ESCROW AGREEMENT
THIS AGREEMENT is made as of FEBRUARY 5, 2007, by and between OLD MUTUAL 2100
EMERGING MANAGERS INSTITUTIONAL FUND, L.L.C., a Delaware limited liability
company (the "Company") and SEI PRIVATE TRUST COMPANY, a limited purpose federal
savings bank regulated by the Office of Thrift Supervision ("SEI" or "Escrow
Agent").
WITNESSETH
WHEREAS, the Company is a registered, non-diversified, closed-end management
investment company under the Investment Company Act of 1940, as amended,
consisting of shares of beneficial interests; and
WHEREAS, the Company desires that SEI provide services as escrow agent for the
purpose of receiving payments from potential subscribing interestholders in the
Company (the "Potential Investors"), and SEI wishes to provide such services.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto agree as follows:
1. ACCEPTANCE BY ESCROW AGENT. The Escrow Agent hereby accepts the appointment
as escrow agent hereunder and agrees to act on the terms and conditions
hereinafter set forth.
2. RIGHTS AND RESPONSIBILITIES OF ESCROW AGENT. The acceptance by the Escrow
Agent of its duties hereunder is subject to the following terms and
conditions, which the parties to this Agreement hereby agree shall govern
and control the Escrow Agent's rights, duties, liabilities and immunities.
(a) The Escrow Agent shall act hereunder as a depositary only, and in its
capacity as such, it shall not be responsible or liable in any manner
whatever for the sufficiency, correctness, genuineness or validity of
any document furnished to the Escrow Agent or any asset deposited with
it.
(b) "Written Instructions" mean written instructions received by the
Escrow Agent and signed by the board of managers or any other person
duly authorized by the Company, to give such instructions on behalf of
the Company (each an "Authorized Person"). The instructions may be
delivered by hand, mail, facsimile, cable, telex or telegram; except
that any instruction terminating this Agreement may be given only by
hand or mail. The Company shall file from time to time with the Escrow
Agent a certified copy of each resolution of the board of managers
setting forth the names of the Authorized Persons for the purpose of
giving Written Instructions. Such resolution shall include certified
signatures of such Authorized Persons. This shall constitute
conclusive evidence of the authority of the signatories designated
therein to act. Such resolution shall be considered in full force and
effect with the Escrow Agent fully protected in acting in reliance
thereon unless and until it receives written notice from the Company
to the contrary. The Escrow Agent may rely upon and shall be protected
for any action or omission it takes pursuant to Written Instructions
if it, in good faith, believes such Written Instructions to be
genuine. Unless otherwise provided in this Agreement, the Escrow Agent
shall act only upon Written Instructions. The Escrow Agent shall be
entitled to assume that any Written Instruction received
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hereunder is not in any way inconsistent with the provisions of the
Company's formation documents or this Agreement or of any vote,
resolution or proceeding of the Company's board of managers, unless
and until the Escrow Agent receives Written Instructions to the
contrary.
(c) The Escrow Agent shall be obligated to exercise care and diligence in
the performance of its duties hereunder, to act in good faith and to
use its best efforts, within reasonable limits, in performing services
provided for under this Agreement. The Escrow Agent shall be liable
for any damages arising out if its failure to perform its duties under
this Agreement to the extent such damages arise out of its willful
misfeasance, fraud, bad faith, gross negligence or reckless disregard
of such duties.
(d) Notwithstanding anything in this Agreement to the contrary, neither
the Escrow Agent nor its affiliates shall be liable to the Company for
any consequential, special or indirect losses or damages which the
Company may incur or suffer by or as a consequence of the Escrow
Agent's or its affiliates' performance of the services provided
hereunder, whether or not the likelihood of such losses or damages was
known by the Escrow Agent or its affiliates.
(e) Without limiting the generality of the foregoing or of any other
provision of this Agreement, the Escrow Agent shall not be liable for
losses beyond its control, provided it has acted in accordance with
the standard of care set forth above; and the Escrow Agent shall not
be liable for delays or errors or loss of data occurring by reason of
circumstances beyond its control, including acts of civil or military
authority, national emergencies, labor difficulties, fire, flood,
catastrophe, acts of God, insurrection, war, riots or failure of the
mails, transportation, communication or power supply.
