**Exhibit 3.02**

 

**ML BLUETREND FUTURESACCESS LLC**

** **

**AMENDED AND RESTATEDLIMITED LIABILITY COMPANYOPERATING AGREEMENT**

** **

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**THE UNITS OF LIMITED LIABILITY COMPANY INTERESTCREATED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, ASAMENDED, OR ANY STATE SECURITIES ACT, AND MAY NOT BE SOLD, TRANSFERRED,PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER APPLICABLE SECURITIES LAWSAND WITH THE CONSENT OF THE SPONSOR.**

** **

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**Merrill Lynch AlternativeInvestments LLC**

** **

**Sponsor**

** **

**November 30, 2009**

 

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**ML BLUETRENDFUTURESACCESS LLC**

 

**AMENDEDAND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT**

 

**TABLE OFCONTENTS**

 
| **ARTICLE I  ORGANIZATION**                                                                                                 |   |
|-----------------------------------------------------------------------------------------------------------------------------|--------|
|                                                                                                                        |   |
| SECTION 1.01. OBJECTIVES AND PURPOSES                                                                                  | 1      |
|                                                                                                                        |   |
| SECTION 1.02. APPOINTMENT OF THE TRADING ADVISOR;  INVESTMENT OF CASH RESERVES                                         | 2      |
|                                                                                                                        |   |
| SECTION 1.03. FISCAL YEAR; ACCOUNTING PERIODS                                                                          | 3      |
|                                                                                                                        |   |
| SECTION 1.04. REGISTERED AGENT AND OFFICE; PRINCIPAL  OFFICE                                                           | 3      |
|                                                                                                                        |   |
| SECTION 1.05. DURATION OF THIS FUTURESACCESS FUND                                                                      | 3      |
|                                                                                                                        |   |
| SECTION 1.06. NON-ASSIGNABILITY OF UNITS; SUBSTITUTED  INVESTORS; LIMITED ASSIGNABILITY OF THE SPONSOR’S INTEREST | 3      |
|                                                                                                                        |   |
| SECTION 1.07. LIABILITY OF INVESTORS                                                                                   | 3      |
|                                                                                                                        |   |
| **ARTICLE II  CAPITAL AND TAX ALLOCATIONS**                                                                                 |   |
|                                                                                                                        |   |
| SECTION 2.01. CAPITAL CONTRIBUTIONS                                                                                    | 4      |
|                                                                                                                        |   |
| SECTION 2.02. OPENING CAPITAL ACCOUNTS                                                                                 | 6      |
|                                                                                                                        |   |
| SECTION 2.03. FINANCIAL ALLOCATIONS AMONG THE UNITS                                                                    | 7      |
|                                                                                                                        |   |
| SECTION 2.04. NET ASSET VALUE                                                                                          | 7      |
|                                                                                                                        |   |
| SECTION 2.05. SPONSOR’S FEES; MANAGEMENT AND  PERFORMANCE FEES; TRANSACTION COSTS; OPERATING EXPENSES             | 8      |
|                                                                                                                        |   |
| SECTION 2.06. ALLOCATION OF PROFITS AND LOSSES FOR  FINANCIAL PURPOSES                                                 | 9      |
|                                                                                                                        |   |
| SECTION 2.07. ALLOCATION OF PROFITS AND LOSSES FOR  INCOME TAX PURPOSES                                                | 9      |
|                                                                                                                        |   |
| SECTION 2.08. CHARGEBACKS TO CURRENT OR FORMER  INVESTORS                                                              | 11     |
|                                                                                                                        |   |
| SECTION 2.09. PROCESSING OF SUBSCRIPTIONS                                                                              | 11     |
|                                                                                                                        |   |
| SECTION 2.10. VALUATION OF ASSETS                                                                                      | 12     |
|                                                                                                                        |   |
| SECTION 2.11. USE OF ESTIMATES                                                                                         | 13     |
|                                                                                                                        |   |
| SECTION 2.12. ACCOUNTING PRACTICES                                                                                     | 13     |
|                                                                                                                        |   |
| **ARTICLE III PARTICIPATION IN  FUTURESACCESS FUND PROPERTY; REDEMPTIONS AND DISTRIBUTIONS**                                |   |
|                                                                                                                        |   |
| SECTION 3.01. NO UNDIVIDED INTERESTS IN FUTURESACCESS  FUND PROPERTY                                                   | 13     |
|                                                                                                                        |   |
| SECTION 3.02. REDEMPTIONS OF UNITS; EXCHANGES                                                                          | 13     |

 

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| **TABLE OF CONTENTS (cont.)**                                         |   |
|-----------------------------------------------------------------------|--------|
|                                                                  |   |
| SECTION 3.03. WITHDRAWALS OF CAPITAL BY THE SPONSOR              | 14     |
|                                                                  |   |
| SECTION 3.04. MANDATORY REDEMPTIONS                              | 14     |
|                                                                  |   |
| SECTION 3.05. MANDATORY REDEMPTIONS TO PAY TAXES                 | 15     |
|                                                                  |   |
| SECTION 3.06. DISTRIBUTIONS                                      | 15     |
|                                                                  |   |
| SECTION 3.07. FORM OF DISTRIBUTION AND REDEMPTION  PAYMENTS | 15     |
|                                                                  |   |
| SECTION 3.08. REMOVAL OF THE SPONSOR                             | 15     |
|                                                                  |   |
| **ARTICLE IV  WITHDRAWAL OF THE SPONSOR AND INVESTORS**               |   |
|                                                                  |   |
| SECTION 4.01. WITHDRAWAL OF THE SPONSOR                          | 15     |
|                                                                  |   |
| SECTION 4.02. WITHDRAWAL OF AN INVESTOR                          | 15     |
|                                                                  |   |
| SECTION 4.03. STATUS AFTER WITHDRAWAL                            | 16     |
|                                                                  |   |
| **ARTICLE V  MANAGEMENT**                                             |   |
|                                                                  |   |
| SECTION 5.01. AUTHORITY OF THE SPONSOR                           | 16     |
|                                                                  |   |
| SECTION 5.02. SERVICE PROVIDERS; INVESTMENTS; ACCOUNTS           | 16     |
|                                                                  |   |
| SECTION 5.03. ACTIVITIES OF THE SPONSOR PARTIES                  | 17     |
|                                                                  |   |
| SECTION 5.04. SERVICES TO THIS FUTURESACCESS FUND                | 17     |
|                                                                  |   |
| SECTION 5.05. INTERESTED PARTIES                                 | 17     |
|                                                                  |   |
| SECTION 5.06. EXCULPATION                                        | 17     |
|                                                                  |   |
| SECTION 5.07. INDEMNIFICATION                                    | 18     |
|                                                                  |   |
| SECTION 5.08. INVESTORS’ TRANSACTIONS                       | 18     |
|                                                                  |   |
| SECTION 5.09. RELIANCE BY THIRD PARTIES                          | 18     |
|                                                                  |   |
| SECTION 5.10. REGISTRATION OF ASSETS                             | 18     |
|                                                                  |   |
| SECTION 5.11. LIMITATION ON AUTHORITY OF THE SPONSOR             | 18     |
|                                                                  |   |
| **ARTICLE VI  ADMISSION OF INVESTORS**                                |   |
|                                                                  |   |
| SECTION 6.01. PROCEDURE AS TO NEW INVESTORS                      | 19     |
|                                                                  |   |
| SECTION 6.02. PROCEDURE AS TO NEW MANAGERS                       | 19     |
|                                                                  |   |
| **ARTICLE VII  BOOKS OF ACCOUNT; AUDITS; REPORTS TO INVESTORS**       |   |
|                                                                  |   |
| SECTION 7.01. BOOKS OF ACCOUNT                                   | 19     |
|                                                                  |   |
| SECTION 7.02. ANNUAL AUDIT                                       | 19     |
|                                                                  |   |
| SECTION 7.03. INTERIM REPORTS                                    | 20     |
|                                                                  |   |
| **ARTICLE VIII  CONFLICTS OF INTEREST**                               |   |
|                                                                  |   |
| SECTION 8.01. INVESTORS’ CONSENT                            | 20     |

 

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| **TABLE OF CONTENTS (cont.)**                                                             |   |
|-------------------------------------------------------------------------------------------|--------|
| ** **                                                                                |   |
| **ARTICLE IX  DISSOLUTION AND WINDING UP OF THIS FUTURESACCESS FUND**                     |   |
|                                                                                      |   |
| SECTION 9.01. EVENTS OF DISSOLUTION                                                  | 20     |
|                                                                                      |   |
| SECTION 9.02. DISSOLUTION                                                            | 21     |
|                                                                                      |   |
| **ARTICLE X  MISCELLANEOUS PROVISIONS**                                                   |   |
|                                                                                      |   |
| SECTION 10.01. INVESTORS NOT TO CONTROL                                              | 21     |
|                                                                                      |   |
| SECTION 10.02. POWER OF ATTORNEY                                                     | 21     |
|                                                                                      |   |
| SECTION 10.03. AMENDMENTS; CONSENTS                                                  | 21     |
|                                                                                      |   |
| SECTION 10.04. NOTICES                                                               | 22     |
|                                                                                      |   |
| SECTION 10.05. LEGAL EFFECT; MANNER OF EXECUTION                                     | 22     |
|                                                                                      |   |
| SECTION 10.06. GOVERNING LAW                                                         | 23     |
|                                                                                      |   |
| SECTION 10.07. CONSENT TO JURISDICTION                                               | 23     |
|                                                                                      |   |
| SECTION 10.08. “TAX MATTERS PARTNER”; TAX ELECTIONS                        | 23     |
|                                                                                      |   |
| SECTION 10.09. DETERMINATION OF MATTERS NOT PROVIDED  FOR IN THIS AGREEMENT          | 23     |
|                                                                                      |   |
| SECTION 10.10. NO PUBLICITY                                                          | 23     |
|                                                                                      |   |
| SECTION 10.11. SURVIVAL                                                              | 23     |
|                                                                                      |   |
| SECTION 10.12. WAIVERS                                                               | 23     |
|                                                                                      |   |
| SECTION 10.13. VOTING RIGHTS                                                         | 23     |
|                                                                                      |   |
| SECTION 10.14. ISSUANCE OF DIFFERENT CLASSES                                         | 23     |
|                                                                                      |   |
| SECTION 10.15. COMPLIANCE WITH THE INVESTMENT ADVISERS  ACT OF 1940; SECURITIES LAWS | 24     |
|                                                                                      |   |
| SECTION 10.16. AMENDMENT AND RESTATEMENT                                             | 24     |

 

TESTIMONIUM

SIGNATURES

 

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**ML BLUETREND FUTURESACCESS LLC**

** **

**AMENDED AND RESTATEDLIMITED LIABILITY COMPANY OPERATING AGREEMENT**

** **

**as of November 30, 2009**

 

THIS AMENDED AND RESTATEDLIMITED LIABILITY COMPANY OPERATING AGREEMENT (“Agreement”) dated November 30,2009 of ML BlueTrend FuturesAccess LLC (this “FuturesAccess Fund”) by and amongMerrill Lynch Alternative Investments LLC, a Delaware limited liability company(the “Sponsor”), and those persons who shall invest in the units of limitedliability company interest (“Units”) created pursuant to this Agreement — Class A,Class C, Class D, Class I, Class DS, Class DT and suchother classes as may be established in the future — and shall therefore beadmitted as members (such members being hereinafter sometimes referred tocollectively as “Investors”; provided, that for purposes of voting, Units heldby the Sponsor shall not be considered to be held by an Investor).

 

WHEREAS, the partieshereto desire to form or continue this FuturesAccess Fund, a limited liabilitycompany under the provisions of the Delaware Limited Liability Company Act (the“Act”), which shall be one of the funds included in the Merrill LynchFuturesAccessSM Program (“FuturesAccess”); such other funds tobe hereinafter sometimes referred to as “FuturesAccess Funds”.

 

WHEREAS, units of limitedliability company interest issued by the FuturesAccess Funds in general shallhereinafter be referred to as “Units.”

