Exhibit 4.1
THE UNITS HAVE BEEN PRIVATELY OFFERED AND CANNOT BE
TRANSFERRED WITHOUT THE CONSENT OF THE MANAGER
AND COMPLIANCE WITH APPLICABLE SECURITIES
LAW EXEMPTIONS.
UBS MANAGED FUTURES LLC
LIMITED LIABILITY COMPANY AGREEMENT
(Providing for Individual Series of Units
of Limited Liability Company Interests)
Dated as of August [__], 2006
-----------------------
THESE ARE SPECULATIVE SECURITIES.
-----------------------
UBS MANAGED FUND SERVICES INC.
Sponsor
UBS MANAGED FUTURES LLC (THE "PLATFORM") WILL ISSUE SEPARATE AND DISTINCT
SERIES ("SERIES") OF UNITS OF LIMITED LIABILITY COMPANY INTERESTS ("UNITS").
PURSUANT TO SECTION 18-215 OF THE DELAWARE LIMITED LIABILITY COMPANY ACT (THE
"ACT"), THE DEBTS, LIABILITIES, OBLIGATIONS AND EXPENSES INCURRED, CONTRACTED
FOR OR OTHERWISE EXISTING WITH RESPECT TO A PARTICULAR SERIES OF UNITS SHALL
BE ENFORCEABLE AGAINST THE ASSETS OF SUCH SERIES ONLY, AND NOT AGAINST THE
ASSETS OF THE PLATFORM GENERALLY OR OF ANY OTHER SERIES, AND NONE OF THE
DEBTS, LIABILITIES, OBLIGATIONS OR EXPENSES INCURRED, CONTRACTED FOR OR
OTHERWISE EXISTING WITH RESPECT TO THE PLATFORM GENERALLY SHALL BE ENFORCEABLE
AGAINST THE ASSETS OF ANY SERIES, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED
HEREIN.
ONLY U.S. INVESTORS WHICH ARE "ACCREDITED INVESTORS" WITH A NET WORTH OF
$1,000,000 (IF AN INDIVIDUAL) OR $5,000,000 (IF AN ENTITY) ARE ELIGIBLE TO
INVEST IN THE PLATFORM.
UBS MANAGED FUTURES LLC
LIMITED LIABILITY COMPANY AGREEMENT
(Providing for Individual Series of Units
of Limited Liability Company Interests)
TABLE OF CONTENTS
Section Page
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ARTICLE I
ORGANIZATION
Section 1.1 Defined Terms; Name; Manager..........................................................................1
Section 1.2 Series of Units.......................................................................................1
Section 1.3 Purposes..............................................................................................2
Section 1.4 Principal Office; Registered Office; Registered Agent.................................................3
Section 1.5 Term..................................................................................................3
Section 1.6 Members...............................................................................................3
Section 1.7 Definitions...........................................................................................3
Section 1.8 Rules of Interpretation...............................................................................8
ARTICLE II
MANAGEMENT
Section 2.1 Authority of the Sponsor..............................................................................9
Section 2.2 Sponsor's Determinations..............................................................................9
Section 2.3 Brokerage and Interest Income Arrangements...........................................................10
Section 2.4 Other Activities.....................................................................................11
Section 2.5 Permitted Transactions...............................................................................11
Section 2.6 Sponsor Parties' Standard of Liability and Indemnity.................................................11
Section 2.7 Trading Advisors' Standard of Liability and Indemnification..........................................12
Section 2.8 Capital Contributions and Redemptions by the Sponsor; Withdrawal and Substitution of the
Sponsor.............................................................................................13
Section 2.9 Sponsor's Fees.......................................................................................13
ARTICLE III
CAPITAL ACCOUNTS; UNITS; FINANCIAL AND TAX ALLOCATIONS
Section 3.1 Admission of Additional Members; Capital Contributions...............................................13
Section 3.2 Limited Liability of Members.........................................................................15
Section 3.3 Capital Accounts and General Financial Allocations...................................................15
Section 3.4 Allocation Principles Regarding the Series...........................................................16
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TABLE OF CONTENTS
(cont.)
Section Page
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Section 3.5 Tax Allocations......................................................................................16
Section 3.6 Consistent Tax Reporting.............................................................................17
Section 3.7 "Tax Matters Partner."...............................................................................18
Section 3.8 Determination of Net Asset Value.....................................................................18
Section 3.9 Use of Estimates and Trading Advisor Estimates.......................................................20
Section 3.10 Prior Period Adjustments............................................................................20
Section 3.11 Reserves............................................................................................21
Section 3.12 Manner of Effecting Non-Pro Rata Allocations........................................................21
ARTICLE IV
REDEMPTIONS AND EXCHANGES
Section 4.1 Redemptions..........................................................................................21
Section 4.2 Distributions........................................................................................22
Section 4.3 Transfers............................................................................................22
Section 4.4 Effective Date of Redemptions and Distributions......................................................23
Section 4.5 Payment of Redemption and Distribution Proceeds......................................................23
Section 4.6 Exchanges............................................................................................23
ARTICLE V
DISSOLUTION; REMOVAL OF SPONSOR
Section 5.1 Dissolution..........................................................................................24
Section 5.2 Payment of Dissolution Proceeds......................................................................26
Section 5.3 Removal of the Sponsor...............................................................................26
ARTICLE VI
PLATFORM EXPENSES
Section 6.1 Platform Expenses....................................................................................26
ARTICLE VII
BOOKS OF ACCOUNT; REPORTS
Section 7.1 Books of Account.....................................................................................27
Section 7.2 Reports..............................................................................................27
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TABLE OF CONTENTS
(cont.)
Section Page
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ARTICLE VIII
MISCELLANEOUS
Section 8.1 Binding Effect; Creditors............................................................................28
Section 8.2 Notices; Consents....................................................................................28
Section 8.3 Counterparts; Facsimiles; Power of Attorney..........................................................29
Section 8.4 Entire Agreement.....................................................................................29
Section 8.5 Amendment............................................................................................30
Section 8.6 Consent of the Members...............................................................................31
Section 8.7 Waivers..............................................................................................31
Section 8.8 No Partition.........................................................................................31
Section 8.9 Meetings.............................................................................................31
Section 8.10 Power of Attorney...................................................................................32
Section 8.11 Voluntary Limitation on a Member's Series Voting Rights.............................................32
Section 8.12 Voluntary Limitation on a Member's Series Percentage................................................33
Section 8.13 Further Information and Documents...................................................................33
Section 8.14 GOVERNING LAW; VENUE................................................................................34
Section 8.15 Matters Not Provided For; Compliance with Law.......................................................34
Section 8.16 Severability........................................................................................35
Section 8.17 Indirect Action.....................................................................................35
Section 8.18 Survival............................................................................................35
Section 8.19 Confidentiality; Tax Confidentiality................................................................35
Section 8.20 No Waiver of Federal or State Securities Law Claims.................................................37
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LIMITED LIABILITY COMPANY AGREEMENT
OF
UBS MANAGED FUTURES LLC
Limited Liability Company Agreement ("Agreement") dated as of August [__],
2006, of UBS Managed Futures LLC (the "Platform"):
ARTICLE I
ORGANIZATION
Section 1.1 Defined Terms; Name; Manager.
(a) Defined terms are used with the meanings set forth in Section 1.7.
(b) The Platform shall do business under the name of "UBS Managed Futures
LLC."
(c) UBS Managed Fund Services Inc. (the "Sponsor") shall act as the
manager of the Platform within the meaning of Section 18-401 of the Act.
(d) The Sponsor may change the name of the Platform from time to time,
promptly notifying the Members of any such change.
Section 1.2 Series of Units.
(a) (i) As contemplated by Section 18-215(b) of the Act, the Platform
shall establish separate Series, each of which shall invest substantially
all of its capital in a Trading Fund formed as a limited liability
company under the Act and of which such Series is the only Member.
(ii) Each Trading Fund shall be a separate legal entity wholly-owned
by a different Series, managed by a different Trading Advisor and trading
through its individual trading accounts.
(iii) In addition to the fact that each Trading Fund will be a
separate legal entity, not liable for the obligations of any other
Trading Fund, no Series shall be liable for the debts or obligations of
any other Series or for the debts or obligations of the Platform as a
whole (except as provided herein).
(iv) Each Series shall trade exclusively through its wholly-owned
limited liability Trading Fund, and the capital of the Trading Funds will
in no event be commingled.
(v) Each Series shall produce a separate Schedule K-1 (or other
relevant tax schedule) for the Members participating in such Series with
respect to each Fiscal Year. For federal income tax purposes, each Series
shall be treated as a separate business entity and shall be accounted for
as if it were a separate partnership.
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(b) (i) The terms of each Series shall be as set forth in this Agreement,
and the distinguishing terms of each Series shall be as set forth in the
Separate Series Agreement, substantially in the form of Exhibit A attached
hereto (with such changes therein as the Sponsor may determine), providing for
the variable terms of such Series. A different Series shall be established for
each Trading Fund in which Members can invest through the Platform.
(ii) For all purposes of the Act, this Agreement, together with each
Separate Series Agreement, constitutes the "limited liability company
agreement" of the Platform within the meaning of the Act.
(iii) A Separate Series Agreement or counterpart signature page
thereto shall be executed by or on behalf of the Platform by the Manager
at the time that each Series is issued. The terms and provisions of a
Separate Series Agreement may have the effect of altering, supplementing
or amending the terms and provisions hereof with respect to the Series
created thereby, without compliance with the amendment provisions of
Section 8.5 or the consent requirements of Section 8.6, provided that no
such Separate Series Agreement may materially adversely affect any
outstanding Series.
(c) Each of the Series shall operate to the extent practicable, as if it
were a separate limited liability company. Accordingly, references to the
Platform herein shall, unless and only to the extent the context otherwise
requires, be interpreted to refer to each individual Series severally.
(d) Each Series shall bear all expenses of its operations. Any operating
expenses that the Sponsor determines to be attributable to the Platform as a
whole shall be allocated among the different Series pro rata in accordance
with the Net Asset Value of each Series at the time such expenses are accrued
or paid. The organizational costs of the Platform shall be advanced by the
Sponsor and billed to the Platform and allocated among the Series when and as
the Sponsor may determine with the objective of allocating such costs
equitably among a number of Series (rather than having the initial Series pay
all the organizational costs of the Platform).
(e) No Member shall be personally liable for the debts of any Series
beyond the amount contributed by such Member to the capital of such Series.
Furthermore, under the Act, no Member of the Platform shall be obligated
personally for any debt, obligation or liability of the Platform solely by
reason of being a Member; provided however, that a Member will be liable for
acts or events not engaged in solely by reason of being or acting as a Member.
Section 1.3 Purposes.
(a) The Platform shall permit the several Members to select the Series or
combinations of Series in which to invest and to exchange Units of the
different Series.
(b) (i) The Sponsor shall have no investment discretion over any capital
invested in the Platform or, through the Platform, in the Trading Fund.
The Sponsor shall select the Series (and Trading Funds) to be made
available through the Platform, and will monitor such Series (and Trading
Funds), as described in the Memorandum. However, each Member will have
sole discretion, subject to the restrictions set forth herein, over the
Series (and Trading Funds) in which such Member invests.
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(ii) The interest income earned on the capital of each Trading Fund
will be paid to the Trading Fund's commodity brokerage account by the
Clearing Broker. Any Reserve Assets held by a Series will be invested by
the Sponsor in bank accounts or short-term U.S. government securities.
(iii) For the avoidance of doubt, the Sponsor is not registered as
an "investment adviser" under the Advisers Act, and will take no action
which would cause it to register in such capacity (even if doing so would
be in the best interests of a Series).
Section 1.4 Principal Office; Registered Office; Registered Agent. The
principal office of the Platform shall be at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at any other location as the Sponsor may
designate. The registered office of the Platform shall be at such location,
and its registered agent for service of process shall be such entity, as is
set forth in the Certificate of Formation. The Sponsor may change the
principal office, the registered office and/or the registered agent of the
Platform from time to time, promptly notifying the Members of any such change.
Section 1.5 Term. The term of the Platform shall continue until the
Platform is dissolved and wound up as provided in Section 5.1.
