Exhibit 4.1
ML APM GLOBAL COMMODITY FUTURESACCESS LLC
LIMITED LIABILITY COMPANY
OPERATING AGREEMENT
-------------------------------
THE UNITS OF LIMITED LIABILITY COMPANY INTEREST CREATED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES ACT, AND
MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED
UNDER APPLICABLE SECURITIES LAWS AND WITH THE CONSENT OF THE SPONSOR.
-------------------------------
Xxxxxxx Xxxxx Alternative Investments LLC
Sponsor
August 1, 2006
ML APM GLOBAL COMMODITY FUTURESACCESS LLC
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
----------------------------------------------------------------------------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE I ORGANIZATION
SECTION 1.01. OBJECTIVES AND PURPOSES.......................................................................................1
SECTION 1.02. APPOINTMENT OF THE TRADING ADVISOR; INVESTMENT OF CASH RESERVES...............................................2
SECTION 1.03. FISCAL YEAR; ACCOUNTING PERIODS...............................................................................2
SECTION 1.04. REGISTERED AGENT AND OFFICE; PRINCIPAL OFFICE.................................................................3
SECTION 1.05. DURATION OF THIS FUTURESACCESS FUND...........................................................................3
SECTION 1.06. NON-ASSIGNABILITY OF UNITS; SUBSTITUTED INVESTORS; LIMITED ASSIGNABILITY OF THE
SPONSOR'S INTEREST.................................................................................................3
SECTION 1.07. LIABILITY OF INVESTORS........................................................................................3
ARTICLE II CAPITAL AND TAX ALLOCATIONS
SECTION 2.01. CAPITAL CONTRIBUTIONS.........................................................................................4
SECTION 2.02. OPENING CAPITAL ACCOUNTS......................................................................................6
SECTION 2.03. FINANCIAL ALLOCATIONS AMONG THE UNITS.........................................................................6
SECTION 2.04. NET ASSET VALUE...............................................................................................6
SECTION 2.05. SPONSOR'S FEES; MANAGEMENT AND PERFORMANCE FEES; TRANSACTION COSTS; OPERATING
EXPENSES...........................................................................................................8
SECTION 2.06. ALLOCATION OF PROFITS AND LOSSES FOR FINANCIAL PURPOSES.......................................................8
SECTION 2.07. ALLOCATION OF PROFITS AND LOSSES FOR INCOME TAX PURPOSES......................................................9
SECTION 2.08. CHARGEBACKS TO CURRENT OR FORMER INVESTORS...................................................................11
SECTION 2.09. PROCESSING OF SUBSCRIPTIONS..................................................................................11
SECTION 2.10. VALUATION OF ASSETS..........................................................................................11
SECTION 2.11. USE OF ESTIMATES.............................................................................................12
SECTION 2.12. ACCOUNTING PRACTICES.........................................................................................13
ARTICLE III PARTICIPATION IN FUTURESACCESS FUND PROPERTY; REDEMPTIONS AND DISTRIBUTIONS
SECTION 3.01. NO UNDIVIDED INTERESTS IN FUTURESACCESS FUND PROPERTY........................................................13
SECTION 3.02. REDEMPTIONS OF UNITS; EXCHANGES..............................................................................13
SECTION 3.03. WITHDRAWALS OF CAPITAL BY THE SPONSOR........................................................................14
A-i
TABLE OF CONTENTS (cont.)
SECTION 3.04. MANDATORY REDEMPTIONS........................................................................................14
SECTION 3.05. MANDATORY REDEMPTIONS TO PAY TAXES...........................................................................14
SECTION 3.06. DISTRIBUTIONS................................................................................................15
SECTION 3.07. FORM OF DISTRIBUTION AND REDEMPTION PAYMENTS.................................................................15
SECTION 3.08. REMOVAL OF THE SPONSOR.......................................................................................15
ARTICLE IV WITHDRAWAL OF THE SPONSOR AND INVESTORS
SECTION 4.01. WITHDRAWAL OF THE SPONSOR....................................................................................15
SECTION 4.02. WITHDRAWAL OF AN INVESTOR....................................................................................15
SECTION 4.03. STATUS AFTER WITHDRAWAL......................................................................................15
ARTICLE V MANAGEMENT
SECTION 5.01. AUTHORITY OF THE SPONSOR.....................................................................................15
SECTION 5.02. SERVICE PROVIDERS; INVESTMENTS; ACCOUNTS.....................................................................16
SECTION 5.03. ACTIVITIES OF THE SPONSOR PARTIES............................................................................16
SECTION 5.04. SERVICES TO THIS FUTURESACCESS FUND..........................................................................16
SECTION 5.05. INTERESTED PARTIES...........................................................................................16
SECTION 5.06. EXCULPATION..................................................................................................17
SECTION 5.07. INDEMNIFICATION..............................................................................................17
SECTION 5.08. INVESTORS' TRANSACTIONS......................................................................................17
SECTION 5.09. RELIANCE BY THIRD PARTIES....................................................................................18
SECTION 5.10. REGISTRATION OF ASSETS.......................................................................................18
SECTION 5.11. LIMITATION ON AUTHORITY OF THE SPONSOR.......................................................................18
ARTICLE VI ADMISSION OF INVESTORS
SECTION 6.01. PROCEDURE AS TO NEW INVESTORS................................................................................18
SECTION 6.02. PROCEDURE AS TO NEW MANAGERS.................................................................................18
ARTICLE VII BOOKS OF ACCOUNT; AUDITS; REPORTS TO INVESTORS
SECTION 7.01. BOOKS OF ACCOUNT.............................................................................................18
SECTION 7.02. ANNUAL AUDIT.................................................................................................19
SECTION 7.03. INTERIM REPORTS..............................................................................................19
ARTICLE VIII CONFLICTS OF INTEREST
SECTION 8.01. INVESTORS' CONSENT...........................................................................................19
ARTICLE IX DISSOLUTION AND WINDING UP OF THIS FUTURESACCESS FUND
A-ii
TABLE OF CONTENTS (cont.)
SECTION 9.01. EVENTS OF DISSOLUTION........................................................................................20
SECTION 9.02. DISSOLUTION..................................................................................................20
ARTICLE X MISCELLANEOUS PROVISIONS
SECTION 10.01. INVESTORS NOT TO CONTROL....................................................................................20
SECTION 10.02. POWER OF ATTORNEY...........................................................................................21
SECTION 10.03. AMENDMENTS; CONSENTS........................................................................................21
SECTION 10.04. NOTICES.....................................................................................................21
SECTION 10.05. LEGAL EFFECT; MANNER OF EXECUTION...........................................................................22
SECTION 10.06. GOVERNING LAW...............................................................................................22
SECTION 10.07. CONSENT TO JURISDICTION.....................................................................................22
SECTION 10.08. "TAX MATTERS PARTNER"; TAX ELECTIONS........................................................................22
SECTION 10.09. DETERMINATION OF MATTERS NOT PROVIDED FOR IN THIS AGREEMENT.................................................22
SECTION 10.10. NO PUBLICITY................................................................................................22
SECTION 10.11. SURVIVAL....................................................................................................22
SECTION 10.12. WAIVERS.....................................................................................................22
SECTION 10.13. VOTING RIGHTS...............................................................................................22
SECTION 10.14. ISSUANCE OF DIFFERENT CLASSES...............................................................................23
SECTION 10.15. COMPLIANCE WITH THE INVESTMENT ADVISERS ACT OF 1940; SECURITIES LAWS........................................23
------------------
TESTIMONIUM
SIGNATURES
A-iii
ML APM GLOBAL COMMODITY FUTURESACCESS LLC
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT ("Agreement") dated August
1, 2006 of ML APM Global Commodity FuturesAccess LLC (this "FuturesAccess
Fund") by and among Xxxxxxx Xxxxx Alternative Investments LLC, a Delaware
limited liability company (the "Sponsor"), and those persons who shall invest
in the units of limited liability company interest ("Units") created hereby --
Class A, Class C, Class D and Class I -- and shall execute this Agreement, by
power-of-attorney, as members (such members being hereinafter sometimes
referred to collectively as "Investors"; provided, that for purposes of
voting, Units held by the Sponsor shall not be considered to be held by an
Investor).
WHEREAS, the parties hereto desire to form or continue the FuturesAccess Fund,
a limited liability company under the provisions of the Delaware Limited
Liability Company Act (the "Act"), which shall be one of the funds included in
the Xxxxxxx Xxxxx FuturesAccessSM Program ("FuturesAccess"); such other funds
to be hereinafter sometimes referred to as "FuturesAccess Funds").
WHEREAS, units of limited liability company interest issued by the
FuturesAccess Funds in general shall hereinafter be referred to as "Units."
WHEREAS, the Sponsor is the sponsor of the FuturesAccess Fund and the manager
of the FuturesAccess Fund for purposes of the Act.
WHEREAS, in addition to FuturesAccess, the Sponsor also sponsors the
HedgeAccessSM Program ("HedgeAccess") of private investment funds
concentrating on securities, rather than futures and forward, trading (such
funds being hereinafter referred to as "HedgeAccess Funds").
WHEREAS, the parties hereby desire to set forth the terms pursuant to which
the FuturesAccess Fund shall be governed.
NOW, THEREFORE, in consideration of the premises, the mutual agreements herein
contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
ORGANIZATION
SECTION 1.01. OBJECTIVES AND PURPOSES.
(a) This FuturesAccess Fund shall have the following objectives and
purposes:
(i) to retain a professional trading advisor (the "Trading
Advisor") to manage this FuturesAccess Fund's speculative
trading in the futures, forward, options and other markets
as described in the Part One (A) Confidential Program
Disclosure Document: FuturesAccessSM Program General
Information, the Part One (B): Confidential Program
Disclosure Document Trading Advisor Information and the Part
Two Confidential Program Disclosure Document: Statement of
Additional Information, as they may be amended from time to
time (collectively, the "Confidential Program Disclosure
Document");
(ii) to maintain such futures brokerage, forward dealing and
other counterparty accounts, as well as such cash reserves
as the Sponsor may from time to time deem to be appropriate
and to invest and manage all such cash reserves; and
(iii) to engage in any other lawful act or activity within and
without the United States for which limited liability
companies may be organized under the laws of the State of
Delaware.