 

WHEREAS, the Sponsor isthe sponsor of this FuturesAccess Fund and the manager of this FuturesAccessFund for purposes of the Act.

 

WHEREAS, in addition toFuturesAccess, the Sponsor also sponsors the HedgeAccessSM Program (“HedgeAccess”)of private investment funds concentrating on securities, rather than futuresand forward trading (such funds being hereinafter referred to as “HedgeAccessFunds”).

 

WHEREAS, the partieshereby desire to set forth the terms pursuant to which this FuturesAccess Fundshall be governed.

 

NOW, THEREFORE, inconsideration of the premises, the mutual agreements herein contained and othergood and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, the parties hereto agree as follows:

 

# **ARTICLE IORGANIZATION**

# ** **

## SECTION 1.01.  OBJECTIVES AND PURPOSES.

##  

### (a)                                  This FuturesAccess Fund shall have thefollowing objectives and purposes:

###  

#### (i)                                    to retain a professional trading advisor(the “Trading Advisor”) to manage this FuturesAccess Fund’s speculative tradingin the futures, forward, options and other markets as described in the “Part One(A) Confidential Program Disclosure Document: FuturesAccessSM Program GeneralInformation,” the “Part One (B) Confidential Program DisclosureDocument: Trading Advisor Information” and the “Part Two ConfidentialProgram Disclosure Document: Statement of Additional Information,” as they maybe updated or supplemented from time to time (collectively, the “DisclosureDocument”);

 

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#### (ii)                                 to maintain such futures brokerage,forward dealing and other counterparty accounts, as well as such cash reservesas the Sponsor may from time to time deem to be appropriate and to invest andmanage all such cash reserves; and

####  

#### (iii)                              to engage in any other lawful act or activity withinand without the United States for which limited liability companies may be organizedunder the laws of the State of Delaware.

####  

### (b)                                 This FuturesAccess Fund, and the Sponsoron behalf of this FuturesAccess Fund, shall have the power to enter into, makeand perform all contracts and other undertakings, and engage in all activitiesand transactions as may be necessary or advisable to the carrying out of theforegoing purposes, including, without limitation, the power:

###  

#### (i)                                    to trade futures, forwards, options andother instruments on margin and otherwise;

####  

#### (ii)                                 to borrow money from banks or brokers,and to secure the payment of any obligations of this FuturesAccess Fund byhypothecation or pledge of all or part of the assets of this FuturesAccessFund;

####  

#### (iii)                              to exercise, as applicable, all rights, powers,privileges and other incidents of ownership or possession with respect to theassets of this FuturesAccess Fund;

####  

#### (iv)                             to open, maintain and close bank,brokerage and other accounts;

####  

#### (v)                                to prepare and file all tax returnsrequired of this FuturesAccess Fund and make any election or determination onbehalf of this FuturesAccess Fund in connection therewith or as otherwiserequired or permitted by applicable tax laws;

####  

#### (vi)                             to bring, defend, compromise and settlelegal actions or other claims on behalf of this FuturesAccess Fund;

####  

#### (vii)                          to maintain insurance on behalf of this FuturesAccessFund, including indemnification insurance; or

####  

#### (viii)                       to take any and all such actions as the Sponsor maydeem to be necessary or advisable in connection with the foregoing.

####  

## SECTION 1.02.  APPOINTMENT OF THE TRADING ADVISOR;INVESTMENT OF CASH RESERVES.  The Sponsorshall appoint the Trading Advisor to have discretionary authority over thisFuturesAccess Fund’s trading and investing as described in the DisclosureDocument.  This FuturesAccess Fund may executetransactions in commodity interests, currency interests, swap agreements andany other manner of instruments, on either a principal or an agency basis, withor through affiliates of the Sponsor (the Sponsor and such affiliates beinghereafter referred to as “Merrill Lynch”) or third parties.  The sole clearing broker and the principalforward trading counterparty for this FuturesAccess Fund shall be Merrill Lynchunless the Sponsor otherwise determines.

##  

This FuturesAccess Fundshall deposit all or substantially all of this FuturesAccess Fund’s capitalwith Merrill Lynch or any other clearing brokers selected by the Sponsorpursuant to the arrangements described in the Disclosure Document, allInvestors acknowledging that Merrill Lynch will not only receive futuresbrokerage commissions and bid-ask spreads from this FuturesAccess Fund but alsowill retain significant economic benefits from the possession of thisFuturesAccess Fund’s assets (in addition to the interest which Merrill Lynchwill credit to this FuturesAccess Fund’s account).  In addition, the Sponsor may maintain thisFuturesAccess Fund’s assets in deposit or similar accounts with, or in moneymarket funds operated by, one or more affiliates of the Sponsor, whichaffiliates may benefit from the possession of such assets, as well as withunaffiliated entities.  The interest paidby such affiliated and unaffiliated entities on this FuturesAccess Fund’s cash 

 

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so invested will be paidto this FuturesAccess Fund.  However,neither the Sponsor nor any of its affiliates (or any third parties) will beobligated to account to this FuturesAccess Fund or any Investor for anyadditional economic benefits which the Sponsor or any such affiliate may derivefrom possession of this FuturesAccess Fund’s assets.

 

## SECTION 1.03.  FISCAL YEAR; ACCOUNTING PERIODS.  The fiscal year of this FuturesAccess Fundshall end on each December 31.  ThisFuturesAccess Fund’s accounting periods (“Accounting Periods”), as of the endof each of which increases and decreases in this FuturesAccess Fund’s “NetAssets” (as defined in **Section 2.04**)shall be calculated and reflected in the “Net Asset Value” (as defined in **Section 2.04**) of the Units issued by this FuturesAccessFund, shall begin: (i) as of the day that this FuturesAccess Fund firstbegins operations, (ii) as of the day that any Unit is issued, (iii) asof the day immediately following any redemption of Units, (iv) as of thebeginning of each calendar month, and (v) as of such other day as theSponsor may determine.  An AccountingPeriod shall end on the day immediately preceding the beginning of the nextAccounting Period.

##  

## SECTION 1.04.  REGISTERED AGENT AND OFFICE; PRINCIPALOFFICE.  This FuturesAccess Fund shallmaintain in the State of Delaware a registered agent and office.  The identity and location of said registeredagent and office shall be determined by the Sponsor, and may be changed fromtime to time by the Sponsor.

##  

The initial registeredoffice of this FuturesAccess Fund in the State of Delaware is c/o TheCorporation Trust Company, Corporation Trust Center, 1209 Orange Street,Wilmington, New Castle County, Delaware 19801.

 

The principal office ofthis FuturesAccess Fund shall be located at the offices of the Sponsor, 4 WorldFinancial Center, 250 Vesey Street, 6th Floor, New York, NY  10080, or such other place as the Sponsor maydesignate from time to time.

 

## SECTION 1.05.  DURATION OF THIS FUTURESACCESS FUND.  The term of this FuturesAccess Fund commencedas of the date its Certificate of Formation was filed with the Secretary ofState of the State of Delaware, and shall continue until terminated by thedissolution and winding up of this FuturesAccess Fund as hereinafter provided.

##  

## SECTION 1.06.  NON-ASSIGNABILITY OF UNITS; SUBSTITUTEDINVESTORS; LIMITED ASSIGNABILITY OF THE SPONSOR’S INTEREST.

##  

### (a)                                  No Investor shall assign, encumber,pledge, hypothecate or otherwise transfer any of such Investor’s Units withoutthe consent of the Sponsor, and any assignment, encumbrance, pledge,hypothecation or transfer of Units, whether voluntary, involuntary or byoperation of law, to which the Sponsor does not consent shall result in theUnits so assigned, encumbered, pledged, hypothecated or otherwise transferredbeing mandatorily redeemed as of the end of the month during which suchpurported assignment, encumbrance, pledge, hypothecation or transferoccurred.  Any assignment, encumbrance,pledge, hypothecation or transfer which shall result in the termination of thisFuturesAccess Fund for federal income tax purposes shall be null and void abinitio and of no legal force or effect whatsoever.  An assigning Investor shall remain liable tothis FuturesAccess Fund as provided in the Act, regardless of whether his orher assignee becomes a substituted Investor.

###  

### (b)                                 The Sponsor may not assign, encumber,pledge, hypothecate or otherwise transfer all or any portion of its manager’sinterest in this FuturesAccess Fund; provided, that the Sponsor may assign suchinterest to an affiliate of the Sponsor upon notice (which need not be priornotice) to the Investors or in connection with the sale or transfer of all or amaterial portion of the Sponsor’s equity or assets.  See **Sections 4.01**and **6.02**.

###  

## SECTION 1.07.  LIABILITY OF INVESTORS.

##  

### (a)                                  Nothing herein shall require the Sponsorto maintain any minimum net worth or shall make any person associated with theSponsor individually liable for any debt, liability or obligation of thisFuturesAccess Fund or of the Sponsor.

###  

### (b)                                 No Investor shall have any obligation torestore any negative balance in the capital account established for each Unitpursuant to **Section 2.02**(“CapitalAccount”) of such Investor.

 

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### (c)                                  The Sponsor shall have no obligation torestore any negative balance in any Investor’s or in the Sponsor’s CapitalAccount.

###  

### (d)                                 Except as provided in **Section 2.08** (providing for chargebacks to current orformer Investors), the Sponsor and the Investors shall be liable for the repayment,satisfaction and discharge of debts, liabilities and obligations of thisFuturesAccess Fund only to the extent of the Sponsor’s or such Investor’sinvestment in this FuturesAccess Fund and not in excess thereof.

###  

# **ARTICLE IICAPITAL AND TAX ALLOCATIONS**

# ** **

## SECTION 2.01.  CAPITAL CONTRIBUTIONS.  All contributions of capital to thisFuturesAccess Fund (“Capital Contributions”) shall be made in cash.  Capital Contributions may be made in suchamounts, and at such times, as the Sponsor may determine.  The Sponsor may permit certain Investors tomake smaller initial or subsequent Capital Contributions than is otherwisegenerally required by the Sponsor without entitling any other Investor to makesmaller initial or subsequent Capital Contributions.

##  

Investors will receiveUnits in return for their Capital Contributions.  Each Class of Units shall initially beissued at $1.00 per Unit, and thereafter at Net Asset Value.

 

The Sponsor (and/or anyother Merrill Lynch entity) may, but need not, make Capital Contributions as ofany date that any Units are issued. Merrill Lynch may provide initial (“seed”) capital to enable thisFuturesAccess Fund to begin trading before sufficient client capital has beenraised to meet this FuturesAccess Fund’s minimum capitalization.  Seed capital (if any) will be invested in Class DUnits.  However, neither the Sponsor norany other Merrill Lynch entity has any obligation to “seed” this FuturesAccessFund (or any other FuturesAccess Fund). The Units may be issued in the five Classes described herein — Class AUnits, Class C Units, Class D Units, Class I Units, Class DSUnits and Class DT Units.  Units ofa new Class or series may be issued in the Sponsor’s sole discretion.

 

Sales commissions will bededucted from Class A, Class D and Class I subscriptions asdescribed in the Disclosure Document, and the net amount of such subscriptions(after deducting applicable sales commissions) will be invested in theUnits.  The Sponsor may waive or reducesales commissions for certain Investors without entitling any other Investor toany such waiver or reduction.

 

Fractional Units shallnot be issued to Investors (but may be issued to the Sponsor or any otherMerrill Lynch entity).  Investors’subscriptions shall be used to purchase the largest whole number of Units ofthe appropriate Class possible.  Anysubscription amount which cannot be used to purchase whole Units shall becredited (in cash) to Investors’ Merrill Lynch customer securities accounts.

 

Provided thisFuturesAccess Fund’s overall minimum capitalization is met, there is no minimumnumber of Units of a particular Class that must be sold in order for Unitsof that particular Class to be issued.

 

Once this FuturesAccessFund has begun operations, there is no minimum dollar amount of subscriptionsthat must be received as of the beginning of any calendar quarter in order foradditional Units of any Class to be issued.  All Units will be issued only as the Sponsormay determine, irrespective of how many subscriptions are received.

