Exhibit 10.1
UBS MANAGED FUTURES PLATFORM
ADVISORY AGREEMENT
Dated as of September 25, 2006
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among
UBS MANAGED FUTURES (ASPECT) LLC
UBS MANAGED FUND SERVICES INC.
and
ASPECT CAPITAL LIMITED
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UBS MANAGED FUTURES PLATFORM
ADVISORY AGREEMENT
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TABLE OF CONTENTS
Section Page
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1. Duties of the Trading Advisor ....................................... 2
2. Standard of Liability; Indemnification .............................. 3
3. Limits on Claims .................................................... 5
4. Trading Advisor's Closing Obligations ............................... 5
5. Independent Contractor Status ....................................... 6
6. Confidentiality ..................................................... 6
7. Clearing Broker; Executing Broker ................................... 7
8. Brokerage Confirmations and Reports ................................. 7
9. Fees ................................................................ 8
10. Term and Termination; Removal of the Sponsor ........................ 8
11. Liquidation of Positions ............................................ 9
12. Other Accounts of the Trading Advisor; Exclusivity .................. 10
13. Speculative Position Limits ......................................... 11
14. Redemptions, Exchanges, Distributions, Subscriptions ................ 11
15. The Trading Advisor's Representations and Warranties ................ 11
16. The Sponsor's Representations and Warranties ........................ 13
17. Assignment .......................................................... 15
18. Successors .......................................................... 15
19. Amendment or Modification or Waiver ................................. 15
20. Notices ............................................................. 15
21. Governing Law ....................................................... 16
22. Survival ............................................................ 16
23. Disclosure Document Modifications ................................... 16
24. Promotional Literature .............................................. 16
25. No Waiver ........................................................... 16
26. No Liability of Members ............................................. 17
27. Third-Party Beneficiaries ........................................... 17
28. Headings ............................................................ 17
29. Complete Agreement .................................................. 17
30. Counterparts ........................................................ 17
31. Miscellaneous ....................................................... 17
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Appendix A -- Fee Schedule............................................... ▇-▇
▇▇▇▇▇▇▇▇ ▇ -- Trading Policies........................................... B-1
Appendix C -- List of Futures Interests.................................. C-1
UBS MANAGED FUTURES PLATFORM
ADVISORY AGREEMENT
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This Advisory Agreement (the "Agreement"), made as of this 25th day of
September, 2006, among UBS MANAGED FUTURES (ASPECT) LLC, a Delaware limited
liability company (the "Trading Fund"), UBS MANAGED FUND SERVICES INC., a
Delaware corporation (the "Sponsor") and ASPECT CAPITAL LIMITED (the "Trading
Advisor"), a limited liability company registered in England and Wales;
WHEREAS, the Trading Fund has been organized to trade, buy, sell or
otherwise acquire, hold or dispose of forward contracts (including, for the
avoidance of doubt, LME and FX forwards), futures contracts for commodities,
financial instruments and currencies, rights pertaining thereto and options
thereon or on physical commodities (collectively, "Futures Interests") and
engage in all activities incident thereto;
WHEREAS, the sole investor in the Trading Fund will be UBS MANAGED
FUTURES LLC (ASPECT SERIES), a series of a Delaware limited liability company
(the "Aspect Series");
WHEREAS, the Aspect Series is a "protected cell" of UBS Managed Futures
LLC, a series limited liability company established under the law of the State
of Delaware (the "Platform");
WHEREAS, the Aspect Series will invest substantially all of the proceeds
of the sale of its units of limited liability company interest ("Units") in
the Trading Fund;
WHEREAS, the Sponsor will act as manager of the Trading Fund;
WHEREAS, the Sponsor has selected the Trading Advisor to have authority
over the Trading Fund's trading of Futures Interests;
WHEREAS, the Trading Advisor is willing to manage the Trading Fund's
Futures Interest trading;
WHEREAS, the Trading Fund's trading of Futures Interests is described in
the Platform's Confidential Disclosure Document, as supplemented and amended
from time to time (the "Memorandum"), which will be filed with the National
Futures Association (the "NFA") pursuant to the Commodity Exchange Act, as
amended (the "CEA"), the commodity pool operator and commodity trading advisor
regulations promulgated under the CEA (the "Commodity Regulations") by the
Commodity Futures Trading Commission ("CFTC"), and NFA rules promulgated under
the CEA (the "NFA Rules"); and
WHEREAS, the Trading Advisor's current Disclosure Document delivered to
the Sponsor (the "Disclosure Document") has been filed with the NFA pursuant
to the CEA.
NOW, THEREFORE, the parties hereto do hereby agree as follows, for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in entering into this Agreement the parties intend to be
legally bound:
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1. Duties of the Trading Advisor.
(a) (i) The Sponsor shall appoint the Trading Advisor to have
discretionary authority and responsibility for independently directing
the Futures Interest trading pursuant to the trading program and
strategy agreed upon by the Sponsor and the Trading Advisor and
disclosed in the Memorandum (the "Program"), as the same may be modified
from time to time by the Trading Advisor as a result of its ongoing
commitment to research and development. Any such change will not be
deemed to constitute a material change to the Investment Objective or
Investment Policy (each term as defined in the Disclosure Document) and
may be made without prior notification to the Sponsor. However, any
material change to the Investment Objective or Investment Policy (each
term as defined in the Disclosure Document) (such change to be
determined as material in the Trading Advisor's reasonable discretion)
will only be made upon giving the Sponsor at least twenty Business Days'
prior written notice (a "Business Day" means any day on which banks in
New York City are not required or authorized to close). The Trading
Advisor may, on behalf of the Trading Fund and subject to Section
1(a)(iii) and Section 7, execute transactions in Futures Interests on
either a principal or an agency basis, with or through affiliates of the
Sponsor or third parties. This limited authority granted to the Trading
Advisor is a continuing power and shall continue in effect with respect
to the Trading Advisor until terminated hereunder.
(ii) In the event the Trading Advisor proposes to make any material
changes to the Program, the Trading Advisor will so inform the Sponsor and
will not make any such change -- with respect to the Trading Fund, not the
Trading Advisor's other accounts -- to which the Sponsor objects (in which
case the Trading Advisor will be free to terminate this Agreement pursuant to
Section 10). "Material changes" for such purposes shall not include simply
adding or removing a Futures Interest to or from the group of Futures
Interests traded on behalf of the Trading Fund (subject to Section 1(c)).
(iii) The management and operation of the Trading Fund and the
determination of its policies shall be vested exclusively in the Sponsor. The
Sponsor shall have the authority and power on behalf and in the name of the
Trading Fund to carry out any and all of the objectives and purposes of the
Trading Fund set forth in the Trading Fund's Limited Liability Company
Operating Agreement, and to perform all acts and enter into and perform all
contracts and other undertakings which the Sponsor may deem necessary or
advisable in connection with such objectives and purposes or incidental
thereto; provided that the Trading Advisor shall at all times have
discretionary authority and responsibility for independently directing the
Futures Interest trading pursuant to Section 1(a)(i). For the avoidance of
doubt, notwithstanding the fact that the Trading Advisor is not authorized to
enter into any agreements or undertakings on behalf of the Trading Fund and
may trade Futures Interests for the Trading Fund only pursuant to the Program,
it may enter into such give-up agreements with the executing brokers as the
Trading Advisor considers necessary or appropriate in its reasonable
discretion; provided, however, that the Trading Fund shall be a signatory to
such give-up agreements, unless the Sponsor and the Trading Advisor otherwise
mutually agree.
(iv) All actions and determinations to be made by the Sponsor hereunder
shall, unless otherwise expressly provided, be made in the Sponsor's sole and
absolute discretion.
(b) The Trading Advisor is aware that certain futures and options on
futures -- generally certain stock index futures and options (for the
avoidance of doubt, including, but not limited to, all non-CFTC-approved
contracts) -- may not be traded on behalf of United States persons and agrees
not to trade such Futures Interests for the account of the Trading Fund.
(c) The Trading Advisor agrees to the terms set forth in "Appendix B --
Trading Policies."
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(d) Subject to adequate assurances of confidentiality, the Trading
Advisor agrees that it will discuss with the Sponsor upon request any trading
methods, programs, systems or strategies used by it for trading customer
accounts which differ from the Program, provided, that nothing contained in
this Agreement shall require the Trading Advisor to disclose with respect to
such accounts what it deems to be proprietary or confidential information.
