Exhibit 10.13
FIFTH AMENDATORY AGREEMENT
THIS FIFTH AMENDATORY AGREEMENT ("Agreement") is entered into by
and among the signatories hereto (the "Signatories") as of May [__], 2004.
W I T N E S S E T H
WHEREAS, the Signatories (or certain thereof) have previously
entered into a Selling Agreement dated as of April 25, 1996, a Joint Venture
Agreement dated as of April 25, 1996, as amended, a Customer Agreement dated
as of July 15, 1996, as amended (collectively, and as amended by the
Amendatory Agreements dated as of July 31, 1998, May 4, 1999, June 21, 2001
and October 14, 2003, the "Original Agreements") relating to the distribution
of units of limited partnership ("Units") in, and the operation, trading and
safekeeping the assets of, ML JWH Strategic Allocation Fund L.P. (the
"Partnership");
WHEREAS, all of the Original Agreements were filed as exhibits to
either the Partnership's Registration Statement No. 33-80509, which became
effective under the Securities Act of 1933 (the "Securities Act") as of April
25, 1996 for the initial offering of the Units (the "First Offering") or were
filed as exhibits to the relevant Registration Statement;
WHEREAS, the Partnership filed a Registration Statement (Reg. No.
333-47439) on March 6, 1998 pursuant to which the Partnership registered
2,000,000 additional Units for public sale (the "Second Offering");
WHEREAS, the Partnership filed a new Registration Statement (Reg.
No. 333-75299) on March 30, 1999 pursuant to which the Partnership registered
960,000 additional Units for public sale (the "Third Offering");
WHEREAS, the Partnership filed a new Registration Statement (Reg.
No. 333-58882) on April 13, 2001 pursuant to which the Partnership registered
350,000 additional Units for public sale (the "Fourth Offering");
WHEREAS, the Partnership filed a new Registration Statement (Reg.
No. 333-108350) on August 29, 2003 pursuant to which the Partnership
registered 2,450,000 additional Units for public sale (the "Fifth Offering");
WHEREAS, the Partnership filed a new Registration Statement (Reg.
No. 333-[_____]) on May 21, 2004 pursuant to which the Partnership
registered 4,460,000 additional Units for public sale (the "Sixth Offering").
WHEREAS, Xxxxxxx Xxxxx Alternative Investments LLC ("MLAI") is the
general partner of the Partnership;
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WHEREAS, all the Signatories (other than Xxxx X. Xxxxx & Company,
Inc. "JWH")) (the "MLAI Parties") are affiliates of MLAI; and
WHEREAS, the Signatories wish to further amend the Original
Agreements to reflect the Sixth Offering and the operation, trading and
safekeeping of the assets of the Partnership thereafter, but without otherwise
effecting any substantive change therein.
NOW THEREFORE, the Signatories agree as follows.
1. Defined Terms. Capitalized terms not otherwise defined herein
are used with the meanings set forth in the Original Agreements, as amended.
2. The Selling Agreement. The Selling Agreement is hereby amended
to reflect the registration and public offering of an additional 4,460,000
Units in the Sixth Offering. As the Partnership is an operating entity, there
is no minimum number of new Units which must be sold as of the beginning of
any calendar month during the Sixth Offering for subscription, then to be
accepted, and -- as provided in the Selling Agreement in the case of the
ongoing offering of the Units following the initial Closing Date during the
First Offering, the Second Offering, the Third Offering, the Fourth Offering
and the Fifth Offering -- subscriptions are debited directly from investors'
Xxxxxxx Xxxxx Customer Securities Accounts as of each month-end settlement
date directly into the Partnership's account without being previously
collected into an escrow account.
The initial Closing of the Sixth Offering shall be subject to the
same closing conditions as was the initial Closing of each of the First
Offering, the Second Offering, the Third Offering, the Fourth Offering and the
Fifth Offering, as stated in Section 8 of the Selling Agreement.
MLAI pays selling commissions of 3% of the subscription price of
Units and trailing commissions (2% per Unit annually of the average month-end
Net Asset Value per Unit, beginning in the thirteenth month after a Unit is
sold) to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated for distributing
the Units.
MLAI provides ongoing production credits on Units which remain
outstanding for more than twelve months. Ongoing production credits paid on
Units sold by Financial Advisors registered with the CFTC and who have passed
either the Series 3 National Commodity Futures Examination or the Series 31
Managed Futures Funds Examination equal 2% per annum of the average month-end
Net Asset Value per Unit, beginning in the thirteenth month after sale.
