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WORLD MONITOR TRUST
ADVISORY AGREEMENT
Advisory Agreement (the "Agreement") dated as of
the 1st day of November, 2000, by and among World
Monitor Trust (the "Trust") - Series C, a Delaware
business trust, Prudential Securities Futures
Management Inc., a Delaware corporation (the "Managing
Owner") and Northfield Trading L.P., a Delaware limited
partnership (the "Advisor").
W I T N E S S E T H :
WHEREAS, the Trust and Series C have been organized
primarily for the purpose of trading, buying, selling,
spreading or otherwise acquiring, holding or disposing
of futures, forward and options contracts. 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, Series C is engaged in a continuous
offering (the "Offering") of its limited liability
beneficial interests (the "Interests") through
Prudential Securities Incorporated ("Prudential
Securities"), an affiliate of the Managing Owner, and
in connection therewith, the Trust has filed 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
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statement on Form S-1 to register the 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, together with all amendments and
supplements thereto, shall be referred to herein as the
"Prospectus"); and
WHEREAS, the Trust has ongoing reporting
obligations under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"); and
WHEREAS, the Trust has registered 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 United States 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
Series C during the term of this Agreement to replace
another commodity trading adviser which managed Series
C assets from June 10, 1998 to June 7, 2000 (the "Prior
Advisor").
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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 Series C Interests allocated to the
Advisor (the "Series C Allocated Assets") on the terms
and conditions and for the purposes set forth herein.
This limited power-of-attorney is a continuing power
and shall continue in effect with respect to the
Advisor until terminated hereunder. The Advisor shall
have sole authority and responsibility for
independently directing the investment and reinvestment
in Commodities of the Series C 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 C 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 C
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
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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 C Allocated
Assets that are not invested in Commodities. The
Advisor will use its good faith best efforts in
determining the investment and reinvestment in
Commodities of the Series C 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 Trust's Trading Policies and
Limitations, then the 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) Trading Approach.
The Advisor agrees that at least 90% of the
gains and income, if any, generated
by its Trading Approach for Series C will be from
buying and selling Commodities as described in Exhibit
C hereto.
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(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), 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 Managing Owner prior
written notice of any proposed material change in its
Trading Approach, and agrees not to make any material
change in such Trading Approach (as applied to the
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, 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
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, and variations in the
leverage principles and policies utilized by the
Advisor, shall not be deemed a material change in the
Advisor's Trading
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Approach, and prior approval of the
Managing Owner shall not be required therefor. The
utilization of forward markets in addition to those
enumerated in the Advisor's Disclosure Document, dated
July 1, 2000 (the "Disclosure Document"), attached
hereto as Exhibit C, would be deemed a material change
to the Advisor's Trading Approach and prior approval
shall be required therefore.
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.
In addition to its obligations under Section 4 hereof, the Advisor
agrees to provide the Managing Owner with any
reasonable information concerning the Advisor that the
Managing Owner 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 Managing Owner, including, but
not limited to, information regarding any change in
control, key personnel, Trading Approach and financial
condition which the Managing Owner reasonably deems to
be material to Series C; the Advisor also shall notify
the Managing Owner of any such matters the Advisor, in
its reasonable judgment, believes may be material to
the Series C 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
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related to the Advisor's performance results, including
all such information required to be disclosed
in the Prospectus, 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, director, officer or partner 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 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; 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 Series C, and the Advisor shall incur no liability
for trading profits or losses resulting therefrom
provided the Advisor would not
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otherwise be liable to Series C under the terms hereof.
(i) Initial Allocation, Additional Allocations, and Reallocations.
Initially, the Series C Allocated Assets will
total an amount equal to the
assets of the Trust allocable to the Series C
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 C 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. Thereafter, subject to
Section 12(a) below, the Trust may, based on the sale
of additional Interests or the exchange by owners of
Series C Interests ("Limited Owners") for Interests in
another Series, (A) allocate additional Series C assets
to the Advisor on a weekly basis during the Trust's
Continuous Offering Period, as defined in the
Prospectus, (B) reallocate Series C Allocated Assets
away from the Advisor to another commodity trading
advisor (an "Other Advisor"), (C) reallocate Series C
assets to the Advisor away from an Other Advisor , or
(D) allocate additional capital with respect to Series
C assets to an Other Advisor.
(j) Delivery of Disclosure Document.