A-1
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
(b) This FuturesAccess Fund, and the Sponsor on behalf of this
FuturesAccess Fund, shall have the power to enter into, make and
perform all contracts and other undertakings, and engage in all
activities and transactions as may be necessary or advisable to
the carrying out of the foregoing purposes, including, without
limitation, the power:
(i) to trade futures, forwards, options and other instruments,
on margin and otherwise;
(ii) to borrow money from banks or brokers, and to secure the
payment of any obligations of this FuturesAccess Fund by
hypothecation or pledge of all or part of the assets of this
FuturesAccess Fund;
(iii) to exercise, as applicable, all rights, powers, privileges
and other incidents of ownership or possession with respect
to the assets of this FuturesAccess Fund;
(iv) to open, maintain and close bank, brokerage and other
accounts;
(v) to prepare and file all tax returns required of this
FuturesAccess Fund and make any election or determination on
behalf of this FuturesAccess Fund in connection therewith or
as otherwise required or permitted by applicable tax laws;
(vi) to bring, defend, compromise and settle legal actions or
other claims on behalf of this FuturesAccess Fund;
(vii) to maintain insurance on behalf of this FuturesAccess Fund,
including indemnification insurance; or
(viii) to take any and all such actions as the Sponsor may deem to
be necessary or advisable in connection with the foregoing.
SECTION 1.02. APPOINTMENT OF THE TRADING ADVISOR; INVESTMENT OF CASH RESERVES.
The Sponsor shall appoint the Trading Advisor to have discretionary authority
over this FuturesAccess Fund's trading and investing as described in the
Confidential Program Disclosure Document. This FuturesAccess Fund may execute
transactions in commodity interests, currency interests, swap agreements, and
any other manner of instruments, on either a principal or an agency basis,
with or through affiliates of the Sponsor (the Sponsor and such affiliates
being hereafter referred to as "Xxxxxxx Xxxxx") or third parties. The sole
clearing broker and the principal forward trading counterparty for this
FuturesAccess Fund shall be Xxxxxxx Xxxxx unless the Sponsor otherwise
determines.
This FuturesAccess Fund shall deposit all or substantially all of this
FuturesAccess Fund's capital with Xxxxxxx Xxxxx or any other clearing brokers
selected by the Sponsor pursuant to the arrangements described in the
Confidential Program Disclosure Document, all Investors acknowledging that
Xxxxxxx Xxxxx will not only receive futures brokerage commissions and bid-ask
spreads from this FuturesAccess Fund but also will retain significant economic
benefits from the possession of this FuturesAccess Fund's assets (in addition
to the interest which Xxxxxxx Xxxxx will credit to this FuturesAccess Fund's
account). In addition, the Sponsor may maintain this FuturesAccess Fund's
assets in deposit or similar accounts with one or more affiliates of the
Sponsor, which affiliates may benefit from the possession of such assets, as
well as with unaffiliated entities. The interest paid by such affiliated and
unaffiliated entities on this FuturesAccess Fund's cash so invested will be
paid to this FuturesAccess Fund. However, neither the Sponsor nor any of its
affiliates (or any third parties) will be obligated to account to this
FuturesAccess Fund or any Investor for any additional economic benefits which
the Sponsor or any such affiliate may derive from possession of this
FuturesAccess Fund's assets.
SECTION 1.03. FISCAL YEAR; ACCOUNTING PERIODS. The fiscal year of this
FuturesAccess Fund shall end on each December 31. This FuturesAccess Fund's
accounting periods ("Accounting Periods"), as of the end of each of which
increases and decreases in this FuturesAccess Fund's "Net Assets" (as defined
in Section 2.04) shall be calculated and
A-2
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
reflected in the Net Asset Value of the Units issued by this FuturesAccess
Fund, shall begin: (i) as of the day that this FuturesAccess Fund first begins
operations; (ii) as of the day that any Unit is issued; (iii) as of the day
immediately following any redemption of Units or withdrawal from an Investor's
Capital Account; (iv) as of the beginning of each calendar month; and (v) as
of such other day as the Sponsor may determine. An Accounting Period shall end
on the day immediately preceding the beginning of the next Accounting Period.
SECTION 1.04. REGISTERED AGENT AND OFFICE; PRINCIPAL OFFICE. This
FuturesAccess Fund shall maintain in the State of Delaware a registered agent
and office. The identity and location of said registered agent and office
shall be determined by the Sponsor, and may be changed from time to time by
the Sponsor.
The initial registered office of this FuturesAccess Fund in the State of
Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
The principal office of this FuturesAccess Fund shall be located at the
offices of the Sponsor, Princeton Corporate Campus, 800 Scudders Mill Road,
Section 2G, Xxxxxxxxxx, Xxx Xxxxxx 00000, or such other place as the Sponsor
may designate from time to time.
SECTION 1.05. DURATION OF THIS FUTURESACCESS FUND. The term of this
FuturesAccess Fund commenced as of the date its Certificate of Formation was
filed with the Secretary of State of the State of Delaware, and shall continue
until terminated by the dissolution and winding up of this FuturesAccess Fund
as hereinafter provided.
SECTION 1.06. NON-ASSIGNABILITY OF UNITS; SUBSTITUTED INVESTORS; LIMITED
ASSIGNABILITY OF THE SPONSOR'S INTEREST.
(a) No Investor shall assign, encumber, pledge, hypothecate or
otherwise transfer any of such Investor's Units without the
consent of the Sponsor, and any assignment, encumbrance, pledge,
hypothecation or transfer of Units, whether voluntary, involuntary
or by operation of law, to which the Sponsor does not consent
shall result in the Units so assigned, encumbered, pledged,
hypothecated or otherwise transferred being mandatorily redeemed
as of the end of the month during which such purported assignment,
encumbrance, pledge, hypothecation or transfer occurred. Any
assignment, encumbrance, pledge, hypothecation or transfer which
shall result in the termination of this FuturesAccess Fund for
federal income tax purposes shall be null and void ab initio and
of no legal force or effect whatsoever. An assigning Investor
shall remain liable to this FuturesAccess Fund as provided in the
Act, regardless of whether his or her assignee becomes a
substituted Investor.
(b) The Sponsor may not assign, encumber, pledge, hypothecate or
otherwise transfer all or any portion of its manager's interest in
this FuturesAccess Fund; provided, that the Sponsor may assign
such interest to an affiliate of the Sponsor upon notice (which
need not be prior notice) to the Investors or in connection with
the sale or transfer of all or a material portion of the Sponsor's
equity or assets. See Sections 4.01 and 6.02.
SECTION 1.07. LIABILITY OF INVESTORS.
(a) Nothing herein shall require the Sponsor to maintain any minimum
net worth or shall make any person associated with the Sponsor
individually liable for any debt, liability or obligation of this
FuturesAccess Fund or of the Sponsor
(b) No Investor shall have any obligation to restore any negative
balance in such Investor's Capital Account.
(c) The Sponsor shall have no obligation to restore any negative
balance in any Investor's or in the Sponsor's Capital Account.
(d) Except as provided in Section 2.08 (providing for chargebacks to
current or former Investors), the Sponsor and the Investors shall
be liable for the repayment, satisfaction and discharge of debts,
liabilities
A-3
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
and obligations of this FuturesAccess Fund only to the extent of the
Sponsor's or such Investor's investment in this FuturesAccess Fund
and not in excess thereof.
ARTICLE II
CAPITAL AND TAX ALLOCATIONS
SECTION 2.01. CAPITAL CONTRIBUTIONS. All Capital Contributions to this
FuturesAccess Fund shall be made in cash. Capital Contributions may be made in
such amounts, and at such times, as the Sponsor may determine. The Sponsor may
permit certain Investors to make smaller initial or subsequent Capital
Contributions than is otherwise generally required by the Sponsor without
entitling any other Investor to make smaller initial or subsequent Capital
Contributions.
Investors will receive Units in return for their Capital Contributions. Each
Class of Units shall initially be issued at $1.00 per Unit, and thereafter at
Net Asset Value.
The Sponsor (and/or any other Xxxxxxx Xxxxx entity) may, but need not, make
Capital Contributions as of any date that any Units are issued. Xxxxxxx Xxxxx
may provide initial ("seed") capital to enable the Fund to begin trading
before sufficient client capital has been raised to meet the Fund's minimum
capitalization. Seed capital (if any) will be invested in Class D Units.
However, neither the Sponsor nor any other Xxxxxxx Xxxxx entity has any
obligation to "seed" the Fund (or any other FuturesAccess Fund). The Units
shall be issued in four Classes -- Class A Units, Class C Units, Class D Units
and Class I Units. Units of a new Class or Series may be issued in the
Sponsor's sole discretion.
Sales commissions will be deducted from Class A, Class D and Class I
subscriptions as described in the Confidential Program Disclosure Document,
and the net amount of such subscriptions (after deducting applicable sales
commissions) will be invested in the Units. The Sponsor may waive or reduce
sales commissions for certain Investors without entitling any other Investor
to any such waiver or reduction.
Fractional Units shall not be issued to Investors (but may be issued to the
Sponsor or any other Xxxxxxx Xxxxx entity). Investors' subscriptions shall be
used to purchase the largest whole number of Units of the appropriate Class
possible. Any subscription amount which cannot be used to purchase whole Units
will be credited (in cash) to Investors' Xxxxxxx Xxxxx customer securities
accounts.
Provided the FuturesAccess Fund's overall minimum capitalization is met, there
is no minimum number of Units of a particular Class that must be sold in order
for Units of that particular Class to be issued.
Once the FuturesAccess Fund has begun operations, there is no minimum dollar
amount of subscriptions that must be received as of the beginning of any
calendar quarter in order for additional Units of any Class to be issued. All
Units will be issued only as the Sponsor may determine, irrespective of how
many subscriptions are received.
Class eligibility shall be determined on the basis of an Investor's total
"FuturesAccess Investment" (defined below) in FuturesAccess overall as well
as, in the case of Class D Units, in a particular FuturesAccess Fund. An
Investor's "FuturesAccess Investment," determined as of the beginning of each
month, equals the greater of:
(i) the market value of all of an Investor's outstanding Units (or in
a particular FuturesAccess Fund, as applicable) based on the most
recently available Net Asset Values, plus pending subscriptions; or
(ii) an Investor's net subscriptions to FuturesAccess overall (or to
a particular FuturesAccess Fund, as applicable). Net subscriptions
means an Investor's aggregate subscriptions less aggregate
redemptions (not including pending redemptions).
Class A and Class C Units shall be assigned for FuturesAccess Investments up
to $5,000,000; Class I Units are assigned for FuturesAccess Investments of
$5,000,000 or more; and Class D Units are assigned for FuturesAccess
Investments in an individual FuturesAccess Fund of $5,000,000 or more or
aggregate FuturesAccess Investments of $15,000,000 or more.
A-4
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
Except for purposes of determining Class D eligibility in a particular
FuturesAccess Fund, the purchase and sale of Units in an exchange shall offset
each other and shall have no effect on the amount of an Investor's net
subscriptions to FuturesAccess overall.
FuturesAccess Investments attributable to certain related accounts may be
combined for purposes of determining an Investor's Class I and Class D
eligibility. In addition, Investors who participate in HedgeAccess (private
investment funds which primarily trade securities) shall be permitted to
aggregate their Investments in FuturesAccess and HedgeAccess for purposes of
determining such Investors' Class I and Class D eligibility.