In the case of Units sold by Financial Advisors who are not CFTC
registered and Series 3 or 31 qualified, ongoing compensation will be paid
equal to 2% per annum of the average month-end Net Asset Value per Unit,
beginning in the thirteenth month after sale but (when added to the 3% initial
selling commissions paid on Units) is limited to 10% of the initial sale price
of the Units pursuant to NASD Rule 2810. The maximum aggregate amount of such
compensation with respect to the maximum offering proceeds is estimated at
$78,664,159, or 6.5% of the proceeds.
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MLAI will no longer advance expenses incident to the performance of
obligations of MLAI and the Partnership listed under Section 7(vi) of the
Selling Agreement. However, MLAI will continue to pay the other offering
expenses set forth in Section 7 of the Selling Agreement. Such costs are
estimated at approximately $244,500, and in no event shall the aggregate
amount of (i) such costs and (ii) selling commissions exceed, over the life of
the Fund, 10% of the gross proceeds of the offering of the Units.
In all other respects, the terms of the Selling Agreement are
restated in their entirety and shall apply to the Sixth Offering.
3. The Joint Venture Agreement. The Joint Venture Agreement is
hereby amended to reflect the registration and public offering of an
additional 4,460,000 Units, and the renewal of the Joint Venture Agreement to
allow the Joint Venture to continue in effect until December 31, 2004. In all
other respects, the terms of the Joint Venture Agreement are restated in their
entirety.
4. The Customer Agreement. The Customer Agreement is hereby amended
to reflect the fact that the interest credit arrangements shall be as set
forth under "Interest Income Arrangements" in the Prospectus.
5. Representations and Warranties of the Signatories. The
Signatories, other than MLAI, hereby restate and reaffirm the representations
and warranties made by them in the Original Agreements in respect of such
Agreements as hereby amended (the "Amended Agreements").
6. Representations and Warranties of MLAI. MLAI represents and
warrants to the Signatories, as follows:
(a) The Partnership has provided to the Signatories and filed with
the SEC a registration statement on Form S-1 (Registration No.
333-[_____]), as filed with the SEC on May 21, 2004 for the
registration of 4,460,000 Units under the Securities Act, has filed two
copies thereof with the NFA in accordance with NFA Compliance Rule 2-13.
The term, "Registration Statement," shall, from and after the declaration
of the effectiveness of the Registration Statement under the Securities
Act on [____], 2004, refer to the Registration Statement as it becomes
effective, and the term, "Prospectus" shall refer to the prospectus of
the Partnership dated [____], 2004. Except as required by law, the
Partnership will not file any amendment to the Registration Statement or
any amendment or supplement to the Prospectus which shall be reasonably
objected to in writing by any Signatory, upon reasonable prior notice.
(b) The Certificate of Limited Partnership pursuant to which the
Partnership was formed and the Limited Partnership Agreement each
provides for the subscription for and sale of the Units; all action
required to be taken by MLAI and the Partnership as a condition to the
sale of the Units to qualified subscribers therefor has been, or prior to
the initial Closing Time of the Sixth Offering and Subsequent Closing
Times during the Sixth Offering will have been taken; and, upon payment
of the consideration therefor
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specified in all accepted Subscription Agreements and Powers of Attorney,
the Units will constitute valid limited partnership interests in the
Partnership.
(c) The Partnership is a limited partnership duly organized pursuant
to the Certificate of Limited Partnership, the Limited Partnership
Agreement and the DRULPA and validly existing under the laws of the State
of Delaware with full power and authority to engage in the trading of
futures, forward and option contracts, as described in the Prospectus;
the Partnership has received a certificate of authority to do business in
the State of New Jersey as provided by the New Jersey Uniform Limited
Partnership Act.
(d) MLAI 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 Partnership
or MLAI's ability to perform its obligations hereunder.
(e) The Joint Venture, the Partnership and MLAI have the requisite
power and authority under applicable law to perform their respective
obligations under the Joint Venture Agreement, the Limited Partnership
Agreement, the Customer Agreement, and this Agreement (as the case may
be), as described in the Registration Statement and Prospectus.
(f) The Registration Statement and Prospectus contain all statements
and information regarding the Joint Venture, the Partnership and MLAI
required to be included therein by the Commodity Act and the rules and
regulations thereunder. When the Registration Statement became effective
under the 1933 Act and at all times subsequent thereto up to and
including the initial Closing Time of the Sixth Offering, the
Registration Statement and Prospectus complied in all material respects
with the requirements of the 1933 Act, the Commodity Act and the rules
and regulations under such Acts. The Registration Statement as of its
effective date did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. The Prospectus as of its
date of issue and at the initial Closing Time of the Sixth Offering did
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 Registration Statement or Prospectus made in reliance
upon and in conformity with information relating to JWH and furnished or
approved in writing by JWH.
