EXHIBIT 1.1
THE FRONTIER FUND
Denver, Colorado
__________, 2005
SELLING AGENT AGREEMENT
Equinox Fund Management, LLC, a Delaware limited liability company (the
"Managing Owner"), is the managing owner of The Frontier Fund (the "Trust"), a
statutory trust organized under Chapter 38 of Title 12 of the Delaware Code
(the "Delaware Act"). Wilmington Trust Company, a Delaware banking company (the
"Trustee"), is the trustee of the Trust and has delegated substantially all
responsibility for the management of the Trust's business and affairs to the
Managing Owner. The Trust has been formed primarily for the purpose of trading,
buying, selling, spreading or otherwise acquiring, holding or disposing of a
diversified portfolio of commodity futures, forward and options contracts.
Units of beneficial interest in the Trust (the "Units") will be issuable in
multiple series (the "Series"), each separately managed by one or more
different trading advisors (collectively, the "Trading Advisors"), each of
which is registered with the Commodity Futures Trading Commission (the "CFTC")
as a commodity trading advisor under the Commodity Exchange Act, as amended
(the "CE Act"), and is a member of the National Futures Association (the "NFA")
in such capacity. Each Series of Units will be separately valued and its assets
will be segregated from the assets of the other Series. Holders of Units
("Limited Owners") will have the right to exchange, through redemption and
purchase, Units of one Series for Units of any other Series. The Trust proposes
to offer to the public and to sell to Subscribers (as hereinafter defined)
acceptable to the Managing Owner, the Units upon the terms and subject to the
conditions set forth in this Selling Agent Agreement (the "Agreement") and the
Registration Statement (as hereinafter defined) and the Prospectus (as
hereinafter defined) included therein referred to below. A maximum of
$875,000,000 for the Balanced Series, $110,000,000 for the Xxxxxx Series,
$65,000,000 for the Beach Series, $300,000,000 for the Xxxxxxxx/Xxxxxx Series,
$23,000,000 for the C-View Currency Series and $23,000,000 for the Xxxx Series
will be offered and sold during the Initial Offering Period for each Series,
and thereafter during the Continuing Offering Period for each Series as such
terms are hereinafter defined. The Units of each Series will be offered at $100
per Unit during the Initial Offering Period and thereafter at the Net Asset
Value per Unit of the applicable Series ("Series Net Asset Value"). All
capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Prospectus.
[__________________], a [_____________________________] (the "Selling Agent"),
will act as selling agent for the Trust on a "best efforts" basis.
Section 1. The Managing Owner and the Trust, jointly and severally,
represent and warrant to the Selling Agent that:
(a) A registration statement on Form S-1 for the Trust and as a part
thereof a combined prospectus for all Series with respect to all of the
Units being offered (which registration statement together with all
amendments thereto, at the times and in the forms declared effective by
the Securities and Exchange Commission (the "SEC") shall be referred to
herein as the "Registration Statement", and which prospectus in final
form, together with all amendments and supplements thereto, shall be
referred to herein as the "Prospectus"), prepared in full conformity
with the applicable requirements of the Securities Act of 1933, as
amended (the "1933 Act"), the CE Act, and the rules, regulations and
instructions promulgated under the 1933 Act and the CE Act,
respectively, have been
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filed with the SEC, the National Association of Securities Dealers, Inc.
(the "NASD") and the NFA pursuant to the 1933 Act, the CE Act and the
rules and regulations promulgated, respectively, thereunder, as well as
the rules and regulations of the NASD and the NFA, in the form
heretofore delivered to the Selling Agent;
(b) To the best of their knowledge, no order preventing or suspending
the effectiveness of the Registration Statement or use of the Prospectus
or any previous prospectus with respect to the Units has been issued by
the SEC, the CFTC, the NASD, the NFA or any other federal, state or
other governmental agency or body. The Registration Statement contains
all statements which are required to be made therein, conforms in all
material respects to the requirements of the 1933 Act and the CE Act and
the rules and regulations of the SEC and the CFTC, respectively,
thereunder, and does not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein (with respect to the
Prospectus, in light of the circumstances in which they were made) not
misleading; and, when the Registration Statement becomes effective under
the 1933 Act and at all times subsequent thereto up to and including the
Initial Closing Date for each Series, and thereafter up to and including
each subsequent closing date during the Continuous Offering Period, as
such terms are hereinafter defined, the Registration Statement and the
Prospectus will contain all material statements and information required
to be included therein by the 1933 Act and the CE Act and the rules and
regulations, respectively, thereunder, as well as the rules and
regulations of the NASD and the NFA, and will conform in all material
respects to the requirements of the 1933 Act, the CE Act and the rules
and regulations, respectively, thereunder, as well as the rules and
regulations of the NASD and the NFA, and will not include 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 (with
respect to the Prospectus, in light of the circumstances in which they
were made) not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Trust or the Managing Owner by the Selling Agent, the Trustee or
their respective agents or by or on behalf of the Trading Advisors or
any other commodity trading advisor (an "Other Advisor") engaged by the
Managing Owner on behalf of the Trust for use therein, all without
prejudice to any defense that the Selling Agent may have based upon its
"due diligence" investigation under the 1933 Act;
(c) The Trust was duly formed and is validly existing as a statutory
trust in good standing under the Delaware Act, with full power and
authority, and all necessary authorizations, approvals and orders of and
from all federal, state and other governmental or regulatory officials
and bodies, to carry out its obligations under this Agreement, its
certificate of trust (the "Trust Certificate") and its amended and
restated Declaration of Trust and Trust Agreement, dated as of August 8,
2003 (the "Trust Agreement"), and to own its properties and conduct its
business as described in the Prospectus;
(d) On the date hereof, the Managing Owner is and, at all times
through the Initial Closing Date for each Series and thereafter through
each subsequent closing date, will be duly organized and validly
existing as a limited liability company under the laws of the State of
Delaware with requisite limited liability company power and authority,
and all necessary authorizations, approvals and orders of and from all
required federal, state and other governmental or regulatory officials
and bodies, to (1) conduct its business, (2) enter into the agreements,
and (3) consummate the transactions, each as described in the
Prospectus; and on the date hereof the Managing Owner is and, at all
times through the Initial Closing Date for each Series and thereafter
through each subsequent closing date, will be duly qualified to conduct
business as a foreign limited liability company in good standing in
every jurisdiction in which the character of such business requires such
qualification and the failure to be so qualified would materially
adversely affect its ability to act as Managing Owner of the Trust and
perform its obligations hereunder;
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(e) The offer and sale of the Units for each Series have been duly
authorized by the Managing Owner on behalf of the Trust, and the Units,
when issued, will constitute valid units of beneficial interest in the
Trust which conform to the description thereof contained in the
Prospectus. The liability of each Limited Owner will be limited as set
forth in the Prospectus and the Trust Agreement, and no Limited Owner
will be subject to personal liability for the debts, obligations, or
liabilities of the Trust by reason of his being a Limited Owner of the