Section 1.6 Members. The Members (other than the Sponsor, as applicable),
in their capacity as such, shall have only the powers specifically enumerated
in this Agreement -- which, for the avoidance of doubt, shall include each
Member selecting the Series or combination of Series in which such Member
shall invest from time to time -- and shall have no control over the business
or operations of the Platform, and no power to bind the Platform.
Section 1.7 Definitions. For the purposes of this Agreement, the
following terms -- and, as appropriate, derivatives of such terms -- shall
have the meanings set forth below, unless and only to the extent that the
context otherwise requires:
"Accounting Date" shall mean: (a) the last day of a calendar month; (b)
an Effective Date; (c) the day on which a Series dissolves pursuant to Article
V; (d) the day as of which a Series' final liquidating Distribution is made
following such Series' dissolution; and (e) any other day which the Sponsor
may designate; provided, that in the case of each Series, the Accounting Dates
for such Series shall correspond to the Accounting Dates of the Trading Fund
in which such Series invests substantially all of its capital.
"Accounting Period" shall mean the period beginning immediately after an
Accounting Date and ending as of the next Accounting Date.
"Act" shall mean the Delaware Limited Liability Company Act. ---
"Administrator" shall mean, initially, DPM Mellon, LLC. The Sponsor
reserves the right to change the Administrator at any time, including to
Affiliates of the Sponsor, and the Administrator itself may merge with or
acquire other administrative services businesses while continuing to act in
such capacity for the Platform.
-3-
"Administrative Fee" shall mean the fees payable to the Administrator
from each Series pursuant to an administrative services contract, as
negotiated by the Sponsor from time to time.
"Advisers Act" shall mean the Investment Advisers Act of 1940.
"Affiliate" of a Person shall mean a Person controlling, controlled by or
under common control with, that Person, either directly or indirectly through
one or more intermediaries; provided, that Sponsor clients shall not be deemed
to constitute Affiliates of the Sponsor or any Sponsor Party solely by virtue
of the fact that they are Sponsor clients.
"Bankruptcy" shall mean, with respect to any Person, an adjudication that
such Person is bankrupt or insolvent, such Person's admission of its inability
to pay its debts as they mature, such Person's making a general assignment for
the benefit of creditors, such Person's filing a petition in bankruptcy or a
petition for relief under any section of the United States Bankruptcy Code or
any other bankruptcy or insolvency statute, or the filing against such Person
of any such petition which is not discharged within 60 days thereafter.
"Capital Account" shall mean the capital account established for each
Unit maintained on the books of the Platform in accordance with this
Agreement.
"Capital Contribution" shall mean the amount contributed to the Platform
and a given Series, net of any costs or charges imposed on such Capital
Contribution, as set forth in the books and records of the Platform.
"Class" shall mean a "class of equity security" within the meaning of the
Securities Exchange Act of 1934.
"Clearing Broker" shall mean UBS Financial Services Inc., an affiliate of
the Sponsor and the sole clearing broker for each of the Trading Funds.
"Code" shall mean the Internal Revenue Code of 1986.
"Distribution" shall mean cash and/or Futures Interests distributed to
one or more Members from the separate Series by the Sponsor without such
Member(s)' request.
"Effective Date" shall mean the date that a Capital Contribution, a
Redemption or a Distribution, as the case may be, is effective with respect to
a Series. In general, the Members' respective Capital Account(s), and number
of Units held, in such Series will be adjusted as of each Effective Date,
irrespective of when the proceeds of such Capital Contribution, Redemption or
Distribution are contributed by the Member or paid out by a Series, as
applicable.
"Exchange" shall mean the ability of the Members to exchange Units of one
Series for Units of another Series, if available, generally as of the end of
each calendar month. All references in this Agreement to "Redemption" shall
include an Exchange from the Series from which Units are Exchanged, and all
references in this Agreement to "Capital Contribution" shall include an
Exchange into the Series into which Units are Exchanged, unless the context
requires otherwise.
-4-
"Finally Determined" shall mean found by a court or arbitral tribunal of
competent jurisdiction upon entry of a final, non-appealable judgment.
"Fiscal Year" shall mean the calendar year, unless the Sponsor elects a
different fiscal year.
"Futures Interests" shall mean futures contracts, forward contracts,
options on any of the foregoing, swaps and other derivatives.
"Impermissible Event" shall mean an event that would cause the Platform
or any Series: (i) to be treated as an association taxable as a corporation
for income tax purposes; (ii) to be treated as a "publicly-traded partnership"
for income tax purposes; (iii) to be considered to hold "plan assets" within
the meaning of the Employee Retirement Income Security Act of 1974; or (iv) to
violate any Law or contractual provision.
"Indemnified Party." See Section 2.7(a).
"Law" shall mean any law, regulation (proposed, temporary or final),
administrative rule or procedure, self-regulatory organization rule or
interpretation, or exchange rule or procedure binding upon, or which the
Sponsor reasonably determines may be binding upon (in each case, as applicable
in light of the context), any Member, any Sponsor Party, any Series, any
Trading Fund, the Platform as a whole or any Affiliate of any of the foregoing
or to which any of their property is subject.
"Management Fee" shall mean the percentage of assets managed equaling the
advisory compensation paid by a Trading Fund to the Trading Advisor of such
Trading Fund.
"Member" shall mean a member of the Platform, including the Sponsor if
the Sponsor so determines.
"Net Asset Value" of each Capital Account as of any date shall mean the
value of such Capital Account, less (a) all liabilities, costs, and expenses
accrued or payable of every kind and nature including accrued Sponsor's Fees
and Administrative Fees, and (b) all Reserves. Each Member acknowledges and
agrees that the Sponsor may rely on the Trading Advisors' estimates of the Net
Asset Values of the Series' respective investments in the respective Trading
Funds in determining the Sponsor's Fees and Administrative Fee.
"Net Income" shall mean, with respect to any given Accounting Period, the
increase in the Net Asset Value of each Series from the beginning to the end
of such Accounting Period (for the avoidance of doubt, after reflecting all
fees accrued and paid by the applicable Trading Fund).
"Net Loss" shall mean, with respect to any given Accounting Period, the
decrease in the Net Asset Value of each Series from the beginning to the end
of such Accounting Period (for the avoidance of doubt, after reflecting all
fees accrued and paid by the applicable Trading Fund).
"Permitted Confidants." See Section 8.19(b).
-5-
"Person" shall mean any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization,
government (or any agency or political subdivision thereof) or other entity,
whether or not having legal personality.
"Platform" shall mean UBS Managed Futures LLC, the Delaware limited
liability company the governance of which is provided for by this Agreement.
"Prior Period Adjustment" shall mean any item or items of expense, loss,
tax, income or gain incurred or accrued during one Accounting Period which
arises from claims, events or transactions relating to a prior Accounting
Period, including all costs of prosecuting, defending, investigating, settling
or otherwise dealing with any of the foregoing, such item or items to be
accounted for pursuant to Section 3.10.
"Prior Period Member." See Section 3.10(a).
"Qualified Income Offset." See Section 3.5(a).
"Redeem" shall mean effecting a Redemption.
"Redemption" shall mean the repurchase by a Series, at the request of a
Member, of one or more of such Member's Units net of any costs or charges
imposed. Only whole Units may be Redeemed. "Redemption," when used as an
adjective, means attributable to or pertaining to a Redemption.
"Reserve Assets" shall mean the assets of each Series not invested in a
Trading Fund. The Sponsor shall deposit Reserve Assets in bank accounts and/or
invest Reserve Assets in short-term U.S. government securities.
"Reserves" shall mean reserves (funded or unfunded) established by the
Sponsor pursuant to Section 3.11. Different Reserves may be established for
different Series. For the avoidance of doubt, any amounts paid out to a Member
shall in all cases be reduced by any Reserves allocable to such Member's
Unit(s).
"SEC" shall mean the Securities and Exchange Commission.
"Separate Series Agreement" shall mean the separate agreement
establishing the distinguishing terms of each Series substantially in the form
of Exhibit A attached hereto.
"Series" shall mean a designated series of Units of limited liability
company interests in the Platform established in accordance with this
Agreement and pursuant to Section 18-215 of the Act, having separate rights,
powers and/or duties with respect to specified property or obligations
(including such Series' investment in its underlying Trading Fund). The
Platform will issue separate and distinct Series. Pursuant to Section 18-215
of the Act, the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular Series shall
be enforceable against the assets of such Series only, and not against the
assets of the Platform generally or of any other Series, and none of the
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to the
-6-
Platform generally shall be enforceable against the assets of any Series,
except to the extent expressly provided herein.
"Series Percentage" shall mean, with respect to each Member for each
Accounting Period, in the case of each Series a percentage equal to the
fraction the numerator of which is the aggregate balance in such Member's
Capital Account(s) in such Series and the denominator of which is the
aggregate balance of all Capital Accounts attributable to such Series, in each
case as of the first day of such Accounting Period. The aggregate of all
Members' Series Percentages in each Series shall at all times equal 100%.
"Sponsor" shall mean UBS Managed Fund Services Inc., a Delaware
corporation and an Affiliate of the Clearing Broker, and/or any other Person
that is admitted as a manager of the Platform after the date hereof.
"Sponsor Party" shall mean (a) the Sponsor, (b) any Affiliate of the
Sponsor, and (c) any owner, principal, director, officer or employee of any of
the foregoing.
"Sponsor's Fees" shall mean the percentage of assets fees payable to the
Sponsor from each Series as provided in Section 2.9.
"Subscription Agreement" shall mean a written agreement or instrument in
form and substance acceptable to the Sponsor whereby each Member (other than
the Sponsor), subscribes for or otherwise acquires a Unit or Units. All
Subscription Agreements once submitted are irrevocable but are subject to
acceptance by the Sponsor.
"Tax Items" shall mean items of income, gain, loss, expense, deduction
and credit determined for income tax reporting purposes.
"Trading Advisors" shall mean the respective managed futures advisors of
the respective Trading Funds.
"Trading Advisory Agreements" shall mean the respective advisory
agreements between, inter alia, a Trading Fund and the corresponding Trading
Advisors.
"Trading Fund" shall mean the wholly-owned subsidiary of each Series
through which such Series engages in Futures Interest trading.
"Trading Fund Agreements" shall mean the offering materials and the
operative documents of each Trading Fund.
"Transfer." See Section 4.3(a).
"Transferee," "Transferor" shall mean the Person making or receiving, as
the case may be, a Transfer of Units.
"Treasury Regulations" shall mean the regulations (final, proposed and/or
temporary) of the Department of the Treasury and/or Internal Revenue Service
promulgated under or in respect of the Code.
-7-
"Units" shall mean the units of limited liability company interests in
the Platform, including fractional units, which the Sponsor may issue in its
sole discretion. The Units issued by each Series shall be separate and
distinct.
"Voting Rights." See Section 8.11.
Section 1.8 Rules of Interpretation.
(a) References to articles and sections shall be to sections of this
Agreement unless otherwise specified.
(b) "May" shall be construed as permissive.
(c) A "month" or a "quarter" means a calendar month or quarter (as the
case may be).
(d) A "notice" means written notice unless otherwise stated.
(e) "Shall" shall be construed as imperative.
(f) Writing includes typewriting, printing, lithography, photography and
other modes of representing or reproducing words in a legible and
non-transitory form.
(g) The term "and/or" is used herein to mean both "and" as well as "or."
The use of "and/or" in certain contexts in no respects qualifies or modifies
the use of the terms "and" or "or" in others. "Or" shall not be interpreted to
be exclusive, and "and" shall not be interpreted to require the conjunctive --
in each case, unless the context otherwise requires.
(h) Article and section headings herein have been inserted for
convenience of reference only, are not a part of this Agreement and shall not
be used in construing this Agreement.
(i) The terms "include" and "including" and words of similar import are
to be construed as non-exclusive (so that, by way of example and for the
avoidance of doubt, "including" shall mean "including without limitation").