(e) The Trading Advisor agrees to provide the Sponsor with such
information concerning the Trading Advisor as the Sponsor may reasonably
request (other than the identity of the Trading Advisor's other customers or
proprietary or confidential information concerning the Program and/or details
of any other trading methods, programs, systems or strategies used by it for
trading other customers' accounts, except as may be required under Section
12(d) or (e)), subject to receipt of adequate assurances of confidentiality,
including, but not limited to, information regarding any actual or prospective
change in control, key personnel, the Program or financial condition.
(f) During the term of this Agreement, the Trading Advisor agrees to
provide the Sponsor with updated information related to the Program's
performance results within a reasonable period of time after the end of each
month or at other times as may be agreed from time to time between the Trading
Advisor and the Sponsor.
(g) The Trading Advisor shall be responsible for promptly reviewing all
oral and written confirmations it receives to determine that the trades made
for the Trading Fund were made in accordance with the Trading Advisor's
instructions. If the Trading Advisor determines that an error was made in
connection with a trade or that a trade was made other than in accordance with
the Trading Advisor's instructions, the Trading Advisor shall promptly notify
the Sponsor of this fact where such error is not corrected within three
Business Days of the Trading Advisor making such determination, and shall
utilize its reasonable best efforts to cause the error or discrepancy to be
corrected. All risks relating to transactions ordered by the Trading Advisor
on behalf of the Trading Fund (including any trading or system error that has
occurred in good faith) shall be borne by the Trading Fund as principal and,
accordingly, all gains or losses accruing shall belong to or be borne by the
Trading Fund; provided that, if a trading error resulting in losses is due to
an action or omission of the Trading Advisor not meeting the applicable
standard of conduct set forth in Section 2(a), such loss shall be borne by the
Trading Advisor.
2. Standard of Liability; Indemnification.
(a) The Trading Advisor and its affiliates and each of their officers,
employees, directors, shareholders and controlling persons (the "Trading
Advisor Parties") shall have no liability to the Sponsor, the Aspect Series,
the Trading Fund or to any owners of Units (the "Members"), 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) ("Losses"), for conduct undertaken as a
trading advisor to the Trading Fund or otherwise relating to any action or
omission of the Trading Advisor Parties (or alleged action or omission) in
connection with this Agreement; provided that, such action or omission (or
alleged action or omission) does not constitute gross negligence, willful
misconduct or breach of this Agreement or any fiduciary obligation to the
Trading Fund and was done in a manner reasonably believed to be in, or not
opposed to, the best interests of the Trading Fund. The indemnity provision
contained in this Section 2(a) shall not increase the liability of the Aspect
Series beyond the amount of its capital and profits (exclusive of
distributions or other returns of capital, including redemptions), if any, in
the Trading Fund.
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(b) Any indemnification under subsection (a) above, unless ordered by a
court or administrative forum, shall be made by the Trading Fund only as
authorized in the specific case and only upon a determination by independent
legal counsel selected by mutual agreement of the Sponsor and the Trading
Advisor in a written opinion that such indemnification is proper in the
circumstances because the Trading Advisor has met the applicable standard of
conduct set forth in Section 2(a) above.
(c) In the event the Sponsor, the Aspect Series or the Trading Fund and
their respective principals, affiliates, officers, employees and controlling
persons (the "Sponsor Parties") is made a party to any threatened, pending or
completed action, arbitration, claim, demand, dispute, lawsuit or other
proceeding (each a, "Proceeding") or otherwise incurs any Losses as a result
of, or in connection with, the activities or claimed activities of any Trading
Advisor Party unrelated to the Trading Fund's business, the Trading Advisor
shall indemnify, defend and hold harmless such Sponsor Parties against any
direct Losses incurred in connection therewith, except in circumstances where
such Proceeding arises either solely or partly as a result of the gross
negligence, willful misconduct or breach of this Agreement or any fiduciary
obligation owed by the relevant Sponsor Parties.
(d) The Trading Advisor Parties shall not be liable to the Sponsor
Parties (to the extent permitted by any applicable laws, statutes, rules,
regulations or orders and so far as not inconsistent with the provisions of
this Agreement) including any liability arising from the act or omission of
any Clearing Broker (as defined in Section 7), Executing Broker (as defined in
Section 7) or other counterparty, except that the Trading Advisor Parties
shall be liable to the Sponsor Parties for acts by the Trading Advisor Parties
with respect to the provision of services hereunder which constitute gross
negligence, willful misconduct or breach of this Agreement.
(e) (i) Promptly after receipt by any of the indemnified parties under
this Agreement of notice of any Proceeding, the party or parties seeking
indemnification (the "Indemnitee") shall notify the party from which
indemnification is sought (the "Indemnitor") in writing of the
commencement thereof if a claim with respect thereof is to be made under
this Agreement. Failure to notify an Indemnitor on a timely basis shall
only qualify the right to indemnity hereunder to the extent that such
failure is prejudicial to the Indemnitor.
(ii) The Indemnitor shall be entitled to participate in the
defense of any such Proceeding and to assume the defense thereof with the
assistance of counsel reasonably satisfactory to the Indemnitee(s). In any
such Proceeding, the Indemnitee(s) shall have the right to retain its or their
own counsel, but the fees and expenses of such counsel shall be at such
Indemnitee's own expense unless (A) otherwise agreed by the Indemnitor and
such Indemnitee or (B) the named parties to any such Proceeding (including any
impleaded parties) include both the Indemnitor and the Indemnitee(s), and
representation of the foregoing parties by the same counsel would be
inappropriate due to actual or potential differing interests between them or
the existence of different or additional defenses (it being understood,
however, that the Indemnitor shall not be liable for legal fees or other
expenses of more than one separate firm of attorneys for all such
Indemnitee(s), which firm shall be designated in writing by such Indemnitees
and be reasonably acceptable to the Indemnitor). The Indemnitee(s) shall
cooperate with the Indemnitor in connection with any such Proceeding and,
subject to the Indemnitor's ongoing obligation of confidentiality with regard
to such information, shall make all personnel, books and records relevant to
the Proceeding available to the Indemnitor and grant such authorizations or
powers of attorney to the agents, representatives and counsel of the
Indemnitor as the Indemnitor may reasonably consider desirable in connection
with the defense of any such Proceeding.
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(f) None of the indemnifications contained in this Section 2 shall be
applicable with respect to default judgments, confessions of judgment or
settlements entered into by the party or parties claiming indemnification
without the prior written consent, which shall not be unreasonably withheld,
of the party obligated to indemnify such party.
(g) The provisions of this Section 2 shall survive the termination of
this Agreement.
3. Limits on Claims.
(a) The Trading Advisor agrees that it will not take any of the
following actions against the Aspect Series or the Platform: (i) seek a decree
or order by a court having jurisdiction in the premises (A) for relief in
respect of the Aspect Series or the Platform in an involuntary case or
proceeding under the Federal Bankruptcy Code or any other federal or state
bankruptcy, insolvency, reorganization, rehabilitation, liquidation or similar
law or (B) adjudging the Aspect Series or the Platform bankrupt or insolvent,
or seeking reorganization, rehabilitation, liquidation, arrangement,
adjustment or composition of or in respect of the Aspect Series or the
Platform under the Federal Bankruptcy Code or any other applicable federal or
state law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Aspect Series or the Platform
or of any substantial part of any of their properties, or ordering the winding
up or liquidation of any of their affairs; (ii) seek a petition for relief,
reorganization or to take advantage of any law referred to in the preceding
clause; or (iii) file an involuntary petition for bankruptcy (collectively,
"Bankruptcy or Insolvency Action").
(b) In addition, the Trading Advisor agrees that for any obligations due
and owing to it by the Trading Fund, the Trading Advisor will look solely and
exclusively to the assets of the Trading Fund to satisfy its claims and will
not seek to attach or otherwise assert a claim against the assets of the
Aspect Series, the Platform, the Sponsor, UBS AG or any of their affiliates,
whether there is a Bankruptcy or Insolvency Action taken or otherwise. The
parties agree that this provision will survive the termination of this
Agreement, whether terminated in a Bankruptcy or Insolvency Action or
otherwise.
