Exhibit 4.1
ML SYSTEMATIC MOMENTUM FUTURESACCESS LLC
LIMITED LIABILITY COMPANY
OPERATING AGREEMENT
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THE UNITS OF LIMITED LIABILITY COMPANY INTEREST CREATED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES ACT, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED
EXCEPT AS PERMITTED UNDER APPLICABLE SECURITIES LAWS AND WITH THE CONSENT OF
THE SPONSOR.
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Xxxxxxx Xxxxx Alternative Investments LLC
Sponsor
March 8, 2007
EXHIBIT A
ML SYSTEMATIC MOMENTUM FUTURESACCESS LLC
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
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TABLE OF CONTENTS
ARTICLE I ORGANIZATION
SECTION 1.01. OBJECTIVES AND PURPOSES.....................................1
SECTION 1.02. INVESTMENT OF CASH RESERVES.................................2
SECTION 1.03. FISCAL YEAR; ACCOUNTING PERIODS.............................2
SECTION 1.04. REGISTERED AGENT AND OFFICE; PRINCIPAL OFFICE...............3
SECTION 1.05. TERM........................................................3
SECTION 1.06. NON-ASSIGNABILITY OF UNITS; SUBSTITUTED INVESTORS;
LIMITED ASSIGNABILITY OF THE SPONSOR'S INTEREST..................3
SECTION 1.07. LIABILITY OF INVESTORS......................................3
ARTICLE II CAPITAL AND TAX ALLOCATIONS
SECTION 2.01. CAPITAL CONTRIBUTIONS.......................................4
SECTION 2.02. OPENING CAPITAL ACCOUNTS....................................6
SECTION 2.03. FINANCIAL ALLOCATIONS AMONG THE UNITS.......................6
SECTION 2.04. NET ASSET VALUE.............................................6
SECTION 2.05. SPONSOR'S FEES; OPERATING EXPENSES..........................8
SECTION 2.06. ALLOCATION OF PROFITS AND LOSSES FOR
FINANCIAL PURPOSES....................................................8
SECTION 2.07. ALLOCATION OF PROFITS AND LOSSES FOR INCOME
TAX PURPOSES..........................................................9
SECTION 2.08. CHARGEBACKS TO CURRENT OR FORMER INVESTORS.................11
SECTION 2.09. PROCESSING OF SUBSCRIPTIONS................................11
SECTION 2.10. VALUATION OF ASSETS........................................11
SECTION 2.11. USE OF ESTIMATES...........................................12
SECTION 2.12. ACCOUNTING PRACTICES.......................................13
ARTICLE III PARTICIPATION IN SYSTEMATIC MOMENTUM
FUTURESACCESS PROPERTY; REDEMPTIONS AND DISTRIBUTIONS
SECTION 3.01. NO UNDIVIDED INTERESTS IN SYSTEMATIC MOMENTUM
FUTURESACCESS PROPERTY...............................................13
SECTION 3.02. REDEMPTIONS OF UNITS; EXCHANGES............................13
SECTION 3.03. WITHDRAWALS OF CAPITAL BY THE SPONSOR......................14
SECTION 3.04. MANDATORY REDEMPTIONS......................................14
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TABLE OF CONTENTS (cont.)
SECTION 3.05. MANDATORY REDEMPTIONS TO PAY TAXES.........................15
SECTION 3.06. DISTRIBUTIONS..............................................15
SECTION 3.07. FORM OF DISTRIBUTION AND REDEMPTION PAYMENTS...............15
SECTION 3.08. REMOVAL OF THE SPONSOR.....................................15
ARTICLE IV WITHDRAWAL OF THE SPONSOR AND INVESTORS
SECTION 4.01. WITHDRAWAL OF THE SPONSOR..................................15
SECTION 4.02. WITHDRAWAL OF AN INVESTOR..................................15
SECTION 4.03. STATUS AFTER WITHDRAWAL....................................15
ARTICLE V MANAGEMENT
SECTION 5.01. AUTHORITY OF THE SPONSOR...................................16
SECTION 5.02. SERVICE PROVIDERS; INVESTMENTS; ACCOUNTS...................16
SECTION 5.03. ACTIVITIES OF THE SPONSOR PARTIES..........................16
SECTION 5.04. SERVICES PERFORMED FOR SYSTEMATIC
MOMENTUM FUTURESACCESS...............................................17
SECTION 5.05. INTERESTED PARTIES.........................................17
SECTION 5.06. EXCULPATION................................................17
SECTION 5.07. INDEMNIFICATION............................................17
SECTION 5.08. FUTURESACCESS FUNDS' STANDARD OF
LIABILITY AND INDEMNIFICATION........................................18
SECTION 5.09. INVESTORS' TRANSACTIONS....................................18
SECTION 5.10. RELIANCE BY THIRD PARTIES..................................18
SECTION 5.11. REGISTRATION OF ASSETS.....................................18
SECTION 5.12. LIMITATION ON AUTHORITY OF THE SPONSOR.....................18
ARTICLE VI ADMISSION OF INVESTORS
SECTION 6.01. PROCEDURE AS TO NEW INVESTORS..............................18
SECTION 6.02. PROCEDURE AS TO NEW MANAGERS...............................19
ARTICLE VII BOOKS OF ACCOUNT; AUDITS; REPORTS TO INVESTORS
SECTION 7.01. BOOKS OF ACCOUNT...........................................19
SECTION 7.02. ANNUAL AUDIT...............................................19
SECTION 7.03. INTERIM REPORTS............................................20
ARTICLE VIII CONFLICTS OF INTEREST
SECTION 8.01. INVESTORS' CONSENT.........................................20
SECTION 8.02. INVESTORS' REPRESENTATIVE..................................20
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ARTICLE IX DISSOLUTION AND WINDING UP
SECTION 9.01. EVENTS OF DISSOLUTION......................................21
SECTION 9.02. DISSOLUTION................................................21
ARTICLE X MISCELLANEOUS PROVISIONS
SECTION 10.01. INVESTORS NOT TO CONTROL..................................22
SECTION 10.02. POWER OF ATTORNEY.........................................22
SECTION 10.03. AMENDMENTS; CONSENTS......................................22
SECTION 10.04. NOTICES...................................................23
SECTION 10.05. LEGAL EFFECT; MANNER OF EXECUTION.........................23
SECTION 10.06. ENTIRE AGREEMENT..........................................23
SECTION 10.07. GOVERNING LAW.............................................23
SECTION 10.08. CONSENT TO JURISDICTION...................................23
SECTION 10.09. "TAX MATTERS PARTNER"; TAX ELECTIONS......................23
SECTION 10.10. DETERMINATION OF MATTERS NOT
PROVIDED FOR IN THIS AGREEMENT.......................................23
SECTION 10.11. NO PUBLICITY..............................................24
SECTION 10.12. SURVIVAL..................................................24
SECTION 10.13. WAIVERS...................................................24
SECTION 10.14. VOTING RIGHTS.............................................24
SECTION 10.15. ISSUANCE OF DIFFERENT CLASSES.............................24
SECTION 10.16. COMPLIANCE WITH THE ADVISERS ACT; SECURITIES LAWS.........24
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TESTIMONIUM
SIGNATURES
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ML SYSTEMATIC MOMENTUM FUTURESACCESS LLC
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT ("Agreement") dated March
8, 2007 of ML Systematic Momentum FuturesAccess LLC ("Systematic Momentum
FuturesAccess") by and among Xxxxxxx Xxxxx Alternative Investments LLC, a
Delaware limited liability company (the "Sponsor"), and those persons who
shall invest in the units of limited liability company interest ("Units")
created hereby -- Class A, Class C, Class D and Class I -- and shall execute
this Agreement, by power-of-attorney, as members (such members being
hereinafter sometimes referred to collectively as "Members" or "Investors").
WHEREAS, the parties hereto desire to form Systematic Momentum FuturesAccess,
a limited liability company under the provisions of the Delaware Limited
Liability Company Act (the "Act"), which shall allocate and reallocate its
capital among the single-advisor funds included in the Xxxxxxx Xxxxx
FuturesAccessSM Program ("FuturesAccess"); such other funds to be hereinafter
sometimes referred to as "FuturesAccess Funds") under the direction of the
Sponsor.
WHEREAS, the Sponsor is the sponsor of Systematic Momentum FuturesAccess and
the sponsor and manager of each of the FuturesAccess Funds for purposes of the
Act.
NOW, THEREFORE, in consideration of the premises, the mutual agreements herein
contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
ORGANIZATION
SECTION 1.01. OBJECTIVES AND PURPOSES.
(a) Systematic Momentum FuturesAccess shall have the following objectives
and purposes:
(i) to allocate and reallocate its capital among different
FuturesAccess Funds under the direction of the Sponsor, attempting
to achieve consistently high risk-adjusted returns by implementing
an active multi-advisor managed futures program.
(ii) to maintain such cash reserves as the Sponsor may from time to
time deem to be appropriate and to invest and manage all such cash
reserves; and
(iii) to engage in any other lawful act or activity within and without
the United States for which limited liability companies may be
organized under the laws of the State of Delaware.
(b) Systematic Momentum FuturesAccess, and the Sponsor on behalf of
Systematic Momentum FuturesAccess, shall have the power to enter into,
make and perform all contracts and other undertakings, and engage in all
activities and transactions as may be necessary or advisable to the
carrying out of the foregoing purposes, including, without limitation,
the power:
(i) invest in and redeem from FuturesAccess Funds, allocating and
reallocating its capital among FuturesAccess Funds in the
discretion of the Sponsor;
(ii) indirectly to trade futures, forwards, options and other
instruments, on margin and otherwise, through investing in
FuturesAccess Funds;
(iii) to borrow money from banks or brokers by hypothecation or pledge
of all or part of the assets of Systematic Momentum FuturesAccess;
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Limited Liability Company Operating Agreement Dated as of March 8, 2007
(iv) to exercise, as applicable, all rights, powers, privileges and
other incidents of ownership or possession with respect to the
assets of Systematic Momentum FuturesAccess;
(v) to open, maintain and close bank, brokerage and other accounts;
(vi) to prepare and file all tax returns required of Systematic
Momentum FuturesAccess and make any election or determination on
behalf of Systematic Momentum FuturesAccess in connection
therewith or as otherwise required or permitted by applicable tax
laws;
(vii) to bring, defend, compromise and settle legal actions or other
claims on behalf of Systematic Momentum FuturesAccess;
(viii) to maintain insurance on behalf of Systematic Momentum
FuturesAccess, including indemnification insurance; and
(ix) to take any and all such actions as the Sponsor may deem to be
necessary or advisable in connection with the foregoing.
SECTION 1.02. INVESTMENT OF CASH RESERVES. The Sponsor shall allocate and
reallocate Systematic Momentum FuturesAccess' capital among different
FuturesAccess Funds, attempting to adapt Systematic Momentum FuturesAccess'
overall portfolio to changing market conditions while also achieving
diversification in the trading strategies implemented for Systematic Momentum
FuturesAccess.
The FuturesAccess Funds among which Systematic Momentum FuturesAccess
allocates its capital may execute transactions in commodity interests,
currency interests, swap agreements, and any other manner of instruments, on
either a principal or an agency basis, with or through affiliates of the
Sponsor (the Sponsor and such affiliates being hereafter referred to as
"Xxxxxxx Xxxxx") or third parties. The sole clearing broker and the principal
forward trading counterparty for Systematic Momentum FuturesAccess among which
the Sponsor allocates and reallocates Systematic Momentum FuturesAccess'
capital shall be Xxxxxxx Xxxxx.
