efc7-2577_ex102.htm


    


     

    THE
      MERRILL LYNCH FuturesAccessSM
      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 FuturesAccessSM
      PROGRAM

     

     

    


     

     

    SELLING
      AGREEMENT

     

    TABLE
      OF
      CONTENTS

     

    
 

    
      
        	
                Section

              	
                Page

              
	
                SECTION 1.  REPRESENTATIONS
                  AND WARRANTIES OF THE MANAGER

              	
                1

              
	
                SECTION 2.  OFFERING
                  AND SALE OF UNITS

              	
                3

              
	
                SECTION 3.  COVENANTS
                  OF THE MANAGER

              	
                5

              
	
                SECTION
                  4.  OFFERING MATERIALS

              	
                6

              
	
                SECTION
                  5.  CONDITIONS OF CLOSING

              	
                6

              
	
                SECTION 6.  INDEMNIFICATION
                  AND EXCULPATION

              	
                7

              
	
                SECTION 7.  STATUS
                  OF PARTIES

              	
                8

              
	
                SECTION 8.  REPRESENTATIONS,
                  WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY

              	
                9

              
	
                SECTION 9.  TERMINATION

              	
                9

              
	
                SECTION
                  10.  NOTICES AND AUTHORITY TO ACT

              	
                9

              
	
                SECTION 11.  PARTIES

              	
                9

              
	
                SECTION 12.  GOVERNING
                  LAW

              	
                9

              
	
                SECTION 13.  REQUIREMENTS
                  OF LAW

              	
                9

              


      

    

     

    ____________________

    


    APPENDIX:    SCHEDULE
      OF
      COMPANIES dated as of October 31, 2004

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


     

    THE
      MERRILL LYNCH FuturesAccessSM
      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 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 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.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    APPENDIX
      A

     

    Capitalized
      terms used herein, unless otherwise indicated, shall have the meanings
      attributed to them in the Companies’ Part One (A) Confidential Program
      Disclosure Document:  FuturesAccessSM Program
      General
      Information, Part One (B) Confidential Program Disclosure
      Document:  Trading Advisor Information and the Part Two Confidential
      Program Disclosure Document: Statement of Additional Information, as amended
      or
      supplemented from time to time (collectively,
      the“Memorandum”).  Defined terms used herein shall
      have the meaning of both the singular and the plural unless otherwise
      specified.

     

    Section 1.  Representations
      and Warranties of the Manager.  The Manager represents and
      warrants to the Selling Agent as follows:

     

    (a)  Each
      Company has been formed pursuant to a Certificate of Formation (each a
“Certificate of Formation”) and a Limited Liability Company
      Operating Agreement  (each an “Operating Agreement”)
      which provide for the subscription for and sale of each Company’s units of
      limited liability company interest (“Units”) in classes; all
      action required to be taken by the Manager and each Company as a condition
      to
      the sale of the Units to subscribers who qualify as “Accredited Investors”
within the meaning of the  Securities Act of 1933, as amended (the
“1933 Act”) has been, or prior to the
      Initial and each Additional Closing Time (as defined in Section 2 hereof)
      will have been taken, and, upon payment of the consideration therefor specified
      in all accepted FuturesAccess Program Subscription and Exchange Agreements
      and
      Signature Pages thereto (collectively, the “Subscription
      Agreements”), the Units will constitute valid limited liability company
      interests in a Company.

     

    (b)  Each
      Company is a limited liability company duly organized pursuant to a Certificate
      of Formation and the DLLCA and validly existing under the laws of the State
      of
      Delaware with full power and authority to conduct its business and operations,
      as described in its Memorandum; each Company has received (or will receive
      prior
      to the Initial Closing Time) a certificate of authority to do business in the
      State of New Jersey.

     

    (c)  The
      Manager is duly organized and validly existing and in good standing as a limited
      liability company under the laws of the State of Delaware and in good standing
      as a foreign limited liability company under the laws of the State of New Jersey
      and in each other jurisdiction in which the nature or conduct of its business
      requires such qualification and the failure to so qualify would materially
      adversely affect the Companies’ or the Manager’s ability to perform its
      obligations hereunder.