(c) This Agreement has been made and executed by and on behalf of the
Trading Fund and the Sponsor, and the obligations of the Trading Fund and/or
the Sponsor set forth herein are not binding upon any of the Members of the
Aspect Series individually but are binding only upon the assets and property
of the Trading Fund and no resort shall be had to the assets of any segregated
series of the Platform (each, a "Series") or the Platform or the Members'
personal property for the satisfaction of any obligation or claim hereunder.
For the avoidance of doubt, the parties hereto acknowledge and agree that the
Platform is organized in series pursuant to Section 18-215(b) of the Delaware
Limited Liability Company Act. As such, the debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with respect to
each Series shall be enforceable against the assets of such Series only, and
not against the assets of the Platform generally or the assets of any other
Series.
4. Trading Advisor's Closing Obligations.
On or prior to the Closing Date (as hereinafter defined) with respect to
the initial offering of the Aspect Series (the "Initial Closing Date"), and
thereafter, only if requested by the Sponsor, on or prior to each closing date
during the continuous offering of the Aspect Series (each a "Subsequent
Closing Date"), the Trading Advisor shall deliver or cause to be delivered, at
the expense of the Trading Advisor, to the Selling Agents (as defined in the
Memorandum, "Selling Agents"), the Aspect Series, the Trading Fund and the
Sponsor, the reports, certificates and documents described below addressed to
them and, except as may be set forth below, dated as of the Initial Closing
Date or the Subsequent Closing Date, as appropriate. Unless the context
otherwise requires, the Initial Closing Date and each Subsequent Closing Date
shall each be referred to as a "Closing Date:"
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(a) a report from the Trading Advisor which shall present, for the
period from the date after the last day covered by the Trading Advisor's
performance information as set forth in the Part One(B): Trading Advisor
Information of the Memorandum to the latest practicable month-end before the
Closing Date, figures which shall show the actual past performance of the
Program (or, if such actual past performance information is unavailable, then
the estimated past performance) for such period as well as any pro forma
performance information for such period reasonably requested by the Sponsor,
and which shall certify that, to the best of its knowledge, such figures are
complete and accurate in all material respects;
(b) a certificate of the Trading Advisor in the form proposed prior to
the Closing Date by counsel to the Sponsor, with such changes in such form as
are proposed by the Trading Advisor or its counsel and are acceptable to the
Sponsor and its counsel so as to make such form mutually acceptable to the
Sponsor, the Trading Advisor and their respective counsel, to the effect that:
(1) the representations and warranties of the Trading Advisor
contained in this Agreement are true and correct in all material
respects on the date of the certificate as though made on such date;
(2) nothing has come to the Trading Advisor's attention which
would cause the Trading Advisor to believe that, at any time from: (A)
the time the forms required to register the Units under the Securities
Exchange Act of 1934, as amended (such forms, collectively, the "Form
10"), initially became effective to (B) the Closing Date, the Form 10,
as amended from time to time, or the Memorandum, as supplemented or
amended from time to time, with respect to the Trading Advisor Parties,
or with respect to the Program or performance information, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein (with respect to the Memorandum, in light of the circumstances
in which they were made) not misleading; and
(3) the Trading Advisor has performed all covenants and agreements
herein contained to be performed on its part at or prior to the Closing
Date.
5. Independent Contractor Status.
The Trading Advisor shall for all purposes herein be deemed to be an
independent contractor with respect to the Sponsor and the Trading Fund, and
shall, unless otherwise expressly authorized, have no authority to act for or
to represent the Trading Fund, the Sponsor, any other commodity trading
advisor of the Platform or the Selling Agents in any way or otherwise be
deemed to be a general agent, joint venturer or partner of the Trading Fund,
the Sponsor, any other commodity trading advisor of the Platform or the
Selling Agents, or in any way be responsible for the acts or omissions of the
Trading Fund, the Sponsor, any other commodity trading advisor of the Platform
or the Selling Agents as long as it is acting independently of such persons.
6. Confidentiality.
The Sponsor acknowledges that the Program is the confidential property
of the Trading Advisor. Nothing in this Agreement shall require the Trading
Advisor to disclose the confidential or proprietary details of the Program
and/or the Trading Advisor's trading programs generally, its systems,
methodologies, trading techniques, research, strategies, models and other
commercial information, except only to the extent that such disclosure may be
legally compelled under applicable law or may be required under Section 12(d)
or (e). The Sponsor further agrees that it will keep confidential and will not
disclose to any third party or to its own employees other than on a "need to
know" basis the Trading Advisor's
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trading advice to the Trading Fund, except as, and to the extent that, it may
be determined by the Sponsor to be (a) necessary for the monitoring of the
business of the Trading Fund, including the performance of brokerage services
provided by the Trading Fund's commodity broker(s) or (b) expressly required
by: (i) any law or statute; (ii) governmental, regulatory or self-regulatory
agency or organization, rule, regulation or order; (iii) the request of any
governmental, regulatory or self-regulatory agency, organization, exchange or
other body; or (iv) valid legal process. The Trading Fund and the Sponsor
further agree that they shall not copy, disclose, misuse, misappropriate or
reverse engineer or otherwise appropriate or make use of in any manner the
investment and trading strategies, systems, algorithms, models, techniques,
methods, policies, programs and analyses previously, currently or hereafter
used by the Trading Advisor in the conduct of its business including all data,
details, components, specifications, codes, formulae, know-how (technical or
otherwise), electronic data processing systems, computer software programs and
computer hardware systems relating to the foregoing, and all embodiments,
articulations, applications, expressions and reproductions of any of the
foregoing including, without limitation, documents, notes, print-outs, work
papers, charts, diskettes, tapes and manuals.
7. Clearing Broker; Executing Broker.
(a) All Futures Interest trades, including foreign exchange trades, for
the accounts of the Trading Fund shall be cleared through such commodity
clearing broker or brokers as the Sponsor directs. At the present time it is
contemplated that the Trading Fund will clear all Futures Interest trades
through UBS Securities LLC (the "Clearing Broker") or its affiliates.
(b) All foreign exchange trades for the accounts of the Trading Fund
shall be executed through such commodity broker or brokers and banks (or other
forward dealers) as the Trading Advisor may consider necessary or appropriate
in its reasonable discretion and which are pre-approved by the Sponsor, which
approval shall not be unreasonably withheld.
(c) All Futures Interest trades, other than foreign exchange trades, for
the accounts of the Trading Fund shall be executed through such commodity
broker or brokers and banks (the "Executing Brokers") as the Trading Advisor
may consider necessary or appropriate in its reasonable discretion if such
broker(s) agree to "give up" all transactions to the Clearing Broker for
clearance subject to Section 1(a)(iii). If the Trading Fund is not a signatory
to the resulting give-up agreements pursuant to Section 1(a)(iii), the Trading
Advisor shall notify the Sponsor and the Trading Fund from time to time in
writing of the Executing Brokers selected by the Trading Advisor.
8. Brokerage Confirmations and Reports.
The Sponsor will instruct the Clearing Broker to furnish the Trading
Advisor with copies of all trade confirmations, daily equity runs and monthly
trading statements relating to the Trading Fund. The Trading Advisor will
maintain records and will monitor all open positions relating thereto;
provided, however, that the Trading Advisor shall not be responsible for any
errors by the Clearing Broker or any other brokers appointed pursuant to
Section 7 as long as the Trading Advisor's actions or omissions, if any,
relating to such error are consistent with the standard set forth in Section
2(a). The Sponsor will also furnish the Trading Advisor with a copy of the
form of all reports, including but not limited to, monthly, quarterly and
annual reports, sent to the Members, and copies of all reports filed with the
Securities and Exchange Commission, the CFTC or the NFA. The Trading Advisor
shall, at the Sponsor's request, make a good faith effort to provide the
Sponsor with copies of all trade confirmations, daily equity runs, monthly
trading reports or other reports sent to the Trading Advisor by the Clearing
Broker regarding the Trading Fund, provided that such confirmations and
reports are actually in the Trading Advisor's possession or control, as the
Sponsor deems appropriate and in circumstances where the Sponsor cannot
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obtain copies of these confirmations and reports on its own behalf. Upon
request, the Sponsor will provide the Trading Advisor with accurate
information with respect to the Trading Fund.