The FuturesAccess Funds among which the Sponsor allocates and reallocates
Systematic Momentum FuturesAccess' capital shall deposit all or substantially
all of their capital with Xxxxxxx Xxxxx or any other clearing brokers selected
by the Sponsor pursuant to the arrangements described in the FuturesAccess
Confidential Program Disclosure Document, as it may be amended from time to
time (the "Confidential Program Disclosure Document"), all Investors
acknowledging that Xxxxxxx Xxxxx will not only receive futures brokerage
commissions and bid-ask spreads from the FuturesAccess Funds but also will
retain significant economic benefits from the possession of the FuturesAccess
Funds' assets (including assets representing Systematic Momentum
FuturesAccess' investment in such FuturesAccess Fund) in addition to the
interest which Xxxxxxx Xxxxx will credit to Systematic Momentum FuturesAccess'
account. In addition, the Sponsor may maintain Systematic Momentum
FuturesAccess' reserve assets (as well as those of the FuturesAccess Funds) in
deposit or similar accounts with one or more affiliates of the Sponsor, which
affiliates may benefit from the possession of such assets, as well as with
unaffiliated entities. The interest paid by such affiliated and unaffiliated
entities on Systematic Momentum FuturesAccess' and the FuturesAccess Funds'
cash so invested will be paid to Systematic Momentum FuturesAccess or such
FuturesAccess Funds, as the case may be. However, neither the Sponsor nor any
of its affiliates (or any third parties) will be obligated to account to
Systematic Momentum FuturesAccess, any FuturesAccess Fund or any Investor for
the additional economic benefits which the Sponsor or any such affiliate may
derive from possession of Systematic Momentum FuturesAccess' assets.
SECTION 1.03. FISCAL YEAR; ACCOUNTING PERIODS. The fiscal year of Systematic
Momentum FuturesAccess shall end on each December 31. Systematic Momentum
FuturesAccess' accounting periods ("Accounting Periods"), as of the end of
each of which increases and decreases in Systematic Momentum FuturesAccess'
"Net Assets" (as defined in Section 2.04) -- as notified to the Sponsor by the
FuturesAccess Funds in which the Sponsor invests Systematic Momentum
FuturesAccess' capital -- shall be calculated and reflected in the Net Asset
Value of the Units issued by
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ML Systematic Momentum FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of March 8, 2007
Systematic Momentum FuturesAccess, shall begin: (i) as of the day that
Systematic Momentum FuturesAccess first begins operations; (ii) as of the day
that any Unit is issued; (iii) as of the day immediately following any
redemption of Units or withdrawal from an Investor's Capital Account; (iv) as
of the beginning of each calendar month; and (v) as of such other day as the
Sponsor may determine. An Accounting Period shall end on the day immediately
preceding the beginning of the next Accounting Period.
SECTION 1.04. REGISTERED AGENT AND OFFICE; PRINCIPAL OFFICE. Systematic
Momentum FuturesAccess shall maintain in the State of Delaware a registered
agent and office. The identity and location of said registered agent and
office shall be determined by the Sponsor, and may be changed from time to
time by the Sponsor.
The initial registered office of Systematic Momentum FuturesAccess in the
State of Delaware is c/o The Corporation Trust Company, Corporation Trust
Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
The principal office of Systematic Momentum FuturesAccess shall be located at
the offices of the Sponsor, 000 Xxxxxxx Xxxxxx, 2 World Financial Center,
Xxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other place as the
Sponsor may designate from time to time.
SECTION 1.05. TERM. The term of Systematic Momentum FuturesAccess commenced as
of the date its Certificate of Formation was filed with the Secretary of State
of the State of Delaware, and shall continue until terminated by the
dissolution and winding up of Systematic Momentum FuturesAccess as hereinafter
provided.
SECTION 1.06. NON-ASSIGNABILITY OF UNITS; SUBSTITUTED INVESTORS; LIMITED
ASSIGNABILITY OF THE SPONSOR'S INTEREST.
(a) No Investor shall assign, encumber, pledge, hypothecate or
otherwise transfer any of such Investor's Units without the
consent of the Sponsor, and any assignment, encumbrance, pledge,
hypothecation or transfer of Units, whether voluntary, involuntary
or by operation of law, to which the Sponsor does not consent
shall result in the Units so assigned, encumbered, pledged,
hypothecated or otherwise transferred being mandatorily redeemed
as of the end of the month during which such purported assignment,
encumbrance, pledge, hypothecation or transfer occurred. Any
assignment, encumbrance, pledge, hypothecation or transfer which
shall result in the termination of Systematic Momentum
FuturesAccess for federal income tax purposes shall be null and
void ab initio and of no legal force or effect whatsoever. An
assigning Investor shall remain liable to Systematic Momentum
FuturesAccess as provided in the Act, regardless of whether his or
her assignee becomes a substituted Investor.
(b) The Sponsor may not assign, encumber, pledge, hypothecate or
otherwise transfer all or any portion of its manager's interest in
Systematic Momentum FuturesAccess; provided, that the Sponsor may
assign such interest to an affiliate of the Sponsor upon notice
(which need not be prior notice) to the Investors or in connection
with the sale or transfer of all or a material portion of the
Sponsor's equity or assets. See Sections 4.01 and 6.02.
SECTION 1.07. LIABILITY OF INVESTORS.
(a) Nothing herein shall require the Sponsor to maintain any minimum
net worth or shall make any person associated with the Sponsor
individually liable for any debt, liability or obligation of
Systematic Momentum FuturesAccess or of the Sponsor
(b) No Investor shall have any obligation to restore any negative
balance in such Investor's Capital Account.
(c) The Sponsor shall have no obligation to restore any negative
balance in any Investor's or in the Sponsor's Capital Account.
(d) Except as provided in Section 2.08 (providing for chargebacks to
current or former Investors), the Sponsor and the Investors shall
be liable for the repayment, satisfaction and discharge of debts,
liabilities
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Limited Liability Company Operating Agreement Dated as of March 8, 2007
and obligations of Systematic Momentum FuturesAccess only to the extent
of the Sponsor's or such Investor's investment in Systematic Momentum
FuturesAccess and not in excess thereof.
ARTICLE II
CAPITAL AND TAX ALLOCATIONS
SECTION 2.01. CAPITAL CONTRIBUTIONS. All Capital Contributions to Systematic
Momentum FuturesAccess shall be made in cash. Capital Contributions may be
made in such amounts, and at such times, as the Sponsor may determine. The
Sponsor may permit certain Investors to make smaller initial or subsequent
Capital Contributions than is otherwise generally required by the Sponsor
without entitling any other Investor to make smaller initial or subsequent
Capital Contributions.
Investors will receive Units in return for their Capital Contributions. Each
class of Units ("Class") shall initially be issued at $1.00 per Unit, and
thereafter at Net Asset Value.
Systematic Momentum FuturesAccess shall invest in each of the FuturesAccess
Funds as a single investor, irrespective of the different times that Investors
subscribe for Units.
The Sponsor (and/or any other Xxxxxxx Xxxxx entity) may, but need not, make
Capital Contributions as of any date that any Units are issued. Xxxxxxx Xxxxx
may provide initial ("seed") capital to enable the Fund to begin trading
before sufficient client capital has been raised to meet the Fund's minimum
capitalization. Seed capital (if any) will be invested in Class D Units.
However, neither the Sponsor nor any other Xxxxxxx Xxxxx entity has any
obligation to "seed" the Fund (or any other FuturesAccess Fund). The Units
shall be issued in four Classes -- Class A Units, Class C Units, Class D Units
and Class I Units. Units of a new Class or Series may be issued in the
Sponsor's sole discretion.
Sales commissions will be deducted from Class A, Class D and Class I
subscriptions as described in the Confidential Program Disclosure Document,
and the net amount of such subscriptions (after deducting applicable sales
commissions) will be invested in the Units. The Sponsor may waive or reduce
sales commissions for certain Investors without entitling any other Investor
to any such waiver or reduction.
Fractional Units shall not be issued to Investors (but may be issued to the
Sponsor or any other Xxxxxxx Xxxxx entity). Investors' subscriptions shall be
used to purchase the largest whole number of Units of the appropriate Class
possible. Any subscription amount which cannot be used to purchase whole Units
will be credited (in cash) to Investors' Xxxxxxx Xxxxx customer securities
accounts.
Provided Systematic Momentum FuturesAccess' overall minimum capitalization is
met, there is no minimum number of Units of a particular Class that must be
sold in order for Units of that particular Class to be issued.
Once Systematic Momentum FuturesAccess has begun operations, there is no
minimum dollar amount of subscriptions that must be received as of the
beginning of any calendar quarter in order for additional Units of any Class
to be issued. All Units will be issued only as the Sponsor may determine,
irrespective of how many subscriptions are received.
Class eligibility shall be determined on the basis of an Investor's total
"FuturesAccess Investment" (defined below) in FuturesAccess overall as well
as, in the case of Class D Units, in a particular FuturesAccess Fund. An
Investor's "FuturesAccess Investment," determined as of the beginning of each
month, equals the greater of:
(i) the market value of all of an Investor's outstanding Units (or in a
particular FuturesAccess Fund, as applicable) based on the most recently
available Net Asset Values, plus pending subscriptions; or
(ii) an Investor's net subscriptions to FuturesAccess overall (or to a
particular FuturesAccess Fund, as applicable). Net subscriptions means
an Investor's aggregate subscriptions less aggregate redemptions (not
including pending redemptions).
Class A and Class C Units shall be assigned for FuturesAccess Investments up
to $5,000,000; Class I Units are assigned for FuturesAccess Investments of
$5,000,000 or more; and Class D Units are assigned for FuturesAccess
Investments in
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an individual FuturesAccess Fund of $5,000,000 or more or aggregate
FuturesAccess Investments of $15,000,000 or more.
Except for purposes of determining Class D eligibility in a particular
FuturesAccess Fund, the purchase and sale of Units in an exchange shall offset
each other and shall have no effect on the amount of an Investor's net
subscriptions to FuturesAccess overall.
FuturesAccess Investments attributable to certain related accounts may be
combined for purposes of determining an Investor's Class I and Class D
eligibility. In addition, Investors who participate in Xxxxxxx Xxxxx'x
HedgeAccess(R) Program, which is composed of private investment funds which
primarily trade securities ("HedgeAccess"), shall be permitted to aggregate
their Investments in FuturesAccess and HedgeAccess for purposes of determining
such Investors' Class I and Class D eligibility.
Systematic Momentum FuturesAccess will itself acquire Class D Units in the
underlying FuturesAccess Funds.
There shall be no minimum FuturesAccess Investment required to invest in Class
A or Class C Units (other than the minimum subscription amounts required to
invest in a particular FuturesAccess Fund or FuturesAccess overall).
