EXHIBIT 10.11
THIRD AMENDATORY AGREEMENT
THIS THIRD AMENDATORY AGREEMENT ("Agreement") is entered into
by and among the signatories hereto (the "Signatories") as of __________, 2001.
W I T N E S S E T H
WHEREAS, the Signatories (or certain thereof) have previously
entered into a Selling Agreement dated as of April 25, 1996, a Joint Venture
Agreement dated as of April 25, 1996, as amended, a Customer Agreement dated as
of July 15, 1996, as amended (collectively, and as amended by the Amendatory
Agreements dated as of July 31, 1998 and May 4, 1999, the "Original Agreements")
relating to the distribution of units of limited partnership ("Units") in, and
the operation, trading and safekeeping the assets of, ML JWH Strategic
Allocation Fund L.P. (the "Partnership");
WHEREAS, all of the Original Agreements were filed as exhibits
to the Partnership's Registration Statement No. 33-80509, which became effective
under the Securities Act of 1933 (the "Securities Act") as of April 25, 1996 for
the initial offering of the Units (the "First Offering");
WHEREAS, the Partnership filed a Registration Statement (Reg.
No. 333-47439) on March 6, 1998 pursuant to which the Partnership registered
2,000,000 additional Units for public sale (the "Second Offering");
WHEREAS, the Partnership filed a new Registration Statement
(Reg. No. 333-75299) on March 30, 1999 pursuant to which the Partnership
registered 960,000 additional Units for public sale (the "Third Offering");
WHEREAS, the Partnership filed a new Registration Statement
(Reg. No. 333-____) on April 13, 2001 pursuant to which the Partnership
registered 350,000 additional Units for public sale (the "Fourth Offering").
WHEREAS, Xxxxxxx Xxxxx Investment Partners Inc. ("MLIP") is
the general partner of the Partnership;
WHEREAS, all the Signatories other than JWH (the "MLIP
Parties") are affiliates of MLIP; and
WHEREAS, the Signatories wish to further amend the Original
Agreements to reflect the Fourth Offering and the operation, trading and
safekeeping of the assets of the Partnership thereafter, but without otherwise
effecting any substantive change therein.
NOW THEREFORE, the Signatories agree as follows.
1. DEFINED TERMS. Capitalized terms not otherwise defined
herein are used with the meanings set forth in the Original Agreements, as
amended.
2. THE SELLING AGREEMENT. The Selling Agreement is hereby
amended to reflect the registration and public offering of an additional
350,000 Units in the Fourth Offering. As the Partnership is an operating
entity, there is no minimum number of new Units which must be sold as of the
beginning of any calendar month during the Fourth Offering for subscription,
then to be accepted, and -- as provided in the Selling Agreement in the case
of the ongoing offering of the Units following the initial Closing Date
during the First Offering, the Second Offering and the Third Offering --
subscriptions are debited directly from investors' Xxxxxxx Xxxxx Customer
Securities Accounts as of each month-end settlement date directly into the
Partnership's account without being previously collected into an escrow
account.
The initial Closing of the Fourth Offering shall be subject to
the same closing conditions as was the initial Closing of each of the First
Offering, the Second Offering and the Third Offering as stated in Section 8 of
the Selling Agreement.
In all other respects, the terms of the Selling Agreement are
restated in their entirety and shall apply to the Fourth Offering.
3. THE JOINT VENTURE AGREEMENT. The Joint Venture Agreement
is hereby amended to reflect the registration and public offering of an
additional 350,000 Units, and the renewal of the Joint Venture Agreement to
allow the Joint Venture to continue in effect until December 31, 2001. In all
other respects, the terms of the Joint Venture Agreement are restated in
their entirety.
4. THE CUSTOMER AGREEMENT. The Customer Agreement is hereby
amended to reflect the fact that the interest credit arrangements shall be as
set forth under "Interest Income Arrangements" in the Prospectus.
5. REPRESENTATIONS AND WARRANTIES OF THE SIGNATORIES. The
Signatories, other than MLIP, hereby restate and reaffirm the representations
and warranties made by them in the Original Agreements in respect of such
Agreements as hereby amended (the "Amended Agreements").
