Exhibit 10.7
UBS MANAGED FUTURES (ASPECT) LLC
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
Dated as of October 26, 2006
UBS MANAGED FUTURES (ASPECT) LLC
(a Delaware Limited Liability Company)
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
This Limited Liability Company Operating Agreement ("Agreement")
is made and entered into as of October 26, 2006 by and among UBS MANAGED
FUTURES (ASPECT) LLC, a Delaware limited liability company (the "Trading
Fund"), and UBS Managed Futures LLC (Aspect Series), as the sole member of the
Trading Fund (the "Member").
PRELIMINARY STATEMENT
WHEREAS, previously there has been filed a Certificate of
Formation with the Secretary of State of the State of Delaware to organize the
Trading Fund under and pursuant to the Delaware Limited Liability Company Act,
as amended (the "Act");
WHEREAS, from inception UBS Managed Futures LLC (Aspect Series)
owned the sole membership interest of the Trading Fund;
WHEREAS, in accordance with the Act, each of the Trading Fund and
the sole Member desires to enter into this Agreement to set forth the rights,
powers and interests of the sole Member with respect to the Trading Fund and
to provide for the management of the business and operations of the Trading
Fund.
NOW, THEREFORE, in consideration of the mutual promises and
agreements made herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE I
ORGANIZATION
1.1. Formation. The Trading Fund has been organized as a Delaware
limited liability company under and pursuant to the Act by the filing of a
Certificate of Formation with the Secretary of State of Delaware as required
by the Act.
1.2. Name. The name of the Trading Fund is UBS MANAGED FUTURES
(ASPECT) LLC.
1.3. Term. The Trading Fund shall continue in existence until
December 31, 2030 or such other date as determined by the Member, unless
sooner terminated in accordance with the provisions of the Agreement and, to
the extent not superseded by this Agreement, the Act.
2
1.4. Purposes. The purposes of the Trading Fund are to engage in
any activity and/or business for which limited liability companies may be
formed under the Act. The Trading Fund shall have all the powers necessary or
convenient to effect any purpose for which it is formed, including all powers
granted by the Act.
1.5. Registered Office and Registered Agent; Principal Office.
(a) The registered office and the registered agent of the Trading
Fund in the State of Delaware are c/o The Corporation Trust Company,
Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
County of New Castle.
(b) The Trading Fund's principal place of business is located at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(c) The Member may, at any time and from time to time, change the
registered office, principal place of business and/or registered agent of the
Trading Fund.
(d) The Trading Fund may maintain such offices as the Member may,
at any time and from time to time, determine.
1.6. No State-Law Partnership. No provisions of this Agreement
shall be deemed or construed to constitute the Trading Fund as a partnership
(including, without limitation, a limited partnership) or joint venture for
any purposes.
ARTICLE II
THE MEMBER
The Member is the sole member of the Trading Fund and no other
person has any right to take part in the ownership of the Trading Fund.
ARTICLE III
CAPITAL CONTRIBUTIONS; CAPITAL WITHDRAWALS
3.1. Capital Contributions. The Member may make such capital
contributions (each a "Capital Contribution") in such amounts and at such
times as the Member shall determine. The Member shall not be obligated to make
any Capital Contributions.
3.2. Withdrawal of Capital. The Member may withdraw capital from
the Trading Fund in its discretion.
3.3. Interest. No interest shall be paid by the Trading Fund on
Capital Contributions, unless otherwise determined by the Member.
3
ARTICLE IV
ALLOCATIONS
Because the Trading Fund is a business entity that has a single
owner and is not a corporation, it is disregarded as an entity separate from
its owner for federal income tax purposes under Section 301.7701-2(c)(2)(i) of
the U.S. Treasury Regulations. Accordingly, all items of income, gain, loss,
deduction and credit of the Trading Fund for all taxable periods will be
treated for federal income tax purposes, and for state and local income and
other tax purposes to the extent permitted by applicable law, as realized or
incurred directly by the Member.
ARTICLE V
RIGHTS, POWERS AND OBLIGATIONS OF THE MEMBER
5.1. Authority. The Member has the authority and power to act for
or on behalf of the Trading Fund, to do any act that would be binding on the
Trading Fund, or to incur any expenditures on behalf of the Trading Fund.
5.2. Liability to Third Parties. The Member shall not be liable
for the debts, obligations or liabilities of the Trading Fund, including under
a judgment, decree or order of a court.
ARTICLE VI
OWNERSHIP OF COMPANY PROPERTY
The Trading Fund's assets shall be deemed to be owned by the
Trading Fund as an entity, and the Member shall have no ownership interest in
such assets or any portion thereof. Title to any or all such Trading Fund
assets may be held in the name of the Trading Fund, one or more nominees or in
"street name," as the Member may determine.
ARTICLE VII
BOOKS AND RECORDS
7.1. Availability of Books of Account.
(a) All of the books of account of the Trading Fund shall at all
times be maintained at the principal office of the Trading Fund, or at such
other place or places as may be designated by the Member.
(b) The Trading Fund shall continue to use the calendar year for
accounting and tax purposes.
4
7.2. Trading Fund Tax Returns. The Trading Fund shall file all tax
returns, if any, required to be filed by the Trading Fund.
7.3. Audits. The Trading Fund is not required to perform an audit
each fiscal year but will do so if requested by the Member.
