THE MERRILL LYNCH FUTUREACCESSSM PROGRAM SELLING AGREEMENT Private Placement of Limited Liability Company Units Effective as of October 31, 2004 MERRILL LYNCH ALTERNATIVE INVESTMENTS LLC Manager MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED...
Exhbit
10.2
THE
XXXXXXX XXXXX FUTUREACCESSSM
PROGRAM
Private
Placement of Limited Liability Company Units
Effective
as of October 31, 2004
XXXXXXX
XXXXX ALTERNATIVE INVESTMENTS LLC
Manager
XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
Selling
Agent
THE
XXXXXXX XXXXX FUTUREACCESSSM
PROGRAM
TABLE
OF
CONTENTS
Section Page
|
SECTION 1. REPRESENTATIONS
AND WARRANTIES OF THE MANAGER
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1
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SECTION 2. OFFERING
AND SALE OF UNITS
|
3
|
|
SECTION 3. COVENANTS
OF THE MANAGER
|
5
|
|
SECTION
4. OFFERING MATERIALS
|
6
|
|
SECTION
5. CONDITIONS OF CLOSING
|
6
|
|
SECTION 6. INDEMNIFICATION
AND EXCULPATION
|
7
|
|
SECTION 7. STATUS
OF PARTIES
|
8
|
|
SECTION 8. REPRESENTATIONS,
WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY
|
9
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SECTION 9. TERMINATION
|
9
|
|
SECTION
10. NOTICES AND AUTHORITY TO ACT
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9
|
|
SECTION 11. PARTIES
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9
|
|
SECTION
12. GOVERNING LAW
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9
|
|
|
|
|
SECTION 13. REQUIREMENTS
OF LAW
|
9
|
____________________
APPENDIX:
SCHEDULE OF COMPANIES dated as of October 31, 2004
THE
XXXXXXX XXXXX FUTUREACCESSSM
PROGRAM
Private
Placement of Limited Liability Company Units
as
of
October 31, 2004
XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
Xxxxxxx
Xxxxx World Headquarters
North
Tower
World
Financial Center
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Dear
Sirs:
Your
affiliate, Xxxxxxx Xxxxx Alternative Investments LLC, a
Delaware limited liability company (referred to herein in its individual
capacity and as manager as the “Manager” or
“MLAI”), has caused the formation of a group
of managed futures
funds comprising the Xxxxxxx Xxxxx FuturesAccessSM Program
(the
“Program”) which, at the effective date hereof, consist of the
four limited liability companies formed pursuant to the Limited Liability
Company Act of the State of Delaware (the “DLLCA”) and listed
in the Schedule of Companies (the “Schedule”) attached hereto
as the Appendix. Each company within the Program is hereinafter
referred to as a “FuturesAccess Fund.” It is
intended that the terms and conditions of this Selling Agreement (the
“Agreement”) shall apply to and be binding upon any company
which subsequently becomes a FuturesAccess Fund (each a “New
FuturesAccess Fund”) and, likewise, shall cease to apply to any company
which ceases, for whatever reason, to be a FuturesAccess Fund (each an
“Old Futures Access Fund”). It is hereby agreed
therefore that, in the event of any New FuturesAccess Fund or Old FuturesAccess
Fund joining or leaving the Program as the case may be, the Schedule shall
be
amended accordingly with the intent and effect that (from the effective date
on
which such Schedule is acknowledged and accepted on behalf of the FuturesAccess
Funds specified therein, the Manager and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated) any such New FuturesAccess Fund shall become, and any such
Old FuturesAccess Fund shall cease to be, a party to this
Agreement. Upon becoming a party hereto, a New FuturesAccess Fund
shall agree to observe, perform and be bound by all the terms of this Agreement
which are capable of applying to it and which have not been performed as at
that
time.
The
FuturesAccess Funds (hereinafter referred to, individually, as a “Company,” and,
collectively, as the “Companies”) will operate as single-advisor managed futures
funds to which professional trading advisors (“Trading
Advisors”) unaffiliated with MLAI will provide trading advice on an
independent contractor basis.