There shall be no minimum FuturesAccess Investment required to invest in Class
A or Class C Units (other than the minimum subscription amounts required to
invest in a particular FuturesAccess Fund or FuturesAccess overall).
New Investors whose initial subscription equals or exceeds $5,000,000 shall be
issued Class I Units in each FuturesAccess Fund in which they invest. If an
existing Investor, whose FuturesAccess Investment is less than $5,000,000,
makes an additional subscription which causes such Investor's FuturesAccess
Investment to equal or exceed $5,000,000 (including the new subscription), the
entire new subscription shall be invested in Class I Units. The Investor's
existing Units shall not be converted from Class A or Class C (as the case may
be) to Class I Units, but all subsequent subscriptions and exchanges made by
such Investor shall be for Class I Units.
Class D eligibility is determined on both an individual FuturesAccess Fund and
an overall FuturesAccess basis.
Investors whose initial subscription to any one FuturesAccess Fund equals or
exceeds $5,000,000 shall be issued Class D Units in that FuturesAccess Fund.
If an Investor, whose FuturesAccess Investment in a particular FuturesAccess
Fund is less than $5,000,000, makes an additional subscription or exchange
into that FuturesAccess Fund which causes such Investor's FuturesAccess
Investment to equal or exceed $5,000,000 (including the new subscription or
exchange), the entire new subscription or exchange into that FuturesAccess
Fund shall be invested in Class D Units. The Investor's existing Units in that
FuturesAccess Fund shall not be converted to Class D Units, but all subsequent
subscriptions or exchanges made by such Investor into the same FuturesAccess
Fund shall be for Class D Units. However, notwithstanding the fact that an
Investor's FuturesAccess Investment in a particular FuturesAccess Fund equals
or exceeds $5,000,000, if that Investor invests or exchanges into another
FuturesAccess Fund in which such Investor's FuturesAccess Investment is less
than $5,000,000, such Investor shall not receive Class D Units in such other
FuturesAccess Fund (except as described immediately below).
New Investors whose initial subscription equals or exceeds $15,000,000 shall
be issued Class D Units in each FuturesAccess Fund in which they invest,
irrespective of whether such Investor's FuturesAccess Investments in any one
FuturesAccess Fund equals or exceeds $5,000,000. If an existing Investor,
whose FuturesAccess Investment is less than $15,000,000, makes an additional
subscription immediately after which such Investor's FuturesAccess Investment
equals or exceeds $15,000,000 (including the new subscription), the entire new
subscription shall be invested in Class D Units. The Investor's existing Units
shall not be converted to Class D Units, but all subsequent subscriptions and
exchanges made by such Investor will be for Class D Units.
Subscriptions made to all FuturesAccess Funds shall be aggregated for purposes
of determining whether an Investor is eligible to invest in Class D or Class I
Units.
Once an Investor is issued Class I or Class D Units, such Investor shall
continue to be issued Class I or Class D Units (as applicable) irrespective of
subsequent redemptions or Unit value depreciation; provided that, if an
Investor withdraws entirely from FuturesAccess or a particular FuturesAccess
Fund and subsequently reinvests, such Investor's Class I and/or Class D Unit
eligibility shall be determined from the date of such reinvestment as if such
Investor had never previously participated in FuturesAccess or such
FuturesAccess Fund.
Xxxxxxx Xxxxx officers and employees invest in Class I Units without regard to
the $5,000,000 minimum "Program Investment" requirement. Such exemption from
the minimum FuturesAccess Investment requirement shall not be generally
available to other Investors.
A-5
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
Certain Xxxxxxx Xxxxx clients may invest in Class I or a customized Class of
Units on different terms than those described herein, depending on the type of
Xxxxxxx Xxxxx Account held by such clients. In addition, FuturesAccess Funds
may from time to time offer to certain Xxxxxxx Xxxxx clients a customized
Class of Units having different financial terms than those described herein or
the Confidential Program Disclosure Document, provided that doing so does not
have a material adverse effect on existing Investors. Such customized Classes
will generally be designed for Investors who are subject to additional fees on
their investments in the FuturesAccess Funds depending on the type of Xxxxxxx
Xxxxx Account held by such Investors or other reasons, and shall not be
generally available to other Investors.
The amount of each Investor's Capital Contribution shall be set forth in such
Investor's FuturesAccess Program Subscription and Exchange Agreement Signature
Page. A FuturesAccess Program Subscription and Exchange Agreement (including
the FuturesAccess Program Subscription and Exchange Agreement Signature Page)
must be completed and accepted by the Sponsor prior to an Investor's initial
Capital Contribution if such Investor is not already an investor in
FuturesAccess. A new Program Subscription and Exchange Agreement Signature
Page must be submitted each time an existing Investor makes a Capital
Contribution or exchange.
The aggregate of all Capital Contributions shall be available to this
FuturesAccess Fund to carry out its objectives and purposes.
No Investor shall be obligated to make any additional Capital Contributions,
except as provided in Section 2.08.
No provision of this Agreement shall be construed as guaranteeing the return,
by any Sponsor Party or this FuturesAccess Fund, of all or any part of the
Capital Contribution(s) of any Investor.
SECTION 2.02. OPENING CAPITAL ACCOUNTS.
(a) There shall be established for each Unit of each Class on the
books of this FuturesAccess Fund, as of the first day of each
Accounting Period, an Opening Capital Account which, for the
Accounting Period as of the beginning of which such Unit is
issued, shall be the Capital Contribution made in respect of such
Unit and which, for each Accounting Period thereafter, shall be an
amount equal to the Closing Capital Account (determined as set
forth in Section 2.06) attributable to such Unit for the
immediately preceding Accounting Period.
(b) The Sponsor may, but shall not be required to, make Capital
Contributions to this FuturesAccess Fund from time to time as new
Units are issued, which shall be accounted for on a
Unit-equivalent basis and shall participate in the profits and
losses of the Units on the same basis as the Capital Accounts of
the Class D Units.
(c) For all purposes of this Agreement, references to Units shall be
deemed to include the Sponsor's Capital Account on a
Unit-equivalent basis (unless the context otherwise requires or
the reference is made explicit for greater certainty).
SECTION 2.03. FINANCIAL ALLOCATIONS AMONG THE UNITS. The net profits and
losses are allocated to each Class as provided in Section 2.06 and shall be
allocated equally among the Units of such Class. All Units of the same Class
shall have the same Net Asset Value.
SECTION 2.04. NET ASSET VALUE. For the purposes of this Agreement, unless the
context otherwise requires, "Net Assets" and "Net Asset Value" shall mean
assets less liabilities. For purposes of determining Opening Capital Accounts,
Net Asset Value shall be determined as of the beginning of, and for purposes
of determining Closing Capital Accounts, Net Asset Value will be determined as
of the close of, business on the relevant valuation date.
(a) The assets of this FuturesAccess Fund shall include:
(i) all cash on hand or on deposit in bank or other
interest-bearing accounts, including any interest accrued
thereon;
A-6
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
(ii) any accrued gains on open positions which have not been
settled by crediting this FuturesAccess Fund's account, as
valued pursuant to Section 2.10;
(iii) all bills, demand notes and accounts receivable;
(iv) all securities (including, without limitation, money-market
funds, Treasury bills and other short-term, interest-bearing
instruments), commodity interests, currency interests, swap
agreements and all other instruments owned or contracted for
by this FuturesAccess Fund;
(v) all interest accrued on any interest-bearing securities
owned by this FuturesAccess Fund except to the extent that
the same is included or reflected in the valuation of such
securities; and
(vi) all other assets of every kind and nature, including prepaid
expenses.
(b) The liabilities of this FuturesAccess Fund shall be deemed to
include the following (provided, however, that in determining the
amount of such liabilities, this FuturesAccess Fund may calculate
expenses of a regular or recurring nature for any given period on
an estimated basis in advance, and may accrue the same in such
manner as the Sponsor may deem appropriate over such period):
(i) any accrued losses on open positions which have not been
settled by debiting this FuturesAccess Fund's account, as
valued pursuant to Section 2.10;
(ii) all bills and accounts payable;
(iii) all expenses accrued, reimbursable or payable; and
(iv) all other liabilities, present or future, including such
reserves as the Sponsor may (as contemplated by Section
2.04(g)), deem advisable.
(c) The Management, Performance and Sponsor's Fees shall be
determined, and Units' Capital Accounts correspondingly reduced,
after the allocation of the other components of Net Asset Value,
as described above.
(d) Operating expenses shall be allocated among the Units pro rata
based on their respective Net Asset Values as of the beginning of
the month.
(e) Extraordinary costs, if any, shall be allocated as incurred in
such manner as the Sponsor may deem to be fair and equitable.
(f) Organizational and initial offering costs shall be deducted from
Net Asset Value in installments as of the end of each of the first
60 calendar months after the initial issuance of the Units, as
contemplated by Section 2.05(b) (for financial and performance
reporting purposes, all such costs must be deducted from Net Asset
Value as of the date of such initial issuance).
(g) All Investors, by becoming party to this Agreement, hereby agree
and consent to the Sponsor's authority to establish whatever
reserves the Sponsor may determine to be appropriate in order to
cover losses, contingencies, liabilities, uncertain valuations and
other factors. Any such reserves shall, unless the Sponsor
determines that such reserves are properly attributable to certain
but less than all outstanding Units, reduce the Net Asset Value of
the Units of each Class pro rata based on their respective Net
Asset Values, after reduction for accrued Sponsor's Fees,
operating expenses and extraordinary expenses until such time, if
any, as such reserves are reversed. Reserves, when reversed, shall
be similarly allocated among the Units then outstanding pro rata
based on their respective Net Asset Value (irrespective of whether
such Units were outstanding when the reserves were established).
A-7
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
(h) The Sponsor may suspend the calculation of Net Asset Value during
any period for which the Sponsor is unable to value a material
portion of this FuturesAccess Funds' positions. The Sponsor will
give notice of any such suspension to all Investors.
SECTION 2.05. SPONSOR'S FEES; MANAGEMENT AND PERFORMANCE FEES; TRANSACTION
COSTS; OPERATING EXPENSES.
(a) The Sponsor shall receive monthly Sponsor's Fees, payable in
arrears of 1/12 of 1.50%, 2.50%, 0% and 1.10%, respectively, of
the aggregate Net Asset Value of the Class A, Class C, Class D and
Class I Units, in each case as of the close of business (as
determined by the Sponsor) on the last business day of each
calendar month (Net Asset Value for purposes of calculating the
Sponsor's Fees shall not be reduced by the accrued Sponsor's Fees
being calculated). The Sponsor's Fees shall be accrued monthly.
