Exhibit 10.4
FORM OF ESCROW AGREEMENT
This ESCROW AGREEMENT is made and entered into as of October 30, 2006 by
and between UBS Managed Futures LLC (Aspect Series) (the "Party A"), a series
of limited liability company interest issued by UBS Managed Futures LLC (the
"Platform"), and LaSalle Bank National Association, a national banking
association, as escrow agent (the "Escrow Agent"). It is intended that the
terms and conditions of this Escrow Agreement shall apply to and be binding
upon only the Party A and not the Platform or any other series of limited
liability company interest issued by the Platform (each such series, a
"Series").
RECITALS
A. The Party A intends to sell units of limited liability company
interest of the Party A (the "Units") pursuant to a continuous private
offering under Regulation D of the Securities Act of 1933, as amended (the
"Securities Act"), and Rule 506 thereunder as of the beginning of each
calendar month (the first such offering, the "Initial Offering").
B. The Party A will not close the Initial Offering until the Party
A has received and accepted subscriptions for Units equaling $10,000,000 (or
such other amount as determined by UBS Managed Fund Services Inc. (the
"Sponsor")) and the satisfaction of those other conditions contained in
Section 5 hereto, set forth in the Platform's Confidential Disclosure Document
or otherwise determined by the Sponsor. The Initial Offering will terminate on
the date the Sponsor elects, in its sole discretion, to terminate the Initial
Offering (the date on which the Initial Offering terminates being referred to
herein as the "Termination Date"). Subsequent to the Initial Offering, there
is no minimum number of Units which must be sold as of the beginning of any
calendar month for any Units then to be sold.
C. The Escrow Agent has agreed to serve as escrow agent on the
terms and conditions contained herein.
AGREEMENTS
In consideration of the recitals and mutual covenants and
agreements set forth herein, the parties hereby covenant and agree as follows:
1. Each Series a Separate Legal Entity. The Series are legally
segregated from each other such that under Delaware law one Series is not
liable for the obligations of any other Series. Each reference to a Series or
the Party A in this Agreement shall reference such Series separately and in no
way shall be construed so as to implicate that a Series will be liable for any
obligation of any other Series or that the Platform shall be liable for any
such obligations.
2. Appointment. The Party A appoints the Escrow Agent as escrow
agent for the purpose of holding the Escrow Funds (as defined below). The
Escrow Agent hereby accepts its appointment and agrees to act as escrow agent
under the terms and conditions contained in this Escrow Agreement.
3. Delivery of Funds. The Party A agrees that UBS Financial
Services Inc. and/or certain of its affiliates (the "Selling Agent") will
deliver to the Escrow Agent, promptly after receipt of any subscriptions for
the Units, the subscription funds (which shall be equal to the gross offering
price for the Units subscribed) in the form of a personal, bank, cashier check
or wire transfer payable to "LaSalle Bank National Association, Escrow Agent,
for UBS Managed Futures LLC (Aspect Series)" and to provide the Escrow Agent,
in writing, with the name, address and Taxpayer Identification Number, if any,
of each person or entity subscribing for Units ("Subscriber") and the total
value of Units for which each Subscriber has subscribed. The Escrow Agent
agrees to place any subscription funds so received (the "Escrow Funds") in an
account maintained by the Escrow Agent under the designation LaSalle Bank
National Association as Escrow Agent for UBS Managed Futures LLC (Aspect
Series) (the "Escrow Account"). Once all of the Escrow Funds and any interest
or earnings accrued thereon have been disbursed pursuant to this Escrow
Agreement, the Escrow Agent shall take all necessary action to close the
Escrow Account.
Unless otherwise specifically directed herein, the Escrow Agent shall
proceed as soon as practicable to collect any checks or other collection items
at any time deposited or received hereunder. All such collections shall be
subject to the usual collection agreement regarding items received by its
commercial banking department for deposit or collection. The Escrow Agent
shall have no duty to (i) notify anyone of any payment or maturity under the
terms of any instrument deposited or received hereunder or (ii) take any legal
action to enforce payment of any check, note or security deposited or received
hereunder. In the event that any funds, including cleared funds, deposited in
the Escrow Account prove uncollectible after the funds represented thereby
have been released by the Escrow Agent pursuant to this Agreement, the Party A
shall immediately reimburse the Escrow Agent upon request for the face amount
of such check or checks, together with reasonable and customary charges and
expenses related thereto, and the Escrow Agent shall deliver the returned
checks or other instruments to the Party A. The Party A acknowledges that its
obligation in the preceding sentence shall survive the termination of this
Agreement and the resignation or removal of the Escrow Agent. The Escrow Agent
shall have no liability for, or obligation to pay, interest on any money
deposited or received hereunder. The Escrow Agent will not be required to lend
to, or advance, or pay out of its own funds any sums whatsoever for the
account of the Party A.