(j) Unless the context of this Agreement otherwise requires (i) words
using a singular or plural number also include the plural or singular number,
respectively, (ii) the terms "hereof," "herein," "hereby" and any derivative
thereof or similar words refer to this entire Agreement, (iii) the masculine
gender shall include the feminine and neuter genders, (iv) any reference to a
Law, agreement or a document shall be deemed to also refer to any amendment,
supplement or replacement thereof, and (v) whenever this Agreement refers to a
number of days, such number shall refer to calendar days unless such reference
specifies business days.
(k) Terms defined in this Agreement by reference to any other agreement,
document or instrument shall have the meanings assigned to them in such
agreement, document or instrument whether or not such agreement, document or
instrument is then in effect.
-8-
(l) References to statutes, regulations and/or rules refer to the
foregoing as amended or supplemented to date.
(m) No provision of this Agreement shall be construed in favor of or
against any Person by reason of the extent to which any such Person, its
Affiliates or their respective employees or counsel participated in the
drafting thereof.
ARTICLE II
MANAGEMENT
Section 2.1 Authority of the Sponsor.
(a) (i) The Sponsor shall have full and complete charge of all affairs of
the Platform. The management and control of the Platform's business and
its assets shall rest exclusively with the Sponsor. The Sponsor shall
have all of the rights and powers that can be granted to the Sponsor
under the Act and as otherwise provided by Law, and any action taken on
behalf of the Platform by the Sponsor shall constitute the act of and
bind the Platform.
(ii) Notwithstanding Section 2.1(a)(i), each Member individually and
not the Sponsor shall have sole discretion of the Series or combination
of Series in which such Member invests, subject to restrictions imposed
on effecting subscriptions, Redemptions and Exchanges imposed by the
Platform, as set forth herein.
(b) The Sponsor shall be required to devote only such business time and
attention to the conduct of the business and affairs of the Platform as the
Sponsor may deem necessary or advisable. For the avoidance of doubt, the
Sponsor Parties shall be free to devote such time and attention as they may
determine to other Sponsor clients, as well as to other activities.
Section 2.2 Sponsor's Determinations.
(a) Whenever any Sponsor Party is to determine or decide any matter
relating to this Agreement or the Platform (for the avoidance of doubt, not
including the determination of into which Series a Member shall invest, such
determination to be in the sole and absolute discretion of each Member, to the
extent that it is practicable to effect the investment so determined) such
determination shall be made in the sole discretion of such Sponsor Party. All
determinations or decisions made by the Sponsor pursuant to or in connection
with this Agreement shall be conclusive and binding on all Members if made in
a manner consistent with the standard set forth in Section 2.6.
(b) Whenever this Agreement provides that the Sponsor may take or not
take any action, or make any determination, in a particular manner, unless the
Sponsor otherwise determines, the Sponsor shall be absolutely protected in
acting in such manner, provided that the Sponsor acts in a manner consistent
with the standard set forth in Section 2.6.
-9-
(c) (i) Without limiting the generality of Sections 2.2(a) and (b), all
matters concerning the valuation of Futures Interests and other assets
and liabilities of each Series, the allocation of Net Income, Net Loss,
profits, deductions, gains and losses among the Members, and/or
accounting procedures (including the accounting procedures regarding the
treatment of the several Series and the Units issued by each) not
expressly provided for by the terms of this Agreement shall be determined
by the Sponsor (such determination being made in pertinent part based on
information provided the Sponsor by the Trading Advisors, on which the
Sponsor is conclusively authorized to rely), whose determination shall be
final and conclusive as to all of the Members.
(ii) The Sponsor shall have authority to determine the manner of
applying any such provisions of this Agreement that the Sponsor
determines to be unclear or not equitable, and the Sponsor shall also
have authority to determine the manner of applying any such provisions in
circumstances in which more than one method of application would be more
consistent with Law or equitable principles.
Section 2.3 Brokerage and Interest Income Arrangements.
(a) All Trading Funds shall use the Clearing Broker, an Affiliate of the
Sponsor, as their exclusive clearing broker, unless the Sponsor otherwise
determines.
(b) All Members, as a condition of being accepted in such capacity, agree
to the Trading Funds' using the Clearing Broker as their sole clearing broker
even if using another broker might be less expensive or otherwise in the best
interests of the Trading Fund.
(c) Trading Advisors may use executing brokers which are not Affiliates
of the Sponsor, subject to the Sponsor's approval. Irrespective of whether the
Sponsor permits the use of such executing broker, the Sponsor shall have no
liability for the conduct of such executing broker.
(d) Each Trading Fund will be subject to the brokerage commissions and
interest income arrangements (including the borrowing of foreign currencies in
accordance with the Clearing Broker's "single currency margining" procedures),
as described in the Memorandum.
(e) Each Member, as a condition of being accepted as such, acknowledges
and agrees that the principles of "best price and execution" do not apply to
Futures Interests, as opposed to securities brokerage. Each Member further
consents to each Trading Fund paying the brokerage commissions set forth in
the Memorandum and to the Clearing Broker and its Affiliates retaining
substantial economic benefit from the possession of the Trading Fund's assets
in addition to the interest income paid to the Trading Fund (and the interest
charged to the Trading Fund on foreign currencies loaned to it) as described
in the Memorandum.
(f) The Sponsor shall be permitted to allow the Trading Advisors to
aggregate orders for their respective Trading Funds with the orders for their
other clients, notwithstanding that the effect of such aggregation may operate
to the disadvantage of the Trading Fund in question.
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Section 2.4 Other Activities. Except to the extent contemplated by
Section 2.1(b), nothing herein shall be deemed to limit or restrict the right
of any Sponsor Party to engage in, or to devote time and attention to the
management of any other business, whether of a similar or dissimilar nature,
or to render services of any kind to any other Person.
Section 2.5 Permitted Transactions.
(a) Any Sponsor Party, Member and any of their respective Affiliates may
trade Futures Interests for their personal accounts.
(b) Any Sponsor Party may trade Futures Interests for other client
accounts.
(c) Any Sponsor Party may provide managed futures platform,
administrative and due diligence services comparable to the services that the
Sponsor provides to the Platform to third parties.
(d) Any Sponsor Party may act as a service provider to the Platform and
receive compensation for doing so.
(e) Any Sponsor Party (i) may engage in or possess an interest, direct or
indirect, in any business venture of any nature or description (including
other managed futures funds or platforms) for their respective accounts,
independently or with others, and (ii) may do so without any obligation to
report the same to the Platform or to afford the Platform, any Series or any
Member any opportunity to participate therein. None of the Platform shall have
any rights in or to any such independent venture or investment or the revenues
or profits derived therefrom.
(f) The principles of the doctrine of "corporate opportunity," any
analogous doctrine under applicable Law or other similar rights or claims
shall not apply to any Sponsor Party's dealings with the Platform, any Series,
any Member (in such Member's capacity as such) or any third parties.
Section 2.6 Sponsor Parties' Standard of Liability and Indemnity.
(a) The Sponsor and each person affiliated with the Sponsor and their
respective officers, directors, controlling persons within the meaning of
Section 15 of Securities Act of 1933, as amended, employees, partners and
shareholders (each an "Indemnified Party") shall have no liability to the
Platform or to any Member, and shall be indemnified by the Platform against,
any loss, liability, claim, damage or expense (including the reasonable cost
of investigating or defending any alleged loss, liability, claim, damage or
expense and reasonable counsel fees incurred in connection therewith), as
incurred, arising in connection with any action or inaction of an Indemnified
Party, provided, however, that in no case is the foregoing exculpation and
indemnity to be deemed to protect an Indemnified Party against any liability
to the Platform or any Member to which an Indemnified Party would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of their duties or by reason of the reckless disregard of their
obligations and duties under this Agreement.
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(b) In the event the Platform is made a party to any claim, dispute or
litigation or otherwise incurs any loss or expense as a result of or in
connection with any Member's activities, obligations or liabilities unrelated
to the Platform's business, such Member shall indemnify and reimburse the
Platform for all loss and expense incurred, including reasonable attorneys'
fees.
(c) The indemnification provisions of Section 2.6(a) shall be applied on
a Series-by-Series basis, with a particular Series being responsible for
indemnification only with respect to a loss or claim related to that Series,
unless such loss or claim relates to the overall operation of the Platform,
not to any particular Series, in which case the indemnification obligation of
Section 2.6 shall be allocated among all Series pro rata in accordance with
the Net Asset Value (or average Net Asset Value) of each Series at the time
(or during the period) when the event giving rise to such loss or claim
occurred or in such other manner as the Sponsor may determine.
(d) The rights of an Indemnified Party to indemnification shall survive
the dissolution of the applicable Series (if the indemnification obligations
relate to the overall operations of the Platform) and the death, withdrawal,
declaration of legal incapacity, dissolution, winding-up or Bankruptcy of such
Indemnified Party.
(e) No Indemnified Party other than the Sponsor may assert any claim for
indemnification hereunder without the prior written consent of the Sponsor,
which the Sponsor shall have no obligation whatsoever to give.
(f) In no event shall any indemnification obligations of the Platform
subject a Member to any liability in excess of that contemplated by this
Agreement.
(g) The Members, in recognition of the fact that the Members themselves
will select their own combinations of Series, waive all fiduciary duties on
behalf of the Sponsor except the implied duty of good faith and fair dealing
(and solely to the extent that such duty cannot be waived under the Act).
(h) The Sponsor shall be absolutely protected in relying on the
valuations of Trading Funds furnished to the Sponsor by Trading Advisors.
(i) The Sponsor Parties shall have no responsibility whatsoever for any
actions taken or omitted by the Trading Advisors and Trading Funds.
Section 2.7 Trading Advisors' Standard of Liability and Indemnification.
Each Trading Fund shall be required to agree to exculpate and/or indemnify
Trading Advisors and associated Persons pursuant to the terms of the
applicable Trading Advisory Agreements, and the Sponsor is authorized to cause
each Series, respectively, to enter into such arrangements, even if such
Trading Advisory Agreements provide greater liability protection (exculpation)
and/or more comprehensive indemnification than that set forth in Sections 2.6.
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Section 2.8 Capital Contributions and Redemptions by the Sponsor;
Withdrawal and Substitution of the Sponsor.
(a) The Sponsor shall not have any obligation to make any Capital
Contributions.
(b) In the event that the Sponsor does make a Capital Contribution, the
Sponsor may Redeem, without any breach of this Agreement or the Sponsor's
contractual or fiduciary duties hereunder, all or a portion of any of the
Sponsor's Units at any time without notice to the Members.
(c) The Sponsor may withdraw from the Platform, without any breach of
this Agreement or the Sponsor's contractual or fiduciary duties hereunder upon
not less than 60 but not more than 100 days' prior written notice to the
Members.
(d) (i) One or more additional or substitute Sponsor(s) may be admitted
to the Platform in the sole discretion of the Sponsor without the consent of
any Member, provided that such additional or substitute Sponsor(s) are
Affiliates of the Sponsor. The Sponsor shall promptly notify the Members of
any such additional or substituted Sponsor(s).
(ii) One or more additional or substitute Sponsor(s) which are not
Affiliated with the Sponsor may be admitted as additional or substitute
Sponsor(s) only with the consent of a majority of the Voting Rights.
(iii) The admission of an additional or substitute Sponsor shall not
be cause for dissolution of the Platform, and all the Members shall
continue to be subject in all respects to the provisions of this
Agreement subsequent to such admission.
Section 2.9 Sponsor's Fees. As of the end of each calendar month, each
Series shall be subject to a Sponsor's Fee, payable to the Sponsor as to a
third-party and not as an allocation to the Sponsor's Capital Account(s), if
any, equal to 1/12th of 0.25% (0.02083 of 1%) of the Net Asset Value of such
Series (a 0.25% annual rate). Such Sponsor's Fee shall be definitively
calculated based on the Sponsor's estimate of the Net Asset Value of each
Series (which may be based on the estimated Net Asset Value received from the
applicable Trading Advisor) as of the end of each calendar month and the
Sponsor's estimate of the Net Asset Value of the Reserve Assets attributable
to such Series. The Sponsor may share the Sponsor's Fee with Affiliates and
third parties. The Sponsor also may waive or reduce the Sponsor's Fees for
certain Members without entitling any other Member to any such waiver or
reduction.
