EXHIBIT 10.10
SECOND AMENDATORY AGREEMENT
THIS SECOND AMENDATORY AGREEMENT ("Agreement") is entered into by and
among the signatories hereto (the "Signatories") as of May __, 1999.
W I T N E S S E T H
WHEREAS, the Signatories (or certain thereof) have previously entered
into a Selling Agreement dated as of April 25, 1996, a Joint Venture Agreement
dated as of April 25, 1996, as amended by the Amendment thereto dated as of
November 10, 1997, a Customer Agreement dated as of July 15, 1996 (collectively,
and as amended by the Amendatory Agreement dated as of July 31, 1998, the
"Original Agreements") relating to the distribution of units of limited
partnership ("Units") in, and the operation, trading and safekeeping the assets
of, ML Strategic Allocation Fund L.P. (the "Partnership");
WHEREAS, all of the Original Agreements were filed as exhibits to the
Partnership's Registration Statement No. 33-80509, which became effective under
the Securities Act of 1933 (the "Securities Act") as of April 25, 1996 for the
initial offering of the Units (the "First Offering");
WHEREAS, the Partnership filed a Registration Statement (Reg. No.
333-47439) on March 6, 1998 pursuant to which the Partnership registered
2,000,000 additional Units for public sale (the "Second Offering");
WHEREAS, the Partnership filed a new Registration Statement (Reg. No.
333-________) on March 30, 1999 pursuant to which the Partnership registered
960,000 additional Units for public sale (the "Third Offering");
WHEREAS, Xxxxxxx Xxxxx Investment Partners Inc. ("MLIP") is the
general partner of the Partnership;
WHEREAS, all the Signatories other than JWH (the "MLIP Parties") are
affiliates of MLIP; and
WHEREAS, the Signatories wish to further amend the Original Agreements
to reflect the Third Offering and the operation, trading and safekeeping of the
assets of the Partnership thereafter, but without otherwise effecting any
substantive change therein.
NOW THEREFORE, the Signatories agree as follows.
1. DEFINED TERMS. Capitalized terms not otherwise defined herein
are used with the meanings set forth in the Original Agreements, as amended.
2. THE SELLING AGREEMENT. The Selling Agreement is hereby amended
to reflect the registration and public offering of an additional 960,000 Units
in the Third Offering. As the Partnership is an operating entity, there is no
minimum number of new Units which must be sold as of the beginning of any
calendar month during the Third Offering for subscription then to be accepted,
and -- as provided in the Selling Agreement in the case of the ongoing offering
of the Units following the initial Closing Date during the First Offering and
the Second Offering -- subscriptions are debited directly from investors'
Xxxxxxx Xxxxx Customer Securities Accounts as of each month-end settlement date
directly into the Partnership's account without being previously collected into
an escrow account.
The initial Closing of the Third Offering shall be subject to the same
closing conditions as was the initial Closing of each of the First Offering and
the Second Offering as stated in Section 8 of the Selling Agreement.
In all other respects, the terms of the Selling Agreement are restated
in their entirety and shall apply to the Third Offering.
3. THE JOINT VENTURE AGREEMENT. The Joint Venture Agreement is
hereby amended to reflect the registration and public offering of an additional
960,000 Units, the extension of the exclusivity arrangement contained in the
Joint Venture Agreement to May 31, 2000, and the relocation of the principal
place of business of the Joint Venture to the offices of MLIP in Plainsboro, New
Jersey. In all other respects, the terms of the Joint Venture Agreement are
restated in their entirety.
4. THE CUSTOMER AGREEMENT. The Customer Agreement is hereby amended
to reflect the fact that the interest credit arrangements shall be as set forth
under "Interest Income Arrangements" in the Prospectus.
5. REPRESENTATIONS AND WARRANTIES OF THE MLIP PARTIES. The MLIP
Parties, other than MLIP itself, hereby restate and reaffirm the representations
and warranties made by them in the Original Agreements in respect of such
Agreements as hereby amended (the "Amended Agreements").