If the Sponsor rejects on behalf of the Party A any subscription for
which the Escrow Agent has already collected funds, the Escrow Agent shall
promptly issue a refund check (including any accrued interest applicable to
such subscription) to the Selling Agent, which shall then transfer such check
to the rejected Subscriber. If the Sponsor rejects on behalf of the Party A
any subscription for which the Escrow Agent has not yet collected funds but
has submitted the Subscriber's check for collection, the Escrow Agent shall
promptly issue a check in the amount of the Subscriber's check to the Selling
Agent, which shall then transfer such check to the
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rejected Subscriber after the Escrow Agent has cleared such funds. If the
Escrow Agent has not yet submitted a rejected Subscriber's check for
collection, the Escrow Agent shall promptly remit the Subscriber's check to
the Selling Agent, which shall then remit such check directly to the
Subscriber.
The Selling Agent acknowledges and agrees that the method established
pursuant to this Escrow Agreement for the refund of rejected subscriptions and
of interest earned on subscriptions is only acceptable under Rule 15c2-4 of
the Securities Exchange Act of 1934, as amended, provided that the Selling
Agent informs Subscribers of when their customer securities accounts at the
Selling Agent will be credited with such refunded subscription payments and/or
interest income. Accordingly, the Selling Agent undertakes that it will (a)
credit the appropriate Subscribers' customer securities accounts as promptly
as practicable (and in no event more than five business days) after receipt of
the necessary funds from the Escrow Agent and information indicating the
amounts so due, and (b) inform all Subscribers as soon as practicable of the
date that the amounts to be credited will be available in their respective
customer accounts.
Prior to delivery as described above, the Party A shall not have title
to or interest in the funds on deposit in the Escrow Account, and such funds
shall under no circumstances be subject to the liabilities or indebtedness of
the Party A.
4. Escrow. The Escrow Agent agrees to hold the Escrow Funds
received by the Escrow Agent in accordance with Section 3 hereof until the
release of the Escrow Funds pursuant to Section 5 hereof. For the avoidance of
doubt, the Escrow Agent shall not have any right, title or interest in the
Escrow Funds, except as otherwise provided herein.
5. Release of the Escrow Funds. The Escrow Agent shall not release
any part of the Escrow Funds to any party except as provided in this Section
5.
(a) Disbursement of Initial Offering Proceeds. If the Escrow Agent
receives written notice signed by the Party A in the form of Exhibit A
hereto with respect to the Party A, the Escrow Agent will release as
promptly as practicable (but in no event more than ten business days
after receipt of such notice) the Escrow Funds, along with any interest
or other earnings thereon, less the amount of any of the Escrow Agent's
fees pursuant to Section 7 hereof not previously paid by the Party A, to
the checking account of the Party A or to the Party A's commodity
trading account maintained with UBS Securities LLC, as commodity broker
for the Party A, as the Sponsor may direct.
(b) Termination of the Initial Offering. If, at any time prior to
the disbursement pursuant to Section 5(a) above, the Party A provides
written notice to the Escrow Agent in the form of Exhibit B hereto that
the Initial Offering of the Party A has been terminated, the Escrow
Agent will promptly return (but in no event more than five business days
after receipt of such notice) to the Selling Agent the funds in the full
amount of each Subscriber's subscription price along with the
Subscriber's pro rata share of any interest or earnings accrued on the
Escrow Funds. All calculations of a
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Subscriber's pro rata share of any interest or earnings accrued on the
Escrow Funds shall be performed by the Selling Agent and provided to the
Escrow Agent.
6. Investment of Escrow Funds. The Party A hereby directs the
Escrow Agent to invest and reinvest the Escrow Funds in a LaSalle Enhanced
Liquidity Management ("LELM") account, or in securities to which the Sponsor
instructs the Escrow Agent in writing, in compliance with National Association
of Securities Dealers, Inc. Notice to Members 84-7. The interest or other
earnings on such investments shall be added to the Escrow Account and shall be
considered part of the Escrow Funds. If requested by the Sponsor, the Escrow
Agent shall provide to the Sponsor periodic statements of all funds in the
Escrow Account and the names of the Subscribers whose subscription funds have
been deposited in the Escrow Account. Any investments hereunder may be sold by
the Escrow Agent in order to distribute Escrow Funds pursuant to the
provisions of this Escrow Agreement. Any loss incurred in the sale of any
investment shall be borne by the Escrow Account.