 

Class DS Units and Class DTUnits are open to investment by only other FuturesAccess Funds and do nototherwise have any eligibility requirements except as determined by the Sponsorfrom time to time.

 

Eligibility for Class AUnits, Class C Units, Class D Units and Class I Units shall bedetermined on the basis of an Investor’s total “FuturesAccess Investment”(defined below) in FuturesAccess overall as well as, in the case of Class DUnits, in a particular FuturesAccess Fund. An Investor’s “FuturesAccess Investment,” determined as of the beginningof each month, equals the *greater* of:

 

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(i)                                     the aggregate Net Asset Value of anInvestor’s outstanding Units in FuturesAccess (or in a particular FuturesAccessFund, as applicable) based on the most recently available Net Asset Values,plus pending subscriptions; or

 

(ii)                                  an Investor’s net subscriptions toFuturesAccess overall (or to a particular FuturesAccess Fund, asapplicable).  Net subscriptions means anInvestor’s aggregate subscriptions less aggregate redemptions (not includingpending redemptions).

 

Class A and Class CUnits shall be assigned for FuturesAccess Investments up to $5,000,000; Class IUnits are assigned for FuturesAccess Investments of $5,000,000 or more; and Class DUnits are assigned for FuturesAccess Investments in an individual FuturesAccessFund of $5,000,000 or more or aggregate FuturesAccess Investments of$15,000,000 or more.

 

Except for purposes ofdetermining Class D eligibility in a particular FuturesAccess Fund, thepurchase and sale of Units in an exchange shall offset each other and shallhave no effect on the amount of an Investor’s net subscriptions toFuturesAccess overall.

 

FuturesAccess Investmentsattributable to certain related accounts may be combined for purposes ofdetermining an Investor’s Class I and Class D eligibility.  In addition, Investors who participate inHedgeAccess (private investment funds which primarily trade securities) shallbe permitted to aggregate their Investments in FuturesAccess and HedgeAccessfor purposes of determining such Investors’ Class I and Class Deligibility.

 

There shall be no minimumFuturesAccess Investment required to invest in Class A or Class CUnits (other than the minimum subscription amounts required to invest in aparticular FuturesAccess Fund or FuturesAccess overall).

 

New Investors whoseinitial subscription equals or exceeds $5,000,000 shall be issued Class IUnits in each FuturesAccess Fund in which they invest.  If an existing Investor, whose FuturesAccessInvestment is less than $5,000,000, makes an additional subscription whichcauses such Investor’s FuturesAccess Investment to equal or exceed $5,000,000(including the new subscription), the entire new subscription shall be investedin Class I Units.  The Investor’sexisting Units shall not be converted from Class A or Class C (as thecase may be) to Class I Units, but all subsequent subscriptions andexchanges made by such Investor shall be for Class I Units.

 

Class D eligibilityis determined on both an individual FuturesAccess Fund and an overallFuturesAccess basis.

 

Investors whose initialsubscription to any one FuturesAccess Fund equals or exceeds $5,000,000 shallbe issued Class D Units in that FuturesAccess Fund.  If an Investor, whose FuturesAccessInvestment in a particular FuturesAccess Fund is less than $5,000,000, makes anadditional subscription or exchange into that FuturesAccess Fund which causessuch Investor’s FuturesAccess Investment to equal or exceed $5,000,000 (includingthe new subscription or exchange), the entire new subscription or exchange intothat FuturesAccess Fund shall be invested in Class D Units.  The Investor’s existing Units in thatFuturesAccess Fund shall not be converted to Class D Units, but allsubsequent subscriptions or exchanges made by such Investor into the sameFuturesAccess Fund shall be for Class D Units.  However, notwithstanding the fact that anInvestor’s FuturesAccess Investment in a particular FuturesAccess Fund equalsor exceeds $5,000,000, if that Investor invests or exchanges into anotherFuturesAccess Fund in which such Investor’s FuturesAccess Investment is lessthan $5,000,000, such Investor shall not receive Class D Units in suchother FuturesAccess Fund (except as described immediately below).

 

New Investors whoseinitial subscription equals or exceeds $15,000,000 shall be issued Class DUnits in each FuturesAccess Fund in which they invest, irrespective of whethersuch Investor’s FuturesAccess Investments in any one FuturesAccess Fund equalsor exceeds $5,000,000.  If an existingInvestor, whose FuturesAccess Investment is less than $15,000,000, makes anadditional subscription immediately after which such Investor’s FuturesAccessInvestment equals or exceeds $15,000,000 (including the new subscription), theentire new subscription shall be invested in Class D Units.  The Investor’s existing Units shall not beconverted to Class D Units, but all subsequent subscriptions and exchangesmade by such Investor will be for Class D Units.

 

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Subscriptions made to allFuturesAccess Funds shall be aggregated for purposes of determining whether anInvestor is eligible to invest in Class D or Class I Units.

 

Once an Investor isissued Class I or Class D Units, such Investor shall continue to beissued Class I or Class D Units (as applicable) irrespective ofsubsequent redemptions or Unit value depreciation; provided that, if anInvestor withdraws entirely from FuturesAccess or a particular FuturesAccessFund and subsequently reinvests, such Investor’s Class I and/or Class DUnit eligibility shall be determined from the date of such reinvestment as ifsuch Investor had never previously participated in FuturesAccess or suchFuturesAccess Fund.

 

Merrill Lynch officersand employees invest in Class I Units without regard to the $5,000,000minimum “Program Investment” requirement. Such exemption from the minimum FuturesAccess Investment requirementshall not be generally available to other Investors.

 

Certain Merrill Lynchclients may invest in Class I or a customized Class of Units ondifferent terms than those described herein, depending on the type of MerrillLynch Account held by such clients.  Inaddition, FuturesAccess Funds may from time to time offer to certain MerrillLynch clients a customized Class of Units having different financial termsthan those described herein or the Disclosure Document, provided that doing sodoes not have a material adverse effect on existing Investors.  Such customized Classes will generally bedesigned for Investors who are subject to additional fees on their investmentsin the FuturesAccess Funds depending on the type of Merrill Lynch Account heldby such Investors or other reasons, and shall not be generally available toother Investors.

 

The amount of eachInvestor’s Capital Contribution shall be set forth in such Investor’sFuturesAccess Program Subscription and Exchange Agreement Signature Page.  A FuturesAccess Program Subscription andExchange Agreement (including the FuturesAccess Program Subscription andExchange Agreement Signature Page) must be completed and accepted by theSponsor prior to an Investor’s initial Capital Contribution if such Investor isnot already an investor in FuturesAccess. The Sponsor may require a new Program Subscription and ExchangeAgreement Signature Page each time an existing Investor makes anadditional Capital Contribution or exchange.

 

The aggregate of allCapital Contributions shall be available to this FuturesAccess Fund to carryout its objectives and purposes.

 

No Investor shall beobligated to make any additional Capital Contributions, except as provided in **Section 2.08**.

 

No provision of thisAgreement shall be construed as guaranteeing the return, by any Sponsor Party orthis FuturesAccess Fund, of all or any part of the Capital Contribution(s) ofany Investor.

 

## SECTION 2.02.  OPENING CAPITAL ACCOUNTS.

##  

### (a)                                  There shall be established for each Unitof each Class on the books of this FuturesAccess Fund, as of the first dayof each Accounting Period, an opening capital account (“Opening Capital Account”)which, for the Accounting Period as of the beginning of which such Unit isissued, shall be the Capital Contribution made in respect of such Unit andwhich, for each Accounting Period thereafter, shall be an amount equal to theclosing capital account (“Closing Capital Account”) (determined as set forth in**Section 2.06**) attributable to suchUnit for the immediately preceding Accounting Period.

###  

### (b)                                 The Sponsor may, but shall not berequired to, make Capital Contributions to this FuturesAccess Fund from time totime as new Units are issued, which shall be accounted for on a Unit-equivalentbasis and shall participate in the profits and losses of the Units on the samebasis as the Capital Accounts of the Class D Units.

###  

### (c)                                  For all purposes of this Agreement,references to Units shall be deemed to include the Sponsor’s Capital Account ona Unit-equivalent basis (unless the context otherwise requires or the referenceis made explicit for greater certainty).

 

6

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## SECTION 2.03.  FINANCIAL ALLOCATIONS AMONG THE UNITS.  The net profits and losses are allocated toeach Class as provided in **Section 2.06**and shall be allocated equally among the Units of such Class.  All Units of the same Class shall havethe same Net Asset Value.

##  

## SECTION 2.04.  NET ASSET VALUE.  For the purposes of this Agreement, unlessthe context otherwise requires, “Net Assets” and “Net Asset Value” shall meanassets less liabilities.  For purposes ofdetermining Opening Capital Accounts, Net Asset Value shall be determined as ofthe beginning of, and for purposes of determining Closing Capital Accounts, NetAsset Value will be determined as of the close of, business on the relevantvaluation date.

##  

### (a)                                  The assets of this FuturesAccess Fundshall include:

###  

#### (i)                                    all cash on hand or on deposit in bank orother interest-bearing accounts, including any interest accrued thereon;

####  

#### (ii)                                 any accrued gains on open positions whichhave not been settled by crediting this FuturesAccess Fund’s account, as valuedpursuant to **Section 2.10**;

####  

#### (iii)                              all bills, demand notes and accounts receivable;

####  

#### (iv)                             all securities (including, withoutlimitation, money-market funds, Treasury bills and other short-term,interest-bearing instruments), commodity interests, currency interests, swapagreements and all other instruments owned or contracted for by thisFuturesAccess Fund;

####  

#### (v)                                all interest accrued on anyinterest-bearing securities owned by this FuturesAccess Fund except to theextent that the same is included or reflected in the valuation of suchsecurities; and

####  

#### (vi)                             all other assets of every kind andnature, including prepaid expenses.

####  

### (b)                                 The liabilities of this FuturesAccessFund shall be deemed to include the following (provided, however, that indetermining the amount of such liabilities, this FuturesAccess Fund maycalculate expenses of a regular or recurring nature for any given period on anestimated basis in advance, and may accrue the same in such manner as theSponsor may deem appropriate over such period):

###  

#### (i)                                    any accrued losses on open positionswhich have not been settled by debiting this FuturesAccess Fund’s account, asvalued pursuant to **Section 2.10**;

####  

#### (ii)                                 all bills and accounts payable;

####  

#### (iii)                              all expenses accrued, reimbursable or payable; and

####  

#### (iv)                             all other liabilities, present or future,including such reserves as the Sponsor may (as contemplated by **Section 2.04(g)**) deem advisable.

####  

### (c)                                  The management fees payable to the TradingAdvisor (“Management Fees”), the performance fees payable to the TradingAdvisor (“Performance Fees”) and the “Sponsor’s Fees” (as defined in **Section 2.05(a)**)****shall bedetermined, and Units’ Capital Accounts correspondingly reduced, after theallocation of the other components of Net Asset Value, as described above;provided that interest income may or may not be included in Net Asset Value forpurposes of calculating the Performance Fees as agreed upon between the Sponsorand the Trading Advisor.

###  

### (d)                                 Operating expenses shall be allocatedamong the Units *pro rata* based on theirrespective Net Asset Values as of the beginning of the month.

 

7

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### (e)                                  Extraordinary costs, if any, shall beallocated as incurred in such manner as the Sponsor may deem to be fair andequitable.

###  

### (f)                                    Organizational and initial offering costsshall be deducted from Net Asset Value in installments as of the end of each ofthe first 60 calendar months after the initial issuance of the Units, ascontemplated by **Section 2.05(b) **(forfinancial and performance reporting purposes, all such costs must be deductedfrom Net Asset Value as of the date of such initial issuance).