6. REPRESENTATIONS AND WARRANTIES OF MLIP. MLIP represents and
warrants to the Signatories, as follows:
(a) The Partnership has provided to the Signatories and filed
with the SEC a Registration Statement on Form S-1 (Registration No.
333-_____), as filed with the SEC on April 13, 2001 for the
registration of 350,000 Units under the Securities Act, has filed two
copies thereof with the CFTC under the Commodity Act and one copy with
the NFA in accordance with NFA Compliance Rule 2-13. The term,
"Registration Statement," shall, from and after the declaration of the
effectiveness of the Registration
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Statement under the Securities Act on __________, 2001, refer to the
Registration Statement as it becomes effective, and the term,
"Prospectus" shall refer to the prospectus of the Partnership dated
__________, 2001. Except as required by law, the Partnership will
not file any amendment to the Registration Statement or any
amendment or supplement to the Prospectus which shall be reasonably
objected to in writing by any Signatory, upon reasonable prior
notice.
(b) The Certificate of Limited Partnership pursuant to which
the Partnership was formed and the Limited Partnership Agreement each
provides for the subscription for and sale of the Units; all action
required to be taken by MLIP and the Partnership as a condition to the
sale of the Units to qualified subscribers therefor has been, or prior
to the initial Closing Time of the Fourth Offering and Subsequent
Closing Times during the Fourth Offering will have been taken; and,
upon payment of the consideration therefor specified in all accepted
Subscription Agreements and Powers of Attorney, the Units will
constitute valid limited partnership interests in the Partnership.
(c) The Partnership is a limited partnership duly organized
pursuant to the Certificate of Limited Partnership, the Limited
Partnership Agreement and the DRULPA and validly existing under the
laws of the State of Delaware with full power and authority to engage
in the trading of futures, forward and option contracts, as described
in the Prospectus; the Partnership has received a certificate of
authority to do business in the State of New Jersey as provided by the
New Jersey Uniform Limited Partnership Act.
(d) MLIP is duly organized and validly existing and in good
standing as a corporation under the laws of the State of Delaware and
in good standing as a foreign corporation under the laws of the State
of New Jersey and in each other jurisdiction in which the nature or
conduct of its business requires such qualification and the failure to
so qualify would materially adversely affect the Partnership or MLIP's
ability to perform its obligations hereunder.
(e) The Joint Venture, the Partnership and MLIP have
partnership or corporate power and authority under applicable law to
perform their respective obligations under the Joint Venture Agreement,
the Limited Partnership Agreement, the Customer Agreement, and this
Agreement (as the case may be), as described in the Registration
Statement and Prospectus.
(f) The Registration Statement and Prospectus contain all
statements and information regarding the Joint Venture, the Partnership
and MLIP required to be included therein by the Commodity Act and the
rules and regulations thereunder. When the Registration Statement
became effective under the 1933 Act and at all times subsequent thereto
up to and including the initial Closing Time of the Fourth Offering,
the Registration Statement and Prospectus complied in all material
respects with the requirements of the 1933 Act, the Commodity Act and
the rules and regulations under such Acts. The Registration Statement
as of its effective date did not contain any untrue
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statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus as of its date of issue and
at the initial Closing Time of the Fourth Offering did not contain
an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which such statements were made, not misleading.
This representation and warranty shall not, however, apply to any
statement or omission in the Registration Statement or Prospectus
made in reliance upon and in conformity with information relating to
JWH and furnished or approved in writing by JWH.
(g) Deloitte & Touche, the accountants who certified the
financial statements filed with the SEC as part of the Registration
Statement, are, with respect to the Partnership and MLIP, independent
public accountants as required by the 1933 Act and the SEC Regulations.
(h) The financial statements filed as part of the Registration
Statement and those included in the Prospectus present fairly the
financial position of the Partnership and of MLIP as of the dates
indicated; and said financial statements have been prepared in
conformity with generally accepted accounting principles (as described
therein), applied on a basis which is consistent in all material
respects for each balance sheet date presented.
(i) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material adverse change in the condition, financial or
otherwise, business or prospects of the Partnership or MLIP, whether or
not arising in the ordinary course of business.