     

    (d)  Each
      Company and the Manager have full limited liability company power and authority
      under applicable law to perform their respective obligations under an Operating
      Agreement, an Escrow Agreement relating to the offering of the Units (each
      an
“Escrow Agreement”), the Customer Agreement (“Customer
      Agreement”) and the Advisory Agreement (“Advisory
      Agreement”) relating to the trading of commodity  interests
      and this Agreement, as described in the Memorandum.

     

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    
      APPENDIX
        A

    

     

    (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.

     

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    
      APPENDIX
        A

    

     

    (k)  The
      Companies do not require any federal or state governmental or regulatory
      approvals or licenses, or need to effect any filings or registrations with
      any
      federal or state governmental agencies in order to conduct their business,
      to
      act as contemplated by the Memorandum and to issue and sell Units (other than
      filings relating solely to the offering of the Units).

     

    (l)  Deloitte &
      Touche LLP are, with respect to the Manager and the Companies, independent
      public accountants within the meaning of the 1933 Act and the regulations of
      the
      Securities and Exchange Commission (“SEC”).

     

    (m)  The
      offer and sale of the Units in the manner contemplated by this Agreement will
      be
      exempt from the registration requirements of the 1933 Act by reason of
      Regulation D promulgated thereunder.

     

    Section 2.  Offering
      and Sale of Units.

     

    (a)  The
      Selling Agent is hereby granted the exclusive right to distribute
      Units.  Subject to the performance by the Manager of all its
      obligations to be performed hereunder, and to the completeness and accuracy
      in
      all material respects of all the representations and warranties of the Manager
      contained herein, the Selling Agent hereby accepts such agency and agrees on
      the
      terms and conditions herein set forth to use its best efforts to find acceptable
      subscribers for the Units as of the beginning of each calendar
      month.

     

    It
      is
      understood that the Selling Agent’s agreement to use its best efforts to find
      acceptable subscribers for the Units shall not prevent it from acting as a
      selling agent or underwriter for the securities of other issuers which may
      be
      offered or sold during the term of this Agreement.  The agency of the
      Selling Agent hereunder shall continue until this Agreement is terminated in
      accordance with the provisions of this Section or Section 9.

     

    (b)  In
      the event insufficient subscriptions (as described in the Memorandum) are
      received prior to the intended close of the initial offering period, all funds
      received from subscribers shall be returned in full, with any interest payable
      thereon (irrespective of amount) and without deduction for any escrow or other
      fee or expense; and thereupon the Selling Agent’s duties as agent and this
      Agreement shall terminate without further obligation hereunder on the part
      of
      the Selling Agent, the Manager or the Company.

     

    (c)  The
      Manager shall notify the Selling Agent of the aggregate number of Units in
      each
      Company for which the Manager has received acceptable subscriptions, and payment
      of the purchase price for the Units of such Company may, if the Manager so
      elects, be made at the office of the Manager, Princeton Corporate Campus, 800
      Scudders Mill Road, Section 2G, 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 

     

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    
      APPENDIX
        A

    

     

    which
      subscriptions have been accepted or such other day and time as shall be agreed
      upon between the Selling Agent and the
      Manager (the“Initial Closing
      Time”).

     

    At
      the
      Initial Closing Time, all interest earned on subscriptions while held in escrow
      will be credited to the relevant FuturesAccess Fund.

     

    (d)  After
      the Initial Closing Time, the Manager shall notify the Selling Agent of the
      aggregate value of Units in each Company for which the Manager has accepted
      subscriptions for purchase as of the beginning of each month for which
      sufficient subscriptions (as described in the Memorandum) are received (each
      additional sale of Units hereinafter referred to as an “Additional
      Closing Time”).

     

    (e)
      Initial sales commissions of 1.0% – 2.5% of the amount of each Company’s Class A
      Unit subscription, and up to 0.50% of each Company’s Class I and Class D Unit
      subscription, shall be deducted from the subscription amount.  No
      initial sales commissions will be paid on a Company’s Class C
      Units.