New Investors whose initial subscription equals or exceeds $5,000,000 shall be
issued Class I Units in each FuturesAccess Fund in which they invest. If an
existing Investor, whose FuturesAccess Investment is less than $5,000,000,
makes an additional subscription which causes such Investor's FuturesAccess
Investment to equal or exceed $5,000,000 (including the new subscription), the
entire new subscription shall be invested in Class I Units. The Investor's
existing Units shall not be converted from Class A or Class C (as the case may
be) to Class I Units, but all subsequent subscriptions and exchanges made by
such Investor shall be for Class I Units.
Class D eligibility is determined on both an individual FuturesAccess Fund and
an overall FuturesAccess basis.
Investors whose initial subscription to any one FuturesAccess Fund equals or
exceeds $5,000,000 shall be issued Class D Units in that FuturesAccess Fund.
If an Investor, whose FuturesAccess Investment in a particular FuturesAccess
Fund is less than $5,000,000, makes an additional subscription or exchange
into that FuturesAccess Fund which causes such Investor's FuturesAccess
Investment to equal or exceed $5,000,000 (including the new subscription or
exchange), the entire new subscription or exchange into that FuturesAccess
Fund shall be invested in Class D Units. The Investor's existing Units in that
FuturesAccess Fund shall not be converted to Class D Units, but all subsequent
subscriptions or exchanges made by such Investor into the same FuturesAccess
Fund shall be for Class D Units. However, notwithstanding the fact that an
Investor's FuturesAccess Investment in a particular FuturesAccess Fund equals
or exceeds $5,000,000, if that Investor invests or exchanges into another
FuturesAccess Fund in which such Investor's FuturesAccess Investment is less
than $5,000,000, such Investor shall not receive Class D Units in such other
FuturesAccess Fund (except as described immediately below).
New Investors whose initial subscription equals or exceeds $15,000,000 shall
be issued Class D Units in each FuturesAccess Fund in which they invest,
irrespective of whether such Investor's FuturesAccess Investments in any one
FuturesAccess Fund equals or exceeds $5,000,000. If an existing Investor,
whose FuturesAccess Investment is less than $15,000,000, makes an additional
subscription immediately after which such Investor's FuturesAccess Investment
equals or exceeds $15,000,000 (including the new subscription), the entire new
subscription shall be invested in Class D Units. The Investor's existing Units
shall not be converted to Class D Units, but all subsequent subscriptions and
exchanges made by such Investor will be for Class D Units.
Subscriptions made to all FuturesAccess Funds shall be aggregated for purposes
of determining whether an Investor is eligible to invest in Class D or Class I
Units.
Once an Investor is issued Class I or Class D Units, such Investor shall
continue to be issued Class I or Class D Units (as applicable) irrespective of
subsequent redemptions or Unit value depreciation; provided that, if an
Investor withdraws entirely from FuturesAccess or a particular FuturesAccess
Fund and subsequently reinvests, such Investor's Class I
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and/or Class D Unit eligibility shall be determined from the date of such
reinvestment as if such Investor had never previously participated in
FuturesAccess or such FuturesAccess Fund.
Xxxxxxx Xxxxx officers and employees invest in Class I Units without regard to
the $5,000,000 minimum "Program Investment" requirement. Such exemption from
the minimum FuturesAccess Investment requirement shall not be generally
available to other Investors.
Certain Xxxxxxx Xxxxx clients may invest in Class I or a customized Class of
Units on different terms than those described herein, depending on the type of
Xxxxxxx Xxxxx Account held by such clients. In addition, Systematic Momentum
FuturesAccess may from time to time offer to certain Xxxxxxx Xxxxx clients a
customized Class of Units having different financial terms than those
described herein or the Confidential Program Disclosure Document, provided
that doing so does not have a material adverse effect on existing Investors.
Such customized Classes will generally be designed for Investors who are
subject to additional fees on their investments in the FuturesAccess Funds
depending on the type of Xxxxxxx Xxxxx Account held by such Investors or other
reasons, and shall not be generally available to other Investors.
The amount of each Investor's Capital Contribution shall be set forth in such
Investor's FuturesAccess Program Subscription and Exchange Agreement Signature
Page. A FuturesAccess Program Subscription and Exchange Agreement (including
the FuturesAccess Program Subscription and Exchange Agreement Signature Page)
must be completed and accepted by the Sponsor prior to an Investor's initial
Capital Contribution if such Investor is not already an investor in
FuturesAccess. A new Program Subscription and Exchange Agreement Signature
Page must be submitted each time an existing Investor makes a Capital
Contribution or exchange.
The aggregate of all Capital Contributions shall be available to Systematic
Momentum FuturesAccess to carry out its objectives and purposes.
No Investor shall be obligated to make any additional Capital Contributions,
except as provided in Section 2.08.
No provision of this Agreement shall be construed as guaranteeing the return,
by any Sponsor Party or Systematic Momentum FuturesAccess, of all or any part
of the Capital Contribution(s) of any Investor.
SECTION 2.02. OPENING CAPITAL ACCOUNTS.
(a) There shall be established for each Unit of each Class on the
books of Systematic Momentum FuturesAccess, as of the first day of
each Accounting Period, an Opening Capital Account which, for the
Accounting Period as of the beginning of which such Unit is
issued, shall be the Capital Contribution made in respect of such
Unit and which, for each Accounting Period thereafter, shall be an
amount equal to the Closing Capital Account (determined as set
forth in Section 2.06) attributable to such Unit for the
immediately preceding Accounting Period.
(b) The Sponsor may, but shall not be required to, make Capital
Contributions to Systematic Momentum FuturesAccess from time to
time as new Units are issued, which shall be accounted for on a
Unit-equivalent basis and shall participate in the profits and
losses of the Units on the same basis as the Capital Accounts of
the Class D Units.
(c) For all purposes of this Agreement, references to Units shall be
deemed to include the Sponsor's Capital Account on a
Unit-equivalent basis (unless the context otherwise requires or
the reference is made explicit for greater certainty).
SECTION 2.03. FINANCIAL ALLOCATIONS AMONG THE UNITS. The net profits and
losses are allocated to each Class as provided in Section 2.06 and shall be
allocated equally among the Units of such Class. All Units of the same Class
shall have the same Net Asset Value.
SECTION 2.04. NET ASSET VALUE. For the purposes of this Agreement, unless the
context otherwise requires, "Net Assets" and "Net Asset Value" shall mean
assets less liabilities. For purposes of determining Opening Capital Accounts,
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Net Asset Value shall be determined as of the beginning of, and for purposes
of determining Closing Capital Accounts, Net Asset Value will be determined as
of the close of, business on the relevant valuation date.
(a) The assets of Systematic Momentum FuturesAccess shall include:
(i) all FuturesAccess Fund investments held by Systematic
Momentum FuturesAccess;
(ii) all cash on hand or on deposit in bank or other
interest-bearing accounts, including any interest accrued
thereon;
(iii) all bills, demand notes and accounts receivable;
(iv) all securities (including, without limitation, money-market
funds, Treasury bills and other short-term, interest-bearing
instruments), commodity interests, currency interests, swap
agreements and all other instruments owned or contracted for
by Systematic Momentum FuturesAccess;
(v) all interest accrued on any interest-bearing securities
owned by Systematic Momentum FuturesAccess except to the
extent that the same is included or reflected in the
valuation of such securities; and
(vi) all other assets of every kind and nature, including prepaid
expenses.
(b) The liabilities of Systematic Momentum FuturesAccess shall be
deemed to include the following (provided, however, that in
determining the amount of such liabilities, Systematic Momentum
FuturesAccess may calculate expenses of a regular or recurring
nature for any given period on an estimated basis in advance, and
may accrue the same in such manner as the Sponsor may deem
appropriate over such period):
(i) all bills and accounts payable;
(ii) all expenses accrued, reimbursable or payable; and
(iii) all other liabilities, present or future, including such
reserves as the Sponsor may (as contemplated by Section
2.04(g)), deem advisable.
(c) The Sponsor's Fees shall be determined, and Units' Capital
Accounts correspondingly reduced, after the allocation of the
other components of Net Asset Value, as described above.
(d) Operating expenses shall be allocated among the Units pro rata
based on their respective Net Asset Values as of the beginning of
the month.
(e) Extraordinary costs, if any, shall be allocated as incurred in
such manner as the Sponsor may deem to be fair and equitable.
(f) Organizational and initial offering costs shall be deducted from
Net Asset Value in installments as of the end of each of the first
60 calendar months after the initial issuance of the Units, as
contemplated by Section 2.05(b) (for financial and performance
reporting purposes, all such costs must be deducted from Net Asset
Value as of the date of such initial issuance).
(g) All Investors, by becoming party to this Agreement, hereby agree
and consent to the Sponsor's authority to establish whatever
reserves the Sponsor may determine to be appropriate in order to
cover losses, contingencies, liabilities, uncertain valuations and
other factors. Such authority shall extend to the Sponsor
establishing such reserves as the sponsor of underlying
FuturesAccess Funds. Any such reserves shall, unless the Sponsor
determines that such reserves are properly attributable to certain
but
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less than all outstanding Units, reduce the Net Asset Value of the
Units of each Class pro rata based on their respective Net Asset
Values, after reduction for accrued Sponsor's Fees, operating
expenses and extraordinary expenses until such time, if any, as
such reserves are reversed. Reserves, when reversed, shall be
similarly allocated among the Units then outstanding pro rata
based on their respective Net Asset Value (irrespective of whether
such Units were outstanding when the reserves were established).
(h) The Sponsor may suspend the calculation of Net Asset Value during
any period when one or more of the FuturesAccess Funds in which
Systematic Momentum FuturesAccess is invested is not reporting its
Net Asset Value. The Sponsor will give notice of any such
suspension to all Investors.
SECTION 2.05. SPONSOR'S FEES; OPERATING EXPENSES.
(a) The Sponsor shall receive monthly Sponsor's Fees, payable in
arrears of 1/12 of 1.50%, 2.50%, 0% and 1.10%, respectively, of
the aggregate Net Asset Value of the Class A, Class C, Class D and
Class I Units, in each case as of the close of business (as
determined by the Sponsor) on the last business day of each
calendar month (Net Asset Value for purposes of calculating the
Sponsor's Fees shall not be reduced by the accrued Sponsor's Fees
being calculated). The Sponsor's Fees shall be accrued monthly.
The Sponsor may waive or reduce Sponsor's Fees for certain
Investors without entitling any other Investor to any such waiver
or reduction.
(b) Systematic Momentum FuturesAccess shall reimburse the Sponsor for
the organizational and initial offering costs incurred by
Systematic Momentum FuturesAccess in respect of the initial
offering of the Units (of all Classes combined) in installments as
of the end of each of the first 60 calendar months of Systematic
Momentum FuturesAccess' operation, beginning with the end of the
first calendar month after the initial issuance of the Units.
Systematic Momentum FuturesAccess shall expense such costs over
the same 60-month schedule. If Systematic Momentum FuturesAccess
dissolves prior to the end of such 60 calendar-month period, any
remaining reimbursement obligation with respect to organizational
and initial offering costs shall be eliminated.
(c) The Sponsor's Fees, as well as operating expenses due to the
Sponsor (including: organizational and initial offering costs;
ongoing offering costs; administrative, custody, transfer,
exchange and redemption processing, legal, regulatory, filing,
tax, audit, escrow, accounting and printing costs; and
extraordinary expenses), shall be debited by the Sponsor directly
from Systematic Momentum FuturesAccess' account and paid to the
Sponsor, where appropriate, as if to a third party, not credited
to the Sponsor's Capital Account.