Trust other than as described in the Prospectus and the Trust Agreement;
(f) This Agreement has been duly and validly authorized, executed and
delivered by the Managing Owner and the Trust and constitutes a valid
and binding agreement of the Managing Owner and the Trust enforceable in
accordance with its terms. Neither the offer and sale of the Units, the
execution and delivery of this Agreement, nor the compliance by the
Trust or the Managing Owner with all of the provisions of this Agreement
will conflict with, or result in a breach of any of the terms or
provisions of, or result in a default under, the provisions of the Trust
Certificate or the Trust Agreement or the limited liability company
agreement of the Managing Owner (the "Limited Liability Company
Agreement") or the terms of any indenture, mortgage, deed of trust, loan
agreement, other evidence of indebtedness or other agreement or
instrument to which the Trust or the Managing Owner is a party or by
which the Trust or the Managing Owner is bound or to which any of the
property or assets of the Trust or the Managing Owner is subject, nor,
to the best of their knowledge, any applicable statute or any order,
rule or regulation of any court or of any federal, state or other
governmental or regulatory agency or body having jurisdiction over the
Trust or the Managing Owner or any of their properties, nor will any
such actions result in the imposition of any lien, charge or encumbrance
upon any of the property or assets of the Trust or the Managing Owner,
and subsequent to the dates as of which information is given in the
Registration Statement and the Prospectus and except as set forth or
contemplated therein, neither the Trust nor the Managing Owner has
incurred any material liabilities or obligations (direct or contingent)
or entered into any material transactions not in the ordinary course of
its business and no consent, approval, authorization, order,
registration or qualification of or with any court or any federal, state
or other governmental or regulatory agency or body is required for the
issue and sale of the Units or the consummation of the other
transactions contemplated by this Agreement, except the registration of
the Managing Owner under the CE Act as a commodity pool operator,
membership by the Managing Owner in the NFA in such capacity, the
registration of the Units under the 1933 Act, submission of the
Prospectus to the NASD, CFTC and NFA, and such consents, approvals,
authorizations, orders, registrations or qualifications as may be
required by securities or Blue Sky laws in connection with the offer and
sale of the Units;
(g) Deloitte and Touche LLP, who has examined certain financial
statements of the Managing Owner and the Trust, is an independent public
accountant, as required by the CE Act and the 1933 Act and the rules and
regulations of the CFTC and SEC, respectively, thereunder;
(h) The Trust has been capitalized as set forth in the Prospectus;
(i) The Trust and the Managing Owner have complied, and will continue
to comply, in all material respects with all laws, rules and regulations
having application to its or their business, including rules and
regulations promulgated by the CFTC and NFA, the violation of which
would materially and adversely affect the business, financial condition
or earnings of the Trust or the Managing Owner; and there are no
actions, suits or proceedings pending or, to the best of the knowledge
of the Trust or the Managing Owner, threatened against it or them, at
law or in equity or before or by any federal, state, municipal or other
governmental or regulatory department, commission, board, bureau, agency
or instrumentality, or by any commodity or security exchange worldwide
in which an adverse decision would materially and adversely affect the
business, financial condition, earnings or properties of the Trust
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or the Managing Owner or their ability to comply with, and perform their
obligations under this Agreement, and which are not adequately disclosed
in the Prospectus;
(j) On or before the Initial Closing Date for each Series, and
thereafter, on or before each subsequent closing date, the Managing
Owner shall have purchased or subscribed for the General Units required
of it by the Trust Agreement and shall have a Net Worth (as defined in
the Trust Agreement) equal to or in excess of the requirements therein;
(k) The financial statements of the Managing Owner and the Trust
contained in the Registration Statement and the Prospectus fairly
present the financial condition thereof and the results of operations as
of the dates and for the periods therein specified; and such financial
statements have been prepared in accordance with generally accepted
accounting principles in the United States consistently applied
throughout the periods involved; and no other financial statements are
required by Form S-1 to be included in the Registration Statement or the
Prospectus;
(l) There are no contracts or other documents which are required to be
filed as Exhibits to the Registration Statement by the 1933 Act or the
CE Act or by the rules and regulations of the SEC or CFTC, respectively,
thereunder, or by the rules and regulations of the NASD or NFA, which
have not been filed as required; and
(m) The Trust has the power and authority to enter into the various
contractual obligations and agreements referred to in the Prospectus,
and the execution and delivery of such agreements by the Trust and by
the Managing Owner on behalf of the Trust, the consummation of the
transactions contemplated therein, and the compliance with all of the
terms thereof by the Trust and the Managing Owner will be in compliance
in all material respects with all applicable legal requirements to which
either the Trust or the Managing Owner is subject and will not conflict
with or constitute a breach of or default under, the terms or provisions
of any order of the SEC, the NASD, the CFTC, or the NFA, the Trust
Agreement, the Trust Certificate, the Limited Liability Company
Agreement, or any other agreement or instrument to which either the
Trust or the Managing Owner is a party or by which either is bound.
Section 2. The Selling Agent represents and warrants to the Managing
Owner and the Trust that:
(a) it is registered as a broker-dealer under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and in each State where it
will make offers or sales of Units;
(b) it is a member of the NASD and is in material compliance with all
material rules and regulations applicable to the Selling Agent generally
and, to its knowledge, applicable to the Selling Agent's participation
in the offering of Units;
(c) it is duly organized and validly existing under the laws of the
jurisdiction of its organization;
(d) it has full power and authority to enter into this Agreement and to
perform its obligations under this Agreement;
(e) this Agreement has been duly and validly authorized, executed and
delivered by the Selling Agent and is a valid and binding agreement of
the Selling Agent enforceable in accordance with its terms;
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(f) it will deliver to each purchaser, prior to any submission by such
person of a written offer relating to the purchase of the Units, a copy
of the Prospectus, as it may have been most recently amended or
supplemented by the Managing Owner or the Trust;
(g) it will not intentionally take any action which it reasonably
believes would cause the offering of Units to violate the provisions of
the 1933 Act, the Exchange Act, the respective rules and regulations
promulgated thereunder or applicable "blue sky" laws or any state or
jurisdiction;
(h) The Selling Agent further represents and warrants that, in
recommending to any person the purchase or sale of Units, it shall:
(1) use commercially reasonable efforts to determine, on the basis of
information obtained from the prospective purchaser concerning the
prospective purchaser's investment objectives, the prospective
purchaser's other investments and the prospective purchaser's financial
situation and needs, and any other information known by the Selling
Agent through the review of its offeree questionnaire completed by such
prospective purchaser; and
(2) maintain in the Selling Agent's files documents disclosing the basis
upon which the determination of suitability was reached as to each
purchaser for at least six (6) years.