     

    MLAI
      will
      pay to the Selling Agent, at no additional cost to the Companies or their
      Members, ongoing compensation on the Units for as long as such Units remain
      outstanding.  Such ongoing compensation will equal 1.0%, 0.80%, 2.00%
      and 0.30% per annum of the average month-end Net Asset Value per Unit of each
      Company’s Class A, Class I, Class C and Class D Units,
      respectively.

     

    Ongoing
      compensation in respect of each Company’s Class A Units will begin in the
      thirteenth month, and in the case of all other Units, immediately after their
      issuance.  Units are issued for such purposes when they begin to
      participate in the profits and losses of a Company (i.e., when a
      Company begins to participate in the profits and losses of the applicable
      Company), not when the related Subscription Agreements are
      accepted.

     

    (f)  The
      Selling Agent will use its best efforts to find eligible persons to purchase
      the
      Units as of the intended close of the initial offering period (as described
      in
      the Memorandum) and thereafter on the terms stated herein and in the
      Memorandum.  It is understood that the Selling Agent has no commitment
      with regard to the sale of the Units other than to use its commercially
      reasonable efforts.  In connection with the offer and sale of the
      Units, the Selling Agent represents that it will not knowingly violate
      applicable laws, and the rules of the National Association of Securities
      Dealers, Commodity Futures Trading Commission (“CFTC”), the
      National Futures Association (“NFA”), the SEC, state securities
      administrators and any other regulatory body.  The Selling Agent
      further represents that it has not and will not offer and sell, or arrange
      any
      commitments to purchase, any Units by any form of general solicitation or
      general advertising (as those terms are used in Regulation D promulgated under
      the 1933 Act) or in any manner involving a public offering (within the meaning
      of 

     

     

    
      
        
        

      

      
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      APPENDIX
        A

    

     

    Section
      4(2) of the Securities Act), or offer and sell or otherwise negotiate in respect
      of any security the offering which is or could be integrated with the sale
      of
      Units in a manner that would require registration of the Units under 1933
      Act.  The Selling Agent shall not execute any sales of Units from a
      discretionary account over which it has control without prior written approval
      of the customer in whose name such discretionary account is
      maintained.

     

    The
      Selling Agent agrees not to recommend the purchase of Units to any subscriber
      unless the Selling Agent shall have reasonable grounds to believe, on the basis
      of information obtained from the subscriber concerning, among other things,
      the
      subscriber’s investment objectives, other investments, financial situation and
      needs, that the subscriber is or will be in a financial position appropriate
      to
      enable the subscriber to realize to a significant extent the benefits of a
      Company, including tax benefits described in the Memorandum; the subscriber
      has
      a fair-market net worth sufficient to sustain the risks inherent in
      participating in the Companies, including loss of investment and lack of
      liquidity; the Units are otherwise a suitable investment for the subscriber;
      and
      the subscriber is qualified to purchase Units as described in the
      Memorandum.

     

    (g)  None
      of the Selling Agent, the Companies or the Manager shall, directly or
      indirectly, pay or award any finder’s fees, commissions or other compensation to
      any person engaged by a potential investor for investment advice as an
      inducement to such advisor to advise the purchase of Units; provided, however,
      the normal sales commissions payable to a registered broker-dealer or other
      properly licensed person for selling Units shall not be prohibited
      hereby.

     

    (h)  All
      payments for subscriptions shall be made by debiting subscribers’ customer
      securities accounts maintained with the Selling Agent as described in the
      Memorandum.

     

    (i)  In
      connection with the offer and sale of the Units, the Manager will not knowingly
      violate applicable laws and the rules of the SEC, the CFTC, the NFA, state
      securities administrators and any other regulatory body.

     

    Section 3.  Covenants
      of the Manager.

     

    (a)  The
      Manager will notify the Selling Agent immediately and confirm such notification
      in writing of the issuance by the SEC or any other federal or state regulatory
      body of any order or decree enjoining the offering or the use of the then
      current Memorandum or of the institution, or notice of the intended institution,
      of any action or proceeding for that purpose.