The Sponsor may waive or reduce Sponsor's Fees for certain
Investors without entitling any other Investor to any such waiver
or reduction.
(b) This FuturesAccess Fund shall reimburse the Sponsor for the
organizational and initial offering costs incurred by this
FuturesAccess Fund in respect of the initial offering of the Units
(of all Classes combined) in installments as of the end of each of
the first 60 calendar months of this FuturesAccess Fund's
operation, beginning with the end of the first calendar month
after the initial issuance of the Units. This FuturesAccess Fund
shall expense such costs over the same 60-month schedule. If this
FuturesAccess Fund dissolves prior to the end of such 60
calendar-month period, any remaining reimbursement obligation with
respect to organizational and initial offering costs shall be
eliminated.
(c) The Sponsor's Fees, as well as operating expenses due to the
Sponsor (including: organizational and initial offering costs;
ongoing offering costs; administrative, custody, transfer,
exchange and redemption processing, legal, regulatory, filing,
tax, audit, escrow, accounting and printing costs; and
extraordinary expenses), shall be debited by the Sponsor directly
from this FuturesAccess Fund's account and paid to the Sponsor,
where appropriate, as if to a third party, not credited to the
Sponsor's Capital Account.
(d) This FuturesAccess Fund shall pay all transaction costs (including
futures brokerage commissions and bid-ask spreads as well as
interest on foreign currency borrowings), as well as all
Management and Performance Fees, as incurred.
(e) The Sponsor's Fees, but not reimbursement payments for
organizational and initial offering costs, shall be appropriately
pro rated in the case of partial calendar months.
(f) This FuturesAccess Fund shall pay all expenses, including
administrative and ongoing offering costs, as well as any
extraordinary expenses, incurred in its operations (including the
expenses of any services provided by the Sponsor, other than in
its capacity as Sponsor, or its affiliates); provided, that this
FuturesAccess Fund shall not pay any allocable Sponsor overhead.
(g) The Sponsor retains outside service providers to supply tax
reporting, custody and accounting services to FuturesAccess. This
FuturesAccess Fund's operating costs will include this
FuturesAccess Fund's allocable share of the fees and expenses of
such service providers, as well as the fees and expenses of any
Xxxxxxx Xxxxx entity which may provide such (or other) services in
the future.
(h) The Capital Account of the Sponsor (if any) shall not be subject
to Sponsor's Fees.
SECTION 2.06. ALLOCATION OF PROFITS AND LOSSES FOR FINANCIAL PURPOSES. As of
the end of each Accounting Period and before giving effect to any redemptions
then being made, the Closing Capital Account of each Class shall be determined
by adjusting the Opening Capital Account of each such Class as of the
beginning of such Accounting Period in the following manner:
A-8
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
(a) Any increase or decrease in the Net Asset Value of this
FuturesAccess Fund, after deduction of all Management and
Performance Fees, transaction costs and operating expenses, but
prior to accrual of the Sponsor's Fees, during such Accounting
Period shall be credited pro rata, without any order or priority,
among: (i) each Class of Units; and (ii) the Sponsor's Capital
Account, if any, based in each case on the aggregate Opening
Capital Accounts attributable to each such Class of Units and the
Sponsor's Capital Account; provided that any amounts received by
this FuturesAccess Fund from the Trading Advisor for payment to
the Sponsor shall be allocated to the Capital Account of the
Sponsor. Extraordinary expenses shall be allocated as the Sponsor
may determine.
(b) If the Closing Capital Account per Unit of any Class is reduced to
zero, any further decrease in the Net Asset Value per Unit shall
be allocated to the Sponsor's Capital Account, if any.
(c) The Sponsor's Fee shall be debited from each Class, in each case
after the Section 2.06(a) and (b) allocations are made.
(d) The Net Assets of each Class shall be divided equally among all
Units of such Class.
SECTION 2.07. ALLOCATION OF PROFITS AND LOSSES FOR INCOME TAX PURPOSES.
(a) A Tax Account shall be established for each Unit of each Class.
The Tax Accounts of all outstanding Units shall initially be equal
to each Unit's net purchase price (i.e., the subscription price
for such Unit reduced by any sales commissions) and shall
subsequently be increased by such Unit's share of the taxable and
tax-exempt income of this FuturesAccess Fund and decreased by such
Unit's share of the items of loss or expense and nondeductible
items of loss or expense of this FuturesAccess Fund, as well as by
any distributions.
(b) For federal income tax purposes, items of ordinary income and
loss, capital gain and capital loss shall, unless the Sponsor
believes that doing so would not equitably reflect the economic
experience of the Units, be allocated as of December 31 of each
year among the Units, in the following order and priority:
(i) Items of ordinary income and deduction generated by this
FuturesAccess Fund shall be allocated pro rata among the
Units which were outstanding during the months in such year
when such items of ordinary income and deductions accrued.
(ii) Gains will be allocated FIRST, to Investors who have
redeemed Units during such year (including as of December
31), to the extent of the positive difference (if any)
between the amounts received or receivable upon redemption
and the respective Tax Account balances of the redeemed
Units. SECOND, gains will be allocated to Investors to the
extent of the positive difference (if any) between the
Capital Account balance and the Tax Account balance
attributable to their remaining Units. THIRD, gains will be
allocated among all outstanding Units based on their
respective Net Asset Values.
(iii) Losses shall be allocated FIRST, to Investors who have
redeemed Units during such year (including as of December
31), to the extent of the negative difference (if any)
between the amounts received or receivable upon redemption
and the respective Tax Account balances of the redeemed
Units. SECOND, losses shall be allocated to Investors to the
extent of the negative difference (if any) between the
Capital Account balance and Tax Account balance attributable
to their remaining Units. THIRD, losses shall be allocated
among all outstanding Units based on their respective Net
Asset Values.
(iv) In the case of each of the FIRST and SECOND allocation
levels set forth in Sections 2.07(b)(ii) and (iii), if there
is insufficient gain or loss to make the complete allocation
required at such level, such allocation will be made pro
rata among all Units which are subject to an allocation at
such
A-9
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
level in accordance with the respective amounts which would
have been allocated had a complete allocation been possible.
(v) Management, Performance and Sponsor's Fees, as well as the
operating expenses (in each case as adjusted to reflect the
non-deductibility of all or a portion of such Sponsor's Fees
and operating expenses) and extraordinary expenses, shall be
allocated, for tax purposes, to the Tax Accounts of the
Units based on the amount of the foregoing actually debited
from the Units' respective Capital Accounts.
(vi) Items of ordinary income and/or gain attributable to amounts
received by this FuturesAccess Fund from the Trading Advisor
for payment to the Sponsor shall be specially allocated to
the Sponsor.
(c) The character of items of income, gain, loss or deduction
(ordinary, short-term and long-term) and of the items required to
be separately stated by Section 702(a) of the Code shall be
allocated to the Investors pursuant to this Section 2.07 so as
equitably to reflect, without discrimination or preference among
Investors, the amounts credited or debited to the Units'
respective Capital Accounts pursuant to Section 2.06. Furthermore,
to the extent that the FuturesAccess Fund has a net long-term
capital gain or loss that may be subject to more than one maximum
federal income tax rate, allocations of such gain or loss shall be
made pro rata from among the amounts subject to each maximum tax
rate.
(d) In the case of Units which are transferred during a fiscal year,
the tax allocations shall be made to such Units as provided above.
The Tax Items so allocated will then be divided among the
transferor(s) and the transferee(s) based on the number of months
during such year that each held such Units, or in such other
manner as the Sponsor may deem equitable.
(e) Having in mind the principles of the allocations set forth above
in this Section 2.07 (to which all Investors consent by becoming
Investors), the Sponsor may nevertheless make such allocations of
items of ordinary income and gain, ordinary deduction and loss and
any items required to be separately stated by Section 702(a) of
the Code, as the Sponsor may deem fair and equitable -- even if
not consistent with the foregoing allocations -- in order to cause
the Tax Items allocated to the Investors, respectively, better to
take into account (as determined by the Sponsor) the Units'
respective Opening Capital Accounts and distributive shares of net
profit and net loss, any entry of new Investors, any redemptions,
any differences between income for tax purposes and for Net Asset
Value purposes, the differences between the Classes of Units and
any other special circumstances which may arise; provided,
however, that no such allocation by the Sponsor shall discriminate
unfairly against any Investor; and provided further, that the
Sponsor shall be under no obligation whatsoever to deviate from
the allocations set forth above.
(f) This FuturesAccess Fund may, to the extent practicable, allocate
Tax Items on a gross rather than a net basis.
(g) Allocations pursuant to this Section 2.07 are solely for purposes
of federal, state and local taxes and shall not affect, or in any
way be taken into account in computing, any Units' Capital Account
or share of net profits, net losses, other items or distributions.
(h) The tax allocations set forth in this Section 2.07 are intended to
allocate items of this FuturesAccess Fund's income, gains, losses
and deductions (ordinary, short-term and long-term) in accordance
with Sections 704(b) and 704(c) of the Code, and the regulations
thereunder, including, without limitation, the requirements set
forth therein regarding a "qualified income offset."
(i) The Sponsor may make such modifications to this Agreement as the
Sponsor believes may be required to comply with Section 704(c) of
the Code and the regulations thereunder.
A-10
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
(j) In the event that the Sponsor determines to issue a new Class of
Units, the foregoing tax allocations shall be adjusted so as
equitably to allocate tax items between or among the different
Classes.
SECTION 2.08. CHARGEBACKS TO CURRENT OR FORMER INVESTORS. Each Investor, by
subscribing for Units, agrees to repay, despite the fact that such Investor no
longer remains an Investor, to this FuturesAccess Fund any amount (including
interest at the rate set by the Sponsor in good faith from the date of any
payment of redemption or distribution proceeds to such Investor by this
FuturesAccess Fund) which the Sponsor may reasonably determine to be due to
this FuturesAccess Fund from such Investor as a result, for example, of any
claims arising (prior or subsequent to such Investor's withdrawal from this
FuturesAccess Fund) relating to events or circumstances (whether known or
unknown at the time of such Investor's withdrawal) in existence while such
Investor was an Investor or, subject to the following paragraph, in the event
that the Net Asset Value per Unit (of any Class) at which such Investor was
permitted to redeem is later determined to have been overstated or otherwise
miscalculated due to circumstances (whether known or unknown at the time of
such Investor's redemption) in existence as of the date of redemption. In no
event shall any provision of this Section 2.08 require an Investor to repay to
this FuturesAccess Fund any amounts in excess of the redemption proceeds
received by such Investor from, or the amounts distributed to such Investor
by, this FuturesAccess Fund, plus interest thereon as provided above.