6. REPRESENTATIONS AND WARRANTIES OF MLIP. MLIP represents and
warrants to the Signatories, as follows:
(a) The Partnership has provided to the Signatories and
filed with the SEC a registration statement on Form S-1 (Registration
No. 333-______), as filed
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with the SEC on March 30, 1999 for the registration of 960,000 Units
under the Securities Act, has filed two copies thereof with the CFTC
under the Commodity Act and one copy with the NFA in accordance with NFA
Compliance Rule 2-13. The term, "Registration Statement," shall, from
and after the declaration of the effectiveness of the Registration
Statement under the Securities Act on ______, 1999, refer to the
Registration Statement as it becomes effective, and the term,
"Prospectus" shall refer to the prospectus of the Partnership dated
_____, 1999. Except as required by law, the Partnership will not file
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus which shall be reasonably objected to in
writing by any Signatory, upon reasonable prior notice.
(b) The Certificate of Limited Partnership pursuant to
which the Partnership was formed and the Limited Partnership Agreement
each provides for the subscription for and sale of the Units; all
action required to be taken by MLIP and the Partnership as a condition
to the sale of the Units to qualified subscribers therefor has been,
or prior to the initial Closing Time of the Third Offering and
Subsequent Closing Times during the Third Offering will have been
taken; and, upon payment of the consideration therefor specified in
all accepted Subscription Agreements and Powers of Attorney, the Units
will constitute valid limited partnership interests in the
Partnership.
(c) The Partnership is a limited partnership duly organized
pursuant to the Certificate of Limited Partnership, the Limited
Partnership Agreement and the DRULPA and validly existing under the
laws of the State of Delaware with full power and authority to engage
in the trading of futures, forward and option contracts, as described
in the Prospectus; the Partnership has received a certificate of
authority to do business in the State of New Jersey as provided by the
New Jersey Uniform Limited Partnership Act.
(d) MLIP is duly organized and validly existing and in good
standing as a corporation under the laws of the State of Delaware and
in good standing as a foreign corporation under the laws of the State
of New Jersey and in each other jurisdiction in which the nature or
conduct of its business requires such qualification and the failure to
so qualify would materially adversely affect the Partnership or MLIP's
ability to perform its obligations hereunder.
(e) The Joint Venture, the Partnership and MLIP have
partnership or corporate power and authority under applicable law to
perform their respective obligations under the Joint Venture
Agreement, the Limited Partnership Agreement, the Customer Agreement,
and this Agreement (as the case may be), as described in the
Registration Statement and Prospectus.
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(f) The Registration Statement and Prospectus contain all
statements and information regarding the Joint Venture, the
Partnership and MLIP required to be included therein by the Commodity
Act and the rules and regulations thereunder. When the Registration
Statement became effective under the 1933 Act and at all times
subsequent thereto up to and including the initial Closing Time of the
Third Offering, the Registration Statement and Prospectus complied in
all material respects with the requirements of the 1933 Act, the
Commodity Act and the rules and regulations under such Acts. The
Registration Statement as of its effective date did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus as of its date of issue and at
the initial Closing Time of the Third Offering did not contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which such statements were made, not misleading.
This representation and warranty shall not, however, apply to any
statement or omission in the Registration Statement or Prospectus made
in reliance upon and in conformity with information relating to JWH
and furnished or approved in writing by JWH.
(g) Deloitte & Touche, the accountants who certified the
financial statements filed with the SEC as part of the Registration
Statement, are, with respect to the Partnership and MLIP, independent
public accountants as required by the 1933 Act and the SEC
Regulations.
(h) The financial statements filed as part of the
Registration Statement and those included in the Prospectus present
fairly the financial position of the Partnership and of MLIP as of the
dates indicated; and said financial statements have been prepared in
conformity with generally accepted accounting principles (as described
therein), applied on a basis which is consistent in all material
respects for each balance sheet date presented.
(i) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material adverse change in the condition, financial or
otherwise, business or prospects of the Partnership or MLIP, whether
or not arising in the ordinary course of business.
(j) The Limited Partnership Agreement, the Joint Venture
Agreement and this Agreement have each been duly and validly
authorized, executed and delivered by MLIP on behalf of the
Partnership or by the Partnership on behalf of the Joint Venture and
each constitutes a legal, valid and binding agreement of MLIP, the
Partnership or the Joint Venture (as applicable) enforceable in
accordance with its terms. The Customer Agreement has been duly and
validly
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authorized, executed and delivered by the Partnership on behalf of the
Joint Venture.