APPENDIX
A
Capitalized
terms used herein, unless otherwise indicated, shall have the meanings
attributed to them in the Companies’ Part One (A) Confidential Program
Disclosure Document: FuturesAccessSM Program
General
Information, Part One (B) Confidential Program Disclosure
Document: Trading Advisor Information and the Part Two Confidential
Program Disclosure Document: Statement of Additional Information, as amended
or
supplemented from time to time (collectively, the
“Memorandum”). Defined terms used herein shall have
the meaning of both the singular and the plural unless otherwise
specified.
Section 1. Representations
and Warranties of the Manager. The Manager represents and
warrants to the Selling Agent as follows:
(a) Each
Company has been formed pursuant to a Certificate of Formation (each a
“Certificate of Formation”) and a Limited Liability Company
Operating Agreement (each an “Operating Agreement”)
which provide for the subscription for and sale of each Company’s units of
limited liability company interest (“Units”) in classes; all
action required to be taken by the Manager and each Company as a condition
to
the sale of the Units to subscribers who qualify as “Accredited Investors”
within the meaning of the Securities Act of 1933, as amended (the
“1933 Act”) has been, or prior to the
Initial and each Additional Closing Time (as defined in Section 2 hereof)
will have been taken, and, upon payment of the consideration therefor specified
in all accepted FuturesAccess Program Subscription and Exchange Agreements
and
Signature Pages thereto (collectively, the “Subscription
Agreements”), the Units will constitute valid limited liability company
interests in a Company.
(b) Each
Company is a limited liability company duly organized pursuant to a Certificate
of Formation and the DLLCA and validly existing under the laws of the State
of
Delaware with full power and authority to conduct its business and operations,
as described in its Memorandum; each Company has received (or will receive
prior
to the Initial Closing Time) a certificate of authority to do business in the
State of New Jersey.
(c) The
Manager is duly organized and validly existing and in good standing as a limited
liability company under the laws of the State of Delaware and in good standing
as a foreign limited liability company 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 Companies’ or the Manager’s ability to perform its
obligations hereunder.
(d) Each
Company and the Manager have full limited liability company power and authority
under applicable law to perform their respective obligations under an Operating
Agreement, an Escrow Agreement relating to the offering of the Units (each
an
“Escrow Agreement”), the Customer Agreement (“Customer
Agreement”) and the Advisory Agreement (“Advisory
Agreement”) relating to the trading of commodity interests
and this Agreement, as described in the Memorandum.
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APPENDIX
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(e) The
Memorandum as of its date of issue, the Initial Closing Time and at each
Additional Closing Time will 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 Memorandum made in reliance upon
and
in conformity with information relating to the Trading Advisors and furnished
or
approved in writing by the Trading Advisors; it being acknowledged that each
of
the Trading Advisors have approved the information relating to such
party or its principals, as set forth in the Memorandum.
(f) Since
the respective dates as of which information is given in the Memorandum., there
has not been any material adverse change in the condition (financial or
otherwise), business or prospects of the Manager or the Companies, whether
or
not arising in the ordinary course of business.
(g) An
Operating Agreement, an Escrow Agreement, a Customer Agreement, an Advisory
Agreement and this Agreement have each been duly and validly authorized,
executed and delivered by the Manager on behalf of each Company, and each
constitutes a valid, binding and enforceable agreement of each Company, in
accordance with its terms.
(h) The
execution and delivery of the Operating Agreements, the Escrow Agreement, the
Customer Agreement, the Advisory 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 Memorandum
will
not constitute a breach of, or default under, any instrument by which either
the
Manager or a Company is bound or any order, rule or regulation applicable to
the
Manager or a Company of any court or any governmental body or administrative
agency having jurisdiction over the Manager or a Company.
(i) There
is not pending, or, to the best of the Manager’s knowledge, threatened, any
action, suit or proceeding before or by any court or other governmental body
to
which the Manager or a Company is a party, or to which any of the assets of
the
Manager or a Company is subject, which is not referred to in the Memorandum
and
which might reasonably be expected to result in any material adverse change
in
the condition (financial or otherwise), business or prospects of the Manager
or
the Company.
(j) The
Manager has all federal and state governmental and regulatory 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 Memorandum or required to perform its obligations as described under
the
Operating Agreements and this Agreement, 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.