###  

### (g)                                 All Investors, by becoming party to thisAgreement, hereby agree and consent to the Sponsor’s authority to establishwhatever reserves the Sponsor may determine to be appropriate in order to coverlosses, contingencies, liabilities, uncertain valuations and otherfactors.  Any such reserves shall, unlessthe Sponsor determines that such reserves are properly attributable to certainbut less than all outstanding Units, reduce the Net Asset Value of the Units ofeach Class *pro rata* based on theirrespective Net Asset Values, after reduction for accrued Sponsor’s Fees, operatingexpenses and extraordinary expenses until such time, if any, as such reservesare reversed.  Reserves, when reversed,shall be similarly allocated among the Units then outstanding *pro rata* based on their respective Net Asset Value(irrespective of whether such Units were outstanding when the reserves wereestablished).

###  

### (h)                                 The Sponsor may suspend the calculationof Net Asset Value during any period for which the Sponsor is unable to value amaterial portion of this FuturesAccess Fund’s positions.  The Sponsor will give notice of any suchsuspension to all Investors.

###  

## SECTION 2.05.  SPONSOR’S FEES; MANAGEMENT AND PERFORMANCEFEES; TRANSACTION COSTS; OPERATING EXPENSES.

##  

### (a)                                  The Sponsor shall receive monthly sponsor’sfees (“Sponsor’s Fees”), payable in arrears of 1/12 of 1.50%, 2.50%, 0% and1.10%, respectively, of the aggregate Net Asset Value of the Class A, Class C,Class D and Class I Units, in each case as of the close of business(as determined by the Sponsor) on the last business day of each calendar month(Net Asset Value for purposes of calculating the Sponsor’s Fees shall not bereduced by the accrued Sponsor’s Fees being calculated).  The Sponsor’s Fees shall be accruedmonthly.  The Sponsor may waive or reduceSponsor’s Fees for certain Investors without entitling any other Investor toany such waiver or reduction.  No Sponsor’sFees shall be charged to Class DS Units or to Class DT Units, unlessotherwise determined by the Sponsor.

###  

### (b)                                 As contemplated by **Section 2.04(f)**,this FuturesAccess Fund shall reimburse the Sponsor for the organizational andinitial offering costs incurred by this FuturesAccess Fund in respect of theinitial offering of the Units (of all Classes combined) in installments as ofthe end of each of the first 60 calendar months of this FuturesAccess Fund’soperation, beginning with the end of the first calendar month after the initialissuance of the Units.  ThisFuturesAccess Fund shall expense such costs over the same 60-month schedule.  If this FuturesAccess Fund dissolves prior tothe end of such 60 calendar-month period, any remaining reimbursementobligation with respect to organizational and initial offering costs shall beeliminated.

###  

### (c)                                  The Sponsor’s Fees, as well as operatingexpenses due to the Sponsor (including: organizational and initial offering costs; ongoing offering costs;administrative, custody, transfer, subscription and redemption processing,legal, regulatory, filing, tax, audit, escrow, accounting and printing costs;and extraordinary expenses), shall be debited by the Sponsor directly from thisFuturesAccess Fund’s account and paid to the Sponsor, where appropriate, as ifto a third party, not credited to the Sponsor’s Capital Account.

###  

### (d)                                 This FuturesAccess Fund shall pay alltransaction costs (including futures brokerage commissions and bid-ask spreadsas well as interest on foreign currency borrowings), as well as all Managementand Performance Fees, as incurred.

 

8

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### (e)                                  The Sponsor’s Fees, but not reimbursementpayments for organizational and initial offering costs, shall be appropriatelypro rated in the case of partial calendar months.

###  

### (f)                                    This FuturesAccess Fund shall pay allexpenses, including administrative and ongoing offering costs, as well as anyextraordinary expenses, incurred in its operations (including the expenses ofany services provided by the Sponsor, other than in its capacity as Sponsor, orits affiliates); provided, that this FuturesAccess Fund shall not pay anyallocable Sponsor overhead.

###  

### (g)                                 The Sponsor retains outside serviceproviders to supply tax reporting, custody and accounting services toFuturesAccess.  This FuturesAccess Fund’soperating costs will include its allocable share of the fees and expenses ofsuch service providers, as well as the fees and expenses of any Merrill Lynchentity which may provide such (or other) services in the future.

###  

### (h)                                 The Capital Account of the Sponsor (ifany) shall not be subject to Sponsor’s Fees.

###  

## SECTION 2.06.  ALLOCATION OF PROFITS AND LOSSES FORFINANCIAL PURPOSES.  As of the end ofeach Accounting Period and before giving effect to any redemptions then beingmade, the Closing Capital Account of each Class shall be determined byadjusting the Opening Capital Account of each such Class as of thebeginning of such Accounting Period in the following manner:

##  

### (a)                                  Any increase or decrease in the Net AssetValue of this FuturesAccess Fund, after the deduction of all transaction costsand operating expenses, but prior to accrual of the Management, Performance andSponsor’s Fees, during such Accounting Period shall be credited *pro rata*, without any order or priority, among:  (i) each Class of Units; and (ii) theSponsor’s Capital Account, if any, based in each case on the aggregate OpeningCapital Accounts attributable to each such Class of Units and the Sponsor’sCapital Account; provided that any amounts received by this FuturesAccess Fundfrom the Trading Advisor for payment to the Sponsor shall be allocated to theCapital Account of the Sponsor. Extraordinary expenses shall be allocated as the Sponsor may determine.

###  

### (b)                                 If the Closing Capital Account per Unitof any Class is reduced to zero, any further decrease in the Net AssetValue per Unit shall be allocated to the Sponsor’s Capital Account, if any.

###  

### (c)                                  The Management Fee, Performance Fee andSponsor’s Fee shall be debited from each Class, in each case after the **Section 2.06(a) **and **(b) **allocationsare made.

###  

### (d)                                 The Net Assets of each Class shallbe divided equally among all Units of such Class.

###  

## SECTION 2.07.  ALLOCATION OF PROFITS AND LOSSES FOR INCOMETAX PURPOSES.

##  

### (a)                                  A Tax Account shall be established foreach Unit of each Class.  The TaxAccounts of all outstanding Units shall initially be equal to each Unit’s netpurchase price (*i.e*., the subscription price forsuch Unit reduced by any sales commissions) and shall subsequently be increasedby such Unit’s share of the taxable and tax-exempt income and gain of thisFuturesAccess Fund and decreased by such Unit’s share of the items of loss orexpense and nondeductible items of loss or expense of this FuturesAccess Fund,as well as by any distributions.

###  

### (b)                                 For federal income tax purposes, items ofordinary income and loss, capital gain and capital loss shall, unless theSponsor believes that doing so would not equitably reflect the economicexperience of the Units, be allocated as of December 31 of each year amongthe Units, in the following order and priority:

###  

#### (i)                                    Items of ordinary income and deductiongenerated by this FuturesAccess Fund shall be allocated *pro rata*among the Units which were outstanding during the months in such year when suchitems of ordinary income and deduction accrued.

 

9

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####  

#### (ii)                                 Gains will be allocated FIRST, toInvestors who have redeemed Units during such year (including as of December 31),to the extent of the positive difference (if any) between the amounts receivedor receivable upon redemption and the respective Tax Account balances of theredeemed Units.  SECOND, gains will beallocated to Investors to the extent of the positive difference (if any)between the Capital Account balance and the Tax Account balance attributable totheir remaining Units.  THIRD, gains willbe allocated among all Investors based on the respective Net Asset Values oftheir outstanding Units.

####  

#### (iii)                              Losses shall be allocated FIRST, to Investors who haveredeemed Units during such year (including as of December 31), to theextent of the negative difference (if any) between the amounts received orreceivable upon redemption and the respective Tax Account balances of theredeemed Units.  SECOND, losses shall beallocated to Investors to the extent of the negative difference (if any)between the Capital Account balance and Tax Account balance attributable totheir remaining Units.  THIRD, lossesshall be allocated among all Investors based on the respective Net Asset Valuesof their outstanding Units.

####  

#### (iv)                             In the case of each of the FIRST andSECOND allocation levels set forth in **Sections 2.07(b)(ii) **and**(iii)**, if there is insufficient gain orloss to make the complete allocation required at such level, such allocationwill be made *pro rata* among all Investors whoare subject to an allocation at such level in accordance with the respectiveamounts which would have been allocated had a complete allocation beenpossible.

####  

#### (v)                                Management Fees, Performance Fees andSponsor’s Fees, as well as the operating expenses (in each case as adjusted toreflect the non-deductibility of all or a portion of such Sponsor’s Fees andoperating expenses) and extraordinary expenses, shall be allocated, for taxpurposes, to the Investors based on the amount of the foregoing actuallydebited from the Units’ respective Capital Accounts of the Investors’respective Units.

####  

#### (vi)                             Items of ordinary income and/or gainattributable to amounts received by this FuturesAccess Fund from the TradingAdvisor for payment to the Sponsor shall be specially allocated to the Sponsor.

####  

### (c)                                  The character of items of income, gain,loss or deduction (ordinary, short-term and long-term) and of the itemsrequired to be separately stated by Section 702(a) of the InternalRevenue Code of 1986, as amended (the “Code”), shall be allocated to theInvestors pursuant to this **Section 2.07**so as equitably to reflect, without discrimination or preference amongInvestors, the amounts credited or debited to the Units’ respective CapitalAccounts pursuant to **Section 2.06**.  Furthermore, to the extent that this FuturesAccessFund has a net long-term capital gain or loss that may be subject to more thanone maximum federal income tax rate, allocations of such gain or loss shall bemade pro rata from among the amounts subject to each maximum tax rate.

###  

### (d)                                 In the case of Units which aretransferred during a fiscal year, the tax allocations shall be made to suchUnits as provided above.  The tax itemsso allocated will then be divided among the transferor(s) and thetransferee(s) based on the number of months during such year that eachheld such Units, or in such other manner as the Sponsor may deem equitable.

###  

### (e)                                  Having in mind the principles of theallocations set forth above in this **Section 2.07**(to which all Investors consent by becoming Investors), the Sponsor may neverthelessmake such allocations of items of ordinary income and gain, ordinary deductionand loss and any items required to be separately stated by Section 702(a) ofthe Code as the Sponsor may deem fair and equitable — even if not consistentwith the foregoing allocations — in order to cause the tax items allocated tothe Investors, respectively, better to take into account (as determined by theSponsor) the Units’ respective Opening Capital Accounts and distributive sharesof net profit and net loss, any entry of new Investors, any redemptions, anydifferences between income for tax purposes and for Net Asset Value purposes,the differences between the Classes 

 

10

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### of Units and any other special circumstances which mayarise; provided, however, that no such allocation by the Sponsor shalldiscriminate unfairly against any Investor; and provided further, that theSponsor shall be under no obligation whatsoever to deviate from the allocationsset forth above.

###  

### (f)                                    This FuturesAccess Fund may, to theextent practicable, allocate tax items on a gross rather than a net basis.

###  

### (g)                                 Allocations pursuant to this **Section 2.07** are solely for purposes of federal, stateand local taxes and shall not affect, or in any way be taken into account incomputing, any Unit’s Capital Account or share of net profits, net losses ordistributions.

###  

### (h)                                 The tax allocations set forth in this **Section 2.07** are intended to allocate items of thisFuturesAccess Fund’s income, gains, losses and deductions (ordinary, short-termand long-term) in accordance with Sections 704(b) and 704(c) of theCode, and the regulations thereunder, including, without limitation, therequirements set forth therein regarding a “qualified income offset.”

###  

### (i)                                     The Sponsor may make such modificationsto this Agreement as the Sponsor believes may be required to comply with Section 704of the Code and the regulations thereunder.

###  

### (j)                                     In the event that the Sponsor determinesto issue a new Class of Units, the foregoing tax allocations shall beadjusted so as equitably to allocate tax items between or among the differentClasses.