The Advisor agrees to provide to the Managing Owner any
amendment, supplement, or update to the Disclosure
Document attached hereto as Exhibit C.
2. Indemnification.
(a) The Advisor.
Subject to the provisions of
Section 3, the Advisor, and each officer, director,
partner and
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employee of the Advisor, and each person
who controls the Advisor, shall be indemnified,
defended, and held harmless by Series C and the
Managing Owner, from and against any and all claims,
losses, judgments, liabilities, damages, costs,
expenses (including, without limitation, reasonable
investigatory and attorneys' fees) and amounts paid in
settlement of any claims in compliance with the
conditions specified below (collectively, "Losses")
sustained by the Advisor (i) in connection with any
matter relating to the Registration Statement or the
Prospectus or the Prior Advisor prior to the effective
date of this Agreement, (ii) arising out of any untrue
statement of any material fact contained in the
Registration Statement or the Prospectus or the
omission to state in the Registration Statement or the
Prospectus a material fact required to be stated
therein or necessary to make the statements therein
(with respect to the Prospectus, in light of the
circumstances in which they are made), not misleading,
or 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), 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, (iii) in connection with any acts or
omissions of the Advisor, or any of its officers,
directors or employees relating to its management of
the Series C Allocated Assets, including in connection
with this Agreement or otherwise as a result of the
Advisor's performance of services on behalf of Series C
or its role as trading advisor to Series C Allocated
Assets or (iv) 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
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breach of this Agreement on the part of
the Advisor, or its officers,
directors, partners or employees, or any person
controlling the Advisor, (ii) the Advisor, and its
officers, directors, partners and employees, and each
person controlling the Advisor, acted in good faith and
in a manner reasonably believed by it and them to be in
or not opposed to the best interests of the Trust and
(iii) any such indemnification will only be recoverable
from the Series C Allocated Assets and the assets of
the Managing Owner and not from any other assets of any
other series of the Trust.
(b) Series C.
Series C shall be indemnified
by the Advisor against any Losses sustained by Series C
directly resulting from (i) the negligence or
misconduct of, or a material breach of this Agreement
by, the Advisor or its directors, officers, partners or
employees or any person who controls the Advisor, (ii)
any action or omission to act of the Advisor or its
directors, officers, partners or employees or any
person who controls the Advisor that was not taken in
good faith or in a manner reasonably believed by it and
them to be in the best interests of Series C, (iii) any
untrue statement of any material fact contained in the
Registration Statement or the Prospectus or the
omission to state in the Registration Statement or the
Prospectus a material fact required to be stated
therein or necessary to make the statements therein
(with respect to the Prospectus, in light of the
circumstances in which they are made), not misleading
in each case under this subclause (iii) 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.
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(c) Procedure.
No indemnification shall be
permitted under this Section 2 for amounts paid in
settlement if (A) the party claiming indemnification
(the "Indemnitee") fails to notify the indemnifying
party of the terms of any settlement proposed, at least
fifteen (15) days before any amounts are paid, and (B)
the indemnifying party does not approve the amount of
the settlement within fifteen (15) days of receiving
such notice (such approval not to be withheld
unreasonably). Notwithstanding the foregoing, the
indemnifying party shall, at all times, have the right
to offer to settle any matter with the approval of the
indemnitee (which approval shall not be withheld
unreasonably) and if the indemnifying party
successfully negotiates a settlement and tenders
payment therefor to the Indemnitee the Indemnitee must
either use its best efforts to dispose of the matter in
accordance with the terms and conditions of the
proposed settlement or the Indemnitee may refuse to
settle the matter and continue its defense in which
latter event the maximum liability of the indemnifying
party to the Indemnitee shall be the amount of said
proposed settlement. Any indemnification under this
Section 2, unless ordered by a court, shall be made by
the indemnifying party only as authorized in the
specific case and only upon a determination by mutually
acceptable independent legal counsel in a written
opinion that indemnification is proper in the
circumstances because the Indemnitee has met the
applicable standard of conduct set forth hereunder.
(d) 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,
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without the prior consent of the indemnifying party.
(e) Partial Indemnification.
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.
(f) 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 indemnifying party 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, and (ii) the Indemnitee undertakes to repay
the advanced funds to the indemnifying party 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
indemnifying party, the Indemnitee obtains a written
opinion of mutually acceptable independent legal
counsel that advancing such expenses is proper in the
circumstances.