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APPENDIX
A
(k) The
Companies do not require any federal or state governmental or regulatory
approvals or licenses, or need to effect any filings or registrations with
any
federal or state governmental agencies in order to conduct their business,
to
act as contemplated by the Memorandum and to issue and sell Units (other than
filings relating solely to the offering of the Units).
(l) Deloitte &
Touche LLP are, with respect to the Manager and the Companies, independent
public accountants within the meaning of the 1933 Act and the regulations of
the
Securities and Exchange Commission (“SEC”).
(m) The
offer and sale of the Units in the manner contemplated by this Agreement will
be
exempt from the registration requirements of the 1933 Act by reason of
Regulation D promulgated thereunder.
Section 2. Offering
and Sale of Units.
(a) The
Selling Agent is hereby granted the exclusive right to distribute
Units. Subject to the performance by the Manager of all its
obligations to be performed hereunder, and to the completeness and accuracy
in
all material respects of all the representations and warranties of the Manager
contained herein, the Selling Agent hereby accepts such agency and agrees on
the
terms and conditions herein set forth to use its best efforts to find acceptable
subscribers for the Units as of the beginning of each calendar
month.
It
is
understood that the Selling Agent’s agreement to use its best efforts to find
acceptable subscribers for the Units shall not prevent it from acting as a
selling agent or underwriter for the securities of other issuers which may
be
offered or sold during the term of this Agreement. The agency of the
Selling Agent hereunder shall continue until this Agreement is terminated in
accordance with the provisions of this Section or Section 9.
(b) In
the event insufficient subscriptions (as described in the Memorandum) are
received prior to the intended close of the initial offering period, all funds
received from subscribers shall be returned in full, with any interest payable
thereon (irrespective of amount) and without deduction for any escrow or other
fee or expense; and thereupon the Selling Agent’s duties as agent and this
Agreement shall terminate without further obligation hereunder on the part
of
the Selling Agent, the Manager or the Company.
(c) The
Manager shall notify the Selling Agent of the aggregate number of Units in
each
Company for which the Manager has received acceptable subscriptions, and payment
of the purchase price for the Units of such Company may, if the Manager so
elects, be made at the office of the Manager, Princeton Corporate Campus, 800
Scudders Mill Road, Section 2G, Xxxxxxxxxx, Xxx Xxxxxx 00000 or at such other
place as shall be agreed upon between the Selling Agent and the Manager, at
10:00 A.M., New York time, on the fifth full business day after the day on
which the Manager notifies the Selling Agent of the Units for
3
APPENDIX
A
which
subscriptions have been accepted or such other day and time as shall be agreed
upon between the Selling Agent and the Manager (the
“Initial Closing Time”).
At
the
Initial Closing Time, all interest earned on subscriptions while held in escrow
will be credited to the relevant FuturesAccess Fund.
(d) After
the Initial Closing Time, the Manager shall notify the Selling Agent of the
aggregate value of Units in each Company for which the Manager has accepted
subscriptions for purchase as of the beginning of each month for which
sufficient subscriptions (as described in the Memorandum) are received (each
additional sale of Units hereinafter referred to as an “Additional
Closing Time”).
(e)
Initial sales commissions of 1.0% – 2.5% of the amount of each Company’s Class A
Unit subscription, and up to 0.50% of each Company’s Class I and Class D Unit
subscription, shall be deducted from the subscription amount. No
initial sales commissions will be paid on a Company’s Class C
Units.
MLAI
will
pay to the Selling Agent, at no additional cost to the Companies or their
Members, ongoing compensation on the Units for as long as such Units remain
outstanding. Such ongoing compensation will equal 1.0%, 0.80%, 2.00%
and 0.30% per annum of the average month-end Net Asset Value per Unit of each
Company’s Class A, Class I, Class C and Class D Units,
respectively.
Ongoing
compensation in respect of each Company’s Class A Units will begin in the
thirteenth month, and in the case of all other Units, immediately after their
issuance. Units are issued for such purposes when they begin to
participate in the profits and losses of a Company (i.e., when a
Company begins to participate in the profits and losses of the applicable
Company), not when the related Subscription Agreements are
accepted.