9. Fees.
(a) In consideration of and in compensation for the performance of the
Trading Advisor's services under this Agreement, the Trading Advisor shall
receive from the Trading Fund a management fee (the "Management Fee") and a
performance fee (the "Performance Fee") as set forth in the "Appendix A -- Fee
Schedule" hereto.
(b) Management Fees and Performance Fees (including, if applicable, any
United Kingdom value added tax or any analogous taxation thereon) shall be
paid within twenty Business Days following the end of the period for which
they are payable. For the avoidance of doubt, all fees and expenses payable
under this Agreement shall be stated exclusive of any United Kingdom value
added tax or any analogous taxation payable or chargeable thereon and, if
applicable, the Trading Fund shall pay to the Trading Advisor an amount equal
to any United Kingdom value added tax or any analogous taxation so chargeable
against production by the Trading Advisor of an appropriate tax invoice
addressed to the Trading Fund. If a Performance Fee shall have been paid by
the Trading Fund to the Trading Advisor in respect of any calendar quarter and
the Trading Advisor shall incur subsequent losses in trading on behalf of the
Trading Fund, the Trading Advisor shall nevertheless be entitled to retain
amounts previously paid to it in respect of New Net Trading Profits (as
defined in Appendix A).
(c) The Trading Advisor will be provided by the Sponsor with the data
used by the Sponsor to compute the foregoing fees within twenty Business Days
of the end of the relevant period.
10. Term and Termination; Removal of the Sponsor.
(a) This Agreement shall commence on the date hereof and, unless sooner
terminated pursuant to sections (b), (c), (e) or (f) of this Section 10, shall
continue in effect until the close of business on the last day of the month
ending thirty-six full months following the commencement of the Trading Fund's
trading activities (the "Initial Term"). After the expiration of the Initial
Term, unless sooner terminated, this Agreement shall be renewed automatically
on the same terms and conditions set forth herein for successive additional
one-year terms, each of which shall commence on the first day of the month
subsequent to the conclusion of the preceding twelve-month term or
thirty-six-month term, as the case may be. The automatic renewal(s) set forth
in the preceding sentence hereof shall not be affected by (i) any reallocation
of the Aspect Series' assets away from the Trading Advisor pursuant to this
Agreement, or (ii) the retention of other commodity trading advisors following
a reallocation, or otherwise.
(b) This Agreement may be terminated at any time at the election of the
Sponsor in its sole discretion upon at least one Business Day's prior written
notice to the Trading Advisor. The Sponsor will use its reasonable best
efforts to cause any termination to occur as of a month-end.
(c) The Trading Advisor shall have the right to terminate this Agreement
at any time upon forty-four Business Days' written notice to the Trading Fund
and the Sponsor in the event (i) of the receipt by the Trading Advisor of an
opinion of independent counsel satisfactory to the Trading Advisor and the
Trading Fund that by reason of the Trading Advisor's activities with respect
to the Trading Fund, it is required to register as an investment adviser under
the Investment Advisers Act of 1940, as amended, or under the laws of any
state and it is not so registered; (ii) that the registration of the Sponsor
as a commodity pool operator under the CEA, or its NFA membership in such
capacity, is revoked, suspended, terminated or not renewed; (iii) the Sponsor
imposes additional trading limitation(s) pursuant
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to Section 1 of this Agreement which the Trading Advisor does not agree to
follow in its management of the Trading Fund, or the Sponsor overrides trading
instructions of the Trading Advisor or does not consent to a material change
to the Program requested by the Trading Advisor; (iv) the Sponsor elects
(pursuant to Section 1 of this Agreement) to have the Trading Advisor use a
different Program in the Trading Advisor's management of the Trading Fund's
assets from that which the Trading Advisor is then using to manage such assets
and the Trading Advisor objects to using such different Program; (v) there is
an unauthorized assignment of this Agreement by the Trading Fund or the
Sponsor; (vi) there is a material breach of this Agreement by the Trading Fund
and/or the Sponsor after giving written notice to the Sponsor which identifies
such breach and such material breach has not been cured within ten Business
Days following receipt of such notice by the Sponsor; or (vii) other good
cause is shown and the written consent of the Sponsor is obtained (which shall
not be unreasonably withheld or delayed).
(d) In the event that this Agreement is terminated pursuant to this
Section 10 the Trading Advisor shall be entitled to, and the Trading Fund
shall pay, the Management Fee and the Performance Fee, if any, which shall be
computed (i) with respect to the Management Fee, on a pro rata basis, based
upon the portion of the month for which the Trading Advisor had such assets
under management, and (ii) with respect to the Performance Fee, if any, as if
the effective date of termination was the last day of the then current
calendar quarter. The rights of the Trading Advisor to fees earned through the
earlier to occur of the date of expiration or termination shall survive this
Agreement until satisfied.
(e) This Agreement shall terminate:
(1) immediately if the performance of this Agreement shall become
illegal under the laws of England; or
(2) immediately if the Trading Advisor ceases to hold the
appropriate authorization under Part IV of the United Kingdom's
Financial Services and Markets ▇▇▇ ▇▇▇▇ enabling the Trading Advisor to
carry out its duties under this Agreement; or
(3) immediately in the event that the Trading Advisor, the Sponsor
or the Trading Fund has become insolvent, a valid and binding petition
is presented for the winding up of any of them (other than a voluntary
liquidation for the purpose of reconstruction or amalgamation forthwith
to be carried into effect) or seeks to enter into a formal arrangement
with its creditors.
(f) Notwithstanding anything to the contrary (implied or explicit) in
this Agreement, a majority by the Units of the Aspect Series can vote (in a
meeting or by written consent) to remove the Sponsor with respect to the
Aspect Series and replace the Sponsor with the third party of their choice. If
the Sponsor is so removed, this Agreement, the Aspect Series and the Trading
Fund shall be terminated.
11. Liquidation of Positions.
The Trading Advisor agrees to liquidate open positions in the amount
that the Sponsor informs the Trading Advisor, in writing via telecopy or other
equivalent means, that the Sponsor considers necessary or advisable to
liquidate in order to (i) effect any termination or reallocation pursuant to
this Agreement, (ii) fund its pro rata share of any redemption, exchange,
distribution or Trading Fund expense or (iii) comply with any other provision
herein. The Sponsor shall not, however, have authority to instruct the Trading
Advisor as to which specific open positions to liquidate, except as otherwise
provided herein. The Sponsor shall provide the Trading Advisor with such
reasonable prior notice of such liquidation as is practicable under the
circumstances and will endeavor to provide at least one Business Days' prior
notice. The Trading Fund and the Sponsor hereby acknowledge that any such
9
liquidation of positions in the circumstances contemplated in this Section 11
may reduce the value of such positions relative to the amount that may have
been realized if the same had remained subject to the normal course of
application of the Program, and that the Trading Advisor shall have no
liability for any such reduction in value if such liquidation is made in a
manner consistent with the standard set forth in Section 2(a).
12. Other Accounts of the Trading Advisor; Exclusivity.
(a) The Trading Advisor shall be free to manage and trade accounts for
other investors (including other public and private commodity pools) during
the term of this Agreement and to use the same or other information and
trading approach utilized in the performance of services for the Trading Fund
for such other accounts so long as the Trading Advisor's ability to carry out
its obligations and duties to the Trading Fund pursuant to this Agreement is
not materially impaired thereby. In addition, the Trading Advisor Parties also
will be permitted to trade in Futures Interests using the Program or otherwise
for their own accounts, so long as the Trading Advisor's ability to carry out
its obligations and duties to the Trading Fund pursuant to this Agreement is
not materially impaired thereby. Neither the Trading Advisor nor the Trading
Advisor Parties shall be liable to account to the Sponsor or the Trading Fund
for any profit, commission or remuneration made or received from or by reason
of such transactions or any connected transactions and the Trading Advisor's
fees shall not, unless otherwise provided, be abated thereby.
(b) The Trading Fund and the Sponsor each agree that the Trading Advisor
may (but only in accordance with the rules set out in the Financial Services
Authority ("FSA") Handbooks (the "FSA Rules")) combine orders for the Trading
Fund with the Trading Advisor's own orders or orders of any Trading Advisor
Party, or with the orders of any other client of the Trading Advisor and that
such combination of orders may, on some occasions, produce a more favorable
price and, on others, a less favorable price than that which the Trading Fund
would have obtained had the Trading Fund's order been executed separately.