ARTICLE III
CAPITAL ACCOUNTS; UNITS; FINANCIAL AND TAX ALLOCATIONS
Section 3.1 Admission of Additional Members; Capital Contributions.
(a) Subject to Section 3.1(b), the Sponsor may, at any time and from time
to time, admit one or more purchasers of Units as additional Members to the
Platform as well as permit
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Members to make additional Capital Contributions through the purchase of
Units, without the consent of the other Members. Capital Contributions must be
made in cash.
(i) Without limiting any other remedy available to the Platform, if
a Person fails, in part or in whole, to make a Capital Contribution by
the close of business on the day that such Capital Contribution was due
to be received (so that it could be invested in the Series selected by
such Person for such Capital Contribution) the Sponsor may, but shall
have no obligation to, take any action, at the expense of the Platform,
which the Sponsor may deem necessary or advisable in an attempt to
collect from such Person the costs and expenses incurred, if any, in
connection with such default and collection; provided, that the Sponsor
may determine to allocate all or a portion of such costs and expenses
equally among all Units of the applicable Series outstanding for the then
current Accounting Period.
(ii) Upon admission to the Platform, whether as a result of a
Capital Contribution or Transfer, each new Member shall, by written
Subscription Agreement or another instrument or instruments satisfactory
to the Sponsor, become bound by and subject to all of the terms and
conditions of this Agreement.
(iii) The amount of each new Member's initial Capital
Contribution(s) shall be set forth in such new Member's Subscription
Agreement. An existing Member which makes additional Capital
Contributions need not complete a new Subscription Agreement for each
additional new Capital Contribution, unless otherwise requested by the
Sponsor; provided, however, that all agreements, covenants,
representations and warranties made by such Member in its original
Subscription Agreement shall be deemed to be ratified and reaffirmed at
the time such Member makes an additional Capital Contribution, and that
such Member may be requested to submit a short-form confirmation of the
foregoing.
(iv) Under no circumstances shall the Sponsor have any obligation to
accept any Capital Contribution from any Person, whether or not an
existing Member.
(v) No Member shall have any pre-emptive rights or rights of first
refusal with respect to the issuance of additional Units.
(b) No Member shall be admitted, whether as a result of a Capital
Contribution or Transfer, if doing so would result in an Impermissible Event.
In the event that any such Member is admitted to the Platform, such Member's
admission shall be null and void ab initio (except to the extent that the
other Members have been damaged by such admission, in which case such Member's
Capital Accounts shall be debited with the amount of any such damage pro rata
in accordance with the Net Asset Value of such Capital Accounts), irrespective
of whether the Sponsor had expressly consented thereto. For the avoidance of
doubt, no Sponsor Party shall have any liability to the Platform or any Member
for admitting any Member in violation of this Section 3.1(b), provided that
such Sponsor Party's conduct is consistent with the standard set forth in
Section 2.6.
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(c) The admission of additional Members shall not cause the dissolution
of the Platform, and all the Members shall continue to be subject to the
provisions of this Agreement in all respects subsequent to such admission.
(d) Members shall not receive interest on their Capital Contributions.
The interest, if any, earned on a Capital Contribution received from a Member
or prospective Member prior to the beginning of the Accounting Period as of
which the corresponding Units are issued shall be retained in the Reserve
Assets as a general asset of the Series in question.
Section 3.2 Limited Liability of Members.
(a) No Member (including the Sponsor, as applicable) shall be personally
liable for or subject to any liability or obligation whatsoever of the
Platform. Irrespective of whether one or more Members may have deficit Capital
Accounts, no Member(s) shall have any obligation to make any Capital
Contribution with respect to such deficit(s), and no such deficit(s) shall be
considered a debt owed by any such Member(s) to the Platform or to any other
Member(s) for any purpose whatsoever.
(b) The assets and liabilities of each Series shall be segregated and
held (directly or indirectly, through a nominee or otherwise) and accounted
for separately and distinctly from those of the Platform and any other Series.
(c) No Series shall be subject to any liability or obligation whatsoever
of any other Series.
(d) The Platform shall cause to be maintained true and full books of
account maintained in accordance with generally accepted accounting principles
consistently applied and in which shall be entered fully and accurately each
transaction of each Series, each such Series to be accounted for separately.
Section 3.3 Capital Accounts and General Financial Allocations.
(a) A Capital Account shall be established for each Unit, and for the
Sponsor on a Unit-equivalent basis. The balance of each Unit's Capital Account
shall be the amount contributed to the Series with respect to such Unit, which
amount shall be equal to the Net Asset Value per Unit (or, in the case of an
initial offering of a Series, a price per Unit as determined by the Sponsor)
on the date each Unit is purchased after all accrued fees and expenses,
including performance fee accruals at the Trading Fund level which may, in
fact, never be paid. As of the close of business (as determined by the
Sponsor) on the last day of each month, any increase or decrease in a Series'
Net Asset Value as compared to the last such determination of Net Asset Value
shall be credited or charged equally to the Capital Accounts of all Units then
outstanding; provided that for purposes of maintaining such Capital Accounts,
amounts paid or payable to the Sponsor for items such as Sponsor's Fees shall
be treated as if paid or payable to a third party and shall not be credited to
the Capital Account held by the Sponsor.
-15-
(b) For purposes of this Article III, unless specified to the contrary,
Units Redeemed as of the end of any month shall be considered outstanding as
of the end of such month, but not as of the beginning of the immediately
following month.
(c) As of the end of each calendar month, the Sponsor's Fees and
Administrative Fee charged to the applicable Series shall be allocated equally
to all Units of such Series. Such Sponsor's Fees and Administrative Fees shall
reduce each Unit's Capital Account balance as of the date when such Sponsor's
Fees and Administrative Fees become payable (rather than only accrued),
irrespective of when actually paid.
Section 3.4 Allocation Principles Regarding the Series.
(a) To the extent possible, each Series shall be accounted for as if it
were a separate limited liability company (as provided herein, each Series
shall operate on a "separate and distinct" basis from each other Series).
(b) The Net Income or Net Loss attributable to a Series' Trading Fund
shall be allocated solely to such Series.
(c) The Net Income or Net Loss attributable to a Series' Reserve Assets
shall be allocated solely to such Series.
(d) The aggregate Net Income and Net Loss attributable to a Series shall
be allocated equally among all outstanding Units of such Series.
(e) Any allocation by the Sponsor of general liabilities, expenses,
costs, charges or Reserves which are not readily identifiable as belonging to
any particular Series among one or more Series shall not represent a
commingling of such Series to pool capital for the purpose of carrying on a
trade or business or making common investments and sharing in profits and
losses therefrom.
Section 3.5 Tax Allocations.
(a) (i) For each Fiscal Year, each Series shall be treated as if it were
a separate business entity under applicable Treasury Regulations. The Tax
Items allocated by each Series among its Units shall be allocated for
federal income tax purposes among such Units in a manner as to reflect
equitably amounts credited or debited to each Member's Capital Account(s)
for the current and prior Fiscal Years (or relevant portions thereof).
Allocations under this Section 3.5 shall be made pursuant to the
principles of Section 704(b) and 704(c) of the Code, and Treasury
Regulations Sections 1.704-1(b)(2)(iv)(f) and (g), 1.704-1(b)(4)(i) and
1.704-3(e), as applicable, or the successor provisions to such Code
Sections and Treasury Regulations.
(ii) For the avoidance of doubt, consistent with Section 3.5(c)(i),
the Sponsor shall allocate Tax Items to the greatest extent possible so
as to equalize the tax basis and Capital Accounts of the Units of such
Series.
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(iii) Notwithstanding anything to the contrary in this Agreement,
there shall be allocated to the Members such gains or income as shall be
necessary to satisfy the "Qualified Income Offset" requirements of
Treasury Regulations Section 1.704-1(b)(2)(ii)(d).
(b) If the Code or Treasury Regulations require a withholding or other
adjustment with respect to the Units of a given Series held by any Member or
some other interim year event occurs necessitating in the Sponsor's judgment
an equitable adjustment, the Sponsor shall make such adjustments and/or
allocations among the Members of the affected Series of capital, income and
expense items, Series Percentage, Tax Items, accounting procedures or such
other financial matters as the Sponsor believes shall equitably take into
account such interim year event and applicable provisions of Law, and the
determination thereof by the Sponsor shall be final and conclusive as to all
of the Members.
(c) In the case of Prior Period Adjustments, and any other non-pro rata
allocations of capital, income and expense items to fewer than all Members of
a Series as provided herein, the Sponsor shall allocate the associated Tax
Items with regard so as equitably to reflect the affected Members' respective
economic gains and losses from such allocations.
(d) The Sponsor may, but shall not be obligated to, allocate Tax Items on
a gross rather than net basis, and may also allocate Tax Items differently to
differently situated Members and former Members, to the extent that doing so
is permissible under the Code and the Treasury Regulations.
(e) Tax allocations shall be made between the Transferee and Transferor
of Units so as to reflect as closely as practicable the economic gain or loss
experienced by each with respect to such Units during the Fiscal Year in which
the Transfer occurred.
(f) To the extent permitted by the applicable Treasury Regulations, the
Sponsor may make adjustments to the method in which allocations are made by
each Series among the Units of such Series as the Sponsor may deem reasonable.
Section 3.6 Consistent Tax Reporting.
(a) Except as otherwise agreed to in writing by the Sponsor, all Members,
including former Members, shall report all Tax Items (including the character
and timing of such Tax Items) related to a Series in a manner consistent with
the manner in which such Tax Items are reported by such Series.
(b) The Platform intends to treat each Series as a "separate business
entity" within the meaning of ss. 301.7701-2(a) of the Treasury Regulations
for federal income tax purposes with each Series eligible to make a separate
entity classification election pursuant to ss. 301.7701-3 of the Treasury
Regulations. The Sponsor shall have the authority to make an entity
classification election with regard to each Series in the manner prescribed by
the applicable Treasury Regulations. Each Member authorizes the Sponsor to
make an entity classification election for each Series in the manner
prescribed in the applicable Treasury Regulations and agrees to treat each
Series in a manner consistent with the Sponsor's entity classification for
such Series for all federal income tax purposes, including any reporting
requirements.
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Consistent with Section 3.6(a), the Sponsor shall furnish each Member of a
Series with the information necessary for the Member to determine the entity
classification of such Series for U.S. federal income tax purposes, and the
Sponsor shall use its best efforts to furnish such information on a timely
basis.
(c) The Platform intends to treat the Platform (representing the
aggregate of all Series) as a partnership that has no items of income, gain,
loss, deduction or credit for federal income tax purposes. No party to this
Agreement is authorized to make an entity classification election pursuant to
ss. 301.7701-3 of the Treasury Regulations to treat the Platform (representing
the aggregate of all Series) as a corporation or an association taxable as a
corporation for federal income tax purposes. Each Member authorizes the
Sponsor to make an entity classification election, as necessary, for the
Platform (representing the aggregate of all Series) to be treated as a
partnership for federal income tax purposes in the manner prescribed in the
applicable Treasury Regulations and agrees to treat the Platform in a manner
consistent with the Sponsor's entity classification of the Platform for all
U.S. federal income tax purposes, including any reporting requirements.
Section 3.7 "Tax Matters Partner."
(a) For purposes of Section 6231(a)(7) of the Code, or any corresponding
provision of any future Law, the "Tax Matters Partner" of the Platform and
each Series shall be the Sponsor.
(b) The Tax Matters Partner shall have the power to make or revoke all
tax elections and determinations for the Platform and each Series severally
and to take any and all actions necessary or permitted under the Code, the
regulations promulgated thereunder, or other provisions of Law to effect those
elections, determinations and allocations. All elections, determinations and
allocations by the Tax Matters Partner shall be binding upon all Members and
their respective successors, assigns and heirs.
(c) The Tax Matters Partner shall have comparable authority in respect of
any state, local or foreign tax, tax law or tax claim relating to the
Platform, any Series and the Members, as the Tax Matters Partner has under the
Code in such capacity.
(d) The cost of any examination or audit of, and of any adjustment to, a
Member's tax return shall be borne solely by the affected Member.