     

    (b)  Until
      termination of this Agreement, the Manager will take all necessary regulatory
      steps, make all necessary ongoing regulatory filings and obtain all necessary
      regulatory approvals to maintain the ongoing offering of the Units.

     

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    
      APPENDIX
        A

    

     

    (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.

     

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    
      APPENDIX
        A

    

     

    (d)           As
      of each Additional Closing Time, the parties hereto shall have been furnished
      with such information, opinions and certified documents as the Manager and
      the
      Selling Agent may deem to be necessary or appropriate.

     

    If
      any of
      the conditions specified in this Section 5 shall not have been fulfilled
      when and as required by this Agreement to be fulfilled, this Agreement and
      all
      obligations hereunder may be canceled by any party hereto by notifying the
      other
      parties hereto of such cancellation in writing or by telegram at any time at
      or
      prior to the Initial Closing Time, and any such cancellation or termination
      shall be without liability of any party to any other party except as otherwise
      provided in Section 6.

     

    Section 6.  Indemnification
      and Exculpation.

     

    (a)  Indemnification
      by the Manager.  The Manager agrees to indemnify and hold harmless
      the Selling Agent and each person, if any, who controls the Selling Agent within
      the meaning of Section 15 of the 1933 Act, as follows:

     

    (i)           against
      any and all loss, liability, claim, damage and expense whatsoever arising out
      of
      (A) any breach by the Manager of its representations and warranties or failure
      of the Manager to comply with any of its agreements contained herein or any
      act,
      omission, activity or conduct undertaken in connection with this Agreement
      by or
      on behalf of the Manager, except to the extent such loss results from the
      negligence or willful misconduct of the Selling Agent or (B) any untrue
      statement or alleged untrue statement of a material fact contained in the
      Memorandum (or any amendment thereto) or any omission or alleged omission
      therefrom of a material fact required to be stated therein or necessary in
      order
      to make the statements therein not misleading or arising out of any untrue
      statement or alleged untrue statement of a material fact contained in the
      Memorandum (or any amendment or supplement thereto) or the omission or alleged
      omission therefrom of a material fact necessary in order to make the statements
      therein, in light of the circumstances under which they were made, not
      misleading, unless such untrue statement or omission or alleged untrue statement
      or omission was made in reliance upon and in conformity with information
      relating to the Selling Agent or a Trading Advisor or furnished or approved
      by
      the Selling Agent or Trading Advisor as the case may be;

     

    (ii)  against
      any and all loss, liability, claim, damage and expense whatsoever with respect
      to each Company to the extent of the aggregate amount paid in settlement of
      any
      litigation, or any investigation or proceeding by any governmental agency or
      body, commenced or threatened, or of any claim whatsoever based upon any such
      untrue statement or omission or any such alleged untrue statement or omission
      (any settlement to be subject to indemnity hereunder only if effected with
      the
      written consent of the Manager); and

     

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    
      APPENDIX
        A

    

     

    (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.

     

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    
      APPENDIX
        A

    

     

    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.

     

    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.

     

    


    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    
      APPENDIX
        A

    

     

    
      	
              Very
                truly yours,

               

            
	
              Signed
                for and on behalf of:

              The
                FuturesAccess Funds

               

            
	 	 
	
              By:

            	
              Merrill
                Lynch Alternative Investments LLC

            
	 	
                 Manager

            
	 	 
	
              By:

            	
              /s/
                Stephen M. M. Miller

            
	 	
              Name:  Stephen
                M. M. Miller

            
	 	
              Title:    Vice
                President

            
	 	 
	 	 
	
              MERRILL
                LYNCH ALTERNATIVE INVESTMENTS LLC

            
	 	 
	
              By:

            	
              /s/
                Stephen M. M. Miller

            
	 	
              Name:  Stephen
                M. M. Miller

            
	 	
              Title:    Vice
                President

            


    

    


    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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