(f) The
Selling Agent will use its best efforts to find eligible persons to purchase
the
Units as of the intended close of the initial offering period (as described
in
the Memorandum) and thereafter on the terms stated herein and in the
Memorandum. It is understood that the Selling Agent has no commitment
with regard to the sale of the Units other than to use its commercially
reasonable efforts. In connection with the offer and sale of the
Units, the Selling Agent represents that it will not knowingly violate
applicable laws, and the rules of the National Association of Securities
Dealers, Commodity Futures Trading Commission (“CFTC”), the
National Futures Association (“NFA”), the SEC, state securities
administrators and any other regulatory body. The Selling Agent
further represents that it has not and will not offer and sell, or arrange
any
commitments to purchase, any Units by any form of general solicitation or
general advertising (as those terms are used in Regulation D promulgated under
the 0000 Xxx) or in any manner involving a public offering (within the meaning
of
4
APPENDIX
A
Section
4(2) of the Securities Act), or offer and sell or otherwise negotiate in respect
of any security the offering which is or could be integrated with the sale
of
Units in a manner that would require registration of the Units under 1933
Act. The Selling Agent shall not 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
maintained.
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 the subscriber is or will be in a financial position appropriate
to
enable the subscriber to realize to a significant extent the benefits of a
Company, including tax benefits described in the Memorandum; the subscriber
has
a fair-market net worth sufficient to sustain the risks inherent in
participating in the Companies, including loss of investment and lack of
liquidity; the Units are otherwise a suitable investment for the subscriber;
and
the subscriber is qualified to purchase Units as described in the
Memorandum.
(g) None
of the Selling Agent, the Companies or the Manager shall, directly or
indirectly, pay or award any finder’s fees, commissions or other compensation to
any person engaged by a potential investor for investment advice as an
inducement to such advisor to advise the purchase of Units; provided, however,
the normal sales commissions payable to a registered broker-dealer or other
properly licensed person for selling Units shall not be prohibited
hereby.
(h) All
payments for subscriptions shall be made by debiting subscribers’ customer
securities accounts maintained with the Selling Agent as described in the
Memorandum.
(i) In
connection with the offer and sale of the Units, the Manager will not knowingly
violate applicable laws and the rules of the SEC, the CFTC, the NFA, state
securities administrators and any other regulatory body.
Section 3. Covenants
of the Manager.
(a) The
Manager will notify the Selling Agent immediately and confirm such notification
in writing of the issuance by the SEC or any other federal or state regulatory
body of any order or decree enjoining the offering or the use of the then
current Memorandum or of the institution, or notice of the intended institution,
of any action or proceeding for that purpose.
(b) Until
termination of this Agreement, the Manager will take all necessary regulatory
steps, make all necessary ongoing regulatory filings and obtain all necessary
regulatory approvals to maintain the ongoing offering of the Units.
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APPENDIX
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(c) If
any event relating to or affecting the Manager or a Company shall occur as
a
result of which it is necessary to amend or supplement a Company’s Memorandum in
order to make the Memorandum not materially misleading in light of the
circumstances existing at the time it is delivered to a subscriber, MLAI and
the
Company will forthwith prepare and furnish to the Selling Agent, at the expense
of MLAI, a reasonable number of copies of an amendment or amendments of, or
a
supplement or supplements to, the Memorandum which will amend or supplement
the
Memorandum so that as amended or supplemented it will not contain an untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements therein, in light of the circumstances existing at the
time the Memorandum is delivered to a subscriber, not misleading.
Section 4. Offering
Materials. The Manager will ensure the printing and delivery to
the Selling Agent of copies of a reasonable number of copies of the Memoranda
and any supplements or amendments thereto, and of any supplemental sales
materials, as necessary from time to time.
Section
5. Conditions of Closing. The obligations of each
of the parties hereunder are subject to the accuracy of the representations
and
warranties of the other parties hereto, to the performance by such other parties
of their respective obligations hereunder and to the following further
conditions:
(a) If
requested by the Selling Agent, MLAI shall deliver a certificate to the effect
that: (i) the representations and warranties of MLAI contained
herein are true and correct with the same effect as though expressly made at
the
Initial Closing Time and in respect of the Memorandum as in effect at the
Initial Closing Time; and (ii) MLAI has performed all covenants and
agreements herein contained to be performed on its part as of or prior to the
Initial Closing Time.