(e) The Tax Matters Partner shall be entitled to be reimbursed for all
expenses incurred by the Tax Matters Partner in performing its services as Tax
Matters Partner, as well as to be released from all liability for, and
indemnified for any loss, cost, expense, liability, fees (including attorneys'
fees and expenses) and damages suffered or sustained in, performing such
services, subject to the standards set forth in Sections 2.6 and 2.7.
Section 3.8 Determination of Net Asset Value.
(a) The Sponsor, or such party as may be duly appointed by the Sponsor,
shall determine each Trading Fund's Net Asset Value using the following
principles as communicated to the Trading Advisor for such Trading Fund:
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(b) (i) The liquidating value of a commodity futures contract or
option traded on a United States commodity exchange shall be based upon
the settlement price on the commodity exchange on which the particular
commodity futures contract or option is traded; provided that, if a
contract or option cannot be liquidated on the day with respect to which
Net Asset Value is being determined, the basis for determining the
liquidating value of such contract or option shall be such value as the
Sponsor may deem fair and reasonable.
(ii) The liquidating value of a futures, forward or options
contract not traded on a United States exchange shall be its liquidating
value, determined based upon policies established by the Sponsor, on a
basis consistently applied for each different variety of contract.
(iii) No value shall be ascribed to good-will or any other
intangible asset of the Trading Fund.
(c) The Sponsor, or such party as may be duly appointed by the Sponsor,
shall determine the Net Asset Value of each Series using the following
principles:
(i) The Net Asset Value of each Series shall be determined in U.S.
dollars, and any positions denominated in other currencies are translated
at prevailing exchange rates as determined by the Sponsor.
(ii) The Reserve Assets shall be valued in such manner as the
Sponsor may determine to reflect fair market value and the accrual of
interest.
(d) The Net Asset Value per Unit shall be calculated by dividing the Net
Asset Value of the applicable Series (aggregating the Net Asset Value of the
corresponding Trading Fund and such Series' Reserve Assets) by the number of
Units outstanding in such Series. For the avoidance of doubt, all Units of the
same Series shall have the same Net Asset Value.
(e) The Sponsor, or such party as may be duly appointed by the Sponsor to
calculate the Net Asset Value, is hereby authorized to make all Net Asset
Value determinations (including, without limitation, for purposes of
determining Redemption payments and calculating Sponsor's and Administrative
Fees) on the basis of estimated numbers. The Sponsor or such other party shall
not (unless it otherwise determines) make retroactive adjustments in order to
reflect the difference between estimated and final numbers, but rather shall
reflect such difference (including, for purposes of calculating Redemption
payments and Sponsor's and Administrative Fees) in the Accounting Period when
such differences are determined.
(f) The Sponsor may suspend the calculation of the Net Asset Value of a
Series' Units during any period for which the Sponsor is unable to value a
material portion of the corresponding Trading Fund's positions. The Sponsor
shall give notice of any such suspension to Members invested in such Series.
(g) Redemptions and Distributions shall, after the Effective Date thereof
(as the same may be postponed pursuant to the terms of this Agreement), be
deemed to have been paid out
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of the Platform as of such Effective Date, and shall no longer be included in
either the Platform's or any Series' assets or liabilities (irrespective of
when actually paid out).
Section 3.9 Use of Estimates and Trading Advisor Estimates.
The Sponsor, or any party duly selected by the Sponsor as
appropriate, is expressly authorized to make all financial (and the related
tax) allocations provided for hereunder, as well as to determine all Net Asset
Values and Capital Accounts, based on estimates, both as made or compiled by
the Sponsor and as received from the Trading Advisors. Furthermore, the
Sponsor shall not be obligated to restate allocations, Sponsor's Fees,
Administrative Fees, Redemption proceeds, Net Asset Values or any other
determinations previously made in order to reflect the difference between
estimated and final Net Asset Values, but rather may, but shall have no
obligation to, reflect such difference entirely in the Accounting Period in
which such difference is determined.
Section 3.10 Prior Period Adjustments.
(a) (i) Each Member holding Units in a given Series shall either (i) pay
(if a former Member) or (ii) permit (if still a Member) the Sponsor to deduct
from such Member's Capital Account(s) by Redeeming Units, the amount of any
Prior Period Adjustment that the Sponsor determines to be due from such Member
or former Member with respect to such Series. With regard to each Series, if a
Prior Period Adjustment (or portion thereof) can be specifically identified as
attributable to a Member or a former Member of such Series, then the Sponsor
shall use reasonable efforts to allocate such Prior Period Adjustment to, and
collect such Prior Period Adjustment from, such Member (by Redemption of Units
or otherwise) or former Member. The Sponsor shall use reasonable efforts to
allocate each Prior Period Adjustment to the current or former Members (each,
a "Prior Period Member") which were Members during the Accounting Period(s) to
which such Prior Period Adjustment relates in accordance with the number of
Units of such Series which such current or former Member then held. For the
avoidance of doubt, each Prior Period Member shall be liable for such portion
of each such Prior Period Adjustment as is proportionate to such Prior Period
Member's Units or averaged Units outstanding, as compared to the total Units
or average total Units outstanding, for the relevant prior Accounting
Period(s);
(ii) In no event shall any provision of this Section 3.10 require
any Member or former Member to make a Capital Contribution to repay to
the Platform any amounts in excess of the Redemptions or Distributions
made to such Member or former Member with respect to the Series in
question (and, for the avoidance of doubt, not with respect to any other
Series).
(b) Any portion of a Prior Period Adjustment that cannot, as determined
by the Sponsor, practicably be collected from Prior Period Members shall be
allocated equally among all Units outstanding during the then current
Accounting Period.
(c) The Sponsor may, but shall have no obligation to, take, at the
expense of the affected Series, any action which the Sponsor may deem
necessary or advisable in an attempt to collect the amount of any Prior Period
Adjustment, as well as the costs and expenses related
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to such collection, from the affected Prior Period Members. In no event shall
the Sponsor be liable for any failure of the Platform or the affected Series
to receive Prior Period Adjustments from a Prior Period Member or for the
Sponsor declining to prosecute any claim therefor.
(d) No Prior Period Adjustments, not specifically associated with a
Member or former Member, shall be subject to the special allocation provisions
of this Section 3.10 unless the amount of such Prior Period Adjustment exceeds
2.5% of the Net Asset Value of the affected Series as of the date that such
Prior Period Adjustment would otherwise be specially allocated pursuant to
this Section 3.10. For such purposes, a given Prior Period Adjustment shall
include all items relating to the same or related causes occurring at or about
the same time, as the Sponsor may determine.
(e) Notwithstanding the foregoing provisions of this Section 3.10, in the
event that a Prior Period Adjustment results in income or gain to rather than
a cost or a liability, such income or gain, irrespective of amount, shall be
allocated solely among the Units of the affected Series outstanding as of the
date that such income or gain becomes available for distribution.
Section 3.11 Reserves.
(a) The Sponsor may from time to time establish (and/or reverse): (i)
such Reserves as the Sponsor may determine to reflect contingent, uncertain
and other potential, as well as established, liabilities and/or contingences
and/or for any other reason. Reserves shall reduce the Net Asset Value of the
Series (and of the Units of such Series) with respect to which such Reserves
are established.
(b) The Sponsor may allocate Reserves, as well as their reversal, among
the Capital Accounts of the Members (and among the Capital Accounts of certain
Members but not others), in such manner as the Sponsor may determine.
Section 3.12 Manner of Effecting Non-Pro Rata Allocations. As all Units
of any given Series shall have the same Net Asset Value, any special or
non-pro rata allocations or distributions shall be effected by the Redemption
of Units.
ARTICLE IV
REDEMPTIONS AND EXCHANGES
Section 4.1 Redemptions.
(a) Members' ability to Redeem from a Series is entirely dependent on
such Series' ability to effect corresponding withdrawals from the Trading Fund
in which such Series has invested substantially all of its capital.
(b) Units may be redeemed as of the end of any calendar month at the Net
Asset Value per Unit at such date. Redemption requests must be submitted on or
prior to the 15th day of
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the calendar month of such Redemption or the following business day. The
Sponsor may permit redemptions at other times and on shorter notice.
(c) Any Redemption shall be reduced by any Reserves established by the
applicable Trading Fund or Series (see Section 3.11).
(d) No Redemption of Units shall be effective if, on or before the
scheduled Effective Date of such Redemption, the Series issuing such Units
dissolves or the Trading Advisor in question gives notice of its intention to
dissolve such Series' Trading Fund. Any affected Redemption notices shall be
deemed rescinded ab initio and have no further force or effect.
(e) The Sponsor may mandatorily Redeem part or all of the Units held by a
particular Member if the Sponsor determines that (a) such Member's continued
holding of Units could result in adverse consequences to the Platform or the
relevant Series or Trading Fund, (b) such Member's investment in the Units, or
aggregate investment in the Platform, is below the minimum level established
by the Sponsor (including any increase in such minimum level that the Sponsor
may implement in the future), or (c) for any other reason.
(f) The Sponsor may suspend Redemptions at any time the calculation of
Net Asset Value is suspended pursuant to Section 3.8(f) or if if the Sponsor
believes that not suspending Redemptions would be materially adverse to the
continuing Members.
Section 4.2 Distributions.
(a) The Sponsor may at any time determine to make Distributions to one or
more Members with respect to one or more Series. Distributions need not be
made pro rata to Members in accordance with the number or Net Asset Value of
the Units held by such Members or deducted from the Capital Account(s)
maintained by such Members pro rata in accordance with the number of Units of
the applicable Series held by such Member, and may be made to certain Members
and not to others.
(b) Income taxes paid or withheld by a Series in respect of income or
gain allocable to a Member shall not be treated as an expense of such Series
but rather shall be treated as a Distribution to such Member. A Distribution
shall reduce, by Redemption of Units, the Capital Account(s) maintained with
respect to the recipient Member in such manner as the Sponsor may determine.
(c) For the avoidance of doubt, no Sponsor Party shall have any liability
to the Platform, any Series or any Member for making a Distribution to a
Member provided that such Sponsor Party acted in a manner consistent with the
standard set forth in Section 2.6.
Section 4.3 Transfers.
(a) No Member shall assign, encumber, pledge, hypothecate or otherwise
transfer (collectively, "Transfer") any of such Member's Units without the
consent of the Sponsor, and any such Transfer of Units, whether voluntary,
involuntary or by operation of law, to which the Sponsor does not consent
shall result in the Units so Transferred being mandatorily redeemed as of the
end of the month during which such purported Transfer occurred;
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provided, however, that a Member may Transfer the economic benefits of
ownership of its Units without regard to such consent. Any Transfer which
shall result in the termination of a Series for federal income tax purposes or
the violation of federal or state securities laws shall be null and void ab
initio and of no legal force or effect whatsoever. An assigning Member shall
remain liable to such Series as provided in the Act, regardless of whether his
or her assignee becomes a substituted Member.
(b) The Sponsor may not Transfer all or any portion of its manager's
interest in a Series; provided, that the Sponsor may assign such interest to
an Affiliate of the Sponsor upon notice (which need not be prior notice) to
the Members or in connection with the sale or Transfer of all or a material
portion of the Sponsor's equity or assets.
Section 4.4 Effective Date of Redemptions and Distributions.
(a) As of the Effective Date of any Redemption or Distribution, the Units
or Capital Account balances subject to such Redemption or Distribution shall
cease to participate in the Net Income and Net Losses of the related Series,
irrespective of the time or times that the proceeds of such Redemption or
Distribution are paid out.
(b) If the calculation of Net Asset Value is suspended pursuant to
Section 3.8(f), Redemptions shall be suspended as well. Redemptions may also
be suspended if the Sponsor believes that not suspending Redemptions would be
materially adverse to the continuing Members. Each Series will give notice of
any such suspension to all Members in that Series.
Section 4.5 Payment of Redemption and Distribution Proceeds.
(a) Payments of Redemption or Distribution proceeds shall be made as the
related monies are received from the applicable Trading Fund. For the
avoidance of doubt, the Sponsor may retain the Reserve Assets attributable to
a Redemption or Distribution until proceeds are received from the Trading
Fund.