(j) The Limited Partnership Agreement, the Joint Venture
Agreement and this Agreement have each been duly and validly
authorized, executed and delivered by MLIP on behalf of the Partnership
or by the Partnership on behalf of the Joint Venture and each
constitutes a legal, valid and binding agreement of MLIP, the
Partnership or the Joint Venture (as applicable) enforceable in
accordance with its terms. The Customer Agreement has been duly and
validly authorized, executed and delivered by the Partnership on behalf
of the Joint Venture.
(k) The execution and delivery of the Joint Venture Agreement,
the Limited Partnership Agreement, the Customer Agreement, and this
Agreement, the incurrence of the obligations set forth in each of such
agreements and the consummation of the transactions contemplated
therein and in the Prospectus will not constitute a breach of, or
default under, any instrument by which the Joint Venture, the
Partnership or MLIP, as the case may be, is bound or any order, rule or
regulation applicable to the Joint Venture, the Partnership or MLIP of
any court or any governmental body or administrative agency having
jurisdiction over the Joint Venture, the Partnership or MLIP.
(l) There is not pending, or, to the best of MLIP's knowledge
threatened, any action, suit or proceeding before or by any court or
other governmental body to which the Joint Venture, the Partnership or
MLIP is a party, or to which any of the assets of the Joint Venture,
the Partnership or MLIP is subject, which is not referred to in the
Prospectus and which might reasonably be expected to result in any
material adverse change in the condition (financial or otherwise),
business or prospects of the Joint
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Venture, the Partnership or MLIP or is required to be disclosed in
the Prospectus pursuant to applicable CFTC regulations. MLIP has not
received any notice of an investigation or warning letter from the
NFA or the CFTC regarding non-compliance by MLIP with the Commodity
Act or the regulations thereunder.
(m) MLIP has all Federal and state governmental, regulatory
and commodity exchange approvals and licenses, and has effected all
filings and registrations with Federal and state governmental agencies
required to conduct its business and to act as described in the
Registration Statement and Prospectus or required to perform its
obligations as described under the Limited Partnership Agreement and
this Agreement (including, without limitation, registration as a
commodity pool operator under the Commodity Act and membership in the
NFA as a commodity pool operator), and the performance of such
obligations will not contravene or result in a breach of any provision
of its certificate of incorporation, by-laws or any agreement, order,
law or regulation binding upon it. The principals of MLIP identified in
the Registration Statement are all of the principals of MLIP, as
"principals" is defined by the CFTC regulations. Such principals are
duly registered as such on MLIP's commodity pool operator Form 7-R
registration.
(n) Neither the Joint Venture nor the Partnership requires any
Federal or state governmental, regulatory or commodity exchange
approvals or licenses, or needs to effect any filings or registrations
with any Federal or state governmental agencies in order to conduct its
businesses and to act as contemplated by the Registration Statement and
Prospectus and to issue and sell the Units (other than filings relating
solely to the offering of the Units), and to trade in the commodity
markets.
7. COVENANTS. The Signatories each restate and recommit to the
respective covenants made by them in the Original Agreements.
8. FURTHER ASSURANCES AND DOCUMENTATION. The Signatories each
agree that they will execute all such other documents and instruments as any
Signatory may reasonably request of any other Signatory to evidence the intent
and purpose of this Amendatory Agreement so as to achieve the purpose of
providing under the Selling Agreement for the Fourth Offering.
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IN WITNESS WHEREOF, the undersigned have hereto set their
hands as of the day and year first above written.
ML JWH STRATEGIC ALLOCATION FUND L.P.
By: Xxxxxxx Xxxxx Investment Partners Inc.
General Partner
By:
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Name:
Title:
XXXXXXX XXXXX INVESTMENT PARTNERS INC.
By:
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Name:
Title:
XXXXXXX XXXXX FUTURES INC.
By:
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Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX,
INCORPORATED
By:
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Name:
Title:
XXXX X. XXXXX & COMPANY, INC.
By:
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Name:
Title:
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ML JWH STRATEGIC JOINT VENTURE
By: ML JWH Strategic Allocation Fund L.P.
Manager
By: Xxxxxxx Xxxxx Investment Partners Inc.
General Partner
By:
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Name:
Title:
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