(d) Systematic Momentum FuturesAccess shall pay all transaction costs
relating to any direct investing done by it, as incurred.
(e) The Sponsor's Fees, but not reimbursement payments for
organizational and initial offering costs, shall be appropriately
pro rated in the case of partial calendar months.
(f) Systematic Momentum FuturesAccess shall pay all expenses,
including administrative and ongoing offering costs, as well as
any extraordinary expenses, incurred in its operations (including
the expenses of any services provided by the Sponsor, other than
in its capacity as Sponsor, or its affiliates); provided, that
Systematic Momentum FuturesAccess shall not pay any allocable
Sponsor overhead.
(g) The Sponsor retains outside service providers to supply tax
reporting, custody and accounting services to FuturesAccess.
Systematic Momentum FuturesAccess' operating costs will include
Systematic Momentum FuturesAccess' allocable share of the fees and
expenses of such service providers, as well as the fees and
expenses of any Xxxxxxx Xxxxx entity which may provide such (or
other) services in the future.
(h) The Capital Account of the Sponsor (if any) shall not be subject
to Sponsor's Fees.
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SECTION 2.06. ALLOCATION OF PROFITS AND LOSSES FOR FINANCIAL PURPOSES. As of
the end of each Accounting Period and before giving effect to any redemptions
then being made, the Closing Capital Account of each Class shall be determined
by adjusting the Opening Capital Account of each such Class as of the
beginning of such Accounting Period in the following manner:
(a) Any increase or decrease in the Net Asset Value of Systematic
Momentum FuturesAccess, after deduction of all operating expenses,
but prior to accrual of the Sponsor's Fees, during such Accounting
Period shall be credited pro rata, without any order or priority,
among: (i) each Class of Units; and (ii) the Sponsor's Capital
Account, if any, based in each case on the aggregate Opening
Capital Accounts attributable to each such Class of Units and the
Sponsor's Capital Account. Extraordinary expenses shall be
allocated as the Sponsor may determine.
(b) If the Closing Capital Account per Unit of any Class is reduced to
zero, any further decrease in the Net Asset Value per Unit shall
be allocated to the Sponsor's Capital Account, if any.
(c) The Sponsor's Fee shall be debited from each Class, in each case
after the Section 2.06(a) and (b) allocations are made.
(d) The Net Assets of each Class shall be divided equally among all
Units of such Class.
SECTION 2.07. ALLOCATION OF PROFITS AND LOSSES FOR INCOME TAX PURPOSES.
(a) A Tax Account shall be established for each Unit of each Class.
The Tax Accounts of all outstanding Units shall initially be equal
to each Unit's net purchase price (i.e., the subscription price
for such Unit reduced by any sales commissions) and shall
subsequently be increased by such Unit's share of the taxable and
tax-exempt income of Systematic Momentum FuturesAccess and
decreased by such Unit's share of the items of loss or expense and
nondeductible items of loss or expense of Systematic Momentum
FuturesAccess, as well as by any distributions.
(b) For federal income tax purposes, items of ordinary income and
loss, capital gain and capital loss shall, unless the Sponsor
believes that doing so would not equitably reflect the economic
experience of the Units, be allocated as of December 31 of each
year among the Units, in the following order and priority:
(i) Items of ordinary income and deduction generated by
Systematic Momentum FuturesAccess (as reported to it by the
FuturesAccess Funds in which it invests shall be allocated
pro rata among the Units which were outstanding during the
months in such year when such items of ordinary income and
deductions accrued.
(ii) Gains will be allocated FIRST, to Investors who have
redeemed Units during such year (including as of December
31), to the extent of the positive difference (if any)
between the amounts received or receivable upon redemption
and the respective Tax Account balances of the redeemed
Units. SECOND, gains will be allocated to Investors to the
extent of the positive difference (if any) between the
Capital Account balance and the Tax Account balance
attributable to their remaining Units. THIRD, gains will be
allocated among all outstanding Units based on their
respective Net Asset Values.
(iii) Losses shall be allocated FIRST, to Investors who have
redeemed Units during such year (including as of December
31), to the extent of the negative difference (if any)
between the amounts received or receivable upon redemption
and the respective Tax Account balances of the redeemed
Units. SECOND, losses shall be allocated to Investors to the
extent of the negative difference (if any) between the
Capital Account balance and Tax Account balance attributable
to their remaining Units. THIRD, losses shall be allocated
among all outstanding Units based on their respective Net
Asset Values.
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(iv) In the case of each of the FIRST and SECOND allocation
levels set forth in Sections 2.07(b)(ii) and (iii), if there
is insufficient gain or loss to make the complete allocation
required at such level, such allocation will be made pro
rata among all Units which are subject to an allocation at
such level in accordance with the respective amounts which
would have been allocated had a complete allocation been
possible.
(v) Sponsor's Fees, as well as the operating expenses (in each
case as adjusted to reflect the non-deductibility of all or
a portion of such Sponsor's Fees and operating expenses) and
extraordinary expenses, shall be allocated, for tax
purposes, to the Tax Accounts of the Units based on the
amount of the foregoing actually debited from the Units'
respective Capital Accounts.
(vi) Items of ordinary income and/or gain attributable to amounts
received by Systematic Momentum FuturesAccess from the
Trading Advisor for payment to the Sponsor shall be
specially allocated to the Sponsor.
(c) The character of items of income, gain, loss or deduction
(ordinary, short-term and long-term) and of the items required to
be separately stated by Section 702(a) of the Code shall be
allocated to the Investors pursuant to this Section 2.07 so as
equitably to reflect, without discrimination or preference among
Investors, the amounts credited or debited to the Units'
respective Capital Accounts pursuant to Section 2.06. Furthermore,
to the extent that the FuturesAccess Fund has a net long-term
capital gain or loss that may be subject to more than one maximum
federal income tax rate, allocations of such gain or loss shall be
made pro rata from among the amounts subject to each maximum tax
rate.
(d) In the case of Units which are transferred during a fiscal year,
the tax allocations shall be made to such Units as provided above.
The Tax Items so allocated will then be divided among the
transferor(s) and the transferee(s) based on the number of months
during such year that each held such Units, or in such other
manner as the Sponsor may deem equitable.
(e) Having in mind the principles of the allocations set forth above
in this Section 2.07 (to which all Investors consent by becoming
Investors), the Sponsor may nevertheless make such allocations of
items of ordinary income and gain, ordinary deduction and loss and
any items required to be separately stated by Section 702(a) of
the Code, as the Sponsor may deem fair and equitable -- even if
not consistent with the foregoing allocations -- in order to cause
the Tax Items allocated to the Investors, respectively, better to
take into account (as determined by the Sponsor) the Units'
respective Opening Capital Accounts and distributive shares of net
profit and net loss, any entry of new Investors, any redemptions,
any differences between income for tax purposes and for Net Asset
Value purposes, the differences between the Classes of Units and
any other special circumstances which may arise; provided,
however, that no such allocation by the Sponsor shall discriminate
unfairly against any Investor; and provided further, that the
Sponsor shall be under no obligation whatsoever to deviate from
the allocations set forth above.
(f) Systematic Momentum FuturesAccess may, to the extent practicable
(i.e., to the extent that Systematic Momentum FuturesAccess
receives gross tax allocations from the FuturesAccess Funds in
which it invests) allocate Tax Items on a gross rather than a net
basis.
(g) Allocations pursuant to this Section 2.07 are solely for purposes
of federal, state and local taxes and shall not affect, or in any
way be taken into account in computing, any Units' Capital Account
or share of net profits, net losses, other items or distributions.
(h) The tax allocations set forth in this Section 2.07 are intended to
allocate items of Systematic Momentum FuturesAccess' income,
gains, losses and deductions (ordinary, short-term and long-term)
in accordance with Sections 704(b) and 704(c) of the Code, and the
regulations thereunder, including, without limitation, the
requirements set forth therein regarding a "qualified income
offset."
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(i) The Sponsor may make such modifications to this Agreement as the
Sponsor believes may be required to comply with Section 704(c) of
the Code and the regulations thereunder.
(j) In the event that the Sponsor determines to issue a new Class of
Units, the foregoing tax allocations shall be adjusted so as
equitably to allocate tax items between or among the different
Classes.
SECTION 2.08. CHARGEBACKS TO CURRENT OR FORMER INVESTORS. Each Investor, by
subscribing for Units, agrees to repay, despite the fact that such Investor no
longer remains an Investor, to Systematic Momentum FuturesAccess any amount
(including interest at the rate set by the Sponsor in good faith from the date
of any payment of redemption or distribution proceeds to such Investor by
Systematic Momentum FuturesAccess) which the Sponsor may reasonably determine
to be due to Systematic Momentum FuturesAccess from such Investor as a result,
for example, of any claims arising (prior or subsequent to such Investor's
withdrawal from Systematic Momentum FuturesAccess) relating to events or
circumstances (whether known or unknown at the time of such Investor's
withdrawal) in existence while such Investor was an Investor or, subject to
the following paragraph, in the event that the Net Asset Value per Unit (of
any Class) at which such Investor was permitted to redeem is later determined
to have been overstated or otherwise miscalculated due to circumstances
(whether known or unknown at the time of such Investor's redemption) in
existence as of the date of redemption (either of the level of Systematic
Momentum FuturesAccess or at that of one of the underlying FuturesAccess Fund
in which it invest. In no event shall any provision of this Section 2.08
require an Investor to repay to Systematic Momentum FuturesAccess any amounts
in excess of the redemption proceeds received by such Investor from, or the
amounts distributed to such Investor by, Systematic Momentum FuturesAccess,
plus interest thereon as provided above.
In the event that the Sponsor determines that an amount paid by Systematic
Momentum FuturesAccess to a withdrawn or continuing Investor was less or more
than the amount which such Investor was, in fact, entitled to receive, the
Sponsor shall not (unless the Sponsor otherwise determines) attempt to make
appropriate adjusting payments to, or formally request appropriate adjusting
payments from, such withdrawn Investor or make retroactive adjustments to such
continuing Investor's Units in order to reflect such discrepancy, but rather
shall reflect such adjustments in the Accounting Period in which they become
known.
SECTION 2.09. PROCESSING OF SUBSCRIPTIONS.
(a) The Sponsor may admit new Investors to Systematic Momentum
FuturesAccess at such times and upon such notice (if any) as the
Sponsor may determine. Investors' Xxxxxxx Xxxxx Accounts will be
debited on or about the issuance date of such Units, and the
amount so debited, less any applicable sales commission, will be
invested directly in Systematic Momentum FuturesAccess. No
interest will be payable in respect of any such subscriptions.
(b) Members acknowledge that the admission of new Members may change
the overall allocation of Systematic Momentum FuturesAccess'
portfolio among the underlying FuturesAccess Funds.
(c) Pursuant to Securities and Exchange Commission Rule 15c2-4, any
subscriptions held in escrow during the initial offering period
pending release to Systematic Momentum FuturesAccess shall be held
by a bank independent of the Sponsor, its affiliates, and their
respective officers, employees, representatives and agents (each,
a "Sponsor Party" and, collectively, the "Sponsor Parties").