7. The Escrow Agent's Fees. As compensation for the services of
the Escrow Agent hereunder, the Party A agrees to pay to the Escrow Agent such
fees as are set forth on Exhibit C attached hereto. The Sponsor may advance
such fees on behalf of the Party A as necessary in the discretion of the
Sponsor. The Acceptance and Administration Fees are due within ten days of the
execution of the Escrow Agreement. If the Party A fails to pay the Escrow
Agent any reasonable expenses that it may incur within fifteen business days
of receipt of the Escrow Agent's written presentation of appropriately
documented invoices to the Party A, the Escrow Agent is hereby authorized by
the Party A to deduct such amount from any funds due to the Party A hereunder,
and from any of the Party A's accounts maintained with the Escrow Agent, in a
commercially reasonable manner.
8. Escrow Agent. The Escrow Agent shall have no duties or
responsibilities other than those expressly set forth in this Escrow
Agreement. The Escrow Agent shall be liable as a depository only and shall not
be responsible or accountable for the correctness of any information set forth
in any statements delivered to it including, without limitation, any
disbursement notice delivered by the Party A pursuant to Section 5(a) or
Section 5(b), shall not be required in any event to verify the correctness of
any such statements and shall not be responsible for verifying compliance by
the Party A with the requirements of Rule 506 of Regulation D, the rules and
regulations thereunder or any other securities laws, rules or regulations, or
the terms of any subscription agreement. The Escrow Agent shall be entitled to
rely, without any investigation whatsoever, upon any communication received
from the Party A, and the Escrow Agent shall be entitled to deem the
signatories of any subscription agreement or any communication submitted to it
hereunder as being those purported to be authorized to sign such communication
on behalf of such party and shall be entitled to rely on the genuineness of
the signatures of such signatories without inquiry and without sustaining
evidence of any kind. The Escrow Agent shall have the right to consult with
counsel and shall be fully protected and shall not be liable with respect to
any action taken or omitted by the Escrow Agent in good faith and on advice of
counsel, and shall be fully protected and shall not be liable for any error of
judgments or for any act done or omitted by it in good faith, except for its
own gross negligence or willful misconduct. The Escrow Agent shall have no
duties to anyone except those signing
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this Escrow Agreement. The Escrow Agent shall have the right to perform any of
its duties hereunder through agents, attorneys, custodians or nominees. In
addition:
(a) if any property held under this Escrow Agreement is attached,
garnished, or levied upon by any court order, or the delivery thereof
shall be stayed or enjoined by an order of court, or any order, judgment
or decree shall be made or entered by any court order affecting the
property deposited under this Escrow Agreement, or any part thereof, the
Escrow Agent is expressly authorized in its sole discretion, to obey and
comply with all writs, orders or decrees so entered or issued, which it
is advised by legal counsel of its own choosing are binding upon it,
whether with or without jurisdiction, and in case the Escrow Agent obeys
or complies with any such writ, order or decree it shall not be liable
to any of the parties hereto or to any other person, firm or
corporation, by reason of such compliance notwithstanding such writ,
order or decree be subsequently reversed, modified, annulled, set aside
or vacated;
(b) if the Escrow Agent becomes involved in litigation on account
of this deposit or of this Escrow Agreement, it shall have the right to
retain counsel and shall have a lien on the property deposited hereunder
for any and all reasonable costs, attorneys' and solicitors' fees,
charges, disbursements, and expenses in connection with such litigation;
and shall be entitled to reimbursement from Party A for its reasonable
charges, counsel and attorneys' fees, disbursements, and expenses in
connection with such litigation and, to the extent such reimbursement is
not paid by the Party A, out of the property deposited hereunder; and
(c) any corporation or association into which the Escrow Agent may
be converted or merged, or with which it may be consolidated, or to
which it may sell or transfer its corporate trust business and assets as
a whole or substantially as a whole, or any corporation or association
resulting from any such conversion, sale, merger, consolidation or
transfer to which it is a party, shall be and become the successor
Escrow Agent hereunder and vested with all of the title to the whole
property or trust estate and all of the trusts, powers, immunities,
privileges, protections and all other matters as was its predecessor,
without the execution or filing of any instrument or any further act,
deed or conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided that the Escrow Agent
shall give notice to the Party A of such change in Escrow Agent.
