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