SECTION 2.10. VALUATION OF ASSETS. For all purposes of this Agreement,
including, without limitation, the determination of the Net Asset Value per
Unit of each Class, the assets of Systematic Momentum FuturesAccess shall be
valued according to the following principles:
(a) The Net Assets of Systematic Momentum FuturesAccess are its assets
less its liabilities determined in accordance with generally
accepted accounting principles and as described below.
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(x) Systematic Momentum FuturesAccess' investments in the
FuturesAccess Funds shall be valued by such FuturesAccess Funds.
(c) The Sponsor shall value any asset of Systematic Momentum
FuturesAccess not invested in a FuturesAccess Fund by applying the
following general principles:
(i) commodity interests and currency interests which are traded
on a United States exchange shall be valued at their
settlement on the date as of which the values are being
determined;
(ii) commodity interests and currency interests not traded on a
United States exchange shall be valued based upon policies
established by the Sponsor, generally based on prices as
reported by any reliable source selected by the Sponsor,
consistently applied for each variety of interest;
(iii) swap agreements shall be valued in the good faith discretion
of the Sponsor based on quotations received from dealers
deemed appropriate by the Sponsor;
(iv) bank and other interest-bearing accounts, Treasury bills and
other short-term, interest-bearing instruments shall be
valued at cost plus accrued interest;
(v) securities which are traded on a national securities
exchange shall be valued at their closing price on the date
as of which their value is being determined on the national
securities exchange on which such securities are principally
traded or on a consolidated tape which includes such
exchange, whichever shall be selected by the Sponsor, or, if
there is no closing price on such date on such exchange or
consolidated tape, at the prior day's closing price;
(vi) securities not traded on a national securities exchange but
traded over-the-counter shall be valued based on prices as
reported by any reliable source selected by the Sponsor;
(vii) money-market funds shall be valued at their net asset value
on the date as of which their value is being determined;
(viii) if on the date as of which any valuation is being made, the
exchange or market herein designated for the valuation of
any given assets is not open for business, the basis for
valuing such assets shall be such value as the Sponsor may
deem fair and reasonable;
(ix) all other assets, including securities traded on foreign
exchanges, and liabilities shall be valued in good faith by
the Sponsor, including assets and liabilities for which
there is no readily identifiable market value;
(x) the foregoing valuations may be modified by the Sponsor if
and to the extent that it shall determine that modifications
are advisable in order better to reflect the true value of
any asset; and
(xi) the Sponsor, as sponsor of each FuturesAccess Fund, may
reduce the valuation of any asset (or of a FuturesAccess
Fund) by reserves established, as contemplated by Section
2.04(g), to reflect losses, contingencies, liabilities,
uncertain valuations or other factors, which the Sponsor
determines reduce, or might reduce, the value of such asset
(or of a FuturesAccess Fund as a whole in the case of
reserves not specifically attributable to any particular
asset).
All determinations of value by the Sponsor shall be final and conclusive as to
all Investors, in the absence of manifest error, and the Sponsor shall be
absolutely protected in relying upon valuations furnished to the Sponsor by
third parties, provided that such reliance is in good faith.
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The Sponsor may suspend the calculation of Net Asset Value during any period
when any of the FuturesAccess Funds in which Systematic Momentum FuturesAccess
invests has done so.
SECTION 2.11. USE OF ESTIMATES. The Sponsor is authorized to make all Net
Asset Value determinations (including, without limitation, for purposes of
determining redemption payments and calculating Sponsor's Fees) on the basis
of estimated numbers (in most cases as estimated by the Sponsor itself as
sponsor of the respective FuturesAccess Funds). The Sponsor shall not (unless
the Sponsor otherwise determines) attempt to make any retroactive adjustments
in order to reflect the differences between such estimated and the final
numbers, but rather shall reflect such differences in the Accounting Period in
which final numbers become available. The Sponsor also shall not (unless the
Sponsor otherwise determines) revise Sponsor's Fee calculations to reflect
differences between estimated and final numbers (including differences which
have resulted in economic benefit to a Sponsor Party).
If, after payment of redemption proceeds, the Sponsor determines that
adjustment to the Net Asset Value of the redeemed Units is necessary, the
redeeming Investor (if the Net Asset Value is adjusted upwards) or the
remaining Investors (if the Net Asset Value is adjusted downwards) will bear
the risk of such adjustment. The redeeming Investor will neither receive
further distributions from, nor will it be required to reimburse, Systematic
Momentum FuturesAccess in such circumstances.
All Members acknowledge and agree that because Systematic Momentum
FuturesAccess will invest in multiple FuturesAccess Funds the likelihood of
there being material discrepancies between estimated and final Net Asset
Values is greater in the case of Systematic Momentum FuturesAccess than in the
case of any single FuturesAccess Fund.
SECTION 2.12. ACCOUNTING PRACTICES. All matters concerning FuturesAccess Fund
accounting practices shall be determined by the Sponsor on a fair and
equitable basis, and all such determinations shall be final and conclusive as
to all Investors. However, the Sponsor shall be under no obligation whatsoever
to make any deviations from the allocations set forth in this Article II.
In reporting Net Asset Values to Investors and third parties on an interim
basis, the Sponsor shall be entitled to accrue fees and payments due at the
end of a period as if such fees or payments were due (on a pro rata basis, if
appropriate) as of the end of an interim period within such period.
ARTICLE III
PARTICIPATION IN SYSTEMATIC MOMENTUM FUTURESACCESS PROPERTY;
REDEMPTIONS AND DISTRIBUTIONS
SECTION 3.01. NO UNDIVIDED INTERESTS IN SYSTEMATIC MOMENTUM FUTURESACCESS
PROPERTY. Each Unit shall represent an interest in Systematic Momentum
FuturesAccess, not an undivided interest in any property of the Systematic
Momentum FuturesAccess (including its investments in FuturesAccess Funds). The
Units shall constitute personal property for all purposes.
SECTION 3.02. REDEMPTIONS OF UNITS; EXCHANGES.
(a) Timing and Amount of Redemptions. Subject to this Section 3.02, an
Investor shall be entitled to redeem all or part of such
Investor's Units as of the end of any calendar month, upon giving
at least 10 days' written or oral notice. Investors who have
Xxxxxxx Xxxxx customer securities accounts may give such notice by
contacting their Xxxxxxx Xxxxx Financial Advisor, orally or in
writing; Investors who no longer have a Xxxxxxx Xxxxx customer
securities account must submit written notice of redemption, with
the signature guaranteed by a United States bank or broker-dealer,
to the Sponsor.
(b) No Redemption Fees. Systematic Momentum FuturesAccess shall not
charge any redemption fees.
(c) Payment of Redemptions. The Sponsor shall cause Systematic
Momentum FuturesAccess to distribute to redeeming Investors the
estimated Net Asset Value of the Units redeemed by them, generally
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approximately 10 business days after the effective date of
redemption, although there can be no assurance of the timing of
such payment.
Units which have been redeemed, but the proceeds of which have not yet been
paid, shall nevertheless be deemed to have ceased to be outstanding from the
effective date of redemption for all other purposes hereunder.
No interest shall be paid to Investors on redemption proceeds held pending
distribution. Systematic Momentum FuturesAccess shall retain any such
interest.
(d) Suspension of Redemptions. In the event that Systematic Momentum
FuturesAccess suspends the calculation of Net Asset Value, the
Sponsor shall, upon written notice to all affected Investors,
suspend any or all redemption requests (as well as any request to
exchange Units for units of other funds included in
FuturesAccess). Any unsatisfied redemption requests shall be
suspended until such time as Systematic Momentum FuturesAccess is
again able to calculate Net Asset Value. All Units subject to
suspended redemption requests shall continue to be treated as
outstanding for all purposes hereunder, as if no redemption
requests relating thereto had been submitted, until the effective
date of their suspended redemption. During any period in which
Systematic Momentum FuturesAccess has suspended redemptions,
Investors will not be able to exchange Units for units of other
FuturesAccess Funds.
If the Sponsor determines that a portion, but not all, of pending redemption
requests can be processed in due course, the requests of all Investors
submitting timely redemption requests with respect to any given redemption
date shall be satisfied pro rata (based on the aggregate Net Asset Value of
the Units requested to be redeemed by all Investors) from such funds as the
Sponsor determines are available for distribution.
In addition to the foregoing provisions of this Section 3.02(d), the Sponsor
may delay or suspend both the payment of redemption proceeds and the effective
date of redemptions if the Sponsor determines that not doing so would have
adverse consequences for the non-redeeming Investors.
(e) Exchanges. Investors may generally exchange Units for units in
other FuturesAccess Funds as described in the FuturesAccess
Program Subscription and Exchange Agreement and Signature Pages
thereto, as supplemented and amended from time to time. Any
circumstance leading to a delay or suspension of either redemption
dates or the receipt of the proceeds of redemptions from
Systematic Momentum FuturesAccess shall have a corresponding
effect on Investors' exercise of their Exchange Privileges
relating to Systematic Momentum FuturesAccess.
SECTION 3.03. WITHDRAWALS OF CAPITAL BY THE SPONSOR.
(a) The Sponsor may withdraw capital from its Capital Account(s), if
any, without notice to the Investors.
(b) To the extent Xxxxxxx Xxxxx has provided any "seed" capital to the
Fund, Xxxxxxx Xxxxx will redeem $50,000 of its Units (by aggregate
Net Asset Value) for each $50,000 in net client investments (i.e.,
subscriptions minus client redemptions and exchanges) received by
the Fund after it begins operation. Notwithstanding the foregoing,
Xxxxxxx Xxxxx may vary the foregoing redemption schedule upon
advance agreement with the Trading Advisor (e.g., Xxxxxxx Xxxxx
may agree not to begin withdrawing all or a portion of its initial
seed capital for a specified period of time) and may withdraw seed
capital at different times and on different terms than are
available to Investors.
SECTION 3.04. MANDATORY REDEMPTIONS.
(a) The Sponsor may mandatorily redeem part or all of the Units held
by a particular Investor if the Sponsor determines that (i) such
Investor's continued holding of Units could result in adverse
consequences to Systematic Momentum FuturesAccess, (ii) such
Investor has a history of excessive exchanges between different
FuturesAccess Funds and/or HedgeAccess funds that is contrary to
the purpose and/or efficient management of the Programs, (iii)
such Investor's investment in the Units, or aggregate investment
in
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FuturesAccess, is below the minimum level established by the
Sponsor (including any increase in such minimum level that the
Sponsor may implement in the future) or (iv) for any other reason.
(b) The Sponsor will mandatorily redeem all of Systematic Momentum
FuturesAccess' outstanding Units in the event that the Sponsor
concludes that it is no longer advisable to operate Systematic
Momentum FuturesAccess or if the amount of assets invested in
Systematic Momentum FuturesAccess declines to a level that the
Sponsor believes makes the continued operation of Systematic
Momentum FuturesAccess impracticable or uneconomical.
(c) Units mandatorily redeemed shall be redeemed as of the specified
month-end without any further action on the part of the affected
Investor, and the provisions of Sections 3.02 and 3.07 shall
apply. In the event that the Sponsor mandatorily redeems any of an
Investor's Units, such Investor shall have the option to redeem
all of such Investor's Units as of the date fixed for redemption.