(c) During the period that the Trading Advisor is performing services
for the Trading Fund, the Trading Advisor agrees that it will not accept
additional capital for management in the Futures Interests markets if doing so
would have a reasonable likelihood of resulting in the Trading Advisor having
to modify the Program being used for the Trading Fund in a manner which might
reasonably be expected to have a material adverse effect on the Trading Fund.
(d) The Trading Advisor agrees, in its management of accounts other than
the account of the Trading Fund, that it will not knowingly or deliberately
favor on an overall basis any other account managed or controlled by it or any
of the Trading Advisor Parties (in whole or in part) over the Trading Fund.
The preceding sentence shall not be interpreted to preclude (i) the Trading
Advisor from charging another client fees which differ from the fees to be
paid to it hereunder or otherwise establishing business terms for an account
that are different than (and superior to) the business terms of the Trading
Fund or the Series; (ii) the use of a different trading approach for another
account, including a trading approach that is more profitable and/or less
volatile than the Program; or (iii) an adjustment by the Trading Advisor in
the implementation of the Program which is undertaken by the Trading Advisor
in good faith in order to accommodate additional accounts. The Trading
Advisor, upon reasonable request and receipt of adequate assurances of
confidentiality, shall provide the Sponsor with an explanation of the
differences, if any, in performance between the Trading Fund and any other
similar account traded pursuant to the Program for which the Trading Advisor
acts as a commodity trading advisor (in whole or in part).
10
(e) Upon the reasonable request of, and upon reasonable notice of not
less than three Business Days from, the Sponsor, the Trading Advisor shall
permit the Sponsor to review at the Trading Advisor's offices during normal
business hours such trading records as it reasonably may request for the
purpose of confirming that the Trading Fund has been treated equitably on an
overall basis with respect to advice rendered during the term of this
Agreement by the Trading Advisor in relation to other accounts managed by the
Trading Advisor pursuant to the Program (for the avoidance of doubt, the
parties acknowledge that the Sponsor may inspect, subject to such restrictions
as the Trading Advisor may reasonably deem necessary or advisable so as to
preserve the confidentiality of proprietary information and the identity of
its clients: (i) such trading records of the accounts managed by the Trading
Advisor pursuant to the Program and (ii) certain performance information of
other accounts traded pursuant to the Program, during normal business hours as
the Sponsor reasonably may request; in each case provided, however, that the
Trading Advisor shall not be required by the foregoing to reveal any
information the disclosure of which would cause the Trading Advisor to breach
any other contractual confidentiality obligations to which the Trading Advisor
is subject). The Trading Advisor may, in its discretion, withhold from any
such report or inspection the identity of the client for whom any such account
is maintained, and in any event the Sponsor shall keep confidential all such
information obtained by it from the Trading Advisor.
13. Speculative Position Limits.
If, at any time during the term of this Agreement, it appears to the
Trading Advisor that it may be required to aggregate the Trading Fund's
positions with the positions of any other accounts the Trading Advisor or any
other Trading Advisor Party owns or controls for purposes of applying the
speculative position limits of the CFTC, any exchange, self-regulatory body or
governmental authority, the Trading Advisor will notify the Sponsor as
promptly as reasonably practicable under the circumstances if the Trading
Fund's positions under the Trading Advisor's management are included in an
aggregate amount which equals or exceeds the applicable speculative limit. The
Trading Advisor agrees that, if its trading recommendations pursuant to the
Program are altered because of the potential application of speculative
position limits, the Trading Advisor will modify its trading instructions to
the Trading Fund and its other accounts in a good faith effort to achieve an
equitable treatment of all accounts (for the avoidance of doubt, the Trading
Advisor will liquidate Futures Interest positions and/or limit the taking of
new positions in all accounts it manages, including the Trading Fund, as
nearly as possible in proportion to the assets available for trading of the
respective accounts to the extent necessary to comply with applicable
speculative position limits). The Trading Advisor presently believes that the
Program can be implemented for the benefit of the Trading Fund notwithstanding
the possibility that, from time to time, speculative position limits may
become applicable.
14. Redemptions, Exchanges, Distributions, Subscriptions.
The Sponsor will use its reasonable efforts to give the Trading Advisor
at least three Business Days' prior written notice of any proposed
redemptions, exchanges or distributions as well as of any pending
subscriptions.
15. The Trading Advisor's Representations and Warranties.
The Trading Advisor represents and warrants to the Sponsor and the
Trading Fund that:
(a) All references to the Trading Advisor, its principals and the
Program in the Memorandum are complete and accurate in all material respects
and the Memorandum does not contain any untrue statement of a material fact
regarding the Trading Advisor, its principals or the Program or omit to state
a
11
material fact regarding the Trading Advisor, its principals or the Program
which is necessary to make the statements therein not misleading.
(b) The information with respect to the Trading Advisor set forth in the
actual performance tables in the Memorandum has been prepared in accordance
with such methods approved by the CFTC as described in the Disclosure
Document. The performance information relating to the Aspect Diversified Fund
presented in the Part One(B): Trading Advisor Information of the Memorandum is
not materially different than performance information representing a composite
of all of the Trading Advisor's accounts traded pursuant to the Program, and
the description of the Aspect Diversified Fund account contained in the
Memorandum is complete and accurate and has been called to the NFA's attention
and approved under CFTC Regulation 4.25. The Disclosure Document complies in
all material respects with the applicable regulations promulgated under the
CEA by the CFTC and the NFA Rules.
(c) The Trading Advisor is duly registered under the CEA as a commodity
trading advisor, is a member of the NFA in such capacity, is in compliance
with such other registration and licensing requirements as shall be necessary
to enable it to perform its obligations hereunder and agrees to maintain and
renew such registrations and licenses during the term of this Agreement.
(d) The Trading Advisor has complied, and will continue to comply, in
all material respects with all laws, statutes, rules, regulations and orders
having application to its business, properties and assets, the violation of
which might reasonably be expected, in the Trading Advisor's best knowledge
and belief, to materially and adversely affect its ability to comply with and
perform its obligations under this Agreement and in connection with the
offering of Units. As of the date hereof, there are no threatened, pending or
completed actions, arbitrations, claims, demands, disputes, lawsuits or other
proceedings, notices of investigation or investigations pending or, to the
best knowledge and belief of the Trading Advisor, threatened against any
Trading Advisor Party regarding noncompliance with any applicable laws,
statutes, rules, regulations or orders, or at law or in equity, or before or
by any court, any foreign, federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, or any
governmental, regulatory or self-regulatory agency, organization, exchange or
other body, in each case in which an adverse decision might reasonably be
expected, in the Trading Advisor's best knowledge and belief, to materially
and adversely affect its ability to comply with or perform its obligations
under this Agreement or result in a material adverse change in the condition,
financial or otherwise, business or prospects of the Trading Advisor.
(e) The Trading Advisor is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation and has full
power and authority to enter into this Agreement and to provide the services
required of it hereunder. The Trading Advisor is qualified to conduct business
and is in good standing in every jurisdiction in which the nature or conduct
of its business requires such qualification and the failure to qualify might
reasonably be expected to have a materially adverse effect on its ability to
comply with or perform its obligations under this Agreement (it being
understood that any decision as to the jurisdiction or jurisdictions in which
the Trading Advisor shall conduct its business is within the sole discretion
of the Trading Advisor).
(f) The execution and delivery of this Agreement and the incurrence and
performance of the obligations contemplated in this Agreement by the Trading
Advisor will not conflict with, violate, breach or constitute a default under
any term or provision of its certificate of incorporation, by-laws or other
charter or governing documents, or any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Trading Advisor
is a party, or by which it is bound, or to which any of the property or assets
of the Trading Advisor is subject, or any laws, statutes, rules, regulations,
orders or other legal requirement applicable to the Trading Advisor or to the
property or assets of the Trading Advisor of any court or any regulatory
authority having jurisdiction over the Trading Advisor.
12
(g) This Agreement has been duly and validly authorized, executed and
delivered by the Trading Advisor and is a valid and binding agreement of the
Trading Advisor enforceable in accordance with its terms.