(b) The Sponsor may deduct from any Redemption or Distribution proceeds
otherwise payable to any Member any amount believed or estimated by the
Sponsor to be owed by such Member to the Platform or by the Platform on behalf
of such Member.
(c) In the case of any given Redemption or Distribution, payment may be
delayed, in the event that it is not possible for the offered Series to
withdraw from the related Trading Fund effective as of the scheduled Effective
Date.
Section 4.6 Exchanges
(a) Members may Exchange the Units of different Series. Subject to the
conditions described below, Exchanges will be allowed as of the end of each
calendar month on the same notice as is required for Redemptions. Such
Exchanges will be made between Units of different Series at their respective
Net Asset Values as of the applicable dates and may be made in such minimums
as may be determined by the Sponsor from time to time.
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(b) The ability to Exchange Units may be restricted or terminated in the
sole discretion of the Sponsor at any time. The Sponsor is under no obligation
to continue to permit Exchanges.
(c) Units acquired in an Exchange shall be indistinguishable from Units
acquired with a new subscription.
(d) No placement fees, Redemption or Exchange charges will be assessed on
any Exchange. For tax purposes, Exchanges will be treated as Redemptions from
the Series from which Units are Exchanged and subscriptions into the Series
into which Units are Exchanged. Only whole Units may be exchanged. Any dollar
amounts exchanged which cannot be reinvested into whole Units will be credited
to an exchanging Member. However, if a Member exchanges all of the Units of a
particular Series owned by such Member, fractional Units may be exchanged and
any minimum Exchange requirement will not apply, at the discretion of the
Sponsor.
ARTICLE V
DISSOLUTION; REMOVAL OF SPONSOR
Section 5.1 Dissolution.
(a) A Series shall be terminated only upon the occurrence of one of the
following events:
(i) the determination of the Sponsor to do so for any reason (for
the avoidance of doubt, the Sponsor shall be entitled, without any
violation of any contractual or fiduciary obligation to any Member, to
dissolve any Series at any time);
(ii) as required by Law (including the entry of a decree of judicial
termination under Section 18-215 of the Act); or
(iii) the dissolution of the Platform.
(b) (i) Upon termination of a Series for any reason, such Series shall
continue in existence for the purpose of winding up its affairs, and the
assets of such Series shall be applied by the Sponsor in the order of
priority set forth in Sections 18-215 and 18-804 of the Act. The
termination and winding-up of a Series shall not, in and of itself, cause
a dissolution of the Platform or the termination of any other Series. The
termination of any Series shall not affect the limitation on liabilities
of such Series or any other Series provided by this Agreement, any
Separate Series Agreement, the Certificate of Formation or the Act.
(ii) Each Series shall be wound-up in same manner as the Platform
is, as described below.
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(c) The Platform shall be dissolved only upon the occurrence of one of
the following events:
(i) the withdrawal, Bankruptcy, or dissolution of the Sponsor,
unless the business of the Platform is continued within 90 days following
the occurrence of such event by the vote or written consent of a majority
of the Voting Rights;
(ii) the determination of the Sponsor to do so for any reason (for
the avoidance of doubt, the Sponsor shall be entitled, without any
violation of any contractual or fiduciary obligation to any Member to
dissolve any Series at any time); or
(iii) as required by Law (including the entry of a decree of
judicial termination under Section 18-215 of the Act);
(d) (i) Upon dissolution of the Platform for any reason, the Platform
shall continue in existence for the purpose of winding up its
affairs, and the assets of the Platform shall be liquidated by the
Sponsor.
(ii) The Sponsor may postpone notice of the dissolution or proposed
dissolution of the Platform or any Series to Members and/or third parties
until such time as the Sponsor determines that doing so would not
adversely affect the Platform or any Member.
(e) As soon as the Sponsor deems reasonably practicable after the
dissolution of the Platform, the Platform's assets shall be liquidated and
Distributed in the following manner and order of priority to the extent
permitted by Law:
(i) The claims of all creditors of the Platform which are not
Members shall be paid and discharged;
(ii) The claims of all creditors of the Platform which are Members
shall be paid and discharged; and
(iii) Any income, gain, or loss during the period of winding up
shall be allocated to the Members in accordance with Article III, and the
Members shall share in the remaining assets of the respective Series
equally with respect to each Unit of such Series held by them.
(f) The Sponsor shall determine whether any assets of the Platform shall
be liquidated through sale or, alternatively, shall be Distributed to the
Members in kind.
(g) Upon the dissolution of the Platform or a Series, neither the name of
the Platform or such Series nor its good-will, if any, shall be considered to
be an asset of the Platform, such name and its derivatives to be the sole
property of the Sponsor or its designee. No value shall be placed on the
Platform or any Series name or good-will for the purpose of liquidation or for
any other purpose during the continuation of the Platform or such Series.
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(h) In the event that the Platform is liquidated, with regard to each
Series, Distributions shall be made only to Members with positive Capital
Accounts, in compliance with applicable Treasury Regulations.
(i) All Distributions shall be subject to any Reserves that the Sponsor
may establish.
(j) Any Distributions that would otherwise be made to a Member shall be
retained by the Platform (for Distribution to the other Members) to the extent
of any amounts owed by such Member.
(k) Upon dissolution of the Platform, no Member shall have any obligation
(other than as may arise under Section 3.10) to make any Capital Contribution
with respect to any deficit Capital Account balance, and no such deficit shall
be considered a debt owed by any such Member to the Platform or to any other
Member for any purpose whatsoever.
Section 5.2 Payment of Dissolution Proceeds. Dissolution proceeds shall
be paid out in the same manner as Redemption and Distribution proceeds
pursuant to Section 4.5.
Section 5.3 Removal of the Sponsor.
Notwithstanding anything to the contrary (implied or explicit) in
this Agreement, a majority by the Units of any Series can vote (in a meeting
or by written consent) to remove the Sponsor with respect to such Series and
replace the Sponsor with the third party of their choice, and the majority by
Net Asset Value of all outstanding Units can remove the Sponsor with respect
to the Platform and all Series to the same effect.
ARTICLE VI
PLATFORM EXPENSES
Section 6.1 Platform Expenses.
(a) (i) The Sponsor shall pay, and each Series shall reimburse the
Sponsor for such payment of, all operating costs of any nature related to
the Platform's and the relevant Trading Fund's operations and business
(including the retention and attraction of capital), the Sponsor's Fees
set forth in Section 2.9, the Administrative Fee and any indemnification
expenses provided for in Sections 2.7; provided that the Series shall not
bear any of the Sponsor's internal expenses such as office rent, salaries
and bonuses. Such operating costs are allocated pro rata among the Units
of the applicable Series based on their respective Net Asset Values.
(ii) For the avoidance of doubt, the operating costs paid by each
Series shall include: ongoing offering expenses; execution and clearing
brokerage commissions; forward and other over-the-counter trading
spreads; administrative, transfer, exchange and Redemption processing,
legal, regulatory, reporting, filing, tax, audit, escrow, accounting and
printing fees and expenses, as well as extraordinary expenses.
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(iii) The Sponsor may retain outside service providers to supply
certain services to the Platform, including, without limitation, tax
reporting, accounting and escrow services. Operating costs include the
respective Series' allocable share of the fees and expenses of such
outside service providers, as well as the fees and expenses of any
Sponsor Party or other service provider which may provide such (or other)
services in the future.
ARTICLE VII
BOOKS OF ACCOUNT; REPORTS
Section 7.1 Books of Account.
(a) The Platform shall keep its books of account at its principal place
of business (or at such other location as the Sponsor may designate) using a
method of accounting selected by the Sponsor, provided that Capital Accounts
shall be maintained in accordance with the terms of this Agreement.
(b) Notwithstanding any provisions of this Agreement or any Separate
Series Agreement to the contrary, pursuant to Section 18-215 of the Act,
separate and distinct books and records shall be maintained with respect to
each Series.
(c) Members participating in a Series may inspect the books of account of
the Platform with regard to such Series during normal business hours at the
office of the Platform for any valid, non-commercial, equitable purposes
relating to such Member's status as a Member or as required by Law. Members'
inspection rights shall not include the right to copy any books or records,
shall be limited to the financial ledgers of the Series in which such Members
participate or information relating to a Series in which the Member does not
participate, and shall specifically not include the right to inspect: (i)
trading records; (ii) the Platform's or any Trading Fund's portfolio at any
point in time; (iii) proprietary information relating to the strategies
implemented by the Sponsor or any Affiliate thereof on behalf of the Platform;
or (iv) the names or other identifying features of other Members.
(d) Any inspection of the Platform's books and records shall be permitted
only upon reasonable prior notice (no fewer than 10 business days) to the
Sponsor, and shall be at the expense of the Member requesting such inspection.
(e) The accounts of the Platform shall be audited (at the expense of each
Series) as of the close of each Fiscal Year by a nationally recognized
independent public accounting firm selected by the Sponsor.
Section 7.2 Reports. As soon as practicable after the end of each Fiscal
Year, the Platform shall furnish to each Member:
(a) the audited balance sheet and income statement of each Series as of
the end of and for such Fiscal Year;
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(b) such Member's Unit balances as of the end of such Fiscal Year
(separately indicating the Unit balances attributable to each Series);
(c) the percentage change in the Member's Unit balances during the latest
such Fiscal Year (separately indicating such change in the Unit balances
attributable to each Series);
(d) a copy of Schedule K-l to each Series' federal income tax return for
such Fiscal Year, in a form sufficient to enable the Member to determine the
share of Tax Items allocable to such Member's Capital Account(s); and
(e) Each Series may not be able to deliver financial statements and
Schedule K-1 to its federal income tax return to each Member prior to the time
that such Member is required to file such Member's federal income tax returns
without extensions, and the Sponsor shall not be liable to the Platform, a
Series or any Member for its inability to do so, provided that the Sponsor
acts in a manner consistent with the implied covenant of good faith and fair
dealing set forth in Section 2.6.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Binding Effect; Creditors.
(a) This Agreement shall be binding upon and inure to the benefit of the
Members, the Indemnified Parties and their respective successors, permitted
assigns, heirs and legal representatives.
(b) None of the provisions of this Agreement shall be for the benefit of,
or enforceable by, any creditor of any Member or of the Platform. No creditor
which makes a loan to a Member or to the Platform may have or acquire, solely
as a result of making such loan, any Units or interest in the profits or
property of the Platform, other than such Units or interest in the profits or
property of the Platform that may be expressly granted to such creditor, with
the written consent of the Sponsor, pursuant to the terms of such loan.
Section 8.2 Notices; Consents. All notices and consents (including votes
and waivers) under this Agreement shall be in writing and shall be deemed to
have been duly given if (a) personally delivered (with receipt thereof
acknowledged in writing), (b) sent by facsimile, e-mail, digital image file or
any other electronic format (collectively, "facsimile"), in each case with
receipt of the transmission confirmed (and, unless waived by the recipient
upon such receipt, confirmed by delivery in another manner permitted
hereunder), (c) if mailed by pre-paid certified mail, return receipt requested
or (d) sent by reputable overnight courier (receipt confirmed), in each case
to the parties at the following addresses (or at such other address as the
Platform or a Member may have specified to the other by notice as provided
herein):
(a) If to a Member, to such Member at the address set forth in such
Member's Subscription Agreement or other written instrument acceptable to the
Sponsor.
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(b) (i) Notices given in accordance with this Section 8.2 shall be
deemed given on the date of receipt, if delivered personally, by
facsimile or by e-mail, on the first business day after being sent
by a reputable courier service and on the third business day after
being posted.
(ii) Notices of Redemptions shall be deemed given only when actually
received by the Platform.
(c) Any notice required hereunder need not be prior notice unless
expressly so specified.
(d) Any notice period specified herein shall end on the close of business
on the day that is the prescribed number of days following the first day of
the relevant period, unless that day is not a business day, in which case such
notice period shall end as of the close of business on the next succeeding
business day.
Section 8.3 Counterparts; Facsimiles; Power of Attorney.
(a) This Agreement may be executed in counterparts with the same effect
as if the parties had all executed the same copy, each of which shall,
however, together constitute one and the same document.