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
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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").
(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 C 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
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Owner for the benefit of
the Series C Interests 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 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 brokerage and clearing services
are being performed ("Series C") and assets (the
"Series C Assets") of Series C and to the Managing
Owner and its assets for payment. The Series C 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 Series C, including, without
limitation, funds delivered to the Trust for the
purchase of interests in Series C. In furtherance of
the Consent, the Advisor agrees that (i) any debts,
liabilities, obligations, indebtedness, expenses and
claims of any nature and of all kinds and descriptions
(collectively, "Claims") incurred, contracted for or
otherwise existing arising from, related to or in
connection with the Trust and its assets and Series C
and the Series C 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)
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against Series C shall not be considered Subordinated Claims with
respect to enforcement against and distribution and
repayment from Series C, the Series C Assets and
the Managing Owner and its assets; and provided
further that the Advisor's valid Claims, if any,
against Series C shall be pari passu and equal in
right of repayment and distribution with all other
valid Claims against Series C 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 C, the Series C Assets and the Managing
Owner and its assets) any payment for the
Subordinated Claims;
(2) the Claims of the Advisor with respect
to Series C shall only be asserted and enforceable
against Series C, the Series C 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 C 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. S
1111(b)) any right to have any deficiency Claims
(which deficiency Claims may arise in the event
such security is inadequate to satisfy such Claims)
treated as unsecured Claims against the Trust or
any Series (other than Series C), 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 C, the Series C Assets and the
Managing
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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.
4. Obligations of the Trust, the Managing Owner and the Advisor.
(a) Disclosure.
Each of the Trust and the
Managing Owner agrees to cooperate and use its good
faith and best efforts in connection with the taking of
such actions not inconsistent with this Agreement as
the Managing Owner may determine to be necessary or
advisable in order to make the offer and sale of
Interests lawful in any jurisdiction and to comply with
applicable regulatory requirements. The Advisor agrees
to make all 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 other information, as the Managing
Owner may request, in its the reasonable judgment,
necessary in order to manage the Trust and correspond
with the Limited Owners. 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; provided that distribution of
performance information relating to Series C's account
shall not require consent of the Advisor.
(b) Modification.
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If any event or circumstance occurs as
a result of which it becomes
necessary, in the judgment of the Trust or the Managing
Owner, 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 Series C Interests, 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 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.
(c) Back-up Information.
Subject to adequate
assurances of confidentiality, the Advisor will supply
to or make available for review by the Managing Owner
(and if requested by the Managing Owner to its
designated auditor) all documents, statements,
agreements and workpapers requested by them which are
in the Advisor's possession or to which it has access
relating to all accounts required to be covered by the
Advisor's past performance history in the Registration
Statement and the Prospectus, 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.
(d) Ongoing Information.
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
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Advisor's representations and warranties herein
inaccurate or incomplete in any material respect, or
which might render the then-effective 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 Managing Owner 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 Managing Owner to terminate the
Advisory Agreement with the Advisor on prior written
notice to the Advisor for so long as Series C Interests
in the Trust are being offered.
If, at any time during the term of the Advisory
Agreement, the Managing Owner 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 herein
inaccurate or incomplete in any material respect, the
Managing Owner promptly will provide written
notification to the Advisor of such event or change of
circumstance and the facts related thereto.
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(e) Registration Statement and Prospectus.
The Managing Owner shall provide the Advisor with a
copy of each amendment to the Registration Statement
and amendment or supplement to the Prospectus, and no
amendment to the Registration Statement or amendment or
supplement to the Prospectus which contains any
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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
concerning the Advisor being filed and used. The
Advisor will not distribute the Registration Statement,
the Prospectus and/or the selling materials related
thereto.
(f) Advisor Not A Promoter.
The parties acknowledge that the Advisor has not been, either alone
or in conjunction with Prudential Securities 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.
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 each other commodity trading advisor that may
in the future provide commodity trading advisory
services to the Trust and Prudential Securities, and
shall, unless otherwise expressly authorized, have no
authority to act for or to represent the Trust, the
Managing Owner, any other commodity trading advisor or
Prudential Securities in any way or otherwise be deemed
to be a general agent, joint venturer or partner of the
Trust, the Managing Owner, any other commodity trading
advisor or Prudential Securities, or in any way be
responsible for the acts or omissions of the Trust, the
Managing Owner, any other commodity trading advisor or
Prudential Securities as long as it is acting
independently of such persons.