SECTION 3.05. MANDATORY REDEMPTIONS TO PAY TAXES. In the event that Systematic
Momentum FuturesAccess is required to pay or withhold state, local or other
taxes with respect to a particular Investor or Investors, Systematic Momentum
FuturesAccess may redeem an appropriate number of such Investor's or
Investors' Units as of the end of the Accounting Period immediately following
such payment in order to reimburse Systematic Momentum FuturesAccess for the
amount of such payment, together with interest on the amounts so paid at the
91-day Treasury xxxx rate as in effect as of the beginning of each calendar
month, starting with the calendar month in which such payment is made, through
the end of such Accounting Period.
SECTION 3.06. DISTRIBUTIONS. Systematic Momentum FuturesAccess distributions
shall be made in the sole discretion of the Sponsor. No distributions are
required.
SECTION 3.07. FORM OF DISTRIBUTION AND REDEMPTION PAYMENTS. No Investor shall
have the right to demand or receive any property other than cash upon
redemption. Distributions or payouts made to Investors shall be made in cash.
SECTION 3.08. REMOVAL OF THE SPONSOR. Upon at least 60 days written notice to
the Sponsor and all Investors in Systematic Momentum FuturesAccess, the
Sponsor may be required to withdraw as manager of Systematic Momentum
FuturesAccess by a vote of Investors owning not less than 50% of the
outstanding Units (by Net Asset Value), not including Units held by Sponsor
Parties. Any such removal shall be effective as of the end of the calendar
quarter in which such vote occurs.
ARTICLE IV
WITHDRAWAL OF THE SPONSOR AND INVESTORS
SECTION 4.01. WITHDRAWAL OF THE SPONSOR.
(a) The Sponsor may withdraw from Systematic Momentum FuturesAccess at
any time, without any breach of this Agreement, upon 90 calendar
days' written notice to the Investors. Withdrawal of the Sponsor
shall not dissolve Systematic Momentum FuturesAccess if at the
time there is at least one other manager remaining; however, all
Investors shall be entitled to redeem their Units, in total and
not in part, as of the effective date of any such withdrawal by
the Sponsor, unless an entity affiliated with the Sponsor remains
as a manager of Systematic Momentum FuturesAccess. Nothing in this
Section 4.01(a) shall, however, restrict the Sponsor from
assigning and delegating its rights and obligations under this
Agreement to an affiliate of the Sponsor upon notice (which need
not be prior notice) to the Investors or in connection with the
sale of all or a material portion of the Sponsor's equity or
assets.
(b) Withdrawal of the last remaining manager shall dissolve Systematic
Momentum FuturesAccess.
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SECTION 4.02. WITHDRAWAL OF AN INVESTOR. An Investor shall withdraw from
Systematic Momentum FuturesAccess upon redemption of all of such Investor's
outstanding Units. Withdrawal of an Investor shall not be a cause for
dissolution of Systematic Momentum FuturesAccess.
SECTION 4.03. STATUS AFTER WITHDRAWAL. Except to the extent provided in
Section 2.08 or Section 7.02, each Investor upon redemption of the last of
such Investor's Units shall cease to have any rights under this Agreement.
ARTICLE V
MANAGEMENT
SECTION 5.01. AUTHORITY OF THE SPONSOR.
(a) The management and operation of Systematic Momentum FuturesAccess
and the determination of its policies shall be vested exclusively
in the Sponsor. The Sponsor shall have the authority and power on
behalf and in the name of Systematic Momentum FuturesAccess to
carry out any and all of the objectives and purposes of Systematic
Momentum FuturesAccess set forth in Section 1.01, and to perform
all acts and enter into and perform all contracts and other
undertakings which the Sponsor may deem necessary or advisable in
connection with such objectives and purposes or incidental
thereto. All actions and determinations to be made by the Sponsor
hereunder shall, unless otherwise expressly provided, be made in
the Sponsor's sole and absolute discretion.
(b) The Sponsor is specifically authorized to manage Systematic
Momentum FuturesAccess' cash flow, including through paying its
costs by bank or other borrowings.
SECTION 5.02. SERVICE PROVIDERS; INVESTMENTS; ACCOUNTS. The Sponsor is hereby
authorized and empowered to carry out and implement any and all of the
objectives and purposes of Systematic Momentum FuturesAccess, including and
without limiting the generality of the foregoing:
(a) to invest in and redeem from, allocating and reallocating
Systematic Momentum FuturesAccess' capital among, the various
FuturesAccess Funds;
(b) to engage attorneys, accountants, agents and other persons as the
Sponsor may deem necessary or advisable;
(c) to open, maintain and close accounts, including margin,
discretionary and cash management accounts, with brokers, dealers,
counterparties or other persons (in each case, including
affiliates of the Sponsor) and to pay the customary fees and
charges applicable to transactions in, or the maintenance of, all
such accounts;
(d) to invest in money-market funds (including funds sponsored by
affiliates of the Sponsor), Treasury bills or other short-term,
interest-bearing instruments;
(e) to open, maintain and close bank and other interest-bearing and
non-interest-bearing accounts; and
(f) to enter into, make and perform such contracts, agreements and
other undertakings as the Sponsor may deem necessary, advisable or
incidental to the conduct of the business of Systematic Momentum
FuturesAccess.
SECTION 5.03. ACTIVITIES OF THE SPONSOR PARTIES.
(a) The respective Sponsor Parties will not devote their full business
time, or any material portion of their business time, to
Systematic Momentum FuturesAccess, as each is involved in the
management of numerous other client and proprietary accounts.
However, the Sponsor hereby agrees to devote to the objectives and
purposes of Systematic Momentum FuturesAccess such amount of the
business time of its officers and employees as the Sponsor shall
deem necessary for the management of the affairs of
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Systematic Momentum FuturesAccess; provided, however, that nothing
contained in this Section 5.03(a) shall preclude any Sponsor Party
from acting as a director, stockholder, officer or employee of any
corporation, a trustee of any trust, a partner of any partnership,
a manager or member of any other limited liability company or an
administrative official of any other business or governmental
entity, or from receiving compensation for services rendered
thereto, from participating in profits derived from investments in
any such entity or from investing in any securities or other
property for such person's own account.
(b) As contemplated by Section 2.05(g), the Sponsor retains outside
service providers to supply certain services to FuturesAccess,
including, but not limited to: tax reporting, custody, accounting
and escrow services to FuturesAccess. Operating costs include
Systematic Momentum FuturesAccess' allocable share of the fees and
expenses of such (or other) service providers, as well as the fees
and expenses of any Sponsor Party which may provide such (or
other) services in the futures.
SECTION 5.04. SERVICES PERFORMED FOR SYSTEMATIC MOMENTUM FUTURESACCESS. Any
Sponsor Party may perform administrative services for Systematic Momentum
FuturesAccess, without such Sponsor Party waiving its fees for such services.
SECTION 5.05. INTERESTED PARTIES. The fact that a Sponsor Party or an Investor
is directly or indirectly interested in or connected with Systematic Momentum
FuturesAccess or a related party with which or with whom Systematic Momentum
FuturesAccess has dealings, including but not limited to the Sponsor's sharing
in the Management Fees paid and Performance Fee paid by the underlying
FuturesAccess Funds in which the Sponsor invests, the receipt or rebate of
other advisory and/or management fees, brokerage commissions, "bid-ask"
spreads, xxxx-ups or other expenses, shall not preclude such dealings or make
them void or voidable; and neither Systematic Momentum FuturesAccess nor any
of the Investors shall have any rights in or to any such dealings or in or to
any profits derived therefrom.
SECTION 5.06. EXCULPATION. The Sponsor Parties shall not be liable to
Systematic Momentum FuturesAccess or any Investor for any claims, costs,
expenses, damages or losses arising out of or in connection with this
Agreement, the Sponsor acting as manager of Systematic Momentum FuturesAccess,
Systematic Momentum FuturesAccess in general or the offering of the Units, for
any conduct undertaken or omitted in good faith, and in the belief that such
conduct or omission was in, or not opposed to, the best interests of
Systematic Momentum FuturesAccess; provided, that such conduct or omission did
not constitute gross negligence or intentional misconduct on the part of such
Sponsor Party.
No Sponsor Party shall be liable to Systematic Momentum FuturesAccess or any
Investor for failure to obtain for any FuturesAccess Fund or Systematic
Momentum FuturesAccess the lowest negotiated brokerage commission rates, or to
combine or arrange trading orders so as to obtain the lowest brokerage
commission rates with respect to any transaction on behalf of any
FuturesAccess Fund or for the failure to recapture, directly or indirectly,
any brokerage commissions for the benefit of the FuturesAccess Fund or
Systematic Momentum FuturesAccess.
No Sponsor Party shall be liable to Systematic Momentum FuturesAccess or any
Investor for claims, costs, expenses, damages or losses due to circumstances
beyond any Sponsor Party's control, or due to the negligence, dishonesty, bad
faith or misfeasance of any third party chosen by a Sponsor Party in good
faith.
In no respect by way of limiting the foregoing exculpatory provisions but
rather by way of greater certainty, no Sponsor Party shall be liable to
Systematic Momentum FuturesAccess or any Investor for any actions or omissions
of: (i) the trading advisor for any FuturesAccess Fund; (ii) any broker,
dealer or counterparty unaffiliated with Xxxxxxx Xxxxx chosen by a Sponsor
Party in good faith; or (iii) any broker, dealer or counterparty chosen by the
trading advisor for any FuturesAccess Fund.
Affiliates of the Sponsor will provide Systematic Momentum FuturesAccess with
futures brokerage, forward dealing and other counterparty and dealer services,
and shall receive compensation in connection therewith.
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SECTION 5.07. INDEMNIFICATION. Systematic Momentum FuturesAccess shall
indemnify and hold harmless the Sponsor Parties from and against any claims,
costs, expenses, damages or losses (including, without limitation, from and
against any judgment, settlement, attorneys' fees and other costs or expenses
incurred in connection with the defense of any actual or threatened action or
proceeding) suffered or sustained by any of them by reason of the fact that a
Sponsor Party is or was connected in any respect with Systematic Momentum
FuturesAccess; provided, that the conduct or omission which led to such claim,
cost, expense, damage or loss met the standard of exculpation set forth in
Section 5.06 above.
Systematic Momentum FuturesAccess shall advance payments asserted by a Sponsor
Party to be due under the preceding paragraph pending a final determination of
whether such indemnification is, in fact, due; provided, that such Sponsor
Party agrees in writing to return any amounts so advanced (without interest)
in the event such indemnification is finally determined not to be due.
Whether or not a Sponsor Party is entitled to indemnification hereunder shall
be determined by the judgment of independent counsel as to whether such
Sponsor Party has reasonable grounds for asserting that indemnification is so
due, unless otherwise determined by a court, arbitral tribunal or
administrative forum.
In the event Systematic Momentum FuturesAccess is made a party to any claim,
dispute or litigation, or otherwise incurs any loss or expense, as a result of
or in connection with any Investor's activities, obligations or liabilities
unrelated to Systematic Momentum FuturesAccess' business, such Investor shall
indemnify and reimburse Systematic Momentum FuturesAccess for all loss and
expense incurred, including attorneys' fees.
SECTION 5.08. FUTURESACCESS FUNDS' STANDARD OF LIABILITY AND INDEMNIFICATION.
The Members acknowledge and agree that each FuturesAccess Fund in which
Systematic Momentum FuturesAccess invests will apply the same standard of
liability and indemnification to the Sponsor in its capacity as sponsor of
such FuturesAccess Fund.