9. Indemnification. The Party A agrees to indemnify and hold
harmless the Escrow Agent from and against any taxes, assessments, losses,
liabilities, claims, damages or expenses (including reasonable external
attorneys' fees and expenses actually incurred) for conduct undertaken as
escrow agent to the Party A or otherwise relating to any action or omission of
the Escrow Agent in connection with this Agreement or incurred in its acting
in the capacity of escrow agent hereunder, unless caused by the Escrow Agent's
negligence or willful misconduct. If the Party A fails to pay the Escrow Agent
amounts due under this Section 9, the Escrow Agent is hereby authorized by the
Party A to deduct such amount from any funds due to the Party A hereunder. If
after such deductions, amounts due under this Section 9 are still
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outstanding, such remainder amounts shall be paid by the Sponsor. The
provisions of Sections 8 and 9 shall survive the termination of this Escrow
Agreement and the resignation or removal of the Escrow Agent.
10. No Control. It is agreed that, except as explicitly permitted
by this Escrow Agreement, the Party A shall have no right to receive, manage,
transfer or otherwise control, in any way, any amounts held in the Escrow
Account and at no time prior to actual payment from the Escrow Account shall
the Party A be considered to be in actual or constructive receipt of any
amounts held in the Escrow Account.
11. Miscellaneous.
(a) This Escrow Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof, and this
Escrow Agreement may not be modified or amended except by written
instrument executed by all the parties hereto. The Party A acknowledges
that the Escrow Agent is neither a party to, nor bound by any provisions
of, any subscription agreement.
(b) This Escrow Agreement shall be binding upon the parties hereto
and their respective successors and assigns, and shall inure to the
benefit of and solely to the benefit of the parties hereto and their
respective successors and assigns. This Escrow Agreement shall not be
enforceable by or inure to the benefit of any other third party
including, without limitation, any Subscriber.
(c) This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, without giving effect
to any choice of law or conflict of law provision or rule (whether of
the State of Illinois or any other jurisdiction) that would cause the
application of the law of any jurisdiction other than the State of
Illinois.
(d) All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly
given or made upon receipt, if delivered personally, on the next
business day following delivery to a nationally recognized overnight
courier service, on the third business day following deposit in the U.S.
mail if mailed by registered or certified mail (postage prepaid, return
receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like changes of
address) or the next business day following electronic transmission to
the telecopier number specified below with receipt acknowledged.
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If to the Party A:
UBS Managed Futures LLC (Aspect Series)
c/o UBS Managed Fund Services Inc.
One North Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: Julie DeMatteo
Telephone: (312) 525-6677
Facsimile: (800) 423-7042
If to the Escrow Agent:
LaSalle Bank National Association
Global Escrow Services
135 South LaSalle Street, Suite 1560
Chicago, Illinois 60603
Attention: Mark LoIacono
Telephone: (312) 904-6936
Facsimile: (312) 904-4019
12. Escrow Dispute. In the event of any disagreement between the
Party A and Subscribers resulting in adverse claims and demands being made in
connection with or for the Escrow Funds, the Escrow Agent shall be entitled,
at its option, to hold the Escrow Funds until such time as a mutual agreement
has been reached among all the parties or until disbursement is legally
authorized by final judgment or decree of any court having jurisdiction
thereover, or to deposit the Escrow Funds with any court having jurisdiction
thereover pending the resolution of the disagreement.
13. Termination. This Escrow Agreement shall terminate and be of
no further force and effect on the earliest to occur of: (a) receipt by the
Escrow Agent of written notice of termination executed by the Party A; or (b)
the closing of the Escrow Account in accordance with the provisions hereof.
14. Resignation. The Escrow Agent, acting at any time hereunder,
may resign at any time by giving 30 days' prior written notice of resignation
to the Party A, such resignation to be effective on the date specified on such
notice. Upon the effectiveness of such resignation, the Escrow Agent shall
transfer the Escrow Funds to such succeeding the Escrow Agent or to such
persons as the Party A designates in writing to the Escrow Agent prior to the
effectiveness of the resignation. The Escrow Agent shall be paid any
outstanding fees and expenses prior to transferring the Escrow Funds to a
successor escrow agent. In the event no such designation has been provided,
the Escrow Agent shall deposit the Escrow Funds with any court having
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jurisdiction thereover. Prior to the effectiveness of the resignation of the
Escrow Agent, the Escrow Agent shall remain obligated to perform all duties
required of it under this Escrow Agreement.