(i) In compliance with the NASD Conduct Rules, it will not sell Units
to discretionary accounts without prior specific written approval of the
Customer
Section 3. (a) Subject to the terms and conditions, and on the basis of
the representations, warranties and covenants herein set forth, the
Trust hereby appoints the Selling Agent as its selling agent and the
Selling Agent agrees to use its best efforts to procure Subscribers
during the Initial Offering Period and the Continuous Offering Period on
the terms and conditions set forth, and for the periods described, in
the Prospectus.
(b) The Trust acknowledges that the Selling Agent has no present
intention to retain certain selected brokers or dealers ("Additional
Sellers") but that the Selling Agent maintains the right to retain
Additional Sellers in the future, which in such case the Additional
Sellers, if located in the United States, will be members of the NASD
and will execute a selected dealers agreement to be agreed upon between
the parties.
(c) During the Initial Offering Period and the Continuous Offering
Period, all Selling Agent branch offices will be required to forward
subscriptions to the Managing Owner no later than noon of the first
Business Day following receipt of an acceptable subscription agreement
from a subscriber for Units (each, a "Subscriber"). The Managing Owner
shall have sole responsibility for determining whether Subscribers are
qualified to become Limited Owners in the Trust and for accepting
subscriptions and determining their validity. The Selling Agent agrees
to use its best efforts to cause Subscribers to prepare their
subscriptions in proper form. The Selling Agent shall deposit the
subscription proceeds from the sale of Units in each Series (the
"Proceeds") during the Initial Offering Period in escrow accounts
designated by the Series at U.S. Bank National Association in Denver,
Colorado (the "Escrow Agent"), for the separate benefit of the
Subscribers of each Series no later than noon of the first Business Day
following the receipt by the Selling Agent of such Proceeds. Proceeds
will be transferred to the escrow accounts at the Escrow Agent by check
from the Subscriber or via wire transfer from the Subscriber's account.
The Managing Owner will determine whether to accept or reject all
subscriptions within two (2) Business Days following receipt of
subscription documents from the Selling Agent. Upon notification by the
Managing Owner to the Escrow Agent that a subscription for Units of a
Subscriber has been rejected, for whatever reason, or in the event that
the Subscriber rescinds its subscription in conformity with the
requirements of the North American Securities Administrators Association
Inc. Guidelines for Registration of Commodity Pool Programs, the Escrow
Agent shall by check or wire transfer return any Proceeds held in
escrow, excluding any interest thereon, to the payor of
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such Proceeds. The Escrow Agent shall make interest payments to the
Trust to be retained by the Trust for the benefit of all investors in
the applicable Series of Units by delivering a check in the amount equal
to the interest allocable by Series to each Subscriber. If subscriptions
for the minimum number of Units in a Series set forth in the Prospectus
(after taking into account the Managing Owner's contribution) have not
been made by the conclusion of the Initial Offering Period for a Series,
then all Proceeds deposited in the escrow account designated for that
Series, excluding any interest thereon, shall be returned (in the same
way described above in the case of a rejected or rescinded subscription)
to the payor of such Proceeds on a pro rata basis (and taking into
account the amount and time of deposit), no later than ten (10) Business
Days after the termination of the Initial Offering Period for the
affected Series, or as soon thereafter as practicable if payment cannot
be made in such time period.
(d) During the Continuous Offering Period, the Managing Owner also
will determine whether to accept or reject all subscriptions received
and will do so (1) within two (2) Business Days following receipt from
the Selling Agent of a "Request for Exchange" (in the form attached to
the Prospectus as Exhibit C) or the "Subscription Agreement" (in the
form attached to the Prospectus as Exhibit B) with respect to a Limited
Owner in an existing Series and (2) within two (2) Business Days
following receipt of subscription documents from the Selling Agent for a
new Subscriber. For subscriptions which are accepted, Proceeds will be
transferred to the Escrow Agent by check from the Subscriber or via wire
transfer from the Subscriber's account. For an existing Limited Owner,
such transfer will occur on the first Business Day which first follows
the date on which the Managing Owner accepts the subscription. For a new
Subscriber, such transfer will occur on the second Business Day after
the subscription documents are delivered by the Subscriber to the
Selling Agent (or an Additional Seller).
(e) On the Initial Closing Date for a Series, and thereafter on each
subsequent closing date with respect to that Series, the acceptance,
delivery, and receipt of subscriptions for Units will be subject to the
terms and conditions set forth in this Agreement, including, but not
limited to, (1) the payment of the full subscription price for Units and
delivery of a properly completed Subscription Agreement/Power of
Attorney by each Subscriber; (2) the fact that a new Subscriber's
subscription will not be final and binding until two (2) Business Days
following the Subscriber's delivery of his subscription documents to the
Selling Agent (or an Additional Seller), and (3) compliance with Section
7 hereof. Upon the satisfaction of such terms and conditions, the
aggregate subscription price for Units (inclusive of any interest earned
on such subscriptions while held in escrow which will be retained by the
Trust for the benefit of all investors in the applicable Series of
Units) will be paid and delivered to the Trust in accordance with the
Escrow Agreement.
(f) The Selling Agent agrees that it will not take any of the
following actions against the Trust: (1) seek a decree or order by a
court having jurisdiction in the premises (A) for relief in respect of
the Trust in an involuntary case or proceeding under the Federal
Bankruptcy Code or any other federal or state bankruptcy, insolvency,
reorganization, rehabilitation, liquidation or similar law or (B)
adjudging the Trust a bankrupt or insolvent, or seeking reorganization,
rehabilitation, liquidation, arrangement, adjustment or composition of
or in respect of the Trust under the Federal Bankruptcy Code or any
other applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Trust or of any substantial part of any of its
properties, or ordering the winding up or liquidation of any of its
affairs, (2) seek a petition for relief, reorganization or to take
advantage of any law referred to in the preceding clause; or (3) file an
involuntary petition for bankruptcy (collectively "Bankruptcy or
Insolvency Action").