(b) Unauthorized Activities.
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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
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 Series C Interests.
(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 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 trades for the account of the Trust
shall be made through such commodity broker or brokers
as the Managing Owner directs or otherwise as may be
agreed upon in accordance with such order execution
procedures as are agreed upon between the
<PAGE>
Advisor and the Managing Owner. The Advisor shall not have any
authority or responsibility in selecting or supervising
any broker for execution of Commodities trades of the
Trust or for negotiating commission rates to be charged
therefor. The Advisor shall not be responsible for
determining that any such bank or broker 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
Prudential Securities. The Advisor may, however, with
the consent of the Managing Owner, execute transactions
at such other broker(s), and upon such terms and
conditions, as the Advisor and the Managing Owner agree
if such broker(s) agree to "give up" all such
transactions to Prudential Securities for clearance;
attached hereto as Exhibit D is a list of executing
brokers and their respective give-up fees to which the
Managing Owner has given such consent. The Advisor
agrees that each of its executing brokers will "give
up" all transactions to Prudential Securities for
clearance, and the Managing Owner will use its
reasonable best efforts to ensure that Prudential
Securities will accept all such "give up" transactions
for clearing. To the extent that the Trust determines
to utilize a broker or brokers other than Prudential
Securities, it will consult with the Advisor prior to
directing it to utilize such broker(s), and will not
retain the services of such broker(s) 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 C a
weekly management fee (the "Management Fee") and an
incentive fee (the "Incentive Fee") based on Series C
Allocated
<PAGE>
Assets, as follows:
(a) A Management Fee equal to 0.0385% of
Series C Allocated Assets determined as of the close of
business each Friday (an annual rate of 2%). The sum
of the amounts determined each Friday will be paid
monthly. For purposes of determining the Management
Fee, any distributions, redemptions, or reallocation of
the Series C Allocated Assets made as of the last
Friday of a week shall be added back to Series C
Allocated Assets and there shall be no reduction for
(i) the accrued Management Fees being calculated, or
(ii) any accrued but unpaid incentive fees due the
Advisor under paragraph (b) below for the quarter in
which such fees are being computed, or (iii) any
accrued but unpaid extraordinary expenses (as defined
in the Trust Agreement). The Management Fee determined
for any week in which the Advisor manages Series C
Allocated Assets for less than a full week shall be
prorated on the basis of the number of days in the week
Series C Allocated Assets were under the Advisor's
management as compared to the total number of days in
such week.
(b) An incentive fee of twenty percent (20%)
(the "Incentive Fee") of "New High Net Trading Profits"
(as hereinafter defined) generated on Series C
Allocated Assets, including realized and unrealized
gains and losses thereon, as of the close of business
on the last Friday of each calendar quarter (the
"Incentive Measurement Date"). The fee will accrue
weekly.
New High Net Trading Profits (for purposes of
calculating the Advisor's Incentive Fee only) will be
computed as of the Incentive Measurement Date and will
include such profits (as outlined below) since the
Incentive Measurement Date of the most recent preceding
calendar quarter for which an Incentive Fee was earned
(or, with respect to the first
<PAGE>
Incentive Fee, as of the
commencement of the Advisor's commodity trading
activities for Series C) (the "Incentive Measurement
Period"). New High Net Trading Profits for any
Incentive Measurement Period will be the net profits,
if any, from Series C's trading during such period
(including (i) realized trading profit (loss) plus or
minus (ii) the change in unrealized trading profit
(loss) on open positions) and will be calculated after
the determination of Series C's fixed brokerage fee
(which is currently 7.75%) and the Advisor's Management
Fee, but before deduction of any Incentive Fee accrued
during the Incentive Measurement Period. New High Net
Trading Profits will not include interest earned or
credited on the Series C Allocated Assets and will be
adjusted (either increased or decreased, as the case
may be) to reflect extraordinary expenses (e.g.,
litigation, costs or damages) paid in respect of Series
C during an Incentive Measurement Period. New High Net
Trading Profits will be generated only to the extent
that the Advisor's cumulative New High Net Trading
Profits exceed the highest level of cumulative New High
Net Trading Profits achieved by the Advisor as of a
previous Incentive Measurement Date. Except as set
forth below, net losses from prior quarters must be
recouped before New High Net Trading Profits can again
be generated. If a withdrawal or distribution occurs
at any date that is not an Incentive Measurement Date,
the date of the withdrawal or distribution will be
treated as if it were an Incentive Measurement Date,
but any Incentive Fee accrued in respect of the
withdrawn assets on such date shall not be paid to the
Advisor until the next scheduled Incentive Measurement