(b) As
of the Initial Closing Time, Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel to the
Manager, shall deliver to all the parties hereto its opinion, in form and
substance satisfactory to each of the parties hereto.
(c) The
parties hereto shall have been furnished with such additional information,
opinions, certificates and documents, including supporting documents relating
to
parties described in the Memorandum and letters of representation signed by
such
parties with regard to information relating to them and included in the
Memorandum as they may reasonably require for the purpose of enabling them
to
pass upon the sale of the Units as herein contemplated and related proceedings,
in order to evidence the accuracy or completeness of any of the representations
or warranties or the fulfillment of any of the conditions herein contained;
and
all actions taken by the parties hereto in connection with the sale of the
Units
as herein contemplated shall be reasonably satisfactory in form and substance
to
Sidley Xxxxxx Xxxxx & Xxxx LLP.
6
APPENDIX
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(d) As
of each Additional Closing Time, the parties hereto shall have been furnished
with such information, opinions and certified documents as the Manager and
the
Selling Agent may deem to be necessary or appropriate.
If
any of
the conditions specified in this Section 5 shall not have been fulfilled
when and as required by this Agreement to be fulfilled, this Agreement and
all
obligations hereunder may be canceled by any party hereto by notifying the
other
parties hereto of such cancellation in writing or by telegram at any time at
or
prior to the Initial Closing Time, and any such cancellation or termination
shall be without liability of any party to any other party except as otherwise
provided in Section 6.
Section 6. Indemnification
and Exculpation.
(a) Indemnification
by the Manager. The Manager agrees to indemnify and hold harmless
the Selling Agent and each person, if any, who controls the Selling Agent within
the meaning of Section 15 of the 1933 Act, as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever arising out
of
(A) any breach by the Manager of its representations and warranties or failure
of the Manager to comply with any of its agreements contained herein or any
act,
omission, activity or conduct undertaken in connection with this Agreement
by or
on behalf of the Manager, except to the extent such loss results from the
negligence or willful misconduct of the Selling Agent or (B) any untrue
statement or alleged untrue statement of a material fact contained in the
Memorandum (or any amendment thereto) or any omission or alleged omission
therefrom of a material fact required to be stated therein or necessary in
order
to make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Memorandum (or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, unless such untrue statement or omission or alleged untrue statement
or omission was made in reliance upon and in conformity with information
relating to the Selling Agent or a Trading Advisor or furnished or approved
by
the Selling Agent or Trading Advisor as the case may be;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever with respect
to each Company to the extent of the aggregate amount paid in settlement of
any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission or any such alleged untrue statement or omission
(any settlement to be subject to indemnity hereunder only if effected with
the
written consent of the Manager); and
7
APPENDIX
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(iii) against
any and all expense whatsoever with respect to each Company (including the
fees
and disbursements of counsel) reasonably incurred in investigating, preparing
or
defending against litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under
clauses (i) or (ii) above.
In
no
case shall the Manager be liable under this indemnity agreement with respect
to
any claim made against any indemnified party unless the Manager shall be
notified in writing of the nature of the claim within a reasonable time after
the assertion thereof, but failure to so notify the Manager shall not relieve
the Manager from any liability which it may have otherwise than on account
of
this indemnity agreement. The Manager shall be entitled to
participate at its own expense in the defense or, if it so elects within a
reasonable time after receipt of such notice, to assume the defense of that
portion of any suit so brought relating to the Manager’s indemnification
obligations hereunder, which defense shall be conducted by counsel chosen by
it
and satisfactory to the indemnified party or parties, defendant or defendants
therein. In the event that the Manager elects to assume the defense
of any such suit and retain such counsel, the indemnified party or parties,
defendant or defendants in the suit, shall bear the fees and expenses of any
additional counsel thereafter retained by it or them; provided, however, that
the Manager may, upon the mutual agreement of the Manager and the indemnified
party or parties, bear the fees and expenses of additional counsel retained
by
an indemnified party if the named parties in such suit include both the Manager
and the indemnified party and representation of both the Manager and the
indemnified party would be inappropriate due to actual or potential differing
interests between them or there are defenses available to the indemnified party
that are or would not be available to the Manager. In the event the
Manager assumes the defense of the portion of a suit relating to the Manager’s
indemnification obligations hereunder, the Manager will not, without the prior
written consent of the indemnified party, effect any settlement of such suit,
unless such settlement includes a release of the indemnified party from all
liability or claims that are the subject of such suit.