(g) In addition, the Selling Agent agrees that for any obligations due
and owing to it by any Series, the Selling Agent will look solely and
exclusively to the assets of such Series or the Managing Owner, if it
has liability in its capacity as Managing Owner, to satisfy its claims
and will not seek to attach or otherwise assert a claim against the
other assets of the Trust, whether or not there is a
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Bankruptcy or Insolvency Action taken. The parties agree that this
provision will survive the termination of this Agreement, whether
terminated in a Bankruptcy or Insolvency Action or otherwise.
(h) This Agreement has been made and executed by and on behalf of the
Trust and the Managing Owner and the obligations of the Trust and/or the
Managing Owner set forth herein are not binding upon any of the Limited
Owners individually but are binding only upon the assets and property
identified above and no resort shall be had to the assets of other
Series issued by the Trust or the Limited Owners' personal property for
the satisfaction of any obligation or claim hereunder.
Section 4. Selling Commissions. (a) Units in the Class 1 of each Series.
(1) As compensation, the Selling Agent shall receive from the Managing
Owner a service fee at an annual rate of up to 3.0% of the subscription
amount of each subscription of Units in the Class 1 of the Series sold
by it. After the expiration of twelve (12) months following the purchase
of Units in the Class 1 of any Series of Units, the Selling Agent shall
also receive a monthly on-going trailing compensation of up to 1/12th of
3.0% (approximately 3.0% annually) of the Net Asset Value of each Unit
in the Class 1 sold by the Selling Agent on an on-going basis for
customary on-going services provided to the Trust and its Limited Owners
for commodities related brokerage services. Such on-going services may
include, without limitation, advising Limited Owners of the Net Asset
Value of the Trust, of the relevant Series of the Trust and of their
Units in such Series, responding to Limited Owners' inquiries about
monthly statements and annual reports and tax information provided to
them, advising Limited Owners whether to make additional capital
contributions to the Trust or to redeem their Units, assisting with
redemptions of Units, providing information to Limited Owners with
respect to futures and forward market conditions and providing further
services as may be requested by the Limited Owners.
(2) The initial service fee and on-going service fee will be
calculated according to the following scale:
Aggregate Amount of Investment in
Units in the Class 1: Percentage:
$0 - $99,999 3.00%
$100,000- $499,999 2.50%
$500,000 and above 1.25%
(3) The calculation of the initial service fee for incremental
Unit purchases is based on the aggregate amount of Units held by an
investor at the time of each Unit purchase (taking into account the
right of accumulation). For example, if an investor purchases
$75,000 in Class 1 Units in one month, the Selling Agent shall
receive an initial service fee of 3.00% of the purchase price of
such Units. If such investor then purchases an additional $50,000
in Class 1 Units three months later, the Selling Agent shall be paid
an initial service fee of 2.50% of the purchase price of such Units.
If such investor subsequently invests $500,000 in Class 1 Units, the
Selling Agent shall be paid an initial service fee of 1.25% of the
purchase price of such Units.
(4) The initial service fee is calculated based upon the net asset
value of the aggregate amount of Units in Class 1 at the time of
such purchase and the service fee applicable thereof. The on-going
service fee after the initial 12 months of each purchase has expired
is calculated based upon the net asset value of the aggregate amount
of Units in Class 1 at the end of such 12 month period(s).
(5) Using the above example (assuming no redemption of Units has
occurred), the initial service fee for the initial twelve months
will be 3.00% of the net asset value of the initial Unit purchase of
$75,000; 2.50% of the net asset value of the additional Unit
purchase of $50,000; and 1.25% of the net asset value of the
additional Unit purchase of $500,000. One year from the initial
Unit purchase of $75,000, the on-going service fee will be 1.25% of
the net asset value of the Unit purchase of $75,000. One year after
the second Unit purchase of $50,000, the on-going service fee will
be calculated at a rate of 1.25% of the net asset value of the
cumulative $125,000 investment. Finally, one year after the third
Unit purchase of $500,000, the on-going service fee will be
calculated at a rate of 1.25% of the net asset value of the entire
investment of $625,000.
(b) Units in the Class 2 of each Series. With respect to Units in the
Class 2 of each Series, the Selling Agent will receive no initial
service fees for any Unit in the Class 2 of the Series sold by it. The
Managing Owner shall pay the Selling Agent customary ongoing service
fees in an amount equal to a percentage of the Net Asset Value of such
Units in the Class 2 as agreed to and set forth in a schedule to this
Agreement as compensation for certain ongoing services provided to the
Trust and its Limited Owners for commodities-related brokerage services.
Such on-going services may include, without limitation, advising Limited
Owners of the Net Asset Value of the Trust, of the relevant Series of
the Trust and of their Units in such Series, responding to Limited
Owners' inquiries about monthly statements and annual reports and tax
information provided to them, advising Limited Owners whether to make
additional capital contributions to the Trust or to redeem their Units,
assisting with redemptions of Units, providing information to Limited
Owners with respect to futures and forward market conditions and
providing further services as may be requested by the Limited Owners.
(c) In the event that the offering of Units of any Series is terminated
prior to the initial escrow break for such Series, the Selling Agent
shall not be entitled to any compensation in connection with the
offering of such Series except for the reimbursement of reasonable and
actual out-of-pocket expenses.
Section 5. Compliance with Rule 2810 and General Laws. (a) It is
understood that the Selling Agent has no commitment with regard to the
sale of the Units other than to use its best efforts. In connection with
the offer, sale and distribution of the Units, the Selling Agent
represents and warrants that it will comply fully with all applicable
laws and regulations, and the rules, policy statements and
interpretations of the NASD, the SEC, the CFTC, state securities
administrators and any other regulatory or self-regulatory body. In
particular, and not by way of limitation, the Selling Agent represents
and warrants that it is familiar with Rule 2810 of the NASD Conduct
Rules and that it will comply fully with all the terms thereof in
connection with the offering and sale of the Units. The Selling Agent
will not
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execute any sales of Units from a discretionary account over which it
has control without prior written approval of the customer in whose name
such discretionary account is being maintained.