Date. New High Net Trading Profits for an Incentive
Measurement Period shall exclude capital contributions
to Series C in an Incentive Measurement Period,
distributions or redemptions paid or payable by Series
C during an Incentive Measurement Period, as well as
losses, if any, associated with redemptions
distributions and reallocations of assets during the
Incentive Measurement Period and prior to the Incentive
Measurement Date (i.e., to the extent
<PAGE>
that assets are allocated away from the
Advisor, any loss carry forward
attributable to the Advisor shall be reduced in the
same proportion that the assets allocated away from the
Advisor through redemptions or allocations caused by
the Trust or the Managing Owner bears to the Series C
Allocated Assets prior to the reallocation and New High
Net Trading Profits shall reflect this reduction in
loss carryforward). In calculating New High Net
Trading Profits, Incentive Fees paid for a previous
Incentive Measurement Period will not reduce cumulative
New High Net Trading Profits in subsequent periods.
The Advisor's Incentive Fee shall not be netted with
the incentive fee of any Other Advisor.
Notwithstanding any other provision of this
Agreement which may be interpreted to the contrary, it
is the intent of the parties that all cumulative losses
existing as of the date of this Agreement which were
accumulated while the Series C Allocated Assets were
under the management of the Prior Advisor in the amount
of approximately $3,830,000, must be recouped
consistent with the calculations and provisions of this
Section 7 before the first Incentive Fee under this
Agreement will be due and owing.
(c) Timing of Payment.
Management Fees and Incentive Fees
shall be paid within fifteen (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 forty five (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
<PAGE>
the Series C 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 Advisor will be provided by
the Managing Owner with the data used by the Managing
Owner to compute the foregoing fees within ten (10)
business days of the end of the relevant period.
(e) Third Party Payments.
Neither the Advisor, nor any of its officers, directors, employees
or partners, 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, shall
continue in effect until the close of business on
December 31, 2001. 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
<PAGE>
subsequent to the conclusion of the preceding
twelve (12) month term. The automatic renewal(s) set
forth in the preceding sentence hereof shall not be
affected by (i) any reallocation of the Series C
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 C
Allocated Assets declines as of the end of any business
day by 33 1/3% from the Series C Allocated Assets (i) as
of the first day of this Agreement, or (ii) as of the
first day of any calendar year, as adjusted on an
ongoing basis by (A) any decline(s) in the Series C
Allocated Assets caused by distributions, redemptions,
permitted reallocations, and withdrawals, and (B)
additions to the Series C Allocated Assets caused by
additional allocations of the Trust Estate to the
Advisor's management based on sales of additional
Series C Interests.
(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 thirty (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: (A) 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
<PAGE>
Trading Approach may be refined or modified in the
future in accordance with the terms of this Agreement
for the benefit of the Trust; (B) 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; (C) 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 (i) any of the Trust's Trading Policies and
Limitations, or (ii) the Advisor's Trading Approach;
(D) there is an unauthorized assignment of this
Agreement by the Advisor; (E) 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; (F) Douglas Bry and/or Philip Spertus
is not in control of the Advisor's trading activities
for the Trust; (G) the Advisor becomes bankrupt
(admitted or decreed) or insolvent, (H) pursuant to
Section 4(d) hereof, or (I) 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 C 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 C 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
<PAGE>
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) the Managing Owner (x)
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 C
Allocated Assets, or (y) overrides trading instructions
of the Advisor or does not consent to a material change
to the Trading Approach requested by the Advisor; (iv)
if the amount of the Series C Allocated Assets
decreases to less than $1 million as the result of
redemptions, 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 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 after giving
written notice to the Managing Owner which identifies
such breach and such material breach has not been cured
within 10 days following receipt of such notice by the
Managing Owner; or (viii) other good cause is shown and
the written consent of the Managing Owner is obtained
(which shall not be withheld 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 Series C Allocated Assets to Other
Advisors,
<PAGE>
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 C Allocated Assets under management, and (ii)
with respect to the Incentive Fee, if any, as if the
effective date of termination was the last day of the
then current calendar quarter. The rights of the
Advisor to fees earned through the earlier to occur of
the date of expiration or termination shall survive
this Agreement until satisfied.