(b) Facsimiles of executed documents shall, for all purposes of this
Agreement and all transactions into which the Platform enters, have the same
force and effect as executed originals.
(c) The Platform shall be authorized to accept and execute any
instructions given by a Member in respect of such Member's Units, either in
original signed form or by facsimile. If instructions are given by facsimile,
the Member shall promptly courier the original signed form to the Sponsor and
will indemnify the Sponsor, the Platform and the Sponsor Parties for any
losses or damages suffered by the Sponsor, the Platform or any Sponsor Party
as a result of acting on facsimile instructions rather than instructions in
original signed form; provided, however, the failure of a Member to deliver
the original signed form shall not vitiate the instructions contained in the
facsimile. The Sponsor, the Platform and the Sponsor Parties are entitled to
rely conclusively, and shall incur no liability in respect of any action taken
or omitted, on the basis of any notice, consent, request, instruction or other
instrument believed in good faith to be genuine or to be signed by properly
authorized persons.
(d) This Agreement may be executed by power-of-attorney embodied in a
Subscription Agreement or other written instrument with the same effect as if
the parties executing the Subscription Agreement or other written instrument
had all executed the same copy.
Section 8.4 Entire Agreement. This Agreement, together with the
Subscription Agreement executed and delivered by each Member (other than the
Sponsor, if applicable) and the Separate Series Agreement established by each
Series, sets forth the entire agreement and understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements and
undertakings with respect hereto, except that the foregoing shall not
supersede
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any agreement between any employee or consultant of a Sponsor Party and
such Sponsor Party or between any service provider and a Sponsor Party or
a Sponsor client.
Section 8.5 Amendment.
(a) (i) Subject to Section 8.5(a) this Agreement (as well as any or all
Separate Series Agreements) may be amended or modified at any time
with the consent of the Sponsor and of a majority of the Voting
Rights; provided that amendments or modifications which affect only
certain Series shall require only the consent of the Sponsor and
majority of the Voting Rights associated with such Series. The
consent of Members other than the Sponsor may be given through any
of the methods provided in Section 8.6.
(ii) The Sponsor, without obtaining the consent of any Member, may
amend this Agreement (as well as any or all Separate Series Agreements)
for any of the following purposes: (A) in order to correct ambiguities,
defects, inconsistencies and typographical errors; (B) in any respect
that does not materially adversely affect the rights of the Members as a
whole; (C) to avoid an Impermissible Event; and (D) in whatever manner
the Sponsor may determine to be necessary or advisable in order for this
Agreement and the Platform to comply with Law or any contractual
provision.
(iii) Notwithstanding the foregoing, no amendment may be made to
this Agreement (or to any Separate Series Agreement) without the
unanimous consent of the Members (given by any of the methods set forth
in Section 8.6), if such amendment would: (A) adversely affect the
limited liability of the Members under Law; (B) expose one Series to
debts and obligations of any other Series; or (C) cause the Platform to
cease to be treated as a partnership for federal income tax purposes
(unless doing so would increase the net after-tax return of the
Platform's trading to investors).
(iv) The Sponsor shall promptly notify all Members of all
amendments.
(b) This Agreement may be amended as provided in Section 8.5(a),
irrespective of whether such amendment diminishes a Member's rights hereunder;
provided, that without such Member's prior written consent, no Member's
Capital Account(s) may be reduced by any such amendment.
(c) The Sponsor may execute, on the Platform's behalf, any agreement,
instrument or document containing any amendment approved as provided in
Section 8.5(a) in any manner contemplated by Section 8.6 pursuant to the power
of attorney granted to the Sponsor in Section 8.10.
(d) Any amendment approved as provided in Section 8.5(a) shall be treated
as if such amendment had been approved by all Members, irrespective of whether
fewer than all Members voted (including as contemplated by Section 8.6) in
favor of such amendment.
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Section 8.6 Consent of the Members.
(a) Whenever the Members are asked to vote on or consent to any action
relating to the Platform, including any amendment or modification to this
Agreement, whether or not requiring unanimous consent, a Member may vote in
favor of or give consent to such action either affirmatively or negatively, if
the Sponsor receives no notice of objection from such Member within 20 days of
giving notice to such Member of such action.
Section 8.7 Waivers.
(a) Except as otherwise expressly provided herein, the Sponsor may waive
any provisions of this Agreement, and may do so with respect to one or more,
but not other, Members (similarly situated or otherwise), provided that the
Sponsor reasonably believes that doing so will not materially adversely affect
the Platform.
(b) No failure or delay on the part of the Sponsor in exercising any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. Failure on the part of the Platform or the Sponsor to complain of any
act of the other or to declare the other in default under this Agreement,
irrespective of how long such failure continues, shall not constitute a waiver
by the Platform or the Sponsor of its rights with respect to such default.
(c) No consent or waiver, express or implied, to or of any breach or
default in the performance of any obligation hereunder, shall constitute a
consent to or waiver of any other breach or default in the performance of the
same or of any other obligation hereunder.
Section 8.8 No Partition.
(a) Each Member irrevocably waives any right that such Member might
otherwise have had to maintain any claim for partition with respect to any
property of the Platform or to compel any sale or appraisal of any Platform
asset or any sale or appraisal of a deceased Member's Interest.
(b) The Members shall not hold undivided interests in any asset of the
Platform or Series, but rather an interest in the Platform itself and the
Series themselves, which shall for all purposes be considered to constitute
personal property.
Section 8.9 Meetings.
(a) (i) Although not contemplated or required, Platform meetings may be
called by the Sponsor, at the expense of the Platform, to consider any
Platform matter upon which the Members may be entitled to vote or for any
other purpose related to the business of the Platform.
(ii) Platform meetings may include all Members or only Members
participating in certain Series, as the Sponsor may determine.
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(b) For the avoidance of doubt, no Sponsor Party shall have any liability
to the Platform or any Member for any failure to call a meeting under this
Section 8.9, provided that such Sponsor Party's conduct in not doing so is
consistent with the standard set forth in Section 2.6.
Section 8.10 Power of Attorney. Each Member hereby irrevocably
constitutes and appoints the Sponsor to be such Member's true and lawful
attorney, in such Member's name, place and stead, to make, execute,
acknowledge, file and publish, as the Sponsor may deem necessary or advisable:
(a) all subscription agreements and other documents relating to the
Series investments in and withdrawals from the Trading Funds;
(b) any certificates and other instruments that may be required to be
filed by the Platform under the laws of the State of Delaware or any other
governmental authority having jurisdiction in the premises, or which the
Sponsor shall deem necessary or advisable to file;
(c) any certificate or other instruments amending or modifying the
Certificate of Formation of the Platform to evidence any changes in that
Certificate in accordance with the terms of this Agreement;
(d) any certificates or other instruments that may be required to effect
the dissolution and termination of the Platform and the cancellation of the
Certificate of Formation of the Platform;
(e) this Agreement, any Separate Series Agreement and any amendment to
this Agreement that the Sponsor is authorized to make in accordance with the
terms of this Agreement and the applicable Separate Series Agreement;
(f) any documents required in connection with brokerage, counterparty,
banking or other accounts of the Platform; and
(g) any other documents which the Sponsor may deem necessary or advisable
for the conduct of the business of the Platform.
This power of attorney is coupled with an interest, and all Members will
collectively rely on the effectiveness hereof. This power of attorney shall be
irrevocable and shall survive the death or disability of a Member and any
Transfer of the whole or any part of the Units held by a Member and shall be
binding upon any Transferee of all or a portion of such Units.
Section 8.11 Voluntary Limitation on a Member's Series Voting Rights.
(a) Each Member's "Voting Rights" shall be preliminarily determined as
equal to the fraction, expressed as a percentage, the numerator of which is
the aggregate balance in such Member's Capital Accounts as of the beginning of
the month of determination and the denominator of which is the aggregate
balances in all Members' Capital Accounts as of the beginning of the month of
determination.
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(b) Voting Rights with respect to different matters shall be determined
solely in accordance with respect to the balances attributable to the affected
Series, in the event that only certain Series are affected.
(c) In the event that a Member indicates in such Member's Subscription
Agreement or by other written notice to the Sponsor that such Member does not
wish to hold Voting Rights in excess of a specified percentage (which may be
0%) of the aggregate Voting Rights, the Sponsor by accepting such Subscription
Agreement or other written notice shall agree to such Member waiving, in whole
or in part, what would otherwise have been such Member's Voting Rights, and
such waiver shall be irrevocable and such Member shall not exercise any Voting
Rights in excess of such specified percentage. The Voting Rights so waived
shall thereupon be deemed to be held by the other Members, subject to whatever
limitation on their Voting Rights they may elect by the same process, pro rata
in accordance with their respective Voting Rights.
(d) A Member may request not only that such Member's Voting Rights be
limited, but that such Member's Voting Rights with respect to each Series in
which such Member participates be equally limited.
Section 8.12 Voluntary Limitation on a Member's Series Percentage.
(a) A Member may, in such Member's Subscription Agreement or by other
written notice to the Sponsor, elect to have the Platform make Distributions
to such Member in an amount so that each of such Member's Series Percentage
shall not exceed, as of the immediately following calendar quarter-end, 24.9%
percent (or any other specified percentage acceptable to the Sponsor) in the
case of any Series. No Redemption charges or Gate shall be imposed upon any
such Distributions other than those applied by the Trading Fund from which
such Member is withdrawing.
(b) Each member acknowledges and agrees that due to the Platform's
limited ability to withdraw from the Trading Funds, the Platform may not be
able to limit Members' Series Percentage, as contemplated by this Section
8.12.
Section 8.13 Further Information and Documents. Each Member hereby
undertakes to furnish to the Sponsor any additional information that the
Sponsor may deem necessary or advisable in order that (a) the Platform, the
Sponsor or any of their respective Affiliates may comply with Law or (b) the
Platform may open and maintain an account or accounts with securities or
commodity brokerage firms. Each Member further undertakes to execute and
deliver such other agreements, documented statements of interest and holdings,
powers of attorney and other instruments as the Sponsor deems necessary or
advisable for the business of the Platform, provided that the same are not
inconsistent with the terms and provisions of this Agreement and do not
increase the liabilities or obligations of such Member beyond that provided
for in this Agreement.
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Section 8.14 GOVERNING LAW; VENUE.
(a) THIS AGREEMENT IS MADE PURSUANT TO AND SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF DELAWARE, NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT OR
ANY SUBSCRIPTION AGREEMENT IS EXECUTED BY ANY MEMBER OR PROSPECTIVE MEMBER OR
THE LOCATION OF ANY OFFICE, VENTURE OR OPERATION OF THE PLATFORM OR ANY
MEMBER. ANY ACTION OR PROCEEDING BROUGHT BY ANY MANAGING MEMBER PARTY AGAINST
ONE OR MORE MEMBERS OR THE PLATFORM RELATING IN ANY RESPECT TO THIS AGREEMENT,
THE OPERATION OF THE PLATFORM OR THE OFFERING OF THE UNITS MAY, AND ANY ACTION
OR PROCEEDING BROUGHT BY ANY OTHER PARTY AGAINST ANY MANAGER PARTY OR THE
PLATFORM RELATING IN ANY RESPECT TO THIS AGREEMENT, THE OPERATION OF THE
PLATFORM OR THE OFFERING OF THE UNITS SHALL, BE BROUGHT AND ENFORCED IN THE
CITY, COUNTY AND STATE OF NEW YORK OR (TO THE EXTENT SUBJECT MATTER
JURISDICTION EXISTS THEREFOR) IN THE COURTS OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND THE MEMBERS AND THE PLATFORM IRREVOCABLY
SUBMIT TO THE JURISDICTION OF BOTH SUCH STATE AND FEDERAL COURTS IN RESPECT OF
ANY SUCH ACTION OR PROCEEDING. THE MEMBERS AND THE PLATFORM IRREVOCABLY WAIVE
ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO LAYING THE VENUE OF ANY
SUCH ACTION OR PROCEEDING IN THE COURTS OF THE CITY, COUNTY AND STATE OF NEW
YORK OR IN THE COURTS OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK AND ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(b) EACH MEMBER HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY WITH
RESPECT TO ANY CLAIM AGAINST ANY MANAGER PARTY OR THE PLATFORM RELATING IN ANY
WAY TO THIS AGREEMENT, THE OPERATION OF THE PLATFORM OR THE OFFERING OF THE
UNITS.