(b) The Selling Agent agrees not to recommend the purchase of Units to
any Subscriber unless the Selling Agent shall have reasonable grounds to
believe, on the basis of information obtained from the Subscriber
concerning, among other things, the Subscriber's investment objectives,
other investments, financial situation and needs, that: (1) (to the
extent relevant for the purposes of Rule 2810 and giving due
consideration to the fact that the Trust is in no respects a "tax
shelter") the Subscriber is or will be in a financial position
appropriate to enable the Subscriber to realize to a significant extent
the benefits of the Trust, including the tax benefits (if any) described
in the Prospectus; (2) the Subscriber has a fair market net worth
sufficient to sustain the risks inherent in participating in the Trust;
(3) the Subscriber qualifies as an acceptable Subscriber on the basis
set forth in the Prospectus, the Subscription Agreement and the State
Suitability Requirements contained therein; (4) the Subscriber is not a
"Prohibited Investor," as such term is defined in the Subscription
Agreement, and acceptance of the Subscriber's subscription will not
otherwise breach any laws, rules and regulations designed to avoid money
laundering applicable to either the Selling Agent, the Managing Owner or
the Trust; and (5) the Units are otherwise a suitable investment for the
Subscriber. The Selling Agent agrees to maintain such records as are
required by the applicable rules of the NASD and the SEC for purposes of
determining investor suitability for the time periods otherwise required
by the NASD and the SEC. In connection with making the foregoing
representations and warranties, the Selling Agent further represents and
warrants that it has, among other things, examined the Prospectus
including, without limitation the sections listed below and obtained
such additional information from the Managing Owner regarding the
information set forth thereunder as the Selling Agent has deemed
necessary or appropriate to determine with the Prospectus adequately and
accurately discloses all material facts relating to an investment in the
Trust and provides and adequate basis to Subscribers for evaluating an
investment in the Units:
"RISK FACTORS;"
"DESCRIPTION OF THE TRUST, TRUSTEE, MANAGING OWNER AND AFFILIATES;"
"PROJECTED TWELVE-MONTH "BREAK-EVEN" ANALYSIS;"
"FEES AND EXPENSES;"
"WHO MAY SUBSCRIBE;"
"THE OFFERING;"
"SUMMARY OF AGREEMENTS;" and
"FEDERAL INCOME TAX CONSEQUENCES."
In connection with making the representations and warranties set forth
in this paragraph, the Selling Agent has not relied on inquiries made by
or on behalf of any other parties.
(c) The Selling Agent agrees to inform all prospective purchasers of
Units of all pertinent facts relating to the liquidity and marketability
of the Units as set forth in the Prospectus.
(d) The Selling Agent shall cause its Additional Sellers to certify in
writing that such Additional Seller has made the required determinations
in each Subscription Agreement submitted by the
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Additional Seller in respect of a Subscriber; provided, however, that
such determinations shall not be binding on the Managing Owner.
(e) Each party agrees that no subscription will be deemed final and
binding on any new Subscriber until at least five (5) Business Days
after the date the Subscriber receives the Prospectus. In connection
therewith, the Selling Agent agrees to indicate in each Subscription
Agreement submitted by an Additional Seller in respect of a Subscriber
the date on which the Prospectus was delivered to that Subscriber.
(f) The Selling Agent represents, warrants and covenants that it: (1)
maintains anti-money laundering policies and procedures that comply with
the Bank Secrecy Act of 1970, as amended, and applicable federal anti-
money laundering regulations, including policies and procedures to
verify the identity of prospective Subscribers ("AML Laws, Regulations
and Policies"); (2) complies with AML Laws, Regulations and Policies;
(3) will promptly deliver to the Managing Owner, to the extent permitted
by applicable law, notice of any AML Laws, Regulations and Policies
violation, suspicious activity, suspicious activity investigation or
filed suspicious activity report that relates to any prospective
Subscriber for Units; and (4) will cooperate with the Managing owner and
deliver information reasonably requested by the Managing Owner
concerning Subscribers that purchased Units sold by the Selling Agent
necessary for the Managing Owner or the Trust to comply with AML Laws,
Regulations and Policies.
Section 6. The Trust and Managing Owner each agree with the Selling
Agent:
(a) To advise the Selling Agent, promptly after it receives notice
thereof, of the time when the Registration Statement becomes effective
or any Prospectus has been filed with the SEC, the NASD, the NFA or any
other federal, state or other governmental or regulatory or self-
regulatory agency or body, of the issuance by the SEC, the CFTC, the
NASD, the NFA or any other federal, state or other governmental or
regulatory or self-regulatory agency or body of any stop order or of any
order to prevent or suspend the use of the Prospectus, or the initiation
or threat of any proceeding for any such purpose or any request by the
SEC, the CFTC, the NASD, the NFA or any other federal, state or other
governmental or regulatory or self-regulatory agency or body to amend or
supplement the Registration Statement or Prospectus, or for additional
information; and in the event of the issuance of any stop order or of
any order preventing or suspending the use of the Prospectus or
suspending any such qualification, promptly to use its best efforts to
obtain its withdrawal;
(b) To furnish the Selling Agent with copies of the Prospectus in such
quantities as Selling Agent may from time to time reasonably request,
and if delivery of a Prospectus is required at any time prior to the
expiration of nine (9) months after the date of any Prospectus and in
such time any event shall have occurred as a result of which such
Prospectus would include an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus was delivered to the
Selling Agent, not misleading, or if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply with
the 1933 Act, the CE Act, or any other law, rule or regulation of any
federal, state or other governmental, regulatory or self-regulatory
agency or body, including, but not limited to, such amendments and
supplements as may be required because of the selection of any Other
Advisor, to notify the Selling Agent and upon the Selling Agent's
request to prepare and furnish, without charge to the Selling Agent, as
many copies as the Selling Agent may from time to time reasonably
request of an amended Prospectus or a supplement to such Prospectus
which will correct such misstatement or omission or effect such
compliance;
(c) Promptly from time to time to take such action as the Selling
Agent may reasonably request to use its best efforts to qualify the
Units for offering and sale under the securities or
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Blue Sky laws of such jurisdictions as the Selling Agent may request and
to comply with such laws so as to permit the continuance of sales in
such jurisdictions for so long as may be necessary to complete the
distribution thereof;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than the fifteenth (15/th/)
month following the month in which the Initial Closing Date occurs, an
earnings statement of the Trust (which need not be audited) complying
with Section 11(a) of the 1933 Act and covering a period of at least
twelve (12) consecutive months beginning after the effective date of the
Registration Statement;
(e) To furnish the Selling Agent with copies of all reports or other
communications (financial or other) furnished to the Limited Owners, and
to deliver to the Selling Agent, as soon as they are available, copies
of any reports and financial statements furnished to or filed with the
SEC, the CFTC, the NASD, the NFA and any other federal, state or other
governmental or regulatory or self-regulatory agency or body; and
(f) To furnish, without charge to the Selling Agent, two (2) signed
copies of the Registration Statement, including all financial statements
and Exhibits thereto, and such number of conformed copies of the
Registration Statement, including all financial statements, as the
Selling Agent may reasonably request.
