Exhibit 10.2
THE MERRILL LYNCH FUTURESACCESS(SM) PROGRAM
SELLING AGREEMENT
Private Placement of Limited Liability Company Units
Effective as of October 31, 2004
MERRILL LYNCH ALTERNATIVE INVESTMENTS LLC
Manager
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
Selling Agent
THE MERRILL LYNCH 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..............................................................................6
SECTION 4. OFFERING MATERIALS....................................................................................7
SECTION 5. CONDITIONS OF CLOSING.................................................................................7
SECTION 6. INDEMNIFICATION AND EXCULPATION.......................................................................8
SECTION 7. STATUS OF PARTIES.....................................................................................9
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.................................................................................10
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APPENDIX: SCHEDULE OF COMPANIES dated as of October 31, 2004
THE MERRILL LYNCH FUTURESACCESS(SM) PROGRAM
Private Placement of Limited Liability Company Units
SELLING AGREEMENT
as of October 31, 2004
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10080-6106
Dear Sirs:
Your affiliate, Merrill Lynch 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 Merrill Lynch FuturesAccess(SM)
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 Merrill Lynch, Pierce, Fenner & Smith
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: FuturesAccess(SM) 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, Plainsboro, New Jersey 08536 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 1933 Act) 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 Austin Brown & 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 Austin Brown & Wood 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: Merrill Lynch World
Headquarters, North Tower, World Financial Center, New York, New York,
10080-6106; 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, Plainsboro, New Jersey 08536, Attention: Mr. Steven B. Olgin.
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:
ML Appleton FuturesAccess LLC
ML Aspect FuturesAccess LLC
ML Cornerstone FuturesAccess LLC
ML Winton FuturesAccess LLC
By: Merrill Lynch Alternative Investments
LLC
Manager
By: /s/ Steven B. Olgin
-----------------------------
Name: Steven B. Olgin
Title: Vice President, Chief
Operating Officer and Manager
MERRILL LYNCH ALTERNATIVE INVESTMENTS LLC
By: /s/ Steven B. Olgin
-----------------------------
Name: Steven B. Olgin
Title: Vice President, Chief
Operating Officer and Manager
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
Selling Agent
By: /s/ Steven B. Olgin
---------------------------------
Name: Steven B. Olgin
Title: Authorized Signatory
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APPENDIX
SCHEDULE OF COMPANIES
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(Dated as of October 31, 2004)
ML APPLETON FUTURESACCESS LLC
ML ASPECT FUTURESACCESS LLC
ML CORNERSTONE FUTURESACCESS LLC
ML WINTON FUTURESACCESS LLC