(f) Termination and Open Positions.
Once terminated, the Advisor shall have no responsibility
for existing positions, including delivery issues, if
any, which may result from such positions.
9. Liquidation of Positions.
The Advisor agrees to liquidate open positions in
the amount that the Managing Owner informs the Advisor,
in writing via telecopy 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 three (3) days' prior notice. In
the event that losses incurred by the Advisor exceed
the amount of the Series C Allocated Assets, the
Managing Owner agrees to cover such excess
<PAGE>
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.
Subject to paragraph (c) of this Section 10, the Advisor shall be
free to manage and trade accounts for other investors
(including other public and private commodity pools)
during the term of this Agreement and to use the same
or other information and Trading Approach utilized in
the performance of services for the Trust for such
other accounts so long as the Advisor's ability to
carry out its obligations and duties to the Trust
pursuant to this Agreement is not materially impaired
thereby. In addition, the Advisor, and its partners,
directors, officers and employees, as applicable, also
will be permitted to trade in Commodities using the
Trading Approach or otherwise for their own accounts,
so long as the Advisor's ability to carry out its
obligations and duties to the Trust pursuant to this
Agreement is not materially impaired thereby.
(b) Acceptance of Additional Capital.
Furthermore, so long as the Advisor is performing
services for the Trust, it agrees that it will not
accept additional capital for management in the
Commodities markets if doing so would have a reasonable
likelihood of resulting in the Advisor having to modify
materially its 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. Without limiting the generality of the
foregoing, it is understood that this paragraph shall
not prohibit the acceptance of additional capital,
which acceptance requires only routine adjustments to
trading patterns in order to comply with speculative
position limits or daily trading limits. Furthermore,
it is understood that
<PAGE>
the acceptance of additional
capital by the Advisor may cause the Advisor not to
consent to an additional allocation under Section
1(i)(A) or (C). The Advisor will use its best efforts
to provide the Managing Owner with reasonable prior
notice of any such capacity constraints.
(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. 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).
(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
<PAGE>
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.
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 Commodity Futures Trading Commission ("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
<PAGE>
with applicable speculative position limits.
The Advisor presently believes that its Trading
Approach for the management of the Trust's account can
be implemented for the benefit of the Trust
notwithstanding the possibility that, from time to
time, speculative position limits may become
applicable.
12. Redemptions, Distributions, Reallocations and
Additional Allocations.
(a) Notice.
The Managing Owner agrees to give
the Advisor at least one (1) business day prior notice
of any proposed redemptions, exchanges, distributions,
reallocations, additional allocations, or withdrawals.
(b) Allocations.
Redemptions, exchanges, withdrawals, and
distributions of Series C Interests
shall be charged against Series C Allocated Assets.
13. Brokerage Confirmations and Reports.
The Managing Owner will instruct the Trust's
commodity broker or brokers to furnish the Advisor with
copies of all trade confirmations, daily equity runs,
and monthly trading statements relating to the Series C
Allocated Assets. The Advisor will maintain records
and will monitor all open positions relating thereto;
provided, however, that, except as provided in Section
1(g) hereof, the Advisor shall not be responsible for
any errors by the Trust's brokers. 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,
<PAGE>
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 (if the broker is other than Prudential
Securities), 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 C Allocated
Assets.
14. The Advisor's Representations and Warranties.
The Advisor represents and warrants that:
(a) it has full capacity and authority to
enter into this Agreement, and to provide the services
required of it hereunder;
(b) it is a duly formed and validly existing
limited partnership, in good standing under the laws of
Delaware, 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
the failure to be so qualified would materially
adversely affect its ability to perform its obligations
under this Agreement;
(c) 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 any applicable statute, law or regulation
of any jurisdiction or (ii) breach or cause to be
breached any undertaking, agreement, contract, statute,
rule or regulation to which
<PAGE>
it is a party or by which it is bound,
that, in the case of (i) or (ii), would
materially limit or materially adversely affect its
ability to perform its duties under this Agreement;
(d) it has all governmental and regulatory
licenses, registrations and approvals required by law
as may be necessary to perform its obligations under
this Agreement including, without limitation,
registration as a commodity trading advisor under the
CE Act and membership of the NFA as a commodity trading
advisor and it will maintain and renew any required
licenses, registrations, approvals or memberships
during the term of this Agreement;
(e) 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 C 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, as amended, including the
rules and regulations thereunder;
(f) As of the date hereof, there has been no
material adverse change in the Advisor's past
performance history as set forth in its Disclosure
Document which has not been communicated in writing to
and received by the Trust and the Managing Owner or
their counsel.