(h) At any time during the term of this Agreement that a disclosure
document relating to the Units is required to be delivered in connection with
the offer and sale thereof, the Trading Advisor agrees upon the request of the
Sponsor to provide the Sponsor with such information as shall be necessary so
that, as to the Trading Advisor Parties, such disclosure document is complete
and accurate in all material respects.
(i) The Trading Advisor is not bankrupt or insolvent.
(j) The Trading Advisor will use its reasonable best efforts to
implement a fair and consistent allocation policy which seeks to ensure that
all clients are treated equitably and positions allocated as nearly as
possible in proportion to the assets available for trading of the accounts
managed or controlled by it.
All representations, warranties and covenants contained in this
Agreement shall be continuing during the term of this Agreement and shall
survive the termination of this Agreement with respect to any matter arising
while this Agreement was in effect. The Trading Advisor hereby agrees that as
of the date of this Agreement it is, and during its term shall be, in
compliance with its representations, warranties and covenants herein
contained. In addition, if at any time any event occurs which would make such
representations, warranties or covenants not true, the Trading Advisor will
promptly notify the other parties of such facts in the manner provided below.
All representations, warranties and covenants herein contained shall inure to
the benefit of the party to whom it is addressed and its respective heirs,
executors, administrators, legal representatives, successors and permitted
assigns.
16. The Sponsor's Representations and Warranties.
The Sponsor represents and warrants to the Trading Advisor for itself
and the Trading Fund that:
(a) The Memorandum as supplemented and amended from time to time is
complete and accurate in all material respects and does not contain any untrue
statement of a material fact or omit to state a material fact which is
necessary to make the statements therein not misleading, except that the
foregoing representation does not apply to any statement or omission
concerning any Trading Advisor Party in the Memorandum, made in reliance upon,
and in conformity with, information furnished to the Sponsor by or on behalf
of any Trading Advisor Party expressly for use in the Memorandum.
(b) The Sponsor is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has full power and
authority to perform its obligations under this Agreement. The Sponsor will be
qualified to conduct business and will be in good standing in every
jurisdiction in which the nature or conduct of its business requires such
qualification and the failure to qualify might reasonably be expected to have
a materially adverse effect on its ability to comply with or perform its
obligations under this Agreement (it being understood that any decision as to
the jurisdiction or jurisdictions in which the Sponsor shall conduct its
business is within the sole discretion of the Sponsor).
(c) The Sponsor and the Trading Fund have the capacity and authority to
enter into this Agreement on behalf of the Trading Fund.
13
(d) This Agreement has been duly and validly authorized, executed and
delivered on the Sponsor's and the Trading Fund's behalf and is a valid and
binding agreement of the Sponsor and the Trading Fund enforceable in
accordance with its terms.
(e) The execution and delivery of this Agreement and the incurrence and
performance of the obligations contemplated in this Agreement by the Sponsor
and the Trading Fund, respectively, will not conflict with, violate, breach or
constitute a default under any term or provision of the certificates of
incorporation, by-laws or other charter or governing documents of the Sponsor
or the Trading Fund, or any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Sponsor or the Trading Fund is a
party, or by which either the Sponsor or the Trading Fund is bound, or to
which any of the property or assets of the Sponsor or the Trading Fund, as the
case may be, is subject, or any law, statute, rule, regulation, order or other
legal requirement applicable to the Sponsor or the Trading Fund or to the
property or assets of the Sponsor or the Trading Fund of any court or any
regulatory authority having jurisdiction over the Sponsor or the Trading Fund.
(f) The Sponsor is registered as a commodity pool operator and is a
member of the NFA, and it will maintain and renew such registration and
membership during the term of this Agreement.
(g) The Trading Fund is a limited liability company organized and
validly existing under the laws of the State of Delaware and has full power
and authority to enter into this Agreement and to perform its obligations
under this Agreement. The Trading Fund will be qualified to conduct business
and will be in good standing in every jurisdiction in which the nature or
conduct of its business requires such qualification and the failure to qualify
might reasonably be expected to have a materially adverse effect on its
ability to comply with or perform its obligations under this Agreement (it
being understood that any decision as to the jurisdiction or jurisdictions in
which the Trading Fund shall conduct its business is within the sole
discretion of the Trading Fund).
(h) The Sponsor and the Trading Fund have each complied, and will
continue to comply in all material respects with all laws, statutes, rules,
regulations and orders having application to its business, properties and
assets, the violation of which might reasonably be expected, in the Sponsor's
or the Trading Fund's best knowledge and belief, to materially and adversely
affect its ability to comply with and perform its obligations under this
Agreement and in connection with the offering of Units. As of the date hereof,
there are no threatened, pending or completed actions, arbitrations, claims,
demands, disputes, lawsuits or other proceedings, notices of investigation or
investigations pending or, to the best knowledge and belief of the Sponsor or
the Trading Fund, threatened against the Sponsor or the Trading Fund, as the
case may be, regarding noncompliance with any applicable laws, statutes,
rules, regulations or orders, or at law or in equity, or before or by any
court, any foreign, federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, or any
governmental, regulatory or self-regulatory agency, organization, exchange or
other body, in which an adverse decision might reasonably be expected, in the
Sponsor's or the Trading Fund's best knowledge and belief, to materially and
adversely affect its ability to comply with or perform its obligations under
this Agreement or result in a material adverse change in the condition,
financial or otherwise, business or prospects of the Sponsor or the Trading
Fund.
(i) Neither the Sponsor nor the Trading Fund is bankrupt or insolvent.
(j) Each of the Sponsor and the Trading Fund have read and understood
the Disclosure Document (including the Risk Disclosure Statement contained
therein) and both of them are aware of the risks inherent in the Program
(including, without limitation, the risks inherent in trading in the Futures
Interests envisaged by the Program).
14
All representations, warranties and covenants contained in this
Agreement shall be continuing during the term of this Agreement and shall
survive the termination of this Agreement with respect to any matter arising
while this Agreement was in effect. The Sponsor and the Trading Fund hereby
each agree that as of the date of this Agreement each of them is, and during
its term shall be, in compliance with its respective representations,
warranties and covenants herein contained. In addition, if at any time any
event occurs which would make such representations, warranties or covenants
not true, the Sponsor and the Trading Fund will each promptly notify the other
parties of such facts in the manner provided below. All representations,
warranties and covenants herein contained shall inure to the benefit of the
party to whom it is addressed and its respective heirs, executors,
administrators, legal representatives, successors and permitted assigns.
17. Assignment.
This Agreement may not be assigned by any of the parties hereto without
the express prior written consent of the other parties hereto. Notwithstanding
the above, the Sponsor and the Trading Advisor may assign its respective
interest in this Agreement (a) to an affiliate of the Sponsor or the Trading
Advisor, as the case may be, upon notice only (which need not be prior notice)
to the other parties hereto, or (b) in connection with the sale or transfer of
all or a material portion of the Sponsor's or the Trading Advisor's respective
equity or assets.
18. Successors.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and the successors and permitted assigns of each of them, and
no other person (except as otherwise provided herein) shall have any right or
obligation under this Agreement. The terms "successors" and "assigns" shall
not include any Members.
19. Amendment or Modification or Waiver.
This Agreement may not be amended or modified, nor may any of its
provisions be waived, except upon the prior written consent of the parties
hereto.
20. Notices.
Except as otherwise provided herein, all notices required to be
delivered under this Agreement shall be effective only if in writing and shall
be deemed given by the party required to provide notice when received by the
party to whom notice is required to be given and shall be delivered personally
or by registered mail, postage prepaid, return receipt requested, or by
telecopy, as follows (or to such other address as the party entitled to notice
shall hereafter designate by written notice to the other parties):
If to the Sponsor: If to the Trading Fund:
UBS MANAGED FUND SERVICES INC. UBS MANAGED FUTURES (ASPECT) LLC
One North ▇▇▇▇▇▇ Drive c/o UBS Managed Fund Services Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 31st Floor
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
15
If to the Trading Advisor:
ASPECT CAPITAL LIMITED
Nations House
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
England
Attn: Legal Department
Facsimile: ▇▇▇ (▇▇) ▇▇▇▇-▇▇▇▇
21. Governing Law.
Each party agrees that this Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to
conflict of laws principles, and all parties consent to the exclusive
jurisdiction of the federal or state courts located in Chicago, Illinois,
U.S.A.