In the event that the Sponsor determines that an amount paid by this
FuturesAccess Fund to a withdrawn or continuing Investor was less or more than
the amount which such Investor was, in fact, entitled to receive, the Sponsor
shall not (unless the Sponsor otherwise determines) attempt to make
appropriate adjusting payments to, or formally request appropriate adjusting
payments from, such withdrawn Investor or make retroactive adjustments to such
continuing Investor's Units in order to reflect such discrepancy, but rather
shall reflect such adjustments in the Accounting Period in which they become
known.
SECTION 2.09. PROCESSING OF SUBSCRIPTIONS.
(a) The Sponsor may admit new Investors to this FuturesAccess Fund at
such times and upon such notice (if any) as the Sponsor may
determine. Investors' Xxxxxxx Xxxxx Accounts will be debited on or
about the issuance date of such Units, and the amount so debited,
less any applicable sales commission, will be invested directly in
the FuturesAccess Fund. No interest will be payable in respect of
any such subscriptions.
(b) Pursuant to Securities and Exchange Commission Rule 15c2-4, all
subscriptions while held in escrow during the initial offering
period pending release to this FuturesAccess Fund shall be held by
a bank independent of the Sponsor, its affiliates, and their
respective officers, employees, representatives and agents (each,
a "Sponsor Party" and, collectively, the "Sponsor Parties").
SECTION 2.10. VALUATION OF ASSETS. For all purposes of this Agreement,
including, without limitation, the determination of the Net Asset Value per
Unit of each Class, the assets of this FuturesAccess Fund shall be valued
according to the following principles:
(a) Net Assets of this FuturesAccess Fund are its assets less its
liabilities determined in accordance with generally accepted
accounting principles and as described below. Accrued Performance
Fees (as described in the Confidential Program Disclosure
Document) shall reduce Net Asset Value, even though such
Performance Fees may never, in fact, be paid.
(b) For the avoidance of doubt, the Sponsor shall, in general, apply
the following principles in valuing this FuturesAccess Fund's
assets:
(i) commodity interests and currency interests which are traded
on a United States exchange shall be valued at their
settlement on the date as of which the values are being
determined;
A-11
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
(ii) commodity interests and currency interests not traded on a
United States exchange shall be valued based upon policies
established by the Sponsor, generally based on prices as
reported by any reliable source selected by the Sponsor,
consistently applied for each variety of interest;
(iii) swap agreements shall be valued in the good faith discretion
of the Sponsor based on quotations received from dealers
deemed appropriate by the Sponsor;
(iv) bank and other interest-bearing accounts, Treasury bills and
other short-term, interest-bearing instruments shall be
valued at cost plus accrued interest;
(v) securities which are traded on a national securities
exchange shall be valued at their closing price on the date
as of which their value is being determined on the national
securities exchange on which such securities are principally
traded or on a consolidated tape which includes such
exchange, whichever shall be selected by the Sponsor, or, if
there is no closing price on such date on such exchange or
consolidated tape, at the prior day's closing price;
(vi) securities not traded on a national securities exchange but
traded over-the-counter shall be valued based on prices as
reported by any reliable source selected by the Sponsor;
(vii) money-market funds shall be valued at their net asset value
on the date as of which their value is being determined;
(viii) if on the date as of which any valuation is being made, the
exchange or market herein designated for the valuation of
any given assets is not open for business, the basis for
valuing such assets shall be such value as the Sponsor may
deem fair and reasonable;
(ix) all other assets, including securities traded on foreign
exchanges, and liabilities shall be valued in good faith by
the Sponsor, including assets and liabilities for which
there is no readily identifiable market value;
(x) the foregoing valuations may be modified by the Sponsor if
and to the extent that it shall determine that modifications
are advisable in order better to reflect the true value of
any asset; and
(xi) the Sponsor may reduce the valuation of any asset (or of the
FuturesAccess Fund) by reserves established, as contemplated
by Section 2.04(g), to reflect losses, contingencies,
liabilities, uncertain valuations or other factors, which
the Sponsor determines reduce, or might reduce, the value of
such asset (or of this FuturesAccess Fund as a whole in the
case of reserves not specifically attributable to any
particular asset).
All determinations of value by the Sponsor shall be final and conclusive as to
all Investors, in the absence of manifest error, and the Sponsor shall be
absolutely protected in relying upon valuations furnished to the Sponsor by
third parties, provided that such reliance is in good faith.
The Sponsor may suspend the calculation of Net Asset Value during any period
in which the Sponsor believes that it is reasonably impracticable to value a
material portion of this FuturesAccess Fund's assets.
SECTION 2.11. USE OF ESTIMATES. The Sponsor is authorized to make all Net
Asset Value determinations (including, without limitation, for purposes of
determining redemption payments and calculating Sponsor's Fees) on the basis
of estimated numbers. The Sponsor shall not (unless the Sponsor otherwise
determines) attempt to make any retroactive adjustments in order to reflect
the differences between such estimated and the final numbers, but rather shall
reflect such differences in the Accounting Period in which final numbers
become available. The Sponsor also shall not (unless the
A-12
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
Sponsor otherwise determines) revise Sponsor's Fee calculations to reflect
differences between estimated and final numbers (including differences which
have resulted in economic benefit to a Sponsor Party).
If, after payment of redemption proceeds, the Sponsor determines that
adjustment to the Net Asset Value of the redeemed Units is necessary, the
redeeming Investor (if the Net Asset Value is adjusted upwards) or the
remaining Investors (if the Net Asset Value is adjusted downwards) will bear
the risk of such adjustment. The redeeming Investor will neither receive
further distributions from, nor will it be required to reimburse, this
FuturesAccess Fund in such circumstances.
SECTION 2.12. ACCOUNTING PRACTICES. All matters concerning FuturesAccess Fund
accounting practices shall be determined by the Sponsor on a fair and
equitable basis, and all such determinations shall be final and conclusive as
to all Investors. However, the Sponsor shall be under no obligation whatsoever
to make any deviations from the allocations set forth in this Article II.
In reporting Net Asset Values to Investors and third parties on an interim
basis, the Sponsor shall be entitled to accrue fees and payments due at the
end of a period as if such fees or payments were due (on a pro rata basis, if
appropriate) as of the end of an interim period within such period.
ARTICLE III
PARTICIPATION IN FUTURESACCESS FUND PROPERTY; REDEMPTIONS AND DISTRIBUTIONS
SECTION 3.01. NO UNDIVIDED INTERESTS IN FUTURESACCESS FUND PROPERTY. Each Unit
shall represent an interest in this FuturesAccess Fund, not an undivided
interest in any property of this FuturesAccess Fund. The Units shall
constitute personal property for all purposes.
SECTION 3.02. REDEMPTIONS OF UNITS; EXCHANGES.
(a) Timing and Amount of Redemptions. Subject to this Section 3.02, an
Investor shall be entitled to redeem as of the end of any calendar
month all or part of such Investor's Units, upon giving at least
10 days' written or oral notice. Investors who have Xxxxxxx Xxxxx
customer securities accounts may give such notice by contacting
their Xxxxxxx Xxxxx Financial Advisor, orally or in writing;
Investors who no longer have a Xxxxxxx Xxxxx customer securities
account must submit written notice of redemption, with the
signature guaranteed by a United States bank or broker-dealer, to
the Sponsor.
(b) No Redemption Fees. This FuturesAccess Fund shall not charge a
redemption fee.
(c) Payment of Redemptions. The Sponsor shall cause this FuturesAccess
Fund to distribute to redeeming Investors the estimated Net Asset
Value of the Units redeemed by them, generally approximately 10
business days after the effective date of redemption, although
there can be no assurance of the timing of such payment.
Units which have been redeemed, but the proceeds of which have not yet been
paid, shall nevertheless be deemed to have ceased to be outstanding from the
effective date of redemption for all other purposes hereunder.
No interest shall be paid to Investors on redemption proceeds held pending
distribution. This FuturesAccess Fund shall retain any such interest.
(d) Suspension of Redemptions. In the event that this FuturesAccess
Fund suspends the calculation of Net Asset Value, the Sponsor
shall, upon written notice to all affected Investors, suspend any
or all redemption requests (as well as any request to exchange
Units for units of other funds included in FuturesAccess). Any
unsatisfied redemption requests shall be suspended until such time
as this FuturesAccess Fund is able to determine Net Asset Value.
All Units subject to suspended redemption requests shall continue
to be treated as outstanding for all purposes hereunder, as if no
redemption requests relating thereto had been submitted, until the
effective date of their suspended redemption. During any period in
which this FuturesAccess Fund is suspending redemptions, Investors
will not be able
A-13
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
to exchange Units for units of other FuturesAccess Funds. The
Sponsor shall suspend redemptions during any period when the
calculation of Net Asset Value has been suspended.
If the Sponsor determines that a portion, but not all, of pending redemption
requests can be processed in due course, the requests of all Investors
submitting timely redemption requests with respect to any given redemption
date shall be satisfied pro rata (based on the aggregate Net Asset Value of
the Units requested to be redeemed by all Investors) from such funds as the
Sponsor determines are available for distribution.
In addition to the foregoing provisions of this Section 3.02(d), the Sponsor
may delay or suspend both the payment of redemption proceeds and the effective
date of redemptions if the Sponsor determines that not doing so would have
adverse consequences for the non-redeeming Investors.
(e) Exchanges. Investors may generally exchange Units for Units in
other FuturesAccess Funds as described in the FuturesAccess
Program Subscription and Exchange Agreement and Signature Pages
thereto, as supplemented and amended from time to time. Any
circumstance leading to a delay or suspension of either redemption
dates or the receipt of the proceeds of redemptions from this
FuturesAccess Fund shall have a corresponding effect on Investors'
exercise of their Exchange Privileges relating to this
FuturesAccess Fund.
SECTION 3.03. WITHDRAWALS OF CAPITAL BY THE SPONSOR.
(a) The Sponsor may withdraw capital from its Capital Account(s), if
any, without notice to the Investors.
(b) To the extent Xxxxxxx Xxxxx has provided any "seed" capital to the
Fund, Xxxxxxx Xxxxx will redeem $50,000 of its Units (by aggregate
Net Asset Value) for each $50,000 in net client investments (i.e.,
subscriptions minus client redemptions and exchanges) received by
the Fund after it begins operation. Notwithstanding the foregoing,
Xxxxxxx Xxxxx may vary the foregoing redemption schedule upon
advance agreement with the Trading Advisor (e.g., Xxxxxxx Xxxxx
may agree not to begin withdrawing all or a portion of its initial
seed capital for a specified period of time) and may withdraw seed
capital at different times and on different terms than are
available to Investors.
SECTION 3.04. MANDATORY REDEMPTIONS.