Section 7. The obligations of the Selling Agent hereunder shall be
subject, in its discretion, to the condition that all representations,
warranties, covenants and other statements of the Trust and the Managing
Owner herein are, at and as of the time of effectiveness of each
Registration Statement, true and correct, the condition that each of the
Trust and the Managing Owner shall have performed all of its and their
obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Registration Statement shall have become effective, and the
Selling Agent shall have received notice thereof; no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that or any similar purpose shall have
been initiated or threatened by the SEC, the CFTC, the NASD or the NFA;
and all requests for additional information on the part of the SEC, the
NASD, the NFA and/or the CFTC shall have been complied with to the
reasonable satisfaction of the Selling Agent and its counsel.
(b) All documents and certificates required to be delivered to the
Selling Agent on the Initial Closing Date of a Series, or on the
appropriate subsequent closing date, as the case may be such agreement
being dated on or about the date of the initial Prospectus, shall have
been delivered in form and substance satisfactory to the Selling Agent
and its counsel; and there shall have been no material changes in the
Registration Statement or the Prospectus.
Section 8. (a) This Agreement shall be terminated at the conclusion of
the Continuous Offering Period with respect to each Series.
(b) Until such time as this Agreement shall terminate with respect to
each Series pursuant to subsection (a) of this Section 8, this Agreement
may be terminated by the Selling Agent, at the Selling Agent's option,
by giving thirty (30) days' notice to the Trust and the Managing Owner,
if:
(1) there shall have been, since the respective dates as of which
information is given in the Registration Statement, any material adverse
change in the condition, financial or otherwise, of the Trust or the
Managing Owner which change, in the judgment of the Selling Agent, shall
render it inadvisable to proceed with the offer and sale of the Units;
or
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(2) the Registration Statement and/or the Prospectus is not amended
promptly after written request by the Selling Agent for it to be so
amended because an event has occurred which, in the opinion of counsel
for the Selling Agent, should be set forth in the Registration Statement
or the Prospectus in order to make the statements therein not
misleading; or
(3) any of the conditions specified in Section 7 hereof shall not have
been fulfilled when and as required by this Agreement to be fulfilled;
or
(4) there shall have been (A) a general suspension of, or a general
limitation on prices for, trading in (i) commodity futures or option
contracts on commodity exchanges in the United States, or (ii) other
commodities instruments, or (B) any other national or international
calamity or crisis in the financial markets of the United States to the
extent that it is determined by the Selling Agent, in its discretion,
that such limitations would materially impede the Trust's trading
activities or make the offering or delivery of the Units impossible or
impractical; or
(5) there shall have been a declaration of a banking moratorium by
federal, New York or Delaware authorities.
(c) In addition to subsection (b) of this Section 8, this Agreement
may be terminated with respect to a Series by written agreement among
the parties hereto. The termination of this Agreement for any reason set
forth in this Section 8 shall not affect the obligations of the Trust
contained in Section 10 hereof; nor shall the termination of this
Agreement with respect to one Series for any reason affect the
obligations of the parties with respect to any other Series.
(d) The Initial Closing Date with respect to a Series shall be a
date selected by the Selling Agent on written notice to the Managing
Owner, not less than five (5) and not more than fifteen (15) Business
Days following the termination of the Initial Offering Period with
respect to that Series. Each subsequent closing date with respect to a
Series shall be the date of the first Business Day during the Continuous
Offering Period with respect to that Series. Notwithstanding anything to
the contrary herein, each Closing with respect to a Series shall be held
on such date, at such time and at such place as the Managing Owner and
the Selling Agent may agree upon.
Section 9.Indemnification
(a) The Selling Agent shall not be liable to the Trust, the Trustee
or the Managing Owner for any loss, liability, claim, damage, expense,
fine, penalty, cost or expense (including, without limitation,
attorneys' and accountants' fees and disbursements), judgments and
amounts paid in settlement (collectively, "Losses") caused by any act or
omission to act of the Selling Agent in connection with the performance
of services under this Agreement, except as a result of any acts or
omissions to act on the part of the Selling Agent or its Principals or
Affiliates which constitute negligence, misconduct or a breach of
any of the representations, warranties, covenants or agreements of the
Selling Agent contained in this Agreement.
(b) The Managing Owner and the Trust, solely out of the Contracting
Series Assets (as hereinafter defined) shall indemnify and hold harmless
the Selling Agent and its officers, directors, shareholders, principals,
employees, agents or affiliates (collectively, "Principals and
Affiliates") from and against any and all Losses to which such persons
may become subject arising out of or in connection with this Agreement,
the transactions contemplated hereby or the fact that the Selling Agent
is or was a selling agent of the Trust arising out of or based upon (1)
any untrue statement of material fact contained in this Agreement, the
Prospectus or any application or written communication executed by the
Managing
II-12
Owner or the Trust filed in any jurisdiction in order to qualify the
Units under the securities laws thereof (collectively, the "Documents"),
(2) any omission from the Documents of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or (3) any breach of any representation, warranty, covenant
or agreement made by the Managing Owner or the Trust in this Agreement,
except to the extent that any such Losses arise out of, relate to, or
are based upon the Selling Agent's failure to meet the standard of
liability applicable to it under Section 9(a) above.
(c) The Selling Agent agrees to indemnify and hold harmless the
Trust, the Trustee and the Managing Owner and the Principals and
Affiliates of the Trustee and the Managing Owner from and against all
Losses incurred by any of them arising out of or based upon the Selling
Agent's failure to meet the standard of liability set forth in Section
9(a).