22. Survival.
All representations, warranties and covenants in this Agreement, or
contained in certificates required to be delivered hereunder and Sections 2
and 3 shall survive the termination of this Agreement, with respect to any
matter arising while this Agreement was in effect. Furthermore, all
representations, warranties and covenants hereunder shall inure to the benefit
of each of the parties to this Agreement and their respective successors and
permitted assigns.
23. Disclosure Document Modifications.
The Trading Advisor shall promptly furnish the Sponsor with a copy of
all modifications to the Disclosure Document when available for distribution.
Upon receipt of any modified Disclosure Document by the Sponsor, the Sponsor
will provide the Trading Advisor with an acknowledgement of receipt thereof.
24. Promotional Literature.
Each party agrees that prior to using any promotional literature in
which reference to the other parties hereto is made, they shall: (i) furnish a
copy of such information to each of the other parties for their consideration
and approval; (ii) provide such other parties with a reasonable period within
which to review and approve such promotional literature, such approval not to
be unreasonably withheld or delayed; and (iii) will not make use of any
promotional literature containing references to such other parties to which
such other parties object, except as otherwise required by law or regulation.
25. No Waiver.
No failure or delay on the part of any party hereto 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. Any waiver granted hereunder must be in writing and shall be valid
only in the specific instance in which given.
16
26. No Liability of Members.
This Agreement has been made and executed by and on behalf of the
Trading Fund, and the obligations of the Trading Fund and/or the Sponsor set
forth herein are not binding upon any of the Members individually, but rather,
are binding only upon the assets and property of the Trading Fund, and, to the
extent provided herein, upon the assets and property of the Sponsor.
27. Third-Party Beneficiaries.
The Trading Advisor Parties and the Sponsor Parties shall be third-party
beneficiaries of the applicable provisions of this Agreement.
28. Headings.
Headings to Sections herein are for the convenience of the parties only,
and are not intended to be or to affect the meaning or interpretation of this
Agreement.
29. Complete Agreement.
This Agreement constitutes the entire agreement between the parties with
respect to the matters referred to herein, and no other agreement, verbal or
otherwise, shall be binding upon the parties hereto.
30. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute
one and the same instrument. Signatures on this Agreement may be communicated
by facsimile or electronic mail transmission and shall be binding upon the
parties so transmitting their signatures. Counterparts with original
signatures shall be provided to the other parties following the applicable
facsimile or electronic mail transmission; provided that, the failure to
provide the original counterpart shall have no effect on the validity or the
binding nature of this Agreement.
31. Miscellaneous.
(a) The Trading Advisor is authorized and regulated by the FSA.
(b) The Sponsor and the Trading Fund each acknowledge and agree that:
(1) no assurance, representation, warranty or guarantee has been
given to the Sponsor or the Trading Fund by the Trading Advisor or any
other person that the provision of services by the Trading Advisor
hereunder or the Program will generate profits (or not generate losses)
or that past results are indicative of future performance; and
(2) the Trading Advisor has classified the Trading Fund as an
"Intermediate Customer" as that term is defined in the FSA Rules.
(c) If any provision hereof is, or at any time becomes, illegal, invalid
or unenforceable in any respect under any applicable law, such provision shall
be deemed rescinded or modified to conform with such applicable law and
neither the legality, validity or enforceability of the remaining provisions
hereof nor the legality, validity or enforceability of such provision be
affected or impaired thereby.
17
(d) Neither the Trading Fund nor the Sponsor will be an eligible
claimant under the Financial Services Compensation Scheme (as defined in the
FSA Rules) in the event of default by the Trading Advisor.
(e) Termination of this Agreement shall be without prejudice to the
completion of transactions already initiated and shall not affect the rights
and obligations of the parties hereto which came into existence prior to the
termination. Such transactions shall be completed by the Trading Advisor as
soon as practicable.
(f) Save as contemplated in this Agreement, unless otherwise agreed by
the parties, the Trading Advisor will not borrow on behalf of the Trading Fund
or bring about transactions for the Trading Fund, such that the Trading Fund
(or the Sponsor) incurs obligations as an underwriter or sub-underwriter.
(g) The Trading Advisor shall not enter into soft commission agreements.
(h) The Trading Advisor shall endeavor to enter into transactions on
behalf of the Trading Fund at a price and in circumstances that it considers
to be the best it can reasonably obtain in the circumstances. However, the
Trading Advisor shall not owe the Trading Fund a duty of best execution under
the FSA Rules.
[Remainder of page intentionally left blank]
18
IN WITNESS WHEREOF, this Agreement has been executed for and on behalf
of the undersigned as of the day and year first above written.
UBS MANAGED FUTURES (ASPECT) LLC
By: UBS MANAGED FUND SERVICES INC.
Its: Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director and Senior Counsel
UBS MANAGED FUND SERVICES INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Legal
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Director
ASPECT CAPITAL LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
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APPENDIX A
FEE SCHEDULE
(a) The Trading Fund shall pay brokerage commissions and related
expenses at the rates described in the Memorandum, to which the Trading
Advisor consents.
(b) (1) The Trading Fund shall pay to the Trading Advisor a monthly
Management Fee equal to 1/12th of 2% percent of the Net Asset Value of the
Trading Fund (as hereinafter defined) being managed by the Trading Advisor
(approximately 2% annually). For purposes of calculating the Management Fee
payable to the Trading Advisor, the Net Asset Value of the Trading Fund (as
hereinafter defined) shall be determined before reduction for any Management
Fees, Performance Fees, Sponsor's Fees or extraordinary fees accrued as of
such month-end and before giving effect to any capital contributions made as
of the beginning of the month immediately following such month-end and before
any distributions or redemptions accrued during or as of such month-end, but
after all expenses as of such month-end. In the event that a Member redeems
some or all of its Units or exchanges some or all of its Units for Units in
another segregated series of the Platform (each, a "Series"), the Trading Fund
is dissolved or terminated or this Agreement is terminated as of any date
other than the last day of a calendar month, the Management Fee for such month
shall be paid on a pro-rated basis based on the ratio that the number of days
in the calendar month through the date of such event bears to the total number
of days in the calendar month.
(2) "Net Asset Value of the Trading Fund" shall mean the Trading
Fund's Net Asset Value calculated pursuant to the same method used in
calculating the Net Asset Value of each Series, as outlined in the Platform's
Limited Liability Company Operating Agreement.
(c) (1) The Trading Fund shall pay to the Trading Advisor a Performance
Fee of 20% of "New Net Trading Profits" (as hereinafter defined) generated by
the Trading Advisor, including realized and unrealized gains and losses
thereon, as of the close of business on the last day of each calendar quarter,
which for the avoidance of doubt shall be each of March 31, June 30, September
30 and December 31 in every calendar year (the "Performance Fee Measurement
Date").
(2) "New Net Trading Profits" (for purposes of calculating the
Trading Advisor's Performance Fees) shall mean the excess, if any, of the
cumulative level of Net Trading Profits (as hereinafter defined) attributable
to the Trading Fund as of the Performance Fee Measurement Date over the
highest level of cumulative Net Trading Profit as of the end of any preceding
Performance Fee Measurement Date (the "High Water ▇▇▇▇").
(3) (a) "Net Trading Profits" shall be computed as of each
Performance Fee Measurement Date and shall include such profits (as outlined
below) since the Trading Advisor's management of the Trading Fund (the
"Performance Fee Measurement Period"). Net Trading Profits for any Performance
Fee Measurement Period shall be the net profits, if any, from the Trading
Advisor's trading during such period (including (i) gross realized trading
profit (loss) plus or minus (ii) the change in unrealized trading profit
(loss) on open positions, minus (iii) the fees charged to the Trading Fund by
the Sponsor for brokerage commissions, exchange fees, NFA fees, give-up fees
and other transaction-related fees and expenses charged in connection with the
Trading Fund's trading activities plus any futures commission merchant fee
(for the avoidance of doubt, the Sponsor's Fee and the ongoing fees for
certain administrative services shall not be subtracted for the purposes of
this calculation) and shall be calculated after deduction of the Trading
Advisor's Management Fee, but before deduction of any
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Performance Fees paid or payable to date. Performance Fees paid prior to the
current Performance Fee Measurement Date shall not reduce Net Trading Profits.