(a) The Sponsor may mandatorily redeem part or all of the Units held
by a particular Investor if the Sponsor determines that (i) such
Investor's continued holding of Units could result in adverse
consequences to this FuturesAccess Fund, (ii) such Investor has a
history of excessive exchanges between different FuturesAccess
Funds and/or HedgeAccess Funds that is contrary to the purpose
and/or efficient management of the Programs, (iii) such Investor's
investment in the Units, or aggregate investment in FuturesAccess,
is below the minimum level established by the Sponsor (including
any increase in such minimum level that the Sponsor may implement
in the future), or (iv) for any other reason.
(b) The Sponsor will mandatorily redeem all of a FuturesAccess Fund's
outstanding Units in the event that the Sponsor concludes that it
is no longer advisable to place client capital with the Trading
Advisor or if the amount of assets invested in this FuturesAccess
Fund declines to a level that the Sponsor believes makes the
continued operation of such FuturesAccess Fund impracticable or
uneconomical.
(c) Units mandatorily redeemed shall be redeemed as of the specified
month-end without any further action on the part of the affected
Investor, and the provisions of Sections 3.02 and 3.07 shall
apply. In the event that the Sponsor mandatorily redeems any of an
Investor's Units, such Investor shall have the option to redeem
all of such Investor's Units as of the date fixed for redemption.
SECTION 3.05. MANDATORY REDEMPTIONS TO PAY TAXES. In the event that this
FuturesAccess Fund is required to pay or withhold state, local or other taxes
with respect to a particular Investor or Investors, this FuturesAccess Fund
may redeem an appropriate number of such Investor's or Investors' Units as of
the end of the Accounting Period
A-14
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
immediately following such payment in order to reimburse this FuturesAccess
Fund for the amount of such payment, together with interest on the amounts so
paid at the 91-day Treasury xxxx rate as in effect as of the beginning of each
calendar month, starting with the calendar month in which such payment is
made, through the end of such Accounting Period.
SECTION 3.06. DISTRIBUTIONS. FuturesAccess Fund distributions shall be made in
the sole discretion of the Sponsor. No distributions are required.
SECTION 3.07. FORM OF DISTRIBUTION AND REDEMPTION PAYMENTS. No Investor shall
have the right to demand or receive any property other than cash upon
redemption. Distributions or payouts made to Investors shall be made in cash.
SECTION 3.08. REMOVAL OF THE SPONSOR. Upon at least 60 days written notice to
the Sponsor and all Investors in this FuturesAccess Fund, the Sponsor may be
required to withdraw as manager of this FuturesAccess Fund by a vote of
Investors owning not less than 50% of the Units of this FuturesAccess Fund.
Any such removal shall be effective as of the end of the calendar quarter in
which such vote occurs.
ARTICLE IV
WITHDRAWAL OF THE SPONSOR AND INVESTORS
SECTION 4.01. WITHDRAWAL OF THE SPONSOR.
(a) The Sponsor may withdraw from this FuturesAccess Fund at any time,
without any breach of this Agreement, upon 90 calendar days'
written notice to the Investors. Withdrawal of the Sponsor shall
not dissolve this FuturesAccess Fund if at the time there is at
least one other manager remaining; however, all Investors shall be
entitled to redeem their Units, in total and not in part, as of
the effective date of any such withdrawal by the Sponsor, unless
an entity affiliated with the Sponsor remains as a manager of this
FuturesAccess Fund. Nothing in this Section 4.01(a) shall,
however, restrict the Sponsor from assigning and delegating its
rights and obligations under this Agreement to an affiliate of the
Sponsor upon notice (which need not be prior notice) to the
Investors or in connection with the sale of all or a material
portion of the Sponsor's equity or assets.
(b) Withdrawal of the last remaining manager shall dissolve this
FuturesAccess Fund.
SECTION 4.02. WITHDRAWAL OF AN INVESTOR. An Investor shall withdraw from this
FuturesAccess Fund upon redemption of all of such Investor's outstanding
Units. Withdrawal of an Investor shall not be a cause for dissolution of this
FuturesAccess Fund.
SECTION 4.03. STATUS AFTER WITHDRAWAL. Except to the extent provided in
Section 2.08 or Section 7.02, each Investor upon redemption of the last of
such Investor's Units shall cease to have any rights under this Agreement.
ARTICLE V
MANAGEMENT
SECTION 5.01. AUTHORITY OF THE SPONSOR.
(a) The management and operation of this FuturesAccess Fund and the
determination of its policies shall be vested exclusively in the
Sponsor. The Sponsor shall have the authority and power on behalf
and in the name of this FuturesAccess Fund to carry out any and
all of the objectives and purposes of this FuturesAccess Fund set
forth in Section 1.01, and to perform all acts and enter into and
perform all contracts and other undertakings which the Sponsor may
deem necessary or advisable in connection with such objectives and
purposes or incidental thereto; provided, that the Trading Advisor
shall at all times have discretionary authority over the trading
and investing of this FuturesAccess Fund. All actions and
determinations to be made by the Sponsor hereunder shall, unless
otherwise expressly provided, be made in the Sponsor's sole and
absolute discretion.
A-15
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
(b) The Sponsor is specifically authorized to manage this
FuturesAccess Fund's cash flow, pay costs by bank or other
borrowings.
SECTION 5.02. SERVICE PROVIDERS; INVESTMENTS; ACCOUNTS. The Sponsor is hereby
authorized and empowered to carry out and implement any and all of the
objectives and purposes of this FuturesAccess Fund, including and without
limiting the generality of the foregoing:
(a) to place capital under the management of, and withdraw capital
from, the discretionary control of the Trading Advisor; provided,
that this FuturesAccess Fund shall not retain any other Trading
Advisor (although the Sponsor may dissolve this FuturesAccess Fund
at any time).
(b) to engage attorneys, accountants, agents and other persons as the
Sponsor may deem necessary or advisable;
(c) to open, maintain and close accounts, including margin,
discretionary and cash management accounts, with brokers, dealers,
counterparties or other persons (in each case, including
affiliates of the Sponsor) and to pay the customary fees and
charges applicable to transactions in, or the maintenance of, all
such accounts;
(d) to invest in money-market funds (including funds sponsored by
affiliates of the Sponsor), Treasury bills or other short-term,
interest-bearing instruments;
(e) to open, maintain and close bank and other interest-bearing and
non-interest-bearing accounts; and
(f) to enter into, make and perform such contracts, agreements and
other undertakings as the Sponsor may deem necessary, advisable or
incidental to the conduct of the business of this FuturesAccess
Fund.
SECTION 5.03. ACTIVITIES OF THE SPONSOR PARTIES.
(a) The respective Sponsor Parties will not devote their full business
time, or any material portion of their business time, to this
FuturesAccess Fund, as each is involved in the management of
numerous other client and proprietary accounts. However, the
Sponsor hereby agrees to devote to the objectives and purposes of
this FuturesAccess Fund such amount of the business time of its
officers and employees as the Sponsor shall deem necessary for the
management of the affairs of this FuturesAccess Fund; provided,
however, that nothing contained in this Section 5.03(a) shall
preclude any Sponsor Party from acting as a director, stockholder,
officer or employee of any corporation, a trustee of any trust, a
partner of any partnership, a manager or member of any other
limited liability company or an administrative official of any
other business or governmental entity, or from receiving
compensation for services rendered thereto, from participating in
profits derived from investments in any such entity or from
investing in any securities or other property for such person's
own account.
(b) As contemplated by Section 2.05(g), the Sponsor retains outside
service providers to supply certain services to FuturesAccess,
including, but not limited to: tax reporting, custody, accounting
and escrow services to FuturesAccess. Operating costs include this
FuturesAccess Fund's allocable share of the fees and expenses of
such (or other) service providers, as well as the fees and
expenses of any Sponsor Party which may provide such (or other)
services in the futures.
SECTION 5.04. SERVICES TO THIS FUTURESACCESS FUND. Any Sponsor Party may
perform administrative services for this FuturesAccess Fund, without such
Sponsor Party waiving its fees for such services.
SECTION 5.05. INTERESTED PARTIES. The fact that a Sponsor Party or an Investor
is directly or indirectly interested in or connected with this FuturesAccess
Fund or a related party with which or with whom this FuturesAccess Fund has
dealings, including but not limited to the Sponsor's sharing in the Management
Fees paid and Performance Fee paid by this FuturesAccess Fund to the Trading
Advisor (such sharing to be effected either by the Trading Advisor making a
direct
A-16
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
payment to the Sponsor or by the Trading Advisor making payments to this
FuturesAccess Fund which are specially allocated solely to the Sponsor), the
receipt or rebate of other advisory and/or management fees, brokerage
commissions, "bid-ask" spreads, xxxx-ups or other expenses, shall not preclude
such dealings or make them void or voidable; and neither this FuturesAccess
Fund nor any of the Investors shall have any rights in or to any such dealings
or in or to any profits derived therefrom.
SECTION 5.06. EXCULPATION. The Sponsor Parties shall not be liable to this
FuturesAccess Fund or any Investor for any claims, costs, expenses, damages or
losses arising out of or in connection with this Agreement, the Sponsor acting
as manager of this FuturesAccess Fund, this FuturesAccess Fund in general or
the offering of the Units, for any conduct undertaken or omitted in good
faith, and in the belief that such conduct or omission was in, or not opposed
to, the best interests of this FuturesAccess Fund; provided, that such conduct
or omission did not constitute gross negligence or intentional misconduct on
the part of such Sponsor Party.
No Sponsor Party shall be liable to the FuturesAccess Fund or any Investor for
failure to obtain for the FuturesAccess Fund, or to require the FuturesAccess
Fund to obtain, the lowest negotiated brokerage commission rates, or to
combine or arrange trading orders so as to obtain the lowest brokerage
commission rates with respect to any transaction on behalf of the
FuturesAccess Fund, or for the failure to recapture, directly or indirectly,
any brokerage commissions for the benefit of the FuturesAccess Fund.
No Sponsor Party shall be liable to this FuturesAccess Fund or any Investor
for claims, costs, expenses, damages or losses due to circumstances beyond any
Sponsor Party's control, or due to the negligence, dishonesty, bad faith or
misfeasance of any third party chosen by a Sponsor Party in good faith.
In no respect by way of limiting the foregoing exculpatory provisions but
rather by way of greater certainty, no Sponsor Party shall be liable to this
FuturesAccess Fund or any Investor for any actions or omissions of: (i) the
Trading Advisor; (ii) any broker, dealer or counterparty unaffiliated with
Xxxxxxx Xxxxx chosen by a Sponsor Party in good faith; or (iii) any broker,
dealer or counterparty chosen by the Trading Advisor.
Affiliates of the Sponsor will provide this FuturesAccess Funds with futures
brokerage, forward dealing and other counterparty and dealer services, and
shall receive compensation in connection therewith.