(g) 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
<PAGE>
Registration Statement and the
Prospectus which has not been disclosed in its
Disclosure Document.
(h) The Series C Allocated Assets should not,
in the reasonable judgment of the Advisor, result in
the Advisor being required to alter its Trading
Approach to a degree which would be expected to have a
material adverse effect on the Trust; and
(i) neither the Advisor, nor its partners,
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 or referred to the Advisor
by an unaffiliated agent other than in violation of
clause (i).
(j) 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.
(k) this Agreement has been duly and validly
authorized, executed and delivered and
<PAGE>
is a valid and binding agreement, enforceable against the Advisor in
accordance with its terms;
(l) there is no pending, or to the best of the
Advisor's or any of its partners', officers', or
employees' 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 it or
its employees or affiliates is a party, or to which any
of its assets is subject, which might reasonably be
expected to result in any material adverse change in
the Advisor's condition (financial or otherwise),
business or prospects or reasonably might be expected
to affect adversely in any material respect any of the
Advisor's assets or which reasonably might be expected
to (A) materially impair the Advisor's ability to
discharge its obligations to the Trust, or (B) result
in a matter which would require disclosure in its
Disclosure Document which has not been so disclosed;
and the Advisor has not received any notice of an
investigation by (i) the NFA regarding noncompliance
with NFA rules or the CE Act, (ii) the CFTC regarding
noncompliance with the CE Act, or the rules and
regulations thereunder, or (iii) any exchange regarding
noncompliance with the rules of such exchange, which
investigation reasonably might be expected to (1)
materially impair its ability to discharge its
obligations to the Trust, or (2) result in a matter
which would require disclosure in its Disclosure
Document which has not been so disclosed; and
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,
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
Business Trust, and (ii) in the
<PAGE>
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 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.
(f) 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. As of the date hereof; and at all
times subsequent hereto up to and including the date of
termination of the Continuous 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 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, partners, directors,
officers and employees, as well as to the
<PAGE>
Advisor's Trading Approach and past performance history.
The within representations and warranties shall be
continuing during the term of this Agreement, and, if
at any time, any event has occurred which would make or
tend to make any of the foregoing not true in any
material respect, the Managing Owner promptly will
notify the Advisor in writing.
16. Assignment.
This Agreement may not be assigned by any of the
parties hereto without the express prior written
consent of the other parties hereto, except that the
Advisor need not obtain the consent of any Other
Advisor.
17. Successors.
This Agreement shall be binding upon and inure to
the benefit of the parties hereto and the successors
and permitted assigns 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 "assigns" shall not include any
purchasers, as such, of Interests.
18. Amendment or Modification or Waiver.
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.
<PAGE>
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
shall be delivered personally or by registered mail,
postage prepaid, return receipt requested, or by
telecopy, 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: If to the Trust:
Prudential Securities Futures World Monitor Trust - Series C
Management Inc. c/o Prudential Securities Futures
One New York Plaza, 13th floor Management Inc.
New York, New York 10292-2013 One New York Plaza, 13th floor
Attention: Eleanor L. Thomas New York, New York 10292-2013
Facsimile: (212) 778-3694 Attention: Eleanor L. Thomas
Facsimile: (212) 778-3694
and in either case with a
copy to:
Rosenman & Colin LLP and Prudential Securities Incorporated
575 Madison Avenue One New York Plaza, 13th Floor
New York, New York 10022 New York, New York 10292-2013
Attention: Fred M. Santo, Esq. Attention: Eleanor L. Thomas
Facsimile: (212) 940-7079 Facsimile: (212) 778-3694
If to the Advisor: with a copy to:
Northfield Trading L.P. Katten Muchin & Zavis
3609 S. Wadsworth 525 W. Monroe
Suite 250 Suite 1600
Denver, Colorado 80235-2110 Chicago, Illinois 60661
Attention: Douglas Bry Attention: Wesley Nissen, Esq.