###  

## SECTION 2.08.  CHARGEBACKS TO CURRENT OR FORMERINVESTORS.  Each Investor, by subscribingfor Units, agrees to repay, despite the fact that such Investor no longerremains an Investor, to this FuturesAccess Fund any amount (including interestat the rate set by the Sponsor in good faith from the date of any payment ofredemption or distribution proceeds to such Investor by this FuturesAccessFund) which the Sponsor may reasonably determine to be due to thisFuturesAccess Fund from such Investor as a result, for example, of any claimsarising (prior or subsequent to such Investor’s withdrawal from thisFuturesAccess Fund) relating to events or circumstances (whether known orunknown at the time of such Investor’s withdrawal) in existence while suchInvestor was an Investor or, subject to the following paragraph, in the eventthat the Net Asset Value per Unit (of any Class) at which such Investor waspermitted to redeem is later determined to have been overstated or otherwisemiscalculated due to circumstances (whether known or unknown at the time ofsuch Investor’s redemption) in existence as of the date of redemption.  In no event shall any provision of this **Section 2.08** require an Investor to repay to thisFuturesAccess Fund any amounts in excess of the redemption proceeds received bysuch Investor from, or the amounts distributed to such Investor by, thisFuturesAccess Fund, plus interest thereon as provided above.

##  

In the event that theSponsor determines that an amount paid by this FuturesAccess Fund to awithdrawn or continuing Investor was less or more than the amount which suchInvestor was, in fact, entitled to receive, the Sponsor shall not (unless theSponsor otherwise determines) attempt to make appropriate adjusting paymentsto, or formally request appropriate adjusting payments from, such withdrawnInvestor or make retroactive adjustments to such continuing Investor’s Units inorder to reflect such discrepancy, but rather shall reflect such adjustments inthe Accounting Period in which they become known.

 

## SECTION 2.09. PROCESSING OF SUBSCRIPTIONS.

##  

### (a)                                  The Sponsor may admit new Investors tothis FuturesAccess Fund at such times and upon such notice (if any) as theSponsor may determine.  Investors’Merrill Lynch Accounts will be debited on or about the issuance date of suchUnits, and the amount so debited, less any applicable sales commission, will beinvested directly in this FuturesAccess Fund. No interest will be payable in respect of any such subscriptions.

###  

### (b)                                 To the extent required by Rule 15c2-4of the Securities Exchange Act of 1934, as amended, all subscriptions whileheld in escrow during the initial offering period pending release to thisFuturesAccess 

 

11

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### Fund shall be held by a bank independent of theSponsor, its affiliates, and their respective officers, employees,representatives and agents (each, a “Sponsor Party” and, collectively, the “SponsorParties”).

###  

## SECTION 2.10.  VALUATION OF ASSETS.  For all purposes of this Agreement,including, without limitation, the determination of the Net Asset Value perUnit of each Class, the assets of this FuturesAccess Fund shall be valuedaccording to the following principles:

##  

### (a)                                  Net Assets of this FuturesAccess Fund areits assets less its liabilities determined in accordance with generallyaccepted accounting principles and as described below.  Accrued Performance Fees (as described in theDisclosure Document) shall reduce Net Asset Value, even though such PerformanceFees may never, in fact, be paid.

###  

### (b)                                 For the avoidance of doubt, the Sponsorshall, in general, apply the following principles in valuing this FuturesAccessFund’s assets:

###  

#### (i)                                    commodity interests and currencyinterests which are traded on a United States exchange shall be valued at theirsettlement on the date as of which the values are being determined;

####  

#### (ii)                                 commodity interests and currencyinterests not traded on a United States exchange shall be valued based uponpolicies established by the Sponsor, generally based on prices as reported byany reliable source selected by the Sponsor, consistently applied for eachvariety of interest;

####  

#### (iii)                              swap agreements shall be valued in the good faithdiscretion of the Sponsor based on quotations received from dealers deemedappropriate by the Sponsor;

####  

#### (iv)                             bank and other interest-bearing accounts,Treasury bills and other short-term, interest-bearing instruments shall be valuedat cost plus accrued interest;

####  

#### (v)                                securities which are traded on a nationalsecurities exchange shall be valued at their closing price on the date as ofwhich their value is being determined on the national securities exchange onwhich such securities are principally traded or on a consolidated tape whichincludes such exchange, whichever shall be selected by the Sponsor, or, ifthere is no closing price on such date on such exchange or consolidated tape,at the prior day’s closing price;

####  

#### (vi)                             securities not traded on a nationalsecurities exchange but traded over-the-counter shall be valued based on pricesas reported by any reliable source selected by the Sponsor;

####  

#### (vii)                          money-market funds shall be valued at their net assetvalue on the date as of which their value is being determined;

####  

#### (viii)                       if on the date as of which any valuation is beingmade, the exchange or market herein designated for the valuation of any givenassets is not open for business, the basis for valuing such assets shall besuch value as the Sponsor may deem fair and reasonable;

####  

#### (ix)                               all other assets, including securitiestraded on foreign exchanges, and liabilities shall be valued in good faith bythe Sponsor, including assets and liabilities for which there is no readilyidentifiable market value;

####  

#### (x)                                  the foregoing valuations may be modifiedby the Sponsor if and to the extent that it shall determine that modificationsare advisable in order better to reflect the true value of any asset; and

####  

#### (xi)                               the Sponsor may reduce the valuation ofany asset (or of this FuturesAccess Fund) by reserves established, ascontemplated by **Section 2.04(g)**, to reflectlosses, contingencies, liabilities, 

 

12

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#### uncertainvaluations or other factors, which the Sponsor determines reduce, or mightreduce, the value of such asset (or of this FuturesAccess Fund as a whole inthe case of reserves not specifically attributable to any particular asset).

####  

All determinations ofvalue by the Sponsor shall be final and conclusive as to all Investors, in theabsence of manifest error, and the Sponsor shall be absolutely protected inrelying upon valuations furnished to the Sponsor by third parties, providedthat such reliance is in good faith.

 

The Sponsor may suspendthe calculation of Net Asset Value during any period in which the Sponsorbelieves that it is reasonably impracticable to value a material portion ofthis FuturesAccess Fund’s assets.

 

## SECTION 2.11.  USE OF ESTIMATES.  The Sponsor is authorized to make all NetAsset Value determinations (including, without limitation, for purposes ofdetermining redemption payments and calculating Sponsor’s Fees) on the basis ofestimated numbers.  The Sponsor shall not(unless the Sponsor otherwise determines) attempt to make any retroactiveadjustments in order to reflect the differences between such estimated and thefinal numbers, but rather shall reflect such differences in the AccountingPeriod in which final numbers become available. The Sponsor also shall not (unless the Sponsor otherwise determines)revise Sponsor’s Fee calculations to reflect differences between estimated andfinal numbers (including differences which have resulted in economic benefit toa Sponsor Party).

##  

If, after payment ofredemption proceeds, the Sponsor determines that adjustment to the Net AssetValue of the redeemed Units is necessary, the redeeming Investor (if the NetAsset Value is adjusted upwards) or the remaining Investors (if the Net AssetValue is adjusted downwards) will bear the risk of such adjustment.  The redeeming Investor will neither receivefurther distributions from, nor will it be required to reimburse, thisFuturesAccess Fund in such circumstances.

 

## SECTION 2.12.  ACCOUNTING PRACTICES.  All matters concerning FuturesAccess Fundaccounting practices shall be determined by the Sponsor on a fair and equitablebasis, and all such determinations shall be final and conclusive as to allInvestors.  However, the Sponsor shall beunder no obligation whatsoever to make any deviations from the allocations setforth in this Article II.

##  

In reporting Net AssetValues to Investors and third parties on an interim basis, the Sponsor shall beentitled to accrue fees and payments due at the end of a period as if such feesor payments were due (on a *pro rata* basis,if appropriate) as of the end of an interim period within such period.

 

# **ARTICLE IIIPARTICIPATION IN FUTURESACCESS FUND PROPERTY; REDEMPTIONS AND DISTRIBUTIONS**

# ** **

## SECTION 3.01.  NO UNDIVIDED INTERESTS IN FUTURESACCESS FUNDPROPERTY.  Each Unit shall represent aninterest in this FuturesAccess Fund, not an undivided interest in any propertyof this FuturesAccess Fund.  The Unitsshall constitute personal property for all purposes.

##  

## SECTION 3.02.  REDEMPTIONS OF UNITS; EXCHANGES.

##  

### (a)                                  *Timing and Amount of Redemptions*. Subject to this **Section 3.02**,an Investor shall be entitled to redeem as of the end of any calendar month allor part of such Investor’s Units, upon giving at least 10 days’ written or oralnotice.  Investors who have Merrill Lynchcustomer securities accounts may give such notice by contacting their MerrillLynch Financial Advisor, orally or in writing; Investors who no longer have aMerrill Lynch customer securities account must submit written notice ofredemption, with the signature guaranteed by a United States bank orbroker-dealer, to the Sponsor.

###  

### (b)                                 *No Redemption Fees*. This FuturesAccess Fund shall not charge a redemption fee.

###  

### (c)                                  *Payment of Redemptions*. The Sponsor shall cause this FuturesAccess Fund to distribute toredeeming Investors the estimated Net Asset Value of the Units redeemed bythem, generally approximately 10 

 

13

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### business days after the effective date of redemption,although there can be no assurance of the timing of such payment.

###  

Units which have beenredeemed, but the proceeds of which have not yet been paid, shall neverthelessbe deemed to have ceased to be outstanding from the effective date ofredemption for all other purposes hereunder.

 

No interest shall be paidto Investors on redemption proceeds held pending distribution.  This FuturesAccess Fund shall retain any suchinterest.

 

### (d)                                 *Suspension of Redemptions*. In the event that this FuturesAccess Fund suspends the calculation ofNet Asset Value, the Sponsor shall, upon written notice to all affectedInvestors, suspend any or all redemption requests (as well as any request toexchange Units for units of other funds included in FuturesAccess).  Any unsatisfied redemption requests shall besuspended until such time as this FuturesAccess Fund is able to determine NetAsset Value.  All Units subject tosuspended redemption requests shall continue to be treated as outstanding forall purposes hereunder, as if no redemption requests relating thereto had beensubmitted, until the effective date of their suspended redemption.  During any period in which this FuturesAccessFund is suspending redemptions, Investors will not be able to exchange Unitsfor units of other FuturesAccess Funds. The Sponsor shall suspend redemptions during any period when thecalculation of Net Asset Value has been suspended.

###  

If the Sponsor determinesthat a portion, but not all, of pending redemption requests can be processed indue course, the requests of all Investors submitting timely redemption requestswith respect to any given redemption date shall be satisfied *pro rata* (based on the aggregate Net Asset Value of theUnits requested to be redeemed by all Investors) from such funds as the Sponsordetermines are available for distribution.

 

In addition to theforegoing provisions of this **Section 3.02(d)**,the Sponsor may delay or suspend both the payment of redemption proceeds andthe effective date of redemptions if the Sponsor determines that not doing sowould have adverse consequences for the non-redeeming Investors.

 

### (e)                                  *Exchanges*. Investors may generally exchange Units for Units in other FuturesAccessFunds as described in the FuturesAccess Program Subscription and ExchangeAgreement and Signature Pages thereto, as supplemented and amended fromtime to time.  Any circumstance leadingto a delay or suspension of either redemption dates or the receipt of theproceeds of redemptions from this FuturesAccess Fund shall have a correspondingeffect on Investors’ exercise of their Exchange Privileges relating to thisFuturesAccess Fund.

###  

## SECTION 3.03.  WITHDRAWALS OF CAPITAL BY THE SPONSOR.

##  

### (a)                                  The Sponsor may withdraw capital from itsCapital Account(s), if any, without notice to the Investors.

###  

### (b)                                 To the extent Merrill Lynch has providedany “seed” capital to this FuturesAccess Fund, Merrill Lynch will redeem$50,000 of its Units (by aggregate Net Asset Value) for each $50,000 in netclient investments (*i.e.*,subscriptions minus client redemptions and exchanges) received by thisFuturesAccess Fund after it begins operation. Notwithstanding the foregoing, Merrill Lynch may vary the foregoingredemption schedule upon advance agreement with the Trading Advisor (*e.g.*, Merrill Lynch may agree not to begin withdrawing allor a portion of its initial seed capital for a specified period of time) andmay withdraw seed capital at different times and on different terms than areavailable to Investors.