(g) Deloitte & Touche LLP, the accountants who certified the
financial statements filed with the SEC as part of the Registration
Statement, are, with respect to the Partnership and MLAI, independent
public accountants as required by the 1933 Act and the SEC Regulations.
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(h) The financial statements filed as part of the Registration
Statement and those included in the Prospectus present fairly the
financial position of the Partnership and of MLAI as of the dates
indicated; and said financial statements have been prepared in conformity
with generally accepted accounting principles (as described therein),
applied on a basis which is consistent in all material respects for each
balance sheet date presented.
(i) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change in the condition, financial or otherwise,
business or prospects of the Partnership or MLAI, whether or not arising
in the ordinary course of business.
(j) The Limited Partnership Agreement, the Joint Venture Agreement
and this Agreement have each been duly and validly authorized, executed
and delivered by MLAI on behalf of the Partnership or by the Partnership
on behalf of the Joint Venture and each constitutes a legal, valid and
binding agreement of MLAI, the Partnership or the Joint Venture (as
applicable) enforceable in accordance with its terms. The Customer
Agreement has been duly and validly authorized, executed and delivered by
the Partnership on behalf of the Joint Venture.
(k) The execution and delivery of the Joint Venture Agreement, the
Limited Partnership Agreement, the Customer 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 Prospectus will not constitute a breach of, or default under,
any instrument by which the Joint Venture, the Partnership or MLAI, as
the case may be, is bound or any order, rule or regulation applicable to
the Joint Venture, the Partnership or MLAI of any court or any
governmental body or administrative agency having jurisdiction over the
Joint Venture, the Partnership or MLAI.
(l) There is not pending, or, to the best of MLAI's knowledge
threatened, any action, suit or proceeding before or by any court or
other governmental body to which the Joint Venture, the Partnership or
MLAI is a party, or to which any of the assets of the Joint Venture, the
Partnership or MLAI is subject, which is not referred to in the
Prospectus and which might reasonably be expected to result in any
material adverse change in the condition (financial or otherwise),
business or prospects of the Joint Venture, the Partnership or MLAI or is
required to be disclosed in the Prospectus pursuant to applicable CFTC
regulations. MLAI has not received any notice of an investigation or
warning letter from the NFA or the CFTC regarding non-compliance by MLAI
with the Commodity Act or the regulations thereunder.
(m) MLAI has all Federal and state governmental, regulatory and
commodity exchange 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 Registration
Statement and Prospectus or required to perform its obligations as
described under the Limited Partnership Agreement and this Agreement
(including, without limitation, registration as a commodity pool operator
under the Commodity Act and membership in the NFA as a commodity pool
operator), and the
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performance of such obligations will not contravene or
result in a breach of any provision of its certificate of formation,
operating agreement or any agreement, order, law or regulation binding
upon it. The principals of MLAI identified in the Registration Statement
are all of the principals of MLAI, as "principals" is defined by the CFTC
regulations. Such principals are duly registered as such on MLAI's
commodity pool operator Form 7-R registration.
(n) Neither the Joint Venture nor the Partnership requires any
Federal or state governmental, regulatory or commodity exchange approvals
or licenses, or needs to effect any filings or registrations with any
Federal or state governmental agencies in order to conduct its businesses
and to act as contemplated by the Registration Statement and Prospectus
and to issue and sell the Units (other than filings relating solely to
the offering of the Units), and to trade in the commodity markets.
7. Covenants. The Signatories each restate and recommit to the
respective covenants made by them in the Original Agreements.
8. Further Assurances and Documentation. The Signatories each agree
that they will execute all such other documents and instruments as any
Signatory may reasonably request of any other Signatory to evidence the intent
and purpose of this Agreement so as to achieve the purpose of providing under
the Selling Agreement for the Sixth Offering.
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IN WITNESS WHEREOF, the undersigned have hereto set their hands as
of the day and year first above written.
ML JWH STRATEGIC ALLOCATION FUND
L.P.
By: Xxxxxxx Xxxxx Alternative Investments LLC
General Partner
By:
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Name:
Title:
XXXXXXX XXXXX ALTERNATIVE
INVESTMENTS
LLC
By:
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Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX
INCORPORATED
By:
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Name:
Title:
By:
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Name:
Title:
XXXX X. XXXXX & COMPANY, INC.
By:
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Name:
Title:
ML JWH STRATEGIC JOINT VENTURE
By: ML JWH Strategic Allocation Fund L.P.
Manager
By: Xxxxxxx Xxxxx Alternative Investments LLC
General Partner
By:
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Name:
Title:
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