SECTION 5.09. INVESTORS' TRANSACTIONS. Nothing in this Agreement is intended
to prohibit any Investor from buying, selling or otherwise transacting in
securities, commodity interests, currency interests, swap agreements or other
instruments for such Investor's own account, including commodity interests,
currency interests, swap agreements, securities or other instruments which are
the same as those held by Systematic Momentum FuturesAccess or any
FuturesAccess Fund in which Systematic Momentum FuturesAccess invests.
SECTION 5.10. RELIANCE BY THIRD PARTIES. In dealing with the Sponsor acting on
behalf of Systematic Momentum FuturesAccess, no person shall be required to
inquire into the authority of the Sponsor to bind Systematic Momentum
FuturesAccess. Persons dealing with Systematic Momentum FuturesAccess shall
also be entitled to rely on a certification by the Sponsor with regard to the
authority of other persons to act on behalf of Systematic Momentum
FuturesAccess in any matter.
SECTION 5.11. REGISTRATION OF ASSETS. Any assets owned by Systematic Momentum
FuturesAccess may be registered in Systematic Momentum FuturesAccess' name, in
the name of a nominee or in "street name."
SECTION 5.12. LIMITATION ON AUTHORITY OF THE SPONSOR. The Sponsor shall not
have the authority without the consent of Investors holding more than 50% of
the outstanding Units (by Net Asset Value), not including Units held by
Sponsor Parties, then held by Investors to:
(a) do any act in contravention of this Agreement (other than pursuant
to the Sponsor's authority to unilaterally amend this Agreement,
as provided in Section 10.03);
(b) confess a judgment against Systematic Momentum FuturesAccess; or
(c) possess Systematic Momentum FuturesAccess property or assign
rights to specific FuturesAccess Fund property for other than a
FuturesAccess Fund purpose.
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ARTICLE VI
ADMISSION OF INVESTORS
SECTION 6.01. PROCEDURE AS TO NEW INVESTORS. The Sponsor may, as of the
beginning of any calendar month (or as of such other times as the Sponsor may
deem appropriate), admit one or more new Investors by issuing to such
Investor(s) Units of the appropriate Class. Each new Investor to FuturesAccess
shall execute and deliver an appropriate FuturesAccess Program Subscription
and Exchange Agreement, and each additional Capital Contribution (whether a
new subscription or an exchange) shall be accompanied by a new FuturesAccess
Program Subscription and Exchange Agreement Signature Page. Systematic
Momentum FuturesAccess may charge an Investor such amount as may be deemed
appropriate by the Sponsor to compensate Systematic Momentum FuturesAccess in
the case of any Capital Contribution received by Systematic Momentum
FuturesAccess after the day as of which the new Investor making such Capital
Contribution is admitted to Systematic Momentum FuturesAccess and such
Investor's Units are deemed to have been issued.
Admission of a new Investor shall not result in a dissolution of Systematic
Momentum FuturesAccess.
SECTION 6.02. PROCEDURE AS TO NEW MANAGERS. One or more additional managers
may be admitted to Systematic Momentum FuturesAccess by the Sponsor, without
the consent of any Investor, if, but only if, the additional manager or
managers are affiliates of the Sponsor or successors to all or a material
portion of the Sponsor's equity or assets. The Sponsor shall promptly notify
the Investors of the admission of any such affiliated manager or managers
(such notice need not, however, be prior notice). No manager or managers which
is not or are not affiliated with the Sponsor may be admitted to Systematic
Momentum FuturesAccess without the consent of Investors holding more than 50%
of the outstanding Units (by Net Asset Value), not including Units held by
Sponsor Parties, then held by Investors; provided, that the foregoing
restriction shall not apply in the case of a sale of all or a material portion
of the Sponsor's equity or assets.
ARTICLE VII
BOOKS OF ACCOUNT; AUDITS; REPORTS TO INVESTORS
SECTION 7.01. BOOKS OF ACCOUNT. The books of account of Systematic Momentum
FuturesAccess shall be maintained in accordance with generally accepted
accounting principles under the accrual basis of accounting by or under the
supervision of the Sponsor and shall be open to inspection by any Investor or
such Investor's representative during regular business hours; provided,
however, that such books and records shall only be available for inspection
pursuant to a valid, non-commercial purpose related to an Investor's status as
an Investor.
SECTION 7.02. ANNUAL AUDIT. The accounts of Systematic Momentum FuturesAccess
shall be audited as of the close of each fiscal year by an independent public
accounting firm (the "Accountant") selected by the Sponsor and in accordance
with the applicable Commodity Futures Trading Commission regulations.
The Sponsor or its agents shall cause to be prepared and mailed to each
Investor, including Investors who have redeemed all of their Units and
withdrawn but who were Investors at any time during a fiscal year, audited
financial statements and a report prepared by the Accountant, setting forth as
of the end of such fiscal year:
(a) the assets and liabilities of Systematic Momentum FuturesAccess;
(b) the net capital appreciation or depreciation of Systematic
Momentum FuturesAccess for such fiscal year;
(c) the Net Asset Value of Systematic Momentum FuturesAccess as of the
end of such fiscal year; and
(d) the Net Asset Value per Unit of each Class as of the end of such
fiscal year.
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The Sponsor shall not be required to provide Investors with an annual audit in
respect of any given year by any particular date in the following year, nor
shall the Net Asset Value of the Units be audited as of any date other than
the end of a fiscal year.
The Investors acknowledge that the Sponsor will be unable to provide the
Investors with Systematic Momentum FuturesAccess' audited financial statements
until the Sponsor has received the audited financial statements from the
underlying FuturesAccess Funds in which Systematic Momentum FuturesAccess
invests.
The Sponsor or its agents shall cause each Investor, including former
Investors who were Investors at any time during such fiscal year, to be
furnished with all information relating to Systematic Momentum FuturesAccess
necessary to enable such Investor to prepare such Investor's federal income
tax return; provided, that all Investors acknowledge and agree that such
information may initially be provided in the form of estimates pending
completion of Systematic Momentum FuturesAccess' audit for such fiscal year,
and that Investors may be required to obtain extensions of the date by which
their federal and state income tax returns must be filed. The Sponsor will
have no liability to any Investor as a result of such Investor being required
to obtain any such extensions.
SECTION 7.03. INTERIM REPORTS. From time to time, but no less frequently than
monthly, the Sponsor shall cause to be prepared and delivered (at the expense
of Systematic Momentum FuturesAccess), to each Investor interim reports
indicating Systematic Momentum FuturesAccess' estimated results of operations
and presenting such other matters concerning Systematic Momentum
FuturesAccess' operations as the Sponsor may deem appropriate as well as those
required by the applicable Commodity Futures Trading Commission regulations.
The estimated performance of Systematic Momentum FuturesAccess will be
available upon request to the Sponsor by any Investor.
ARTICLE VIII
CONFLICTS OF INTEREST
SECTION 8.01. INVESTORS' CONSENT. Each Investor, by subscribing for Units,
gives full and informed consent to the conflicts of interest to which the
Sponsor Parties are subject in their operation of Systematic Momentum
FuturesAccess, as disclosed in the Memorandum and as contemplated herein
(including without limitation the Sponsor sharing in the management fees paid
and the performance allocations made with respect to Systematic Momentum
FuturesAccess' investment in the FuturesAccess Funds, whether such sharing is
achieved directly or through the FuturesAccess Fund's special allocation to
the Sponsor of such shared Management Fees and Performance Fees), and
covenants not to object to or bring any proceedings against any Sponsor Party
relating to any such conflicts of interest; provided, that such Sponsor Party
complies with the standard of exculpation set forth in Section 5.06.
In addition to the provisions of the preceding paragraph, the Sponsor is
hereby specifically authorized to invest Systematic Momentum FuturesAccess'
assets in FuturesAccess Funds which direct transactions to Sponsor Parties.
SECTION 8.02. INVESTORS' REPRESENTATIVE.
(a) An Investors' Representative -- a professional services firm that
is independent of the Sponsor and its affiliates and that does not
otherwise perform material services for the Sponsor or any
affiliated entities (other than as an Investors' Representative
for other funds) -- may be appointed by the Sponsor from time to
time as a means of providing (or withholding) the informed consent
of Investors required for Systematic Momentum FuturesAccess to
enter into certain transactions which otherwise may be
inappropriate or impermissible due to the conflicts of interest
involved (for example, allocations to FuturesAccess Funds in which
the Sponsor or its affiliates have a substantial proprietary
interest). The transactions submitted to the Investors'
Representative for consent will typically be transactions which
the Sponsor believes to be in the best interests of Systematic
Momentum FuturesAccess but which, nevertheless, may require
Investor consent under Section 206(3) or other applicable
provisions of the Investment Advisers Act of 1940 (the "Advisers
Act"). The role of the Investors' Representative will not be to
make investment recommendations or pricing determinations nor to
review the merits of any transaction presented to it, but only to
confirm that the conflicts of interest involved have been resolved
and that Systematic Momentum FuturesAccess enters into such
transactions on an arm's length basis.
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The Investors' Representative would be exculpated and indemnified
to the same extent as the Sponsor.
(b) The Sponsor has initially appointed Xxxxxx X. Xxxx, Xx. &
Associates, L.L.C. to act as the Investors' Representative. The
Sponsor will notify Investors of any change in the appointment of
the Investors' Representative and will report annually to
Investors all transactions approved by the Investors'
Representative during the fiscal-year period then ended. The
Sponsor may resolve conflict of interest situations itself without
referring the matter to the Investors' Representative, unless
otherwise required by law.
(c) By subscribing for Units in Systematic Momentum FuturesAccess,
each Investor expressly authorizes the Sponsor to appoint an
Investors' Representative to act as their agent in consenting (or
withholding consent) to transactions presented to it.
ARTICLE IX
DISSOLUTION AND WINDING UP
SECTION 9.01. EVENTS OF DISSOLUTION. Systematic Momentum FuturesAccess will be
dissolved, the affairs of Systematic Momentum FuturesAccess will be wound up
and Systematic Momentum FuturesAccess will be liquidated upon the occurrence
of any of the following events:
(a) bankruptcy, dissolution, withdrawal or other termination of the
last remaining manager of Systematic Momentum FuturesAccess;
(b) any event which would make unlawful the continued existence of
Systematic Momentum FuturesAccess;
(c) withdrawal of the Sponsor unless at such time there is at least
one remaining manager; or
(d) the determination by the Sponsor to liquidate the FuturesAccess
Fund and wind up its affairs.
Nothing in this Section 9.01 shall impair the right of Investors holding more
than 50% of the outstanding Units then held by Investors to vote within 90
calendar days of any of the foregoing events of dissolution to continue
Systematic Momentum FuturesAccess on the terms set forth herein (if it is
lawful to do so), and to appoint one or more managers for Systematic Momentum
FuturesAccess.