###  

## SECTION 3.04.  MANDATORY REDEMPTIONS.

##  

### (a)                                  The Sponsor may mandatorily redeem partor all of the Units held by a particular Investor if the Sponsor determinesthat (i) such Investor’s continued holding of Units could result inadverse consequences to this FuturesAccess Fund, (ii) such Investor has ahistory of excessive exchanges between different FuturesAccess Funds and/orHedgeAccess Funds that is contrary to the purpose and/or efficient managementof the Programs, (iii) such Investor’s investment in the Units, oraggregate investment in 

 

14

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### FuturesAccess,is below the minimum level established by the Sponsor (including any increasein such minimum level that the Sponsor may implement in the future), or (iv) forany other reason.

###  

### (b)                                 The Sponsor will mandatorily redeem allof a FuturesAccess Fund’s outstanding Units in the event that the Sponsorconcludes that it is no longer advisable to place client capital with theTrading Advisor or if the amount of assets invested in this FuturesAccess Funddeclines to a level that the Sponsor believes makes the continued operation ofsuch FuturesAccess Fund impracticable or uneconomical.

###  

### (c)                                  Units mandatorily redeemed shall beredeemed as of the specified month-end without any further action on the partof the affected Investor, and the provisions of **Sections3.02** and **3.07** shallapply.  In the event that the Sponsormandatorily redeems any of an Investor’s Units, such Investor shall have theoption to redeem all of such Investor’s Units as of the date fixed forredemption.

###  

## SECTION 3.05.  MANDATORY REDEMPTIONS TO PAY TAXES.  In the event that this FuturesAccess Fund isrequired to pay or withhold state, local or other taxes with respect to aparticular Investor or Investors, this FuturesAccess Fund may redeem an appropriatenumber of such Investor’s or Investors’ Units as of the end of the AccountingPeriod immediately following such payment in order to reimburse thisFuturesAccess Fund for the amount of such payment, together with interest onthe amounts so paid at the 91-day Treasury bill rate as in effect as of thebeginning of each calendar month, starting with the calendar month in whichsuch payment is made, through the end of such Accounting Period.

##  

## SECTION 3.06.  DISTRIBUTIONS.  Distributions by this FuturesAccess Fund toInvestors shall be made in the sole discretion of the Sponsor.  No distributions are required.

##  

## SECTION 3.07.  FORM OF DISTRIBUTION AND REDEMPTIONPAYMENTS.  No Investor shall have theright to demand or receive any property other than cash upon redemption.  Distributions or payouts made to Investorsmay be made in cash or in-kind, provided that such in-kind distribution orpayout is not materially adverse to the Interests of the Investors.

##  

## SECTION 3.08.  REMOVAL OF THE SPONSOR.  **Upon atleast 60 days written notice to the Sponsor and all Investors in thisFuturesAccess Fund,**the Sponsor may be required to withdrawas manager of this FuturesAccess Fund by a vote of Investors owning not lessthan 50% of the Units of this FuturesAccess Fund.  Any such removal shall be effective as of theend of the calendar quarter in which such vote occurs.

##  

# **ARTICLE IVWITHDRAWAL OF THE SPONSOR AND INVESTORS**

# ** **

## SECTION 4.01.  WITHDRAWAL OF THE SPONSOR.

##  

### (a)                                  The Sponsor may withdraw from thisFuturesAccess Fund at any time, without any breach of this Agreement, upon 90calendar days’ written notice to the Investors. Withdrawal of the Sponsor shall not dissolve this FuturesAccess Fund ifat the time there is at least one other manager remaining; however, allInvestors shall be entitled to redeem their Units, in total and not in part, asof the effective date of any such withdrawal by the Sponsor, unless an entityaffiliated with the Sponsor remains as a manager of this FuturesAccessFund.  Nothing in this **Section 4.01(a) **shall, however, restrict theSponsor from assigning and delegating its rights and obligations under thisAgreement to an affiliate of the Sponsor upon notice (which need not be priornotice) to the Investors or in connection with the sale of all or a materialportion of the Sponsor’s equity or assets.

###  

### (b)                                 Withdrawal of the last remaining managershall dissolve this FuturesAccess Fund.

###  

## SECTION 4.02.  WITHDRAWAL OF AN INVESTOR.  An Investor shall withdraw from thisFuturesAccess Fund upon redemption of all of such Investor’s outstanding Units.  Withdrawal of an Investor shall not be acause for dissolution of this FuturesAccess Fund.

 

15

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## SECTION 4.03.  STATUS AFTER WITHDRAWAL.  Except to the extent provided in **Section 2.08** or **Section 7.02**,each Investor upon redemption of the last of such Investor’s Units shall ceaseto have any rights under this Agreement.

##  

# **ARTICLE VMANAGEMENT**

# ** **

## SECTION 5.01.  AUTHORITY OF THE SPONSOR.

##  

### (a)                                  The management and operation of thisFuturesAccess Fund and the determination of its policies shall be vestedexclusively in the Sponsor.  The Sponsorshall have the authority and power on behalf and in the name of thisFuturesAccess Fund to: carry out any and all of the objectives and purposes ofthis FuturesAccess Fund set forth in **Section 1.01**;make, execute, sign and file a Certificate of Formation of this FuturesAccessFund, any amendments thereto authorized herein, any amendments to thisAgreement authorized herein, and all such other instruments, documents andcertificates, which may, from time to time, be required by, or deemed advisableby the Sponsor under, the laws of the United States of America, the State ofDelaware, the State of New Jersey, the State of New York or any other state orpolitical subdivision in which the Sponsor shall determine that thisFuturesAccess Fund shall do business, to effectuate, implement and continue thevalid existence of this FuturesAccess Fund; and perform all acts and enterinto, execute and perform all contracts and other undertakings which theSponsor may deem necessary or advisable in connection with such objectives andpurposes or incidental thereto; provided, that the Trading Advisor shall at alltimes have discretionary authority over the trading and investing of thisFuturesAccess Fund.  All actions anddeterminations to be made by the Sponsor hereunder shall, unless otherwiseexpressly provided, be made in the Sponsor’s sole and absolute discretion.

###  

### (b)                                 The Sponsor is specifically authorized tomanage this FuturesAccess Fund’s cash flow and pay costs by bank or otherborrowings.

###  

## SECTION 5.02.  SERVICE PROVIDERS; INVESTMENTS;ACCOUNTS.  The Sponsor is herebyauthorized and empowered to carry out and implement any and all of theobjectives and purposes of this FuturesAccess Fund, including and withoutlimiting the generality of the foregoing:

##  

### (a)                                  to place capital under the management of,and withdraw capital from, the discretionary control of the Trading Advisor;provided, that this FuturesAccess Fund shall not retain any other TradingAdvisor (although the Sponsor may dissolve this FuturesAccess Fund at anytime).

###  

### (b)                                 to engage attorneys, accountants, agentsand other persons as the Sponsor may deem necessary or advisable;

###  

### (c)                                  to open, maintain and close accounts,including margin, discretionary and cash management accounts, with brokers,dealers, counterparties or other persons (in each case, including affiliates ofthe Sponsor) and to pay the customary fees and charges applicable totransactions in, or the maintenance of, all such accounts;

###  

### (d)                                 to invest in money-market funds(including funds sponsored by affiliates of the Sponsor), Treasury bills orother short-term, interest-bearing instruments;

###  

### (e)                                  to open, maintain and close bank andother interest-bearing and non-interest-bearing accounts; and

###  

### (f)                                    to enter into, make, execute and performsuch contracts, agreements and other undertakings as the Sponsor may deemnecessary, advisable or incidental to the conduct of the business of thisFuturesAccess Fund.

 

16

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## SECTION 5.03.  ACTIVITIES OF THE SPONSOR PARTIES.

##  

### (a)                                  The respective Sponsor Parties will notdevote their full business time, or any material portion of their businesstime, to this FuturesAccess Fund, as each is involved in the management ofnumerous other client and proprietary accounts. However, the Sponsor hereby agrees to devote to the objectives andpurposes of this FuturesAccess Fund such amount of the business time of its officersand employees as the Sponsor shall deem necessary for the management of theaffairs of this FuturesAccess Fund; provided, however, that nothing containedin this **Section 5.03(a) **shallpreclude any Sponsor Party from acting as a director, stockholder, officer oremployee of any corporation, a trustee of any trust, a partner of anypartnership, a manager or member of any other limited liability company or anadministrative official of any other business or governmental entity, or fromreceiving compensation for services rendered thereto, from participating inprofits derived from investments in any such entity or from investing in anysecurities or other property for such person’s own account.

###  

### (b)                                 As contemplated by **Section 2.05(g)**,the Sponsor retains outside service providers to supply certain services toFuturesAccess, including, but not limited to: tax reporting; custody;accounting; and escrow services to FuturesAccess.  Operating costs include this FuturesAccessFund’s allocable share of the fees and expenses of such (or other) service providers,as well as the fees and expenses of any Sponsor Party which may provide such(or other) services in the future.

###  

## SECTION 5.04.  SERVICES TO THIS FUTURESACCESS FUND.  Any Sponsor Party may perform administrativeservices for this FuturesAccess Fund, without such Sponsor Party waiving itsfees for such services.

##  

## SECTION 5.05.  INTERESTED PARTIES.  The fact that a Sponsor Party or an Investoris directly or indirectly interested in or connected with this FuturesAccessFund or a related party with which or with whom this FuturesAccess Fund hasdealings, including but not limited to the Sponsor’s sharing in the ManagementFees paid and Performance Fees paid by this FuturesAccess Fund to the TradingAdvisor (such sharing to be effected either by the Trading Advisor’s making adirect payment to the Sponsor or by the Trading Advisor’s making payments tothis FuturesAccess Fund which are specially allocated solely to the Sponsor,distributed to the Sponsor pursuant to a non-*pro rata*distributionor paid by this FuturesAccess Fund to the Sponsor as a third party (rather thanin its capacity as a member)), the receipt or rebate of other advisory and/ormanagement fees, brokerage commissions, “bid-ask” spreads, mark-ups or otherexpenses, shall not preclude such dealings or make them void or voidable; andneither this FuturesAccess Fund nor any of the Investors shall have any rightsin or to any such dealings or in or to any profits derived therefrom.

##  

## SECTION 5.06.  EXCULPATION. The Sponsor Parties shall not be liable to this FuturesAccess Fund orany Investor for any claims, costs, expenses, damages or losses arising out ofor in connection with this Agreement, the Sponsor acting as manager of thisFuturesAccess Fund, this FuturesAccess Fund in general or the offering of theUnits, for any conduct undertaken or omitted in good faith, and in the beliefthat such conduct or omission was in, or not opposed to, the best interests ofthis FuturesAccess Fund; provided, that such conduct or omission did notconstitute gross negligence or intentional misconduct on the part of suchSponsor Party.

##  

No Sponsor Party shall beliable to this FuturesAccess Fund or any Investor for failure to obtain forthis FuturesAccess Fund, or to require this FuturesAccess Fund to obtain, thelowest negotiated brokerage commission rates, or to combine or arrange tradingorders so as to obtain the lowest brokerage commission rates with respect toany transaction on behalf of this FuturesAccess Fund, or for the failure torecapture, directly or indirectly, any brokerage commissions for the benefit ofthis FuturesAccess Fund.

 

No Sponsor Party shall beliable to this FuturesAccess Fund or any Investor for claims, costs, expenses,damages or losses due to circumstances beyond any Sponsor Party’s control, ordue to the negligence, dishonesty, bad faith or misfeasance of any third partychosen by a Sponsor Party in good faith.

 

In no respect by way oflimiting the foregoing exculpatory provisions but rather by way of greatercertainty, no Sponsor Party shall be liable to this FuturesAccess Fund or anyInvestor for any actions or omissions of: (i) the Trading Advisor;

 

17

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(ii) any broker,dealer or counterparty unaffiliated with Merrill Lynch chosen by a SponsorParty in good faith; or (iii) any broker, dealer or counterparty chosen bythe Trading Advisor.