(d) Promptly after receipt by any of the indemnified parties under
this Agreement of notice of any Proceeding, the party seeking
indemnification (the "Indemnitee") shall notify the party from which
indemnification is sought (the "Indemnitor") in writing of the
commencement thereof if a claim with respect thereof is to be made under
this Agreement. To the extent that the Indemnitor has actual knowledge
of the commencement of such Proceeding, the failure to notify the
Indemnitor shall not relieve such Indemnitor from any indemnification
liability which it may have to such Indemnitee pursuant to this Section
9, and the omission to notify the Indemnitor shall not relieve the
Indemnitor from any obligation or liability which it may have to any
such Indemnitee otherwise than under this Section 9. The Indemnitor
shall be entitled to participate in the defense of any such Proceeding
and to assume the defense thereof with the assistance of counsel
reasonably satisfactory to the Indemnitee. In any such Proceeding, the
Indemnitee shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the Indemnitee's own expense
unless (i) otherwise agreed by the Indemnitor and Indemnitee or (ii) the
named parties to any such Proceeding (including any impleaded parties)
include both the Indemnitor and the Indemnitee, and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or the existence of different
or additional defenses (it being understood, however, that the
Indemnitor shall not be liable for legal fees or other expenses of more
than one separate firm of attorneys for all such Indemnitees, which firm
shall be designated in writing by such Indemnitees and be reasonably
acceptable to the Indemnitor). The Indemnitee shall cooperate with the
Indemnitor in connection with any such Proceeding and shall make all
personnel, books and records relevant to the Proceeding available to the
Indemnitor and grant such authorizations or powers of attorney to the
agents, representatives and counsel of the Indemnitor as the Indemnitor
may reasonably consider desirable in connection with the defense of any
such Proceeding.
(e) In the event that a person entitled to indemnification under
this Section 9 is made a party to any Proceeding alleging both matters
for which indemnification can be made hereunder and matters for which
indemnification may not be made hereunder, such person shall be
indemnified only for that portion of the Loss incurred in such
Proceeding which relates to the matters for which indemnification can be
made.
(f) None of the indemnifications contained in this Section 9 shall
be applicable with respect to default judgments, confessions of judgment
or settlements entered into by the party claiming indemnification
without the prior written consent, which shall not be unreasonably
withheld, or the party obligated to indemnify such party.
(g) Notwithstanding the provisions of this Section 9, the
Selling Agent shall not be indemnified for any losses, liabilities or
expenses arising from or out of an alleged violation of federal or state
securities laws unless (i) there has been a successful adjudication on
the merits of each count involving alleged securities law violations as
to the particular indemnitee, (ii) such claims have been dismissed with
prejudice on the merits by a court of competent jurisdiction as to the
particular indemnitee or (iii) a court of competent jurisdiction
approves a settlement of the claims against a particular indemnitee and
finds that indemnification of the settlement and related costs should be
made.
(h) In any claim for indemnification for federal or state securities
law violations, the party seeking indemnification shall place before the
court the position of the Securities and Exchange Commission, the
position of the Tennessee Securities Division, the position of the
Securities Division of the Commonwealth of Massachusetts and the
position of any other applicable state securities division which
requires disclosure with respect to the issue of indemnification for
securities law violations.
(i) The indemnification provisions of this Agreement shall survive
the termination of this Agreement. The indemnification agreements in
this Section 9 shall be in addition to any liability which the Selling
Agent may otherwise have. Nothing contained in this Section 9 or
elsewhere in this Agreement shall be construed as an admission that the
Selling Agent is an "underwriter" of the Units within the meaning of the
1933 Act.
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Section 10. Each of the Managing Owner and the Selling Agent agrees and
consents (the "Consent") to look solely to each Series that is being
offered pursuant to this Agreement (the "Contracting Series") and the
assets (the "Contracting Series Assets") of the Contracting Series and
to the Managing Owner and its assets for payment. The Contracting Series
Assets include only those funds and other assets that are paid, held or
distributed to the Trust on account of and for the benefit of the
Contracting Series, including, without limitation, funds delivered to
the Trust for the purchase of interests in a Series. In furtherance of
the Consent, each of the Managing Owner and the Selling Agent agrees
that any debts, liabilities, obligations, indebtedness, expenses and
claims of any nature and of all kinds and descriptions (collectively,
"Claims") incurred, contracted for or otherwise existing arising from,
related to or in connection with the Trust and its assets and the
Contracting Series and the Contracting Series Assets, shall be subject
to the following limitations:
(a) Subordination of certain claims and rights. (1) except as set
forth below, the Claims, if any, of the Managing Owner or the Selling
Agent (the "Subordinated Claims") shall be expressly subordinate and
junior in right of payment to any and all other Claims against the Trust
and any Series thereof, and any of their respective assets, which may
arise as a matter of law or pursuant to any contract; provided, however,
that the Claims of each of the Managing Owner and the Selling Agent (if
any) against the Contracting Series shall not be considered Subordinated
Claims with respect to enforcement against and distribution and
repayment from the Contracting Series, the Contracting Series Assets and
the Managing Owner and its assets; and provided further that the valid
Claims of either the Managing Owner or the Selling Agent, if any,
against the Contracting Series shall be pari passu and equal in right of
repayment and distribution with all other valid Claims against the
Contracting Series and (2) the Managing Owner and the Selling Agent will
not take, demand or receive from any Series or the Trust or any of their
respective assets (other than the Contracting Series, the Contracting
Series Assets and the Managing Owner and its assets) any payment for the
Subordinated Claims;
(b) The Claims of each of the Managing Owner and the Selling Agent
with respect to the Contracting Series shall only be asserted and
enforceable against the Contracting Series, the Contracting Series
Assets and the Managing Owner and its assets; and such Claims shall not
be asserted or enforceable for any reason whatsoever against any other
Series, the Trust generally or any of their respective assets;
(c) If the Claims of the Managing Owner or the Selling Agent against
the Contracting Series or the Trust are secured in whole or in part,
each of the Managing Owner and the Selling Agent hereby waives (under
section 1111(b) of the Bankruptcy Code (11 U.S.C. S 1111(b)) any right
to have any deficiency Claims (which deficiency Claims may arise in the
event such security is inadequate to satisfy such Claims) treated as
unsecured Claims against the Trust or any Series (other than the
Contracting Series), as the case may be;
(d) In furtherance of the foregoing, if and to the extent that the
Managing Owner and the Selling Agent receives monies in connection with
the Subordinated Claims from a Series or the Trust (or their respective
assets), other than the Contracting Series, the Contracting Series
Assets and the Managing Owner and its assets, the Managing Owner and the
Selling Agent shall be deemed to hold such monies in trust and shall
promptly remit such monies to the Series or the Trust that paid such
amounts for distribution by the Series or the Trust in accordance with
the terms hereof; and
(e) The foregoing Consent shall apply at all times notwithstanding
that the Claims are satisfied, and notwithstanding that the agreements
in respect of such Claims are terminated, rescinded or canceled.