(b) For the avoidance of doubt, Net Trading Profits shall exclude
capital contributions to the Trading Fund, distributions or redemptions.
(c) Net Trading Profit shall exclude interest income earned by or
credited to the Trading Fund.
(4) The High Water ▇▇▇▇ shall be proportionately reduced to
reflect reductions in assets of the Trading Fund (including notice of
exchanges) by being multiplied by the fraction, the numerator of which is the
Trading Fund's assets immediately after such reduction and the denominator of
which is the Trading Fund's assets immediately prior to such reduction.
(5) If a withdrawal or distribution occurs at any date that is not
a Performance Fee Measurement Date, the date of the withdrawal or distribution
shall be treated as if it were a Performance Fee Measurement Date for purposes
of calculating the Performance Fee, if any, due with respect to the withdrawal
or distribution. However, no new High Water ▇▇▇▇ shall be set except as of a
Performance Fee Measurement Date. The amount of the Performance Fee due shall
be equal to the Performance Fee that would have been due had the date of the
withdrawal or distribution been a Performance Fee Measurement Date multiplied
by the fraction the numerator of which is the amount withdrawn or distributed,
and the denominator of which is the Net Asset Value of the Trading Fund
immediately before such withdrawal or distribution (in each case prior to
reduction of the accrued Performance Fee). The amount of the Performance Fee
shall be added to the amount of the withdrawal or distribution (and included
as part thereof) for purposes of the foregoing calculations, and the fraction
calculated prior to reduction for any accrued Performance Fee.
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TRADING POLICIES
(a) The Trading Advisor shall provide the Sponsor as of the date of this
Agreement with a list set forth under "Appendix C -- List of Futures
Interests," as may be changed or updated from time to time (the "List") of all
types of Futures Interests traded by the Trading Advisor on behalf of the
Trading Fund ("Products") and the exchanges on which such Futures Interests
are traded ("Exchanges"). The Trading Advisor shall provide the Sponsor with
prior written notice of any Product or Exchange to be included on the List and
following such notification, such Product or Exchange shall be added to the
List.
(b) If at any time while this Agreement is in effect, the Trading Fund
experiences a peak-to-valley drawdown of 35% of the Net Asset Value of the
Trading Fund, the Trading Advisor shall give written notice to the Sponsor
within two Business Days after such peak-to-valley drawdown.
(c) If at any time while this Agreement is in effect, the percentage of
the Trading Fund's capital committed as margin (the "Margin Percentage") is
equal to or greater than 25%, the Sponsor shall give written notice to the
Trading Advisor within two Business Days after the Margin Percentage reaches
25% and, where appropriate, shall have the right to instruct the Trading
Advisor, within a reasonable amount of time, to decrease the Margin Percentage
to such Margin Percentage as deemed appropriate by the Sponsor in its sole
discretion. The Trading Advisor shall comply with such instruction, and notify
the Sponsor of the Trading Advisor's compliance, within five Business Days of
receiving the instruction, or such other longer period as may be necessary
under the prevailing circumstances.
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APPENDIX C
LIST OF FUTURES INTERESTS
Agriculturals
Canola (WCE)
Cattle Feeder (CME)
Cocoa (CSCE)
Coffee 'C' (CSCE)
Corn (CBT)
Cotton No. 2 (NYCE)
Frozen Orange Juice (FCOJ-1) (NYBOTX)
Frozen Pork Bellies (CME)
Hard Red Spring Wheat (MGE)
Hard Red Winter Wheat (KCB)
Lean Hogs (CME)
Live Cattle (CME)
Lumber (Random Length) (CME)
No. 7 Cocoa (LFE)
Oats (CBT)
Robusta Coffee (LIF)
Soy Bean Oil (CBT)
Soya Beans (CBT)
Soybean Meal (CBT)
Sugar (CSCE)
Wheat (CBT)
White Sugar (LIF)
Energies
▇▇▇▇▇ Crude Oil (IPE)
Crude Oil (OTC)
Crude Oil (NYMEX)
Gas Oil (IPE)
Gasoline (TOCOM)
Heating Oil (NYMEX)
Kerosene (TOCOM)
Natural Gas (NYMEX)
Unleaded Gas (NYMEX)
Metals
Aluminium (High Grade) (LME)
Copper (High Grade) (COMEX)
Copper (LME)
Gold (100 Oz) (COMEX)
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Gold (TOCOM)
Lead (High Grade) (LME)
Nickel (High Grade) (LME)
Palladium (NYMEX)
Palladium (TOCOM)
Platinum (NYMEX)
Platinum (TOCOM)
Silver (NYMEX)
Zinc (High Grade) (LME)
Bonds
Australian 10 Year Government Bond (SFE)
Australian 3 Year Government Bond (SFE)
British Long Gilt (LIF)
Canadian 10 Year Government Bond (ME)
Euro Bobl (EUREX)
Euro Bund (EUREX)
Euro ▇▇▇▇▇▇ (EUREX)
Five Year Euro Swapnote (LIF)
Japanese 10 Year Government Bond (TSE)
Japanese 10 Year Government Bond Mini (SIMEX)
Korean 3 Year Bond (KFE)
Swiss Federation Long Term Bond (EUREX)
Ten Year Euro Swapnote (LIF)
Two Year Euro Swapnote (LIF)
US 10 Year Agency Note (CBT)
US 10 Year Treasury Note (CBT)
US 2 Year Treasury Note (CBT)
US 30 Year Treasury Bond (CBT)
US 5 Year Treasury Note (CBT)
Interest Rates
30 Day Interbank Cash Rate (SFE)
90 Day Sterling Libor (LIF)
Australian 90 Day Bank Bills (SFE)
Canadian Bankers Acceptance (ME)
Euribor (LIF)
Eurodollar (CME)
Euroswiss (LIF)
Euroyen (3 Month) (TIF)
New Zealand 90 Day Bank Bills (SFE)
US 30 Day Federal Funds (CBT)
Currencies
Australian Dollar
British Sterling
Canadian Dollar
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Czech Koruna
Danish Krone
Euro
Hungarian Forint
Japanese Yen
Mexican Peso
New Zealand Dollar
Norwegian Krone
Polish Zloty
Singapore Dollar
South African Rand
Swedish Krona
Swiss Franc
Thai Baht
US Dollar
Stock Indices
Amsterdam Exchanges Index (EURONEXT)
▇▇▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇ Index (SFE)
Austrian Traded Index (AFO)
Belgian BEL 20 Index (BFO)
Canadian S&P/TSE 60 Index (ME)
Denmark KFX Index (COP)
DJ Euro Stoxx 50 (EUREX)
Dow ▇▇▇▇▇ Industrial Average (CBT)
Dow ▇▇▇▇▇ Industrial Average E-Mini (CBT)
French CAC 40 Index (MATIF)
FTSE 100 Index (LIF)
German DAX Index (EUREX)
Greek FTSE/ASE 20 Index (ADE)
Hang Seng China Enterprises (H-Shares) Index (HKFE)
Hong Kong Hang Seng Index (HKFE)
Italian MIB/S&P 40 Index (MIL)
Italian MIB/S&P 40 Index Mini (MIL)
Japanese NIKKEI Index (SIMEX)
Japanese NIKKEI Index (Yen-Denominated) (CME)
Japanese TOPIX Index (TSE)
Korean Kospi 200 Index (KFE)
Kuala Lumpur Composite Index (MDE)
MSCI Pan Euro Index (LIF)
MSCI Singapore Index (SGX)
NASDAQ 100 (CME)
NASDAQ 100 E-Mini (CME)
Norwegian OBX Index (OBX)
Portuguese PSI 20 Index (BDP)
▇▇▇▇▇▇▇ 1000 E-mini (CME)
▇▇▇▇▇▇▇ 2000 Index E-Mini (CME)
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S&P 500 (CME)
S&P 500 E-Mini (CME)
S&P Midcap 400 Index E-Mini (CME)
South African FTSE/JSE Top 40 Index (SAF)
Spanish IBEX 35 Index (MEFFRV)
Swedish OMX Index (SOM)
Swiss Market Index (EUREX)
Taiwanese MSCI Index (SIMEX)
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