SECTION 5.07. INDEMNIFICATION. This FuturesAccess Fund shall indemnify and
hold harmless the Sponsor Parties from and against any claims, costs,
expenses, damages or losses (including, without limitation, from and against
any judgment, settlement, attorneys' fees and other costs or expenses incurred
in connection with the defense of any actual or threatened action or
proceeding) suffered or sustained by any of them by reason of the fact that a
Sponsor Party is or was connected in any respect with this FuturesAccess Fund;
provided, that the conduct or omission which led to such claim, cost, expense,
damage or loss met the standard of exculpation set forth in Section 5.06
above.
This FuturesAccess Fund shall advance payments asserted by a Sponsor Party to
be due under the preceding paragraph pending a final determination of whether
such indemnification is, in fact, due; provided, that such Sponsor Party
agrees in writing to return any amounts so advanced (without interest) in the
event such indemnification is finally determined not to be due.
Whether or not a Sponsor Party is entitled to indemnification hereunder shall
be determined by the judgment of independent counsel as to whether such
Sponsor Party has reasonable grounds for asserting that indemnification is so
due, unless otherwise determined by a court, arbitral tribunal or
administrative forum.
In the event this FuturesAccess Fund is made a party to any claim, dispute or
litigation, or otherwise incurs any loss or expense, as a result of or in
connection with any Investor's activities, obligations or liabilities
unrelated to this FuturesAccess Fund's business, such Investor shall indemnify
and reimburse this FuturesAccess Fund for all loss and expense incurred,
including attorneys' fees.
SECTION 5.08. INVESTORS' TRANSACTIONS. Nothing in this Agreement is intended
to prohibit any Investor from buying, selling or otherwise transacting in
securities, commodity interests, currency interests, swap agreements or other
A-17
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
instruments for such Investor's own account, including commodity interests,
currency interests, swap agreements, securities or other instruments which are
the same as those held by this FuturesAccess Fund.
SECTION 5.09. RELIANCE BY THIRD PARTIES. In dealing with the Sponsor acting on
behalf of this FuturesAccess Fund, no person shall be required to inquire into
the authority of the Sponsor to bind this FuturesAccess Fund. Persons dealing
with this FuturesAccess Fund shall also be entitled to rely on a certification
by the Sponsor with regard to the authority of other persons to act on behalf
of this FuturesAccess Fund in any matter.
SECTION 5.10. REGISTRATION OF ASSETS. Any assets owned by this FuturesAccess
Fund may be registered in this FuturesAccess Fund's name, in the name of a
nominee or in "street name."
SECTION 5.11. LIMITATION ON AUTHORITY OF THE SPONSOR. The Sponsor shall not
have the authority without the consent of Investors holding more than 50% of
the outstanding Units (by Net Asset Value) then held by Investors to:
(a) do any act in contravention of this Agreement (other than pursuant
to the Sponsor's authority to unilaterally amend this Agreement,
as provided in Section 10.03);
(b) confess a judgment against this FuturesAccess Fund; or
(c) possess FuturesAccess Fund property or assign rights to specific
FuturesAccess Fund property for other than a FuturesAccess Fund
purpose.
ARTICLE VI
ADMISSION OF INVESTORS
SECTION 6.01. PROCEDURE AS TO NEW INVESTORS. The Sponsor may, as of the
beginning of any calendar month (or as of such other times as the Sponsor may
deem appropriate), admit one or more new Investors by issuing to such
Investor(s) Units of the appropriate Class. Each new Investor to FuturesAccess
shall execute and deliver an appropriate FuturesAccess Program Subscription
and Exchange Agreement, and each additional Capital Contribution (whether a
new subscription or an exchange) shall be accompanied by a new FuturesAccess
Program Subscription and Exchange Agreement Signature Page. This FuturesAccess
Fund may charge an Investor such amount as may be deemed appropriate by the
Sponsor to compensate this FuturesAccess Fund in the case of any Capital
Contribution received by this FuturesAccess Fund after the day as of which the
new Investor making such Capital Contribution is admitted to this
FuturesAccess Fund and such Investor's Units are deemed to have been issued.
Admission of a new Investor shall not result in a dissolution of this
FuturesAccess Fund.
SECTION 6.02. PROCEDURE AS TO NEW MANAGERS. One or more additional managers
may be admitted to this FuturesAccess Fund by the Sponsor, without the consent
of any Investor, if, but only if, the additional manager or managers are
affiliates of the Sponsor or successors to all or a material portion of the
Sponsor's equity or assets. The Sponsor shall promptly notify the Investors of
the admission of any such affiliated manager or managers (such notice need
not, however, be prior notice). No manager or managers which is not or are not
affiliated with the Sponsor may be admitted to this FuturesAccess Fund without
the consent of Investors holding more than 50% of the outstanding Units (by
Net Asset Value) then held by Investors; provided, that the foregoing
restriction shall not apply in the case of a sale of all or a material portion
of the Sponsor's equity or assets.
ARTICLE VII
BOOKS OF ACCOUNT; AUDITS; REPORTS TO INVESTORS
SECTION 7.01. BOOKS OF ACCOUNT. The books of account of this FuturesAccess
Fund shall be maintained in accordance with generally accepted accounting
principles under the accrual basis of accounting by or under the supervision
of the Sponsor and shall be open to inspection by any Investor or such
Investor's representative during regular business hours; provided, however,
that such books and records shall only be available for inspection pursuant to
A-18
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
a valid, non-commercial purpose related to an Investor's status as an
Investor. This FuturesAccess Fund's books of account shall not, however, for
such purpose include any record of the particular transactions entered into by
this FuturesAccess Fund.
SECTION 7.02. ANNUAL AUDIT. The accounts of this FuturesAccess Fund shall be
audited as of the close of each fiscal year by an independent public
accounting firm (the "Accountant") selected by the Sponsor and in accordance
with the applicable Commodity Futures Trading Commission regulations.
The Sponsor or its agents shall cause to be prepared and mailed to each
Investor, including Investors who have redeemed all of their Units and
withdrawn but who were Investors at any time during a fiscal year, audited
financial statements and a report prepared by the Accountant, setting forth as
of the end of such fiscal year:
(a) the assets and liabilities of this FuturesAccess Fund;
(b) the net capital appreciation or depreciation of this FuturesAccess
Fund for such fiscal year;
(c) the Net Asset Value of this FuturesAccess Fund as of the end of
such fiscal year; and
(d) the Net Asset Value per Unit of each Class as of the end of such
fiscal year.
The Sponsor shall not be required to provide Investors with an annual audit in
respect of any given year by any particular date in the following year, nor
shall the Net Asset Value of the Units be audited as of any date other than
the end of a fiscal year.
The Sponsor or its agents shall cause each Investor, including former
Investors who were Investors at any time during such fiscal year, to be
furnished with all information relating to this FuturesAccess Fund necessary
to enable such Investor to prepare such Investor's federal income tax return;
provided, that all Investors acknowledge and agree that such information may
initially be provided in the form of estimates pending completion of this
FuturesAccess Fund's audit for such fiscal year, and that Investors may be
required to obtain extensions of the date by which their federal and state
income tax returns must be filed. The Sponsor will have no liability to any
Investor as a result of such Investor being required to obtain any such
extensions.
SECTION 7.03. INTERIM REPORTS. From time to time, but no less frequently than
monthly, the Sponsor shall cause to be prepared and delivered (at the expense
of this FuturesAccess Fund), to each Investor interim reports indicating this
FuturesAccess Fund's estimated results of operations and presenting such other
matters concerning this FuturesAccess Fund's operations as the Sponsor may
deem appropriate as well as those required by the applicable Commodity Futures
Trading Commission regulations. The estimated performance of this
FuturesAccess Fund will be available upon request to the Sponsor by any
Investor.
ARTICLE VIII
CONFLICTS OF INTEREST
SECTION 8.01. INVESTORS' CONSENT. Each Investor, by subscribing for Units,
gives full and informed consent to the conflicts of interest to which the
Sponsor Parties are subject in their operation of this FuturesAccess Fund, as
disclosed in the Confidential Program Disclosure Document and as contemplated
herein (including without limitation Xxxxxxx Xxxxx acting as exclusive
clearing broker and principal forward contract and swap dealer at rates and
dealer spreads which have not been negotiated at arm's-length as well as the
Sponsor sharing in the Management and Performance Fees paid to the Trading
Advisor by this FuturesAccess Fund) and covenants not to object to or bring
any proceedings against any Sponsor Party relating to any such conflict of
interest; provided, that such Sponsor Party complies with the standard of
exculpation set forth in Section 5.06.
The Sponsor is hereby specifically authorized by all Investors to cause this
FuturesAccess Fund to use Xxxxxxx Xxxxx as this FuturesAccess Fund's exclusive
clearing broker and primary forward contract and swap counterparty, and all
A-19
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
Investors acknowledge and agree that the brokerage rates and dealer spreads
charged by Xxxxxxx Xxxxx to this FuturesAccess Fund are higher than those
charged to other Xxxxxxx Xxxxx clients; in addition, Xxxxxxx Xxxxx will retain
significant additional economic benefit from possession of this FuturesAccess
Fund's assets.
ARTICLE IX
DISSOLUTION AND WINDING UP OF THIS FUTURESACCESS FUND
SECTION 9.01. EVENTS OF DISSOLUTION. This FuturesAccess Fund will be
dissolved, the affairs of this FuturesAccess Fund will be wound up and this
FuturesAccess Fund will be liquidated upon the occurrence of any of the
following events:
(a) bankruptcy, dissolution, withdrawal or other termination of the
last remaining manager of this FuturesAccess Fund;
(b) any event which would make unlawful the continued existence of
this FuturesAccess Fund;
(c) withdrawal of the Sponsor unless at such time there is at least
one remaining manager; or
(d) the determination by the Sponsor to liquidate the FuturesAccess
Fund and wind up its affairs.
Nothing in this Section 9.01 shall impair the right of Investors holding more
than 50% of the outstanding Units then held by Investors to vote within 90
calendar days of any of the foregoing events of dissolution to continue this
FuturesAccess Fund on the terms set forth herein (if it is lawful to do so),
and to appoint one or more managers for this FuturesAccess Fund.