Facsimile: (303) 985-3225 Facsimile: (312) 577-8750
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 conflict of
laws principles.
<PAGE>
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. Disclosure Document Modifications.
The Advisor shall promptly furnish the Managing
Owner with a copy of all modifications to its
Disclosure Document when available for distribution.
Upon receipt of any modified Disclosure Document by the
Managing Owner, the Managing Owner will provide the
Advisor with an acknowledgement of receipt thereof.
23. 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.
24. 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.
<PAGE>
25. 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.
26. 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.
27. Complete Agreement.
Except as otherwise provided herein, this Agreement
constitutes 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.
28. 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.
29. 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
<PAGE>
NFA or, if NFA should refuse to
accept the matter, the securities rules of
American Arbitration Association, and that the decision
of the arbitrator shall be final and binding and a
proceeding to enforce any such decision may be brought
in any court having jurisdiction thereof.
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 - SERIES C PRUDENTIAL SECURITIES
FUTURES MANAGEMENT, INC.
By: PRUDENTIAL SECURITIES By: /s/ Guy Scarpaci
FUTURES MANAGEMENT INC., -------------------
Its: Managing Owner Guy Scarpaci
Director
By: /s/ Eleanor L. Thomas
-------------------------
Eleanor L. Thomas
President
NORTHFIELD TRADING L.P.
By: /s/ Douglas Bry
--------------------------
Douglas Bry
President
<PAGE>
EXHIBIT A
SERIES C TRADING SYSTEM
TRADING APPROACH OF NORTHFIELD TRADING L.P.
The Advisor will make its trading decisions for
Series C according to its Diversified Program as
described in Exhibit C as amended from time to time. The
Advisor will trade the Series C Allocated Assets at 1.5
times their actual value (the "Trading Level"); provided,
however, that the actual value of the Series C Allocated
Assets, and not the Trading Level, shall be used in
calculation of any fees due to the Advisor.
<PAGE>
EXHIBIT B
TRADING LIMITATIONS AND POLICIES
The following limitations and policies are applicable
to assets representing the Series C 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 C Allocated Assets, such
application of the limitations and policies is identical
initially for the Series C Allocated Assets of the Trust
and the Advisor. The Advisor sometimes may be prohibited
from taking positions for the Series C 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 the Series C
Interests 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 C Interests. The
Managing Owner may, however, impose additional trading
limitations on the trading activities of the Series C
Interests of the Trust without obtaining such approval if
the Managing Owner determines such additional limitations
to be necessary in the best interests of the Series C
Interests of the Trust.
Trading Limitations
The Series C Interests 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), but may
take into account open trading equity on existing
positions in determining generally whether to acquire
additional commodities positions; (ii) borrow or loan
money (except with respect to the initiation or
maintenance of commodities positions or obtaining lines
of credit for the trading of forward currency contracts;
provided, however, that the Series C Interests of the
Trust are prohibited from incurring 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 C Interests of the Trust; (v) commingle its
assets, except as permitted by law; or (vi) permit the
churning of its commodity accounts.
The Series C Interests 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 the Series C
Interests of the Trust, which currently are as follows:
(1) Series C 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
<PAGE>
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 Prudential
Securities will be able to liquidate a position at a
specified stop or limit order price, due to either the
volatility of the market or the inability to trade
because of market limitations.
(3) The Series C Interests 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) The Series C Interests of the Trust may
occasionally make or accept delivery of a commodity
including, without limitation, currencies. The Series C
Interests of the Trust also may engage in EFP
transactions involving currencies and metals and other
commodities.
(5) The Series C Interests of the Trust may, from time
to time, employ trading techniques such as spreads,
straddles and conversions.
(6) The Series C Interests 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 C Allocated Assets for any one
commodity, or in excess of 66-2/3% of the Trust's Series
C 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 the Series C Interests of the Trust
engage in transactions in forward currency contracts
other than with or through Prudential Securities and/or
PBFI, the Series C Interests 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 $100,000,000, 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
$50,000,000.
<PAGE>
EXHIBIT C
[ATTACH LATEST DISCLOSURE DOCUMENT
<PAGE>
EXHIBIT D
[ATTACH LIST OF EXECUTING BROKERS]