(f) The Company agrees to indemnify the Escrow Agent and hold it harmless
from and against any tax, charge, loss, liability, expense (including
reasonable attorneys fees and expenses), claim or demand arising
directly or indirectly from any action or omission to act which the
Escrow Agent takes (i) at the request or on the direction of or in
reliance on the advice of the Company or (ii) upon Written
Instructions; provided, however, that neither the Escrow Agent, nor
any of its affiliates, shall be indemnified against any liability (or
any expenses incident to such liability) arising out of the Escrow
Agent's or its affiliates own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations under
this Agreement. The Company shall indemnify and hold harmless the
Escrow Agent against and in respect of any liability for taxes and for
any penalties or interest in respect of taxes attributable to the
investment of funds held in escrow by the Escrow Agent pursuant to
this Agreement. Notwithstanding anything in this Agreement to the
contrary, neither party shall be liable to the other for any
consequential, special or indirect losses or damages which such party
may incur or suffer, whether or not the likelihood of such losses or
damages was known by such party. These indemnities shall survive the
resignation of the Escrow Agent or the termination of this Agreement.
(g) The Escrow Agent shall have no duties except those specifically set
forth in this Agreement.
(h) The Escrow Agent shall have the right at any time it deems appropriate
to seek an adjudication in a court of competent jurisdiction as to the
respective rights of
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the parties hereto and shall not be held liable by any party hereto
for any delay or the consequences of any delay occasioned by such
resort to court.
(i) The Escrow Agent shall notify promptly the Company of any discrepancy
between the amounts set forth on any remittance advice received by
Escrow Agent and the sums delivered to it therewith.
3. DEPOSIT OF ESCROW FUND. The Escrow Agent shall establish an account at
Wachovia Bank, or a similar banking institution agreed to by the Company,
in the name of SEI PRIVATE TRUST COMPANY FBO OLD MUTUAL 2100 EMERGING
MANAGERS INSTITUTIONAL FUND, L.L.C. ESCROW FBO INVESTORS (the "Account").
The Escrow Agent shall promptly deposit in the Account checks remitted by
Potential Investors and made payable to the Company. Potential Investors
also may deposit monies in the Account by wire transfer pursuant to
instructions provided to them by the Company. The balance on deposit in the
Account will earn interest at prevailing market rates pursuant to
arrangements approved by the Company.
4. STATEMENTS. During the term of this Agreement, the Escrow Agent shall
provide the Company with (a) monthly statements containing the beginning
balance in the Account as well as all principal and income transactions for
the statement period and (b) a daily summary of amounts deposited and the
status of available funds. The Company shall be responsible for reconciling
such statements. The Escrow Agent shall be forever released and discharged
from all liability with respect to the accuracy of such statements, except
with respect to any such act or transaction as to which the Company shall,
within 90 days after the furnishing of the statement, file written
objections with the Escrow Agent.
5. DISTRIBUTIONS AND CLOSINGS. Upon Written Instructions, at each closing of
each offering of interests in the Company, the Escrow Agent will wire
principal balances on deposit in the Account to the account designated by
the Company. Such Written Instructions shall be sent to the Escrow Agent by
2:00 p.m. on the closing date with respect to each closing. In the event
that a Potential Investor who has escrow funds in the Account is not
admitted into the Company, upon Written Instructions, the Escrow Agent
shall promptly issue refunds to the Potential Investor in the amount of the
principal balance. Such refunds shall be made in wire form.
6. INTEREST. With respect to each closing, any interest earned on the Account
shall be credited to the Company.
7. REPURCHASES. The Company from time to time may wire balances to the Account
in connection with periodic repurchases of interests by the Company from
its shareholders. Upon Written Instructions, the Escrow Agent shall issue
repurchase payments from the Account via wire to the repurchasing
shareholder. Upon Written Instructions, the Escrow Agent will withhold
specified amounts from repurchasing shareholders.
8. TAX IDENTIFICATION NUMBER. All deposits to the Account shall be subject to
the Escrow Agent's receipt of a valid tax identification number for the
Company or Potential Investor, as applicable.
9. COMPENSATION. As compensation for the services rendered by SEI under this
Agreement, SEI shall receive a fee or fees as may be agreed to in writing
from time to time by the Company and SEI or an affiliate of SEI. The
Company shall also be responsible for and shall reimburse SEI for SEI's
reasonable costs and expenses incurred in connection with the performance
of its services under this Agreement. The
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Company and SEI acknowledge and agree that the fees payable pursuant
to this Section 9 shall be paid by the Company in accordance with the
terms of the Administration Agreement between the Company and SEI
Investments Global Funds Services ("SEI Investments"), an affiliate of
SEI, pursuant to which SEI Investments will provide certain
administrative services to the Company. It is further understood and
agreed that standard account transaction charges will be billed to the
Company as an out-of-pocket expense. The Company acknowledges that SEI
may receive float benefits in connection with maintaining certain
accounts required to provide services under this Agreement. The
provisions of this Section 9 shall survive termination of this
Agreement.
10. AMENDMENT. This Agreement may not