SECTION 9.02. DISSOLUTION. Upon the dissolution of this FuturesAccess Fund,
the Sponsor (or, if the Sponsor has withdrawn, such other liquidator as the
Investors may, by vote of more than 50% of the outstanding Units, by Net Asset
Value, then held by Investors, select) shall wind up this FuturesAccess Fund's
affairs and, in connection therewith, shall distribute this FuturesAccess
Fund's assets in the following manner and order:
(a) FIRST, to the payment and discharge of all claims of creditors of
this FuturesAccess Fund (including creditors who are Investors);
(b) SECOND, to the establishment of such reserves as the Sponsor (or
such other liquidator) may consider reasonably necessary or
appropriate for any losses, contingencies, liabilities or other
matters of or relating to this FuturesAccess Fund; provided,
however, that if and when the Sponsor (or such other liquidator)
determines that the causes for such reserves have ceased to exist,
the monies, if any, then held in reserve shall be distributed in
the manner hereinafter provided; and
(c) THIRD, after making all final allocations contemplated by Article
II (and for such purposes treating the date of dissolution as if
it were a December 31), to the distribution in cash of the
remaining assets of this FuturesAccess Fund among the Investors in
accordance with the positive balance in each such Investor's
Closing Capital Account as of the last day of the Accounting
Period in which this FuturesAccess Fund's dissolution occurs. Any
assets distributed in kind in the liquidation shall be valued, for
purposes of such distribution, in accordance with Section 2.11 as
of the date of distribution, and any difference between such value
and the carrying value of such assets shall, to the extent not
otherwise taken into account in determining Net Asset Value, be
deemed to constitute income or loss to this FuturesAccess Fund.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. INVESTORS NOT TO CONTROL. The Investors shall take no part in
the conduct or control of this FuturesAccess Fund's business and shall have no
authority or power to act for or to bind this FuturesAccess Fund.
A-20
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
SECTION 10.02. POWER OF ATTORNEY. Each Investor, by subscribing for Units,
does hereby constitute and appoint the Sponsor, as such Investor's true and
lawful representative and attorney-in-fact, with authority in such Investor's
name, place and stead to make, execute, sign and file a Certificate of
Formation of this FuturesAccess Fund, any amendments thereto authorized
herein, any amendments to this Agreement authorized herein, and all such other
instruments, documents and certificates which may, from time to time, be
required by, or deemed advisable by the Sponsor under, the laws of the United
States of America, the State of Delaware, the State of New Jersey, the State
of New York or any other state or political subdivision in which the Sponsor
shall determine that this FuturesAccess Fund shall do business, to effectuate,
implement and continue the valid existence of this FuturesAccess Fund.
SECTION 10.03. AMENDMENTS; CONSENTS. This Agreement may not be modified or
amended without the written consent of the Sponsor.
This Agreement may be modified or amended at any time with the consent of the
Sponsor and by Investors holding more than 50% of the outstanding Units (by
Net Asset Value) then held by Investors.
For all purposes of this Agreement, except as provided in the last paragraph
of this Section 10.03, when the consent of Investors is required, the
affirmative consent of Investors is not required; "negative consent" by
failure to object in writing after reasonable notice of a proposed
modification or amendment is sufficient -- 30 calendar days to be conclusively
presumed to constitute "reasonable notice" for such purposes.
The Sponsor may, without the consent of the Investors, modify or amend any
provision of this Agreement for any of the following purposes:
(a) to add to this Agreement any further covenants, restrictions,
undertakings or other provisions for the protection or benefit of
Investors;
(b) to cure any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with any
other provisions contained herein or in the Confidential Program
Disclosure Document;
(c) to cause the allocations contained in Article II to comply with
Section 704 of the Code or any other statutory provisions or
regulations relating to such allocations;
(d) to provide for the issuance of new Classes of Units, or to amend
the manner in which Units may be exchanged among funds in
FuturesAccess or between different Classes of Units, provided that
doing so is not adverse to outstanding Units (as contemplated by
Section 10.14); or
(e) to make any other change not materially adverse to the interests
of the Investors.
Notwithstanding anything in this Section 10.03 to the contrary, without the
affirmative written consent of each Investor affected thereby, no such
modification or amendment shall: reduce the liabilities, obligations or
responsibilities of the Sponsor (except that the Sponsor may take action to
admit any person or entity which is an affiliate of the Sponsor as a
substitute manager, and to provide for the Sponsor subsequently to withdraw
from this FuturesAccess Fund or to provide for the Sponsor to withdraw from
this FuturesAccess Fund without admitting any such substitute manager to this
FuturesAccess Fund); increase the liabilities of Investors; or reduce the
participation of Investors in the profits and losses of this FuturesAccess
Fund or in any distributions made by this FuturesAccess Fund as set forth
herein.
SECTION 10.04. NOTICES. Any notice to this FuturesAccess Fund or the Sponsor
relating to this Agreement shall be in writing and delivered in person or by
registered or certified mail and addressed to the Sponsor at the principal
office of this FuturesAccess Fund. All notices and reports sent to the
Investors shall be addressed to each Investor at the address set forth in such
Investor's FuturesAccess Program Subscription and Exchange Agreement
(including the FuturesAccess Program Subscription and Exchange Agreement
Signature Page). Any Investor may designate a new address by written notice to
the Sponsor. Unless otherwise specifically provided in this Agreement, a
notice shall be deemed to have been
A-21
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
given to this FuturesAccess Fund or the Sponsor when actually received by the
Sponsor, and to have been given to an Investor three business days after being
deposited in a post office or regularly maintained mailbox or when delivered
in person. The Sponsor may waive any notice requirement relating to notice to
this FuturesAccess Fund or to itself, but no such waiver shall constitute a
continuing waiver.
SECTION 10.05. LEGAL EFFECT; MANNER OF EXECUTION. This Agreement shall be
binding upon the Investors, the Sponsor and their respective permitted
successors and assigns. This Agreement shall inure to the benefit of the
foregoing parties as well as to the benefit of the Sponsor Parties.
This Agreement may be executed by power-of-attorney embodied in a
FuturesAccess Program Subscription and Exchange Agreement (including the
FuturesAccess Program Subscription and Exchange Agreement Signature Page) or
similar instrument with the same effect as if the parties executing the
FuturesAccess Program Subscription and Exchange Agreement (including the
FuturesAccess Program Subscription and Exchange Agreement Signature Page) or
similar instrument had all executed one counterpart of this Agreement;
provided, that this Agreement may also be executed in separate counterparts.
SECTION 10.06. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS. THE RIGHTS AND LIABILITIES OF THE
INVESTORS SHALL BE AS PROVIDED IN THE ACT, EXCEPT AS HEREIN OTHERWISE
EXPRESSLY PROVIDED.
SECTION 10.07. CONSENT TO JURISDICTION. All controversies arising hereunder or
in connection with the affairs of this FuturesAccess Fund shall be brought in
the state or federal courts located in New York, New York, and all Investors
hereby irrevocably consent to such jurisdiction and venue.
SECTION 10.08. "TAX MATTERS PARTNER"; TAX ELECTIONS. The Sponsor is designated
as the "Tax Matters Partner" for this FuturesAccess Fund and shall be
empowered to make or revoke any elections now or hereafter required or
permitted to be made by the Code or any state or local tax law.
Each Investor, by subscribing for Units, agrees not to treat any tax item on
such Investor's individual tax return in a manner inconsistent with the
treatment of such item by this FuturesAccess Fund, as reflected on the
Schedule K-1 or other information statement furnished by this FuturesAccess
Fund to such Investor, or to file any claim for refund relating to any such
Tax Item which would result in such inconsistent treatment.
SECTION 10.09. DETERMINATION OF MATTERS NOT PROVIDED FOR IN THIS AGREEMENT.
The Sponsor shall be empowered to decide, in its good faith judgment, any
questions arising with respect to this FuturesAccess Fund or to this
Agreement, and to provide for matters arising hereunder but which are not
specifically set forth herein, as the Sponsor may deem to be in, or not
opposed to, the best interests of this FuturesAccess Fund.
SECTION 10.10. NO PUBLICITY. Each Investor agrees that such Investor will in
no event provide information concerning this FuturesAccess Fund to any third
party, knowing that such third party may use such information in any form of
publication, newsletter or circular, whether publicly or privately
distributed. Each Investor's investment in this FuturesAccess Fund, as well as
the performance of such investment, shall be maintained on a strictly
confidential basis; provided, that the Sponsor may make use of this
FuturesAccess Fund's performance record in the ordinary course of the
Sponsor's business activities.
SECTION 10.11. SURVIVAL. The indemnity and exculpation provisions hereof, as
well as the obligations to settle accounts, shall survive the withdrawal of
any Investor as well as the dissolution of this FuturesAccess Fund.
SECTION 10.12. WAIVERS. The Sponsor may waive any provision of this Agreement
restricting the actions of Investors in respect of certain but not all
Investors provided that doing so will have no adverse effect on other
Investors.
SECTION 10.13. VOTING RIGHTS. The voting rights of the Units shall be
determined by their respective Net Asset Values. In determining the number of
Units entitled to vote or consent and the number of votes or consents needed
for
A-22
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
approval of any matter for which such a vote or consent is provided for
herein, Units held by any Sponsor Party (including, without limitation, the
Sponsor's Capital Account, if any, on a Unit-equivalent basis) shall not be
counted.
SECTION 10.14. ISSUANCE OF DIFFERENT CLASSES.
(a) The Sponsor may, at any time and from time to time, issue
different Classes of Units, and may adjust the allocation, voting
and other provisions of this Agreement so as equitably to reflect
the issuance of such additional Classes. The Sponsor may also
alter the terms on which Units of any Class are sold, provided
that doing so does not adversely affect existing Investors.
(b) The fact that, for purposes of convenience, Units issued by this
FuturesAccess Fund shall be designated as being Units of different
"Classes" shall in no respect imply that these Units constitute
different classes of equity interests as opposed to simply being
subject to different fees.
SECTION 10.15. COMPLIANCE WITH THE INVESTMENT ADVISERS ACT OF 1940; SECURITIES
LAWS.
(a) This FuturesAccess Fund is not an "advisory client" of the Sponsor
for purposes of the Investment Advisers Act of 1940 (the "Advisers
Act") due to this FuturesAccess Fund trading futures, forward and
options contracts other than securities. Nevertheless, to the
extent that any provision hereof may be construed in a manner
inconsistent with the Advisers Act, it is the express intent of
the Sponsor and the Investors that such provision be interpreted
and applied ab initio so as to comply with the Advisers Act in all
respects (even if doing so effectively amends the terms of this
Agreement).
(b) Nothing in this Agreement shall be deemed to constitute a waiver
by any Investor of such Investor's rights under any federal or
state securities laws.
* * * * * * *
A-23
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
respective representatives thereunto duly authorized.
INVESTORS: SPONSOR:
By: Xxxxxxx Xxxxx Alternative Investments LLC Xxxxxxx Xxxxx Alternative Investments LLC
Attorney-in-Fact
By: /s/ Xxxx Xxxxxxxxxx By: /s/ Xxxx Xxxxxxxxxx
--------------------------------------- ---------------------------------------
Xxxx Xxxxxxxxxx Xxxx Xxxxxxxxxx
Vice President and Manager Vice President and Manager
A-24
ML APM Global Commodity FuturesAccess LLC
Limited Liability Company Operating Agreement Dated as of August 1, 2006