15. Counterparts. This Escrow Agreement may be executed in two or
more counterparts, each of which shall be deemed an original.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and year first above written.
UBS MANAGED FUTURES LLC (ASPECT SERIES) ACKNOWLEDGED:
By: UBS Managed Fund Services Inc. UBS MANAGED FUND SERVICES INC.
Its: Sponsor
By: By:
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Name: Name:
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Title: Title:
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By: By:
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Name: Name:
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Title: Title:
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LASALLE BANK NATIONAL ASSOCIATION, as Escrow
Agent
UBS FINANCIAL SERVICES INC.
By:
By: By:
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Name: Name:
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Title: Title:
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By:
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Name:
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Title:
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EXHIBIT A
DISBURSEMENT NOTICE
DISBURSEMENT OF INITIAL OFFERING PROCEEDS
(Date)
LaSalle Bank National Association
Global Escrow Services
Corporate Trust Services Division
135 South LaSalle Street, Suite 1560
Chicago, Illinois 60603
Attention: Mark LoIacono
Re: Escrow Account No.
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Dear Mr. LoIacono:
1. Reference is made to that certain Escrow Agreement dated as of
October 30, 2006 (the "Escrow Agreement") by and between UBS Managed Futures
LLC (Aspect Series) (the "Party A"), and LaSalle Bank National Association, a
national banking association. All terms used but not defined herein shall have
the respective meanings given such terms in the Escrow Agreement.
2. The Party A hereby certifies that the Party A has received and
accepted subscriptions for Units with gross proceeds of at least [Dollar
Amount] (such amount being approved by the Sponsor) and meets all necessary
offering requirements as set forth in the Platform's Confidential Disclosure
Document or as otherwise determined by the Sponsor;
3. You are hereby directed to disburse the Escrow Funds to the Party A
as follows: __________________________.
IN WITNESS WHEREOF, the undersigned have executed this statement on the
date indicated above.
UBS MANAGED FUTURES LLC
(ASPECT SERIES)
By: UBS Managed Fund Services Inc.
Its: Sponsor
By:
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Its:
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Title:
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By:
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Name:
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Title:
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EXHIBIT B
DISBURSEMENT NOTICE
TERMINATION
(Date)
LaSalle Bank National Association
Global Escrow Services
135 South LaSalle Street, Suite 1560
Chicago, Illinois 60603
Attention: Mark LoIacono
Re: Escrow Account No.
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Dear Mr. LoIacono:
1. Reference is made to that certain Escrow Agreement dated as of
October 30, 2006 (the "Escrow Agreement") by and between UBS Managed Futures
LLC (Aspect Series) (the "Party A"), and LaSalle Bank National Association, a
national banking association. All terms used but not defined herein shall have
the respective meanings given such terms in the Escrow Agreement.
2. The Sponsor has terminated the Initial Offering prior to the
disbursement of offering proceeds pursuant to Section 5(a) of the Escrow
Agreement.
3. You are hereby directed to disburse the Escrow Funds to the
Subscribers in accordance with Section 5(b) of the Escrow Agreement.
IN WITNESS WHEREOF, the undersigned have executed this statement on the
date indicated above.
UBS MANAGED FUTURES LLC
(ASPECT SERIES)
By: UBS Managed Fund Services Inc.
Its: Sponsor
By:
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Its:
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Title:
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By:
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Name:
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Title:
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Exhibit C
SCHEDULE OF FEES
Acceptance Fee: $ 500.00
Annual Administration Fee: $ 2,500.00*
Wire Transfers $ 20.00 each
Check Preparation and Mailing $ 25.00 each
1099 Preparation and Reporting $ 5.00 each ($250 annual minimum if
any 1099 reports required
for account)
The Acceptance and first year's Annual Administration Fees are due upon
execution of the Escrow Agreement.
*Should the Escrow Account remain open for less than a full year after an
initial twelve month period, the Annual Administration Fee will be prorated on
a six-month basis.
Any investment transaction not in a money market fund or a LaSalle Enhanced
Liquidity Management account will incur a $150.00 per transaction fee.