 

Affiliates of the Sponsorwill provide this FuturesAccess Fund with futures brokerage, forward dealingand other counterparty and dealer services, and shall receive compensation inconnection therewith.

 

## SECTION 5.07.  INDEMNIFICATION.  This FuturesAccess Fund shall indemnify andhold harmless the Sponsor Parties from and against any claims, costs, expenses,damages or losses (including, without limitation, from and against anyjudgment, settlement, attorneys’ fees and other costs or expenses incurred inconnection with the defense of any actual or threatened action or proceeding)suffered or sustained by any of them by reason of the fact that a Sponsor Partyis or was connected in any respect with this FuturesAccess Fund; provided, thatthe conduct or omission which led to such claim, cost, expense, damage or lossmet the standard of exculpation set forth in **Section 5.06**above.

##  

This FuturesAccess Fundshall advance payments asserted by a Sponsor Party to be due under thepreceding paragraph pending a final determination of whether suchindemnification is, in fact, due; provided, that such Sponsor Party agrees inwriting to return any amounts so advanced (without interest) in the event suchindemnification is finally determined not to be due.

 

Whether or not a SponsorParty is entitled to indemnification hereunder shall be determined by thejudgment of independent counsel as to whether such Sponsor Party has reasonablegrounds for asserting that indemnification is so due, unless otherwisedetermined by a court, arbitral tribunal or administrative forum.

 

In the event this FuturesAccessFund is made a party to any claim, dispute or litigation, or otherwise incursany loss or expense, as a result of or in connection with any Investor’sactivities, obligations or liabilities unrelated to this FuturesAccess Fund’sbusiness, such Investor shall indemnify and reimburse this FuturesAccess Fundfor all loss and expense incurred, including attorneys’ fees.

 

## SECTION 5.08.  INVESTORS’ TRANSACTIONS.  Nothing in this Agreement is intended toprohibit any Investor from buying, selling or otherwise transacting insecurities, commodity interests, currency interests, swap agreements or otherinstruments for such Investor’s own account, including commodity interests,currency interests, swap agreements, securities or other instruments which are thesame as those held by this FuturesAccess Fund.

##  

## SECTION 5.09.  RELIANCE BY THIRD PARTIES.  In dealing with the Sponsor acting on behalfof this FuturesAccess Fund, no person shall be required to inquire into theauthority of the Sponsor to bind this FuturesAccess Fund.  Persons dealing with this FuturesAccess Fundshall also be entitled to rely on a certification by the Sponsor with regard tothe authority of other persons to act on behalf of this FuturesAccess Fund inany matter.

##  

## SECTION 5.10.  REGISTRATION OF ASSETS.  Any assets owned by this FuturesAccess Fundmay be registered in this FuturesAccess Fund’s name, in the name of a nomineeor in “street name.”

##  

## SECTION 5.11.  LIMITATION ON AUTHORITY OF THE SPONSOR.  The Sponsor shall not have the authoritywithout the consent of Investors holding more than 50% of the outstanding Units(by Net Asset Value) then held by Investors to:

##  

### (a)                                  do any act in contravention of thisAgreement (other than pursuant to the Sponsor’s authority to unilaterally amendthis Agreement, as provided in **Section 10.03**);

###  

### (b)                                 confess a judgment against thisFuturesAccess Fund; or

###  

### (c)                                  possess FuturesAccess Fund property orassign rights to specific FuturesAccess Fund property for other than aFuturesAccess Fund purpose.

 

18

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# **ARTICLE VIADMISSION OF INVESTORS**

# ** **

## SECTION 6.01.  PROCEDURE AS TO NEW INVESTORS.  The Sponsor may, as of the beginning of anycalendar month (or as of such other times as the Sponsor may deem appropriate),admit one or more new Investors by issuing to such Investor(s) Units ofthe appropriate Class.  Each new Investorto FuturesAccess shall execute and deliver an appropriate FuturesAccess ProgramSubscription and Exchange Agreement, and the Sponsor may require that eachadditional Capital Contribution (whether a new subscription or an exchange) beaccompanied by a new FuturesAccess Program Subscription and Exchange AgreementSignature Page.  This FuturesAccess Fundmay charge an Investor such amount as may be deemed appropriate by the Sponsorto compensate this FuturesAccess Fund in the case of any Capital Contributionreceived by this FuturesAccess Fund after the day as of which the new Investormaking such Capital Contribution is admitted to this FuturesAccess Fund andsuch Investor’s Units are deemed to have been issued.

##  

Admission of a newInvestor shall not result in a dissolution of this FuturesAccess Fund.

 

## SECTION 6.02.  PROCEDURE AS TO NEW MANAGERS.  One or more additional managers may beadmitted to this FuturesAccess Fund by the Sponsor, without the consent of anyInvestor, if, but only if, the additional manager or managers are affiliates ofthe Sponsor or successors to all or a material portion of the Sponsor’s equityor assets.  The Sponsor shall promptlynotify the Investors of the admission of any such affiliated manager ormanagers (such notice need not, however, be prior notice).  No manager or managers which is not or arenot affiliated with the Sponsor may be admitted to this FuturesAccess Fund withoutthe consent of Investors holding more than 50% of the outstanding Units (by NetAsset Value) then held by Investors; provided, that the foregoing restrictionshall not apply in the case of a sale of all or a material portion of theSponsor’s equity or assets.

##  

# **ARTICLE VIIBOOKS OF ACCOUNT; AUDITS; REPORTS TO INVESTORS**

# ** **

## SECTION 7.01.  BOOKS OF ACCOUNT.  The books of account of this FuturesAccessFund shall be maintained in accordance with generally accepted accountingprinciples under the accrual basis of accounting by or under the supervision ofthe Sponsor and shall be open to inspection by any Investor or such Investor’srepresentative during regular business hours; provided, however, that suchbooks and records shall only be available for inspection pursuant to a valid,non-commercial purpose related to an Investor’s status as an Investor.  This FuturesAccess Fund’s books of accountshall not, however, for such purpose include any record of the particulartransactions entered into by this FuturesAccess Fund.

##  

## SECTION 7.02.  ANNUAL AUDIT. The accounts of this FuturesAccess Fund shall be audited as of the closeof each fiscal year by an independent public accounting firm (the “Accountant”)selected by the Sponsor and in accordance with the applicable Commodity FuturesTrading Commission regulations.

##  

The Sponsor or its agentsshall cause to be prepared and mailed to each Investor, including Investors whohave redeemed all of their Units and withdrawn but who were Investors at anytime during a fiscal year, audited financial statements and a report preparedby the Accountant, setting forth as of the end of such fiscal year:

 

### (a)                                  the assets and liabilities of thisFuturesAccess Fund;

###  

### (b)                                 the net capital appreciation ordepreciation of this FuturesAccess Fund for such fiscal year;

###  

### (c)                                  the Net Asset Value of this FuturesAccessFund as of the end of such fiscal year; and

###  

### (d)                                 the Net Asset Value per Unit of each Class asof the end of such fiscal year.

 

19

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The Sponsor shall not berequired to provide Investors with an annual audit in respect of any given yearby any particular date in the following year, nor shall the Net Asset Value ofthe Units be audited as of any date other than the end of a fiscal year.

 

The Sponsor or its agentsshall cause each Investor, including former Investors who were Investors at anytime during such fiscal year, to be furnished with all information relating tothis FuturesAccess Fund necessary to enable such Investor to prepare suchInvestor’s federal income tax return; provided, that all Investors acknowledgeand agree that such information may initially be provided in the form ofestimates pending completion of this FuturesAccess Fund’s audit for such fiscalyear, and that Investors may be required to obtain extensions of the date bywhich their federal and state income tax returns must be filed.  The Sponsor will have no liability to anyInvestor as a result of such Investor being required to obtain any suchextensions.

 

## SECTION 7.03.  INTERIM REPORTS.  From time to time, but no less frequentlythan monthly, the Sponsor shall cause to be prepared and delivered (at theexpense of this FuturesAccess Fund), to each Investor interim reportsindicating this FuturesAccess Fund’s estimated results of operations andpresenting such other matters concerning this FuturesAccess Fund’s operationsas the Sponsor may deem appropriate as well as those required by the applicableCommodity Futures Trading Commission regulations.  The estimated performance of thisFuturesAccess Fund will be available upon request to the Sponsor by anyInvestor.

##  

# **ARTICLE VIIICONFLICTS OF INTEREST**

# ** **

## SECTION 8.01.  INVESTORS’ CONSENT.  Each Investor, by subscribing for Units,gives full and informed consent to the conflicts of interest to which theSponsor Parties are subject in their operation of this FuturesAccess Fund, asdisclosed in the Disclosure Document and as contemplated herein (includingwithout limitation Merrill Lynch acting as exclusive clearing broker andprincipal forward contract and swap dealer at rates and dealer spreads whichhave not been negotiated at arm’s-length as well as the Sponsor sharing in theManagement and Performance Fees paid to the Trading Advisor by thisFuturesAccess Fund) and covenants not to object to or bring any proceedingsagainst any Sponsor Party relating to any such conflict of interest; provided,that such Sponsor Party complies with the standard of exculpation set forth in **Section 5.06**.

##  

The Sponsor is herebyspecifically authorized by all Investors to cause this FuturesAccess Fund touse Merrill Lynch as this FuturesAccess Fund’s exclusive clearing broker andprimary forward contract and swap counterparty, and all Investors acknowledgeand agree that the brokerage rates and dealer spreads charged by Merrill Lynchto this FuturesAccess Fund are higher than those charged to other Merrill Lynchclients; in addition, Merrill Lynch will retain significant additional economicbenefit from possession of this FuturesAccess Fund’s assets.

 

# **ARTICLE IXDISSOLUTION AND WINDING UP OF THIS FUTURESACCESS FUND**

# ** **

## SECTION 9.01.  EVENTS OF DISSOLUTION.  This FuturesAccess Fund will be dissolved,the affairs of this FuturesAccess Fund will be wound up and this FuturesAccessFund will be liquidated upon the occurrence of any of the following events:

##  

### (a)                                  bankruptcy, dissolution, withdrawal orother termination of the last remaining manager of this FuturesAccess Fund;

###  

### (b)                                 any event which would make unlawful thecontinued existence of this FuturesAccess Fund;

###  

### (c)                                  withdrawal of the Sponsor unless at suchtime there is at least one remaining manager; or

###  

### (d)                                 the determination by the Sponsor toliquidate this FuturesAccess Fund and wind up its affairs.

 

20

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Nothing in this **Section 9.01** shall impair the right of Investorsholding more than 50% of the outstanding Units then held by Investors to votewithin 90 calendar days of any of the foregoing events of dissolution tocontinue this FuturesAccess Fund on the terms set forth herein (if it is lawfulto do so), and to appoint one or more managers for this FuturesAccess Fund.

 

## SECTION 9.02.  DISSOLUTION. Upon the dissolution of this FuturesAccess Fund, the Sponsor (or, if theSponsor has withdrawn, such other liquidator as the Investors may, by vote ofmore than 50% of the outstanding Units, by Net Asset Value, then held byInvestors, select) shall wind up this FuturesAccess Fund’s affairs and, inconnection therewith, shall distribute this FuturesAccess Fund’s assets in thefollowing manner and order:

##  

### (a)                                  FIRST, to the payment and discharge ofall claims of creditors of this FuturesAccess Fund (including creditors who areInvestors);

###  

### (b)                                 SECOND, to the establishment of suchreserves as the Sponsor (or such other liquidator) may consider reasonablynecessary or appropriate for any losses, contingencies, liabilities or othermatters of or relating to this FuturesAccess Fund; provided, however, that ifand when the Sponsor (or such other liquidator) determines that the causes forsuch reserves have ceased to exist, the monies, if any, then held in reserveshall be distributed in the manner hereinafter provided; and

###  

### (c)                                  THIRD, after making all final allocationscontemplated by Article II (and for such purposes treating the date ofdissolution as if it were a December 31), to the distribution in cash ofthe remaining assets of this FuturesAccess Fund among the Investors inaccordance with the positive balance in each such Investor’s Closing CapitalAccount as of the last day of the Accounting Period in which this FuturesAccessFund’s dissolution occurs.  Any assetsdistributed in kind in the liquidation shall be valued, for purposes of suchdistribution, in accordance with **Section 2.11**as of the date of distribution, and any difference between such value and thecarrying value of such assets shall, to the extent not otherwise taken intoaccount in determining Net Asset Value, be deemed to constitute income or lossto this FuturesAccess Fund.