(c) EACH MEMBER HEREBY AGREES THAT SERVICE OF PROCESS MAY BE EFFECTED ON
EACH MEMBER IN THE SAME MANNER AS NOTICES ARE GIVEN PURSUANT TO SECTION 8.2.
Section 8.15 Matters Not Provided For; Compliance with Law.
(a) The Sponsor shall be empowered to decide any question arising with
respect to the Platform or this Agreement, and to make such provisions as the
Sponsor deems to be in, or not opposed to, the interests of the Platform, but
which are not specifically set forth herein.
(b) In addition to the authority granted the Sponsor pursuant to Section
8.15(a), the Sponsor may, but shall have no obligation to, take any action
that the Sponsor deems necessary or advisable to ensure that the Platform is
not in violation of Law or in breach of any contractual provision, including
amending this Agreement. The Sponsor shall not, however, be liable or
responsible for any such violation or breach, provided that the Sponsor's
-34-
conduct with respect to such violation or breach is consistent with the
implied covenant of good faith and fair dealing set forth in Section 2.6.
(c) To the extent permissible by Law, in the case of any inconsistency
between this Agreement and the Act, the provisions of this Agreement shall
control.
Section 8.16 Severability. In the event that any provision of this
Agreement is held to be invalid or unenforceable in any jurisdiction, such
provision shall be deemed modified to the minimum extent necessary so that
such provision, as so modified, shall no longer be held to be invalid or
unenforceable. Any such modification, invalidity or unenforceability shall be
strictly limited both to such provision and to such jurisdiction, and in each
case to no other. Furthermore, in the event of any such modification,
invalidity or unenforceability, this Agreement shall be interpreted so as to
achieve the intent expressed herein to the greatest extent possible in the
jurisdiction in question and otherwise as set forth herein.
Section 8.17 Indirect Action.
(a) It is of the essence to this Agreement that no Member nor the Sponsor
be permitted to do indirectly -- by the use of Affiliates, agents, agreements,
contracts, reciprocal business dealings or any other means -- that which this
Agreement provides that such Member or the Sponsor not do directly.
Furthermore, it is the express intent of all Members and the Sponsor that all
Members and the Sponsor shall comply in all respects with the substantive
purposes of this Agreement and that technical compliance shall constitute a
breach hereof to the extent that it contravenes or does not fully achieve such
substantive purposes.
(b) The prohibition on indirect action in Section 8.17(a) shall in no
respect be deemed to be violated by the Sponsor causing the Platform to pay
the expenses of the type enumerated in Article VI or by the Platform entering
into "soft dollar" arrangements as contemplated by Section 2.3.
Section 8.18 Survival. Those agreements and undertakings set forth herein
which by their terms contemplate that they shall survive the withdrawal of a
Member or the termination of the Platform shall do so.
Section 8.19 Confidentiality; Tax Confidentiality.
(a) Each Member acknowledges that the business and assets of the Platform
and the Sponsor Parties are confidential and involve a wide range of
proprietary information, including trade secrets and financial or commercial
information, and that disclosure of any such information may cause competitive
harm to the Platform and/or the Sponsor Parties.
(b) All information with respect to such business and assets shall be
presumed confidential and proprietary unless the Sponsor otherwise so
indicates in writing. Each Member covenants that, except with the prior
written consent of the Sponsor, it has and it shall at all times keep
confidential and not, directly or indirectly, disclose, divulge, furnish or
make accessible to anyone, or use in any manner that would be adverse to the
interests of the Platform or any Sponsor Party, any confidential or
proprietary information to which such Member has been or shall become privy
relating to the business or assets of the Platform or of
-35-
any of the Sponsor Parties, except with the written approval of the Sponsor or
except for information that is otherwise publicly available (other than
information made publicly available by a Member relying on this exemption in
disclosing such information) or as required to be disclosed by Law; provided,
that before any disclosure of information otherwise subject to this Section
8.19(b) on the grounds that such information has otherwise become public or is
required by Law, the Member proposing to make such disclosure shall so inform
the Sponsor and shall give the Sponsor, to the greatest extent reasonably
practicable, an opportunity to contest whether such information has in fact
otherwise been made public or is required by Law to be disclosed. Such Member
shall only disclose such information if, and to the extent that, such
disclosure is affirmatively determined to be permitted on the basis of such
information otherwise having been made public or the disclosure being required
by Law. A Member may, however, share such information with such Member's
investment advisers, beneficial owners, accountants, attorneys, and spouses
("Permitted Confidants"); provided, that such Member's Permitted Confidants
undertake to hold such information strictly confidential to the same extent
set forth herein, and not in any manner or respect to use any of such
information for their personal gain; and provided further, that each Member
accepts full liability for any unauthorized use or disclosure of such
information by such Member's Permitted Confidants.
(c) Without limiting the generality of the foregoing, confidential and
proprietary information shall include: (i) any confidential information
regarding any Trading Fund or Trading Advisor or the Sponsor; (ii) any
information regarding a Member; (iii) the performance record of the Platform
and any other financial results or data of the Platform; and (iv) any
communication from any Sponsor Party or any of its representatives or
Affiliates. For the avoidance of doubt, no Member (other than the Sponsor, if
applicable) may provide information concerning the Platform to any party that
it has reason to believe shall disseminate such information in any form.
(d) Notwithstanding any other provision of this Agreement, the Sponsor
may keep confidential from the Members any information (i) the Sponsor
reasonably believes to be in the nature of trade secrets; (ii) the disclosure
of which the Sponsor reasonably believes is not in the best interest of the
Platform or could damage the Platform or its business; or (iii) which the
Platform is required by Law or agreement to keep confidential; provided that
the fact that the Sponsor has disclosed certain information shall not imply
that such information does not constitute information described in clauses
(i)-(iii) above.
(e) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE PLATFORM, EACH
SERIES AND EACH MEMBER, AND EACH EMPLOYEE, REPRESENTATIVE OR OTHER AGENT
THEREOF, MAY DISCLOSE TO ANY AND ALL PERSONS, WITHOUT LIMITATION OF ANY KIND,
THE FEDERAL AND STATE INCOME TAX TREATMENT AND THE FEDERAL AND STATE INCOME
TAX STRUCTURE OF THE TRANSACTIONS CONTEMPLATED HEREBY AND ALL MATERIALS OF ANY
KIND (INCLUDING OPINIONS OR OTHER TAX ANALYSES) THAT ARE PROVIDED TO SUCH
MEMBER RELATING TO SUCH TAX TREATMENT AND TAX STRUCTURE. THIS AUTHORIZATION OF
TAX DISCLOSURE IS RETROACTIVELY EFFECTIVE TO THE COMMENCEMENT OF DISCUSSIONS
-36-
AMONG THE PLATFORM OR ITS REPRESENTATIVES AND SUCH MEMBER REGARDING THE
TRANSACTIONS CONTEMPLATED HEREBY.
(f) Each Member agrees that the Platform, the affected Series and the
Sponsor would be subject to potentially irreparable injury as a result of any
breach by such Member of the covenants and agreements set forth in this
Section 8.19, and that monetary damages would not be sufficient to compensate
or make whole either the Platform, the affected Series or the Sponsor for any
such breach. Accordingly, each Member agrees that the Platform, the affected
Series and the Sponsor, separately or together, shall be entitled to equitable
and injunctive relief, on an emergency, temporary, preliminary and/or
permanent basis, to prevent any such breach or the continuation thereof.
Section 8.20 No Waiver of Federal or State Securities Law Claims. None of
the various exculpatory or indemnification provisions of hereof are to be
interpreted as in any respect resulting in a Member waiving any rights or
claims which such Member may have under any federal or state securities laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SPONSOR
UBS MANAGED FUND SERVICES INC.
By:
-------------------------------
Name:
Title:
THE MEMBER
By: UBS Managed Fund Services Inc.
Attorney-in-fact
By:
-------------------------------
Name:
Title:
-37-
EXHIBIT A
SEPARATE SERIES AGREEMENT
THIS SEPARATE SERIES AGREEMENT, dated as of ______, 200_ (this
"Series Agreement"), is entered into by and between the undersigned.
Capitalized terms used herein and not otherwise defined are used as defined in
the Limited Liability Company Agreement of UBS Managed Futures LLC dated as of
August [___], 2006 (as amended from time to time, the "Master Agreement").
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Master Agreement.
RECITALS
WHEREAS, UBS Managed Futures LLC (the "Platform") was heretofore
formed as a Delaware limited liability company pursuant to and is governed by
the Delaware Limited Liability Company Act, 6 Del. C. ss. 18-101, et seq., as
amended from time to time (the "Act") and the Master Agreement;
WHEREAS, the Platform hereby desires to establish and designate a
new Series (the "New Series"); and
WHEREAS, it is intended by the parties hereto that the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to the New Series be enforceable only against the assets
of the New Series, and not against the assets of the Platform generally or any
other Series, and none of the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to the Platform
generally shall be enforceable against the assets of the New Series.
NOW THEREFORE, in consideration of the mutual promises and
obligations contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
I. CREATION OF SERIES.
------------------
1. New Series.
----------
In accordance with the Master Agreement, the Platform hereby
establishes and designates the New Series, which shall be a "Series" for
purposes of the Master Agreement. For all purposes of the Act, this Series
Agreement, together with each other Separate Series Agreement and the Master
Agreement constitute the "limited liability company agreement" of the Platform
within the meaning of the Act. The terms and provisions of this Series
Agreement may have the effect of altering, supplementing or amending the terms
and provisions of the Master Agreement with respect to the New Series.
2. Name of New Series.
------------------
The name of the New Series created by this Series Agreement shall be
UBS Managed Futures LLC (______ Series).
Exh.-1
3. Trading Fund.
The New Series will invest substantially all of its capital in
[Trading Fund] (the "Trading Fund"). Notwithstanding anything in the Master
Agreement to the contrary, but subject to Section 2.1 of the Master Agreement,
the Sponsor, on behalf of the Platform on behalf of the New Series, is hereby
authorized and instructed to execute and deliver the Subscription Agreement
for the Platform and any and all other documents, agreements or certificates
contemplated by, or related to, the New Series' investments in the Trading
Fund.
4. For federal income tax purposes, the New Series intends
that it will be treated as separate business entity and shall be treated as a
separate partnership. The Sponsor shall make entity classification elections
as under the applicable Treasury Regulations, as necessary, for the New Series
to be treated as a separate partnership.
II. MISCELLANEOUS PROVISIONS.
------------------------
1. Incorporation by Reference.
---------------------------
"Article VIII -- Miscellaneous" of the Master Agreement is hereby
incorporated by reference into this Series Agreement, and shall apply to this
Series Agreement, mutatis mutandis, as if set forth in full herein.
2. Execution of Additional Instruments.
------------------------------------
Each party hereto hereby agrees to execute such other and further
statements of interests and holdings, designations and other instruments
necessary to comply with applicable Law, as determined by the Sponsor in its
discretion.
3. Counterparts.
------------
This Series Agreement may be executed in counterparts with the same
effect as if the parties had all executed the same copy. Facsimiles, digital
image files or any other electronic format of executed documents shall, for
all purposes of this Series Agreement, have the same force and effect as
executed originals.
[SIGNATURE PAGE FOLLOWS]
Exh.-2
IN WITNESS WHEREOF, the parties hereto have executed this Separate
Series Agreement as of the date first above written.
SPONSOR
UBS MANAGED FUND SERVICES INC.
By:
-------------------------------
Name:
Title:
THE MEMBERS
By: UBS Managed Fund Services Inc.
Attorney-in-fact
By:
-------------------------------
Name:
Title:
Exh.-3
SCHEDULE A
----------
MEMBER OF UBS MANAGED FUTURES LLC (_______SERIES)
-------------------------------------------------
Name Address Percentage Interest
---- ------- -------------------
[______] 100%
Sch-1