the Trust under
the Federal Bankruptcy Code or any other applicable federal or
state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of
the Trust or of any substantial part of any of its properties,
or ordering the winding up or liquidation of any of its
affairs, or (ii) seek a petition for relief, reorganization or
to take advantage of any law referred to in the preceding
clause or (iii) file an involuntary petition for bankruptcy
(collectively "Bankruptcy or Insolvency Action"). In
addition, the Advisor agrees that for any obligations due and
owing to it by the Trust, the Advisor will look solely and
exclusively to the assets of Series A 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 ("Potential Creditor(s)")
agrees and consents (the "Consent") to look solely to each
Series for which brokerage and clearing services are being
performed (the "Contracting Series") and assets (the
"Contracting Series Assets") of the Contracting Series and to
the Managing Owner and
31
its assets for payment. The
Contracting Series Assets include only those funds and other
assets that are paid, held or distributed to the Trust on
account of and for the benefit of the Contracting Series,
including, without limitation, funds delivered to the Trust
for the purchase of interests in a Series. In furtherance of
the Consent, the Potential Creditors agree that (i) any debts,
liabilities, obligations, indebtedness, expenses and claims of
any nature and of all kinds and descriptions (collectively,
"Claims") incurred, contracted for or otherwise existing
arising from, related to or in connection with the Trust and
its assets and the Contracting Series and the Contracting
Series Assets, shall be subject to the following limitations:
a. Subordination of certain claims and rights. (i)
except as set forth below, the Claims, if any, of the
Potential Creditors (the "Subordinated Claims") shall be
expressly subordinate and junior in right of payment to
any and all other Claims against the Trust and any Series
thereof, and any of their respective assets, which may
arise as a matter of law or pursuant to any contract;
provided, however, that the Potential Creditors' Claims
(if any) against the Contracting Series shall not be
considered Subordinated Claims with respect to
enforcement against and distribution and repayment from
the Contracting Series, the Contracting Series Assets
and the Managing Owner and its assets; and provided
further that the Potential Creditors' valid Claims, if
any, against the Contracting Series shall be pari passu
and equal in right of repayment and distribution with all
other valid Claims against the Contracting Series and
(ii) the 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 the Contracting Series, the Contracting
Series Assets and the Managing Owner and its assets) any
payment for the Subordinated Claims;
b. the Claims of each of the Potential Creditors
with respect to the Contracting Series shall only be
asserted and enforceable against the Contracting Series,
the
32
Contracting Series Assets and the Managing Owner and
its assets; and such Claims shall not be asserted or
enforceable for any reason whatsoever against any other
Series, the Trust generally or any of their respective
assets;
c. if the Claims of a Potential Creditor against
the Contracting Series or the Trust are secured in whole
or in part, each of the Potential Creditors hereby waives
(under section 1111(b) of the Bankruptcy Code (11 U.S.C.
S 1111(b)) any right to have any deficiency Claims (which
deficiency Claims may arise in the event such security is
inadequate to satisfy such Claims) treated as unsecured
Claims against the Trust or any Series (other than the
Contracting Series), as the case may be;
d. in furtherance of the foregoing, if and to the
extent that the Potential Creditors receive monies in
connection with the Subordinated Claims from a Series or
the Trust (or their respective assets), other than the
Contracting Series, the Contracting Series Assets and the
Managing Owner and its assets, the 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
33
specify by written notice to each of the other parties hereto:
If to Prudential Securities: If to the Trustee:
Prudential Securities Incorporated Wilmington Trust Company
One New York Plaza, 13th floor ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
If to the Trust: If to the Managing Owner:
World Monitor Trust Series A Prudential Securities Futures
c/o Prudential Securities Futures Management Inc.
Management Inc. ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇.
One ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
in either case with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇, Esq. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Rosenman & Colin LLP Prudential Securities Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ Plaza, 13th Fl.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If to the Advisor: with a copy to:
Eagle Trading Systems Inc. ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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.
34
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.
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, this
Agreement is made solely for the benefit of and shall be
binding upon the Trust, the Managing Owner, Prudential
Securities and 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.
35
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 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.
22. 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.
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.
36
IN WITNESS WHEREOF, this Agreement has been executed as
of the day and year first above written.
PRUDENTIAL SECURITIES
WORLD MONITOR TRUST FUTURES MANAGEMENT INC.
By: PRUDENTIAL SECURITIES
FUTURES MANAGEMENT INC., By:_______________________
Its: Managing Owner ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice-President
By:________________________ WILMINGTON TRUST COMPANY
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice-President
By:______________________
EAGLE TRADING SYSTEMS INC.
By:____________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President
37
The undersigned Advisor has reviewed the Prospectus dated
______________________, 1998 of World Monitor Trust with
respect to the information contained therein relating to the
Advisor and, in accordance with paragraph 2 of the Advisory
Agreement among us dated as of the _____ day of ____________,
1998, and hereby consents to its distribution.
EAGLE TRADING SYSTEMS INC.
By:_____________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President
38