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Section 11. Miscellaneous. (a) Assignment. This Agreement may not be
assigned by any of the parties hereto without the express prior written
consent of the other parties hereto.
(b) Successors. This Agreement is made solely for the benefit of,
and shall be binding upon, the Selling Agent, the Trust and the Managing
Owner and the respective successors and assigns of each of them, and no
other person shall have any right or obligation under this Agreement.
The terms "successors" and "assigns" shall not include any purchasers,
as such, of Units from the Trust.
(c) Amendment or Modification or Waiver. This Agreement may not be
amended or modified, nor may any of its provisions be waived, except
upon the prior written consent of the parties hereto.
(d) Notices. Except as otherwise provided herein, all notices
required to be delivered under this Agreement shall be effective only if
in writing and shall be deemed given by the party required to provide
notice when received by the party to whom notice is required to be given
and shall be delivered personally or by registered mail, postage
prepaid, return receipt requested, or by telecopy, as follows (or to
such other address as the party entitled to notice shall hereafter
designate by written notice to the other parties):
(1) if to the Selling Agent, to it at:
[________________________];
with a copy to:
[________________________];
(2) if to the Trust or the Managing Owner, to it at:
Equinox Fund Management, LLC
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx; and
(3) in either case, with a copy to:
c/o Arnold & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(e) All representations, warranties, covenants and agreements
contained in this Agreement shall remain operative and in full force and
effect regardless of (1) any investigations made by or on behalf of the
Selling Agent, the Trustee, the Trust or the Managing Owner, (2)
delivery of any payment for the Units or (3) termination of this
Agreement.
II-15
(f) The Selling Agent is not authorized by the Trust to give any
information or to make any representation in connection with the
offering of Units other than those contained in the Prospectus and such
sales literature the use of which has been authorized in writing by the
Trust.
(g) This Agreement has been made and executed by and on behalf of
the Trust and the Managing Owner and the obligations of the Trust and/or
the Managing Owner set forth herein are not binding upon any of the
Limited Owners individually but are binding upon the assets and property
of each Series of the Trust individually and exclusively to the extent
that the obligations apply to such Series and, to the extent provided
herein, upon the assets and property of the Managing Owner, and no
resort shall be had to the assets of any Series to which such obligation
has no relationship or to the Limited Owners' personal property for the
satisfaction of any obligation or claim herein.
(h) Each party agrees that this Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without
regard to conflict of laws principles.
(i) Survival. All representations, warranties and covenants in this
Agreement, or contained in certificates required to be delivered
hereunder shall survive the termination of this Agreement, with respect
to any matter arising while this Agreement was in effect. Furthermore,
all representations, warranties and covenants hereunder shall inure to
the benefit of each of the parties to this Agreement and their
respective successors and permitted assigns.
(j) No Waiver. No failure or delay on the part of any party hereto
in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such
right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. Any waiver granted
hereunder must be in writing and shall be valid only in the specific
instance in which given.
(k) No Liability of Limited Owners. This Agreement has been made and
executed by and on behalf of the Trust, and the obligations of the Trust
and/or the Managing Owner set forth herein are not binding upon any of
the Limited Owners individually, but rather, are binding only upon the
assets and property of the Trust, and, to the extent provided herein,
upon the assets and property of the Managing Owner.
(l) Third-Party Beneficiaries. Wilmington Trust Company, the trustee
of the Trust, shall be a third-party beneficiary of the applicable
provisions of this Agreement. The Principals and Affiliates of each of
the Selling Agent, the Trustee and the Managing Owner shall be third-
party beneficiaries of the applicable provisions of this Agreement.
(m) Headings. Headings to Sections and subsections herein are for
the convenience of the parties only, and are not intended to be or to
affect the meaning or interpretation of this Agreement.
(n) Complete Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the matters referred to
herein, and no other agreement, verbal or otherwise, shall be binding
upon the parties hereto.
(o) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Signatures on
this Agreement may be communicated by facsimile transmission and shall
be binding upon the parties so transmitting their signatures.
Counterparts with original signatures shall be provided to the other
parties following the applicable facsimile transmission; provided, that
the failure to
II-16
provide the original counterpart shall have no effect on the validity or
the binding nature of this Agreement.
(p) Arbitration. Each party hereto agrees that any dispute relating
to the subject matter of this Agreement shall be settled and determined
by arbitration in the City of New York, State of New York, in accordance
with the rules then obtaining of the National Futures Association or, if
no such rules are then obtaining or if jurisdiction is declined, then in
accordance with the rules then obtaining of the American Arbitration
Association. Without limiting the generality of the foregoing, in any
such arbitration, each of the parties hereto agrees to request from the
arbitrators that (a) their authority be limited to construing and
enforcing the terms and conditions of the Agreement as expressly set
forth herein, (b) the reasons for their award be stated in a written
opinion, (c) they shall not make any award which shall alter, change,
cancel or rescind any provision of this Agreement, and (d) their award
shall be consistent with the provisions of this Agreement. The award of
the arbitrators shall be final and binding, and judgment may be
confirmed and entered thereon in any court of competent jurisdiction.
(q) Series Disclaimer. The parties hereto acknowledge and agree that
the Trust is organized in series pursuant to Sections 3804(a) and
3806(b)(2) of the Delaware Statutory Trust Act. As such, the debts,
liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to each series of the Trust shall be
enforceable against the assets of such series of the Trust only, and not
against the assets of the Trust generally or the assets of any other
series of the Trust or against the Trustee of the Trust. There may be
several series of the Trust created pursuant to the Declaration of Trust
and Trust Agreement of the Trust.
II-17
IN WITNESS WHEREOF, this Agreement has been executed for and on behalf of the
undersigned as of the day and year first above written.
THE FRONTIER FUND
By: EQUINOX FUND MANAGEMENT, LLC.
Its: Managing Owner
By:__________________________________
Name
Title
EQUINOX FUND MANAGEMENT, LLC
By:__________________________________
Name
Title
[NAME OF SELLING AGENT]
By:__________________________________
Name
Title
II-1