(k) The execution and delivery of the Joint Venture
Agreement, the Limited Partnership Agreement, the Customer Agreement,
and this Agreement, the incurrence of the obligations set forth in
each of such agreements and the consummation of the transactions
contemplated therein and in the Prospectus will not constitute a
breach of, or default under, any instrument by which the Joint
Venture, the Partnership or MLIP, as the case may be, is bound or any
order, rule or regulation applicable to the Joint Venture, the
Partnership or MLIP of any court or any governmental body or
administrative agency having jurisdiction over the Joint Venture, the
Partnership or MLIP.
(l) There is not pending, or, to the best of MLIP's
knowledge threatened, any action, suit or proceeding before or by any
court or other governmental body to which the Joint Venture, the
Partnership or MLIP is a party, or to which any of the assets of the
Joint Venture, the Partnership or MLIP is subject, which is not
referred to in the Prospectus and which might reasonably be expected
to result in any material adverse change in the condition (financial
or otherwise), business or prospects of the Joint Venture, the
Partnership or MLIP or is required to be disclosed in the Prospectus
pursuant to applicable CFTC regulations. MLIP has not received any
notice of an investigation or warning letter from the NFA or the CFTC
regarding non-compliance by MLIP with the Commodity Act or the
regulations thereunder.
(m) MLIP has all Federal and state governmental, regulatory
and commodity exchange approvals and licenses, and has effected all
filings and registrations with Federal and state governmental agencies
required to conduct its business and to act as described in the
Registration Statement and Prospectus or required to perform its
obligations as described under the Limited Partnership Agreement and
this Agreement (including, without limitation, registration as a
commodity pool operator under the Commodity Act and membership in the
NFA as a commodity pool operator), and the performance of such
obligations will not contravene or result in a breach of any provision
of its certificate of incorporation, by-laws or any agreement, order,
law or regulation binding upon it. The principals of MLIP identified
in the Registration Statement are all of the principals of MLIP, as
"principals" is defined by the CFTC regulations. Such principals are
duly registered as such on MLIP's commodity pool operator Form 7-R
registration.
(n) Neither the Joint Venture nor the Partnership requires
any Federal or state governmental, regulatory or commodity exchange
approvals or licenses, or needs to effect any filings or registrations
with any Federal or state governmental agencies in order to conduct
its businesses and to act as contemplated by the Regi-
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stration Statement and Prospectus and to issue and sell the Units (other
than filings relating solely to the offering of the Units), and to trade in
the commodity markets.
7. COVENANTS. The Signatories each restate and recommit to the
respective covenants made by them in the Original Agreements.
8. FURTHER ASSURANCES AND DOCUMENTATION. The Signatories each agree
that they will execute all such other documents and instruments as any Signatory
may reasonably request of any other Signatory to evidence the intent and purpose
of this Amendatory Agreement so as to achieve the purpose of providing under the
Selling Agreement for the Third Offering.
9. EXPENSES. MLIP shall advance all costs incurred by any of the
Signatories in the preparation, review, execution and delivery of this
Agreement. Such costs shall constitute "ongoing offering costs" subject to
reimbursement by the Partnership, as described in the Prospectus.
IN WITNESS WHEREOF, the undersigned have hereto set their hands as of
the day and year first above written.
ML JWH STRATEGIC ALLOCATION FUND L.P.
By: Xxxxxxx Xxxxx Investment Partners Inc.
General Partner
By:
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Name:
Title:
XXXXXXX XXXXX INVESTMENT PARTNERS INC.
By:
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Name:
Title:
XXXXXXX XXXXX FUTURES INC.
By:
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Name:
Title:
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XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX,
INCORPORATED
By:
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Name:
Title:
XXXX X. XXXXX & COMPANY, INC.
By:
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Name:
Title:
ML JWH STRATEGIC JOINT VENTURE
By: ML JWH Strategic Allocation Fund L.P.
Manager
By: Xxxxxxx Xxxxx Investment Partners Inc.
General Partner
By:
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Name:
Title:
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