The
Manager agrees to notify the Selling Agent within a reasonable time of the
assertion of any claim in connection with the sale of the Units against it
or
any of its officers or directors or any person who controls the Manager within
the meaning of Section 15 of the 1933 Act.
Section 7. Status
of Parties. In selling the Units for the Companies, the Selling
Agent is acting solely as an agent for the Companies and not as a
principal. The Selling Agent will use its best efforts to assist the
Companies in obtaining performance by each purchaser whose offer to purchase
Units from a Company has been accepted on behalf of a Company, but the Selling
Agent shall not have any liability to a Company in the event that any such
purchase is not consummated for any reason.
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APPENDIX
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Section 8. Representations,
Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or
contained in certificates of any party hereto submitted pursuant hereto shall
remain operative and in full force and effect, regardless of any investigation
made by, or on behalf of, the Selling Agent, the Manager or any person who
controls any of the foregoing and shall survive the Initial and each Additional
Closing Time in the form restated and reaffirmed as of each such closing
time.
Section 9. Termination. The
Manager shall have the right to terminate this Agreement at any time by giving
notice to the Selling Agent, and the Selling Agent to do so upon 30 calendar
days’ notice to the Manager.
Section
10. Notices and Authority to Act. All
communications hereunder shall be in writing and, if sent to the Selling Agent,
shall be mailed, delivered or telegraphed and confirmed to it
at: Xxxxxxx Xxxxx World Headquarters, North Tower, World Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000; if sent to the Manager or a Company
shall be mailed, delivered or telegraphed and confirmed to it at Princeton
Corporate Campus, 800 Scudders Mill Road, Section 2G, Xxxxxxxxxx, Xxx Xxxxxx
00000, Attention: Xx. Xxxxxx X. Xxxxx.
Section 11. Parties. This
Agreement shall inure to the benefit of and be binding upon the Selling Agent,
the Companies, the Manager and such parties’ respective successors to the extent
provided herein. This Agreement and the conditions and provisions
hereof are intended to be and are for the sole and exclusive benefit of the
parties hereto and their respective successors, assigns and controlling persons
and parties indemnified hereunder, and for the benefit of no other person,
firm
or corporation. No purchaser of a Unit shall be considered to be a
successor or assign solely on the basis of such purchase.
SECTION 12. GOVERNING
LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
CREATED HEREBY SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES.
Section 13. Requirements
of Law. Whenever in this Agreement it is stated that a party will
take or refrain from taking a particular action, such party may nevertheless
refrain from taking or take such action if advised by counsel that doing so
is
required by law or advisable to ensure compliance with law, and shall not be
subject to any liability hereunder for doing so, although such action shall
permit termination of this Agreement by the other parties hereto.
If
the
foregoing is in accordance with each party’s understanding of its agreement,
each party is requested to sign and return to the Manager a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement among them in accordance with its terms effective as of the date
first
above written.
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APPENDIX
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| Very truly yours, | |||
| Signed
for and on behalf of:
The
FuturesAccess Funds
|
|||
| By: | Xxxxxxx Xxxxx Alternative Investments LLC | ||
|
Manager
|
|||
|
|
By:
|
/s/ Xxxxxxx X. X. Xxxxxx | |
| Name: Xxxxxxx X. X. Xxxxxx | |||
| Title: Vice President | |||
| XXXXXXX XXXXX ALTERNATIVE INVESTMENTS LLC | |||
|
|
By:
|
/s/ Xxxxxxx X. X. Xxxxxx | |
| Name: Xxxxxxx X. X. Xxxxxx | |||
| Title: Vice President | |||
Confirmed
and accepted as of
the
date first above written:
|
XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
|
||
|
Selling
Agent
|
||
|
By:
|
/s/
Xxxxxx X.
Xxxxx
|
|
|
Name: Xxxxxx
X. Xxxxx
Title:
Authorized Signatory
|
||
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