###  

# **ARTICLE XMISCELLANEOUS PROVISIONS**

# ** **

## SECTION 10.01.  INVESTORS NOT TO CONTROL.  The Investors shall take no part in theconduct or control of this FuturesAccess Fund’s business and shall have noauthority or power to act for or to bind this FuturesAccess Fund.

##  

## SECTION 10.02.  POWER OF ATTORNEY.  Each Investor, by subscribing for Units, doeshereby constitute and appoint the Sponsor, as such Investor’s true and lawfulrepresentative and attorney-in-fact, with authority in such Investor’s name,place and stead to make, execute, sign and file a Certificate of Formation ofthis FuturesAccess Fund, any amendments thereto authorized herein, anyamendments to this Agreement authorized herein, and all such other instruments,documents and certificates which may, from time to time, be required by, ordeemed advisable by the Sponsor under, the laws of the United States ofAmerica, the State of Delaware, the State of New Jersey, the State of New Yorkor any other state or political subdivision in which the Sponsor shalldetermine that this FuturesAccess Fund shall do business, to effectuate,implement and continue the valid existence of this FuturesAccess Fund.

##  

## SECTION 10.03.  AMENDMENTS; CONSENTS.  This Agreement may not be modified or amendedwithout the written consent of the Sponsor.

##  

This Agreement may bemodified or amended at any time with the consent of the Sponsor and byInvestors holding more than 50% of the outstanding Units (by Net Asset Value)then held by Investors.

 

For all purposes of thisAgreement, except as provided in the last paragraph of this **Section 10.03**, when the consent of Investors isrequired, the affirmative consent of Investors is not required; “negativeconsent” by failure to object in writing after reasonable notice of a proposedmodification or amendment is sufficient — 30 calendar days to be conclusivelypresumed to constitute “reasonable notice” for such purposes.

 

21

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The Sponsor may, withoutthe consent of the Investors, modify or amend any provision of this Agreementfor any of the following purposes:

 

### (a)                                  to add to this Agreement any furthercovenants, restrictions, undertakings or other provisions for the protection orbenefit of Investors;

###  

### (b)                                 to cure any ambiguity or to correct orsupplement any provision contained herein which may be defective orinconsistent with any other provisions contained herein or in the DisclosureDocument;

###  

### (c)                                  to cause the allocations contained in Article IIto comply with Section 704 of the Code or any other statutory provisionsor regulations relating to such allocations;

###  

### (d)                                 to provide for the issuance of newClasses of Units, or to amend the manner in which Units may be exchanged amongfunds in FuturesAccess or between different Classes of Units, provided thatdoing so is not adverse to outstanding Units (as contemplated by **Section 10.14**);

###  

### (e)                                  to take such actions as may be necessaryor appropriate to avoid the assets of this FuturesAccess Fund being treated forany purpose of ERISA or Section 4975 of the Code as assets of any Plan orto avoid this FuturesAccess Fund’s engaging in a prohibited transaction asdefined in Section 406 of ERISA or Section 4975(c) of the Code;

###  

### (f)                                    to allow for a performance allocation tobe made to an entity or person designated by the Trading Advisor instead ofpaying a Performance Fee; or

###  

### (g)                                 to make any other change not materiallyadverse to the interests of the Investors.

###  

Notwithstanding anythingin this **Section 10.03** to the contraryother than (f) above, without the affirmative written consent of eachInvestor affected thereby, no such modification or amendment shall: reduce theliabilities, obligations or responsibilities of the Sponsor (except that theSponsor may take action to admit any person or entity which is an affiliate ofthe Sponsor as a substitute manager, and to provide for the Sponsorsubsequently to withdraw from this FuturesAccess Fund or to provide for theSponsor to withdraw from this FuturesAccess Fund without admitting any suchsubstitute manager to this FuturesAccess Fund); increase the liabilities ofInvestors; or reduce the participation of Investors in the profits and lossesof this FuturesAccess Fund or in any distributions made by this FuturesAccessFund as set forth herein.

 

## SECTION 10.04.  NOTICES. Any notice to this FuturesAccess Fund or the Sponsor relating to thisAgreement shall be in writing and delivered in person or by registered orcertified mail and addressed to the Sponsor at the principal office of thisFuturesAccess Fund.  All notices andreports sent to the Investors shall be addressed to each Investor at theaddress set forth in such Investor’s FuturesAccess Program Subscription andExchange Agreement (including the FuturesAccess Program Subscription andExchange Agreement Signature Page).  AnyInvestor may designate a new address by written notice to the Sponsor.  Unless otherwise specifically provided inthis Agreement, a notice shall be deemed to have been given to thisFuturesAccess Fund or the Sponsor when actually received by the Sponsor, and tohave been given to an Investor three business days after being deposited in apost office or regularly maintained mailbox or when delivered in person.  The Sponsor may waive any notice requirementrelating to notice to this FuturesAccess Fund or to itself, but no such waivershall constitute a continuing waiver.

##  

## SECTION 10.05.  LEGAL EFFECT; MANNER OF EXECUTION.  This Agreement shall be binding upon theInvestors, the Sponsor and their respective permitted successors and assigns.  This Agreement shall inure to the benefit ofthe foregoing parties as well as to the benefit of the Sponsor Parties.

##  

This Agreement may beexecuted by power-of-attorney embodied in a FuturesAccess Program Subscriptionand Exchange Agreement (including the FuturesAccess Program Subscription andExchange Agreement Signature Page) or similar instrument with the same effectas if the parties executing the FuturesAccess Program Subscription and ExchangeAgreement (including the FuturesAccess Program Subscription and ExchangeAgreement Signature Page) or similar 

 

22

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instrument had allexecuted one counterpart of this Agreement; provided, that this Agreement mayalso be executed in separate counterparts.

 

## SECTION 10.06.  GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY ANDCONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARDTO PRINCIPLES OF CONFLICTS OF LAWS.  THERIGHTS AND LIABILITIES OF THE INVESTORS SHALL BE AS PROVIDED IN THE ACT, EXCEPTAS HEREIN OTHERWISE EXPRESSLY PROVIDED.

##  

## SECTION 10.07.  CONSENT TO JURISDICTION.  All controversies arising hereunder or inconnection with the affairs of this FuturesAccess Fund shall be brought in thestate or federal courts located in New York, New York, and all Investors herebyirrevocably consent to such jurisdiction and venue.

##  

## SECTION 10.08.  “TAX MATTERS PARTNER”; TAX ELECTIONS.  The Sponsor is designated as the “Tax MattersPartner” for this FuturesAccess Fund and shall be empowered to make or revokeany elections now or hereafter required or permitted to be made by the Code,regulations promulgated thereunder or any state or local tax law.

##  

Unless the Sponsorotherwise consents, each Investor, by subscribing for Units, agrees not totreat any tax item on such Investor’s individual tax return in a mannerinconsistent with the treatment of such item by this FuturesAccess Fund, asreflected on the Schedule K-1 or other information statement furnished by thisFuturesAccess Fund to such Investor, or to file any claim for refund relatingto any such tax item which would result in such inconsistent treatment.

 

## SECTION 10.09.  DETERMINATION OF MATTERS NOT PROVIDED FOR INTHIS AGREEMENT.  The Sponsor shall beempowered to decide, in its good faith judgment, any questions arising with respectto this FuturesAccess Fund or to this Agreement, and to provide for mattersarising hereunder but which are not specifically set forth herein, as theSponsor may deem to be in, or not opposed to, the best interests of thisFuturesAccess Fund.

##  

## SECTION 10.10.  NO PUBLICITY. Each Investor agrees that such Investor will in no event provideinformation concerning this FuturesAccess Fund to any third party, knowing thatsuch third party may use such information in any form of publication,newsletter or circular, whether publicly or privately distributed.  Each Investor’s investment in thisFuturesAccess Fund, as well as the performance of such investment, shall bemaintained on a strictly confidential basis; provided, that the Sponsor maymake use of this FuturesAccess Fund’s performance record in the ordinary courseof the Sponsor’s business activities.

##  

## SECTION 10.11.  SURVIVAL. The indemnity and exculpation provisions hereof, as well as theobligations to settle accounts, shall survive the withdrawal of any Investor aswell as the dissolution of this FuturesAccess Fund.

##  

## SECTION 10.12.  WAIVERS. The Sponsor may waive any provision of this Agreement restricting theactions of Investors in respect of certain but not all Investors provided thatdoing so will have no adverse effect on other Investors.

##  

## SECTION 10.13.  VOTING RIGHTS.  The voting rights of the Units shall bedetermined by their respective Net Asset Values.  In determining the number of Units entitledto vote or consent and the number of votes or consents needed for approval ofany matter for which such a vote or consent is provided for herein, Units heldby any Sponsor Party (including, without limitation, the Sponsor’s CapitalAccount, if any, on a Unit-equivalent basis) shall not be counted.

##  

## SECTION 10.14.  ISSUANCE OF DIFFERENT CLASSES.

##  

### (a)                                  The Sponsor may, at any time and fromtime to time, issue different Classes of Units, and may adjust the allocation,voting and other provisions of this Agreement so as equitably to reflect theissuance of such additional Classes.  TheSponsor may also alter the terms on which Units of any Class are sold,provided that doing so does not adversely affect existing Investors.

###  

### (b)                                 The fact that, for purposes ofconvenience, Units issued by this FuturesAccess Fund shall be designated asbeing Units of different “Classes” shall in no respect imply that these Unitsconstitute different classes of equity interests as opposed to simply beingsubject to different fees.

 

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## SECTION 10.15.  COMPLIANCE WITH THE INVESTMENT ADVISERS ACTOF 1940; SECURITIES LAWS.

##  

### (a)                                  This FuturesAccess Fund is not an “advisoryclient” of the Sponsor for purposes of the Advisers Act due to thisFuturesAccess Fund’s trading futures, forward and options contracts other thansecurities.  Nevertheless, to the extentthat any provision hereof may be construed in a manner inconsistent with theAdvisers Act, it is the express intent of the Sponsor and the Investors thatsuch provision be interpreted and applied *ab initio* so asto comply with the Advisers Act in all respects (even if doing so effectivelyamends the terms of this Agreement).

###  

### (b)                                 Nothing in this Agreement shall be deemedto constitute a waiver by any Investor of such Investor’s rights under anyfederal or state securities laws.

###  

## SECTION 10.16.  AMENDMENT AND RESTATEMENT.  This Agreement amends and restates all priorlimited liability company operating agreements of this FuturesAccess Fund.

##  

***  * *  *  * *  ***

 

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****IN WITNESS WHEREOF, the******undersigned****have executedthis Agreement by their respective representatives thereunto duly authorized.******

 
| ****INVESTORS:**** | **** ****                                     | ****SPONSOR:**** |
|--------------------|----------------------------------------------------|------------------|
| **** ****     | **** ****                                     | **** ****   |
| ****By:****        | ****Merrill  Lynch Alternative Investments LLC**** | **** ****   | ****Merrill  Lynch Alternative Investments LLC**** |
| **** ****     | ****Attorney-in-Fact****                           | **** ****   | **** **** |
| **** ****     | **** ****                                     | **** ****   |
| **By:**            | ** **                                         | ** **       | **By:** | ** ** |
| ** **         | **Name:**                                          | ** **       | ** ** | ** ** | **Name:** | ** ** |
| ** **         | **Title:**                                         | ** **       | ** ** | ** ** | **Title:** | ** ** |

 

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