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
8.1. Limitation of Liability and Indemnification of the Member.
(a) The Member and each person affiliated with the Member 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
Trading Fund, and shall be indemnified by the Trading Fund 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 Trading Fund 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.
(b) In the event an Indemnified Party 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 the Trading Fund's activities, obligations or
liabilities unrelated to such Indemnified Party's business, the Trading Fund
shall indemnify and reimburse the Indemnified Party for all loss and expense
incurred, including reasonable attorneys' fees.
(c) The Trading Fund shall not bear the cost of that portion of
any insurance which insures any party against any liability the
indemnification of which is herein prohibited. The Trading Fund may, but it
not obligated to, advance to an Indemnified Party sums necessary to pay legal
expenses and other costs incurred as a result of any legal action initiated
against such Indemnified Party.
(d) The rights of an Indemnified Party to indemnification shall
survive the dissolution of the Trading Fund and the death, withdrawal,
declaration of legal incapacity, dissolution, winding-up or bankruptcy of such
Indemnified Party.
(e) No Indemnified Party other than the Member may assert any
claim for indemnification hereunder without the prior written consent of the
Member, which the Member shall have no obligation whatsoever to give.
5
(f) The Indemnified Parties shall have no responsibility
whatsoever for any actions taken or omitted by the Trading Fund or any trading
advisor(s) or investment manager(s) to the Trading Fund.
ARTICLE IX
DISSOLUTION AND WINDING UP
9.1. Dissolution and Termination. The Trading Fund shall continue
until it is dissolved, its affairs wound up and its assets liquidated. The
dissolution of the Trading Fund shall commence on the first to occur of any of
the following events:
(a) at any time as determined by the Member; or
(b) a dissolution required pursuant to the Act (to the extent not
modified by this Agreement).
9.2. Final Distribution upon Liquidation. Upon the dissolution of
the Trading Fund, each of the following shall occur:
(a) The Trading Fund shall continue in existence for the purpose
of achieving an orderly liquidation, and the Member (for the purposes of this
Section 9.2, the term, "Member" shall include any other person designated by
the Member to perform the functions of the Member for the purposes of winding
up the Trading Fund's affairs, if the Member cannot or will not serve in such
capacity) shall wind up the Trading Fund's affairs.
(b) From time to time during the winding up, the Member may elect
to have the Trading Fund make distributions to the Member from assets
available to the Trading Fund. However, the Member shall cause the Trading
Fund to withhold such reserves as are required by law and such other reserves
as the Member may determine are necessary or advisable for payment of the
estimated expenses of liquidation and winding up, for unknown or unfixed
liabilities and/or contingencies and/or for any other reason.
(c) At such time as the Member has paid out all of the Trading
Fund's assets, including any reserves, and discharged all of the Trading
Fund's liabilities, the Trading Fund shall be terminated by the Member. The
Member shall cause all documents which the Member deems necessary or advisable
in connection with such termination to be filed.
6
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Entire Agreement. This Agreement contains the entire
agreement and understanding of the parties hereto relating to the subject
matter hereof and supersedes any prior agreement and understanding of the
parties relating to such subject matter.
10.2. 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.
10.3. Amendment. This Agreement may be amended, supplemented or
modified in such manner as the Member may determine.
10.4. Binding Effect; Benefit. This Agreement shall be binding
upon and shall inure to the benefit of all of the parties hereto, all persons
indemnified hereunder and their respective estates, permitted successors,
transferees, custodians, executors, administrators, legal representatives,
heirs and permitted assignees.
10.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the local, internal laws of the State of
Delaware. In particular, this Agreement is intended to comply with the
requirements of the Act and the Certificate of Formation of the Trading Fund.
In the event of a direct conflict between the provisions of this Agreement and
the mandatory provisions of the Act or any provision of the Certificate of
Formation of the Trading Fund, the Act and the Certificate of Formation, in
that order of priority, will control.
10.6. Headings and Captions. All headings and captions contained
in this Agreement are included for convenience of reference only and shall not
be deemed a part of this Agreement.
10.7. Terms Generally. The definitions of terms in this Agreement
shall apply equally to the singular and plural forms of the terms defined. 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 unless the context otherwise requires; and "and" shall not be
interpreted to require the conjunctive, in each case unless the context
otherwise requires. The terms "include" and "including" 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"), in each case unless
the context otherwise requires.
7
10.8. Creditors. None of the provisions of this Agreement shall be
for the benefit of, or enforceable by, any creditor of the Member or of the
Trading Fund. No creditor who makes a loan to the Member or to the Trading
Fund may have or acquire, solely as a result of making such loan, any
membership interest or interest in the profits or property of the Trading
Fund, other than such membership interest or interest in the profits or
property of the Trading Fund that may be expressly granted to such creditor,
with the written consent of the Member, pursuant to the terms of such loan.
8
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the dates set beside their names, to be effective on the date
first above written.
UBS MANAGED FUTURES LLC
(ASPECT SERIES)
By: UBS Managed Fund Services
Inc., Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Counsel
UBS MANAGED FUTURES (ASPECT)
LLC
By: UBS Managed Futures LLC
(Aspect Series), Sole Member
By: UBS Managed Fund Services
Inc., Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Counsel
9