SECTION 9.02. DISSOLUTION. Upon the dissolution of Systematic Momentum
FuturesAccess, the Sponsor (or, if the Sponsor has withdrawn, such other
liquidator as the Investors may -- by vote of more than 50% of the outstanding
Units (by Net Asset Value), not including Units held by Sponsor Parties,
select -- shall wind up Systematic Momentum FuturesAccess' affairs and, in
connection therewith, shall distribute Systematic Momentum FuturesAccess'
assets in the following manner and order:
(a) FIRST, to the payment and discharge of all claims of creditors of
Systematic Momentum FuturesAccess (including creditors who are
Investors);
(b) SECOND, to the establishment of such reserves as the Sponsor (or
such other liquidator) may consider reasonably necessary or
appropriate for any losses, contingencies, liabilities or other
matters of or relating to Systematic Momentum FuturesAccess;
provided, however, that if and when the Sponsor (or such other
liquidator) determines that the causes for such reserves have
ceased to exist, the monies, if any, then held in reserve shall be
distributed in the manner hereinafter provided; and
(c) THIRD, after making all final allocations contemplated by Article
II (and for such purposes treating the date of dissolution as if
it were a December 31), to the distribution in cash of the
remaining assets of Systematic Momentum FuturesAccess among the
Investors in accordance with the positive balance in each such
Investor's Closing Capital Account as of the last day of the
Accounting Period in which Systematic Momentum FuturesAccess'
dissolution occurs. Any assets distributed in kind in the
liquidation
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shall be valued, for purposes of such distribution, in accordance
with Section 2.10 as of the date of distribution, and any
difference between such value and the carrying value of such
assets shall, to the extent not otherwise taken into account in
determining Net Asset Value, be deemed to constitute income or
loss to Systematic Momentum FuturesAccess.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. INVESTORS NOT TO CONTROL. The Investors shall take no part in
the conduct or control of Systematic Momentum FuturesAccess' business and
shall have no authority or power to act for or to bind Systematic Momentum
FuturesAccess.
SECTION 10.02. POWER OF ATTORNEY. Each Investor, by subscribing for Units,
does hereby constitute and appoint the Sponsor, as such Investor's true and
lawful representative and attorney-in-fact, with authority in such Investor's
name, place and stead to make, execute, sign and file a Certificate of
Formation of Systematic Momentum FuturesAccess, any amendments thereto
authorized herein, any amendments to this Agreement authorized herein, and all
such other instruments, documents and certificates which may, from time to
time, be required by, or deemed advisable by the Sponsor under, the laws of
the United States of America, the State of Delaware, the State of New Jersey,
the State of New York or any other state or political subdivision in which the
Sponsor shall determine that Systematic Momentum FuturesAccess shall do
business, to effectuate, implement and continue the valid existence of
Systematic Momentum FuturesAccess.
SECTION 10.03. AMENDMENTS; CONSENTS. This Agreement may not be modified or
amended without the written consent of the Sponsor.
This Agreement may be modified or amended at any time with the consent of the
Sponsor and by Investors holding more than 50% of the outstanding Units (by
Net Asset Value), not including Units held by Sponsor Parties.
For all purposes of this Agreement, except as provided in the last paragraph
of this Section 10.03, when the consent of Investors is required, the
affirmative consent of Investors is not required; "negative consent" by
failure to object in writing after reasonable notice of a proposed
modification or amendment is sufficient -- 30 calendar days to be conclusively
presumed to constitute "reasonable notice" for such purposes.
The Sponsor may, without the consent of the Investors, modify or amend any
provision of this Agreement for any of the following purposes:
(a) to add to this Agreement any further covenants, restrictions,
undertakings or other provisions for the protection or benefit of
Investors;
(b) to cure any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with any
other provisions contained herein or in the Confidential Program
Disclosure Document;
(c) to cause the allocations contained in Article II to comply with
Section 704 of the Code or any other statutory provisions or
regulations relating to such allocations;
(d) to provide for the issuance of new Classes of Units, or to amend
the manner in which Units may be exchanged among funds in
FuturesAccess or between different Classes of Units, provided that
doing so is not adverse to outstanding Units (as contemplated by
Section 10.13); or
(e) to make any other change not materially adverse to the interests
of the Investors.
Notwithstanding anything in this Section 10.03 to the contrary, without the
affirmative written consent of each Investor affected thereby, no such
modification or amendment shall: reduce the liabilities, obligations or
responsibilities of the
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Sponsor (except that the Sponsor may take action to admit any person or entity
which is an affiliate of the Sponsor as a substitute manager, and to provide
for the Sponsor subsequently to withdraw from Systematic Momentum
FuturesAccess or to provide for the Sponsor to withdraw from Systematic
Momentum FuturesAccess without admitting any such substitute manager to
Systematic Momentum FuturesAccess); increase the liabilities of Investors; or
reduce the participation of Investors in the profits and losses of Systematic
Momentum FuturesAccess or in any distributions made by Systematic Momentum
FuturesAccess as set forth herein.
SECTION 10.04. NOTICES. Any notice to Systematic Momentum FuturesAccess or the
Sponsor relating to this Agreement shall be in writing and delivered in person
or by registered or certified mail and addressed to the Sponsor at the
principal office of Systematic Momentum FuturesAccess. All notices and reports
sent to the Investors shall be addressed to each Investor at the address set
forth in such Investor's FuturesAccess Program Subscription and Exchange
Agreement (including the FuturesAccess Program Subscription and Exchange
Agreement Signature Page). Any Investor may designate a new address by written
notice to the Sponsor. Unless otherwise specifically provided in this
Agreement, a notice shall be deemed to have been given to Systematic Momentum
FuturesAccess or the Sponsor when actually received by the Sponsor, and to
have been given to an Investor three business days after being deposited in a
post office or regularly maintained mailbox or when delivered in person. The
Sponsor may waive any notice requirement relating to notice to Systematic
Momentum FuturesAccess or to itself, but no such waiver shall constitute a
continuing waiver.
SECTION 10.05. LEGAL EFFECT; MANNER OF EXECUTION. This Agreement shall be
binding upon the Investors, the Sponsor and their respective permitted
successors and assigns. This Agreement shall inure to the benefit of the
foregoing parties as well as to the benefit of the Sponsor Parties.
This Agreement may be executed by power-of-attorney embodied in a
FuturesAccess Program Subscription and Exchange Agreement (including the
FuturesAccess Program Subscription and Exchange Agreement Signature Page) or
similar instrument with the same effect as if the parties executing the
FuturesAccess Program Subscription and Exchange Agreement (including the
FuturesAccess Program Subscription and Exchange Agreement Signature Page) or
similar instrument had all executed one counterpart of this Agreement;
provided, that this Agreement may also be executed in separate counterparts.
SECTION 10.06. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto and amends, restates, and supersedes all
prior agreements among any of the parties hereto with respect to the matters
referred to herein, and no other agreement, verbal or otherwise, shall be
binding as between the parties unless it shall be in writing and signed by the
party against whom enforcement is sought.
SECTION 10.07. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS. THE RIGHTS AND LIABILITIES OF THE
INVESTORS SHALL BE AS PROVIDED IN THE ACT, EXCEPT AS HEREIN OTHERWISE
EXPRESSLY PROVIDED.
SECTION 10.08. CONSENT TO JURISDICTION. All controversies arising hereunder or
in connection with the affairs of Systematic Momentum FuturesAccess shall be
brought in the state or federal courts located in New York, New York, and all
Investors hereby irrevocably consent to such jurisdiction and venue.
SECTION 10.09. "TAX MATTERS PARTNER"; TAX ELECTIONS. The Sponsor is designated
as the "Tax Matters Partner" for Systematic Momentum FuturesAccess and shall
be empowered to make or revoke any elections now or hereafter required or
permitted to be made by the Code or any state or local tax law.
Each Investor, by subscribing for Units, agrees not to treat any tax item on
such Investor's individual tax return in a manner inconsistent with the
treatment of such item by Systematic Momentum FuturesAccess, as reflected on
the Schedule K-1 or other information statement furnished by Systematic
Momentum FuturesAccess to such Investor, or to file any claim for refund
relating to any such Tax Item which would result in such inconsistent
treatment.
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Limited Liability Company Operating Agreement Dated as of March 8, 2007
SECTION 10.10. DETERMINATION OF MATTERS NOT PROVIDED FOR IN THIS AGREEMENT.
The Sponsor shall be empowered to decide, in its good faith judgment, any
questions arising with respect to Systematic Momentum FuturesAccess or to this
Agreement, and to provide for matters arising hereunder but which are not
specifically set forth herein, as the Sponsor may deem to be in, or not
opposed to, the best interests of Systematic Momentum FuturesAccess.
SECTION 10.11. NO PUBLICITY. Each Investor agrees that such Investor will in
no event provide information concerning Systematic Momentum FuturesAccess to
any third party, knowing that such third party may use such information in any
form of publication, newsletter or circular, whether publicly or privately
distributed. Each Investor's investment in Systematic Momentum FuturesAccess,
as well as the performance of such investment, shall be maintained on a
strictly confidential basis; provided, that the Sponsor may make use of
Systematic Momentum FuturesAccess' performance record in the ordinary course
of the Sponsor's business activities.
SECTION 10.12. SURVIVAL. The indemnity and exculpation provisions hereof, as
well as the obligations to settle accounts, shall survive the withdrawal of
any Investor as well as the dissolution of Systematic Momentum FuturesAccess.
SECTION 10.13. WAIVERS. The Sponsor may waive any provision of this Agreement
restricting the actions of Investors in respect of certain but not all
Investors provided that doing so will have no adverse effect on other
Investors.
SECTION 10.14. VOTING RIGHTS. The voting rights of the Units shall be
determined by their respective Net Asset Values. In determining the number of
Units entitled to vote or consent and the number of votes or consents needed
for approval of any matter for which such a vote or consent is provided for
herein, Units held by any Sponsor Party (including, without limitation, the
Sponsor's Capital Account, if any, on a Unit-equivalent basis) shall not be
counted.
SECTION 10.15. ISSUANCE OF DIFFERENT CLASSES.
(a) The Sponsor may, at any time and from time to time, issue
different Classes of Units, and may adjust the allocation, voting
and other provisions of this Agreement so as equitably to reflect
the issuance of such additional Classes. The Sponsor may also
alter the terms on which Units of any Class are sold, provided
that doing so does not adversely affect existing Investors.
(b) The fact that, for purposes of convenience, Units issued by
Systematic Momentum FuturesAccess shall be designated as being
Units of different "Classes" shall in no respect imply that these
Units constitute different classes of equity interests as opposed
to simply being subject to different fees.
SECTION 10.16. COMPLIANCE WITH THE ADVISERS ACT; SECURITIES LAWS.
(a) To the extent that any provision hereof may be construed in a
manner inconsistent with the Advisers Act, it is the express
intent of the Sponsor and the Investors that such provision be
interpreted and applied ab initio so as to comply with the
Advisers Act in all respects (even if doing so effectively amends
the terms of this Agreement).
(b) Nothing in this Agreement shall be deemed to constitute a waiver
by any Investor of such Investor's rights under any federal or
state securities laws.
* * * * * * *
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IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
respective representatives thereunto duly authorized.
INVESTORS: SPONSOR:
By: Xxxxxxx Xxxxx Alternative Xxxxxxx Xxxxx Alternative
Investments LLC Investments LLC
Attorney-in-Fact
By: /s/ Xxxx Xxxxxxxxxx By: /s/ Xxxx Xxxxxxxxxx
----------------------------- --------------------------
Xxxx Xxxxxxxxxx Xxxx Xxxxxxxxxx
Vice President and Manager Vice President and Manager
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Limited Liability Company Operating Agreement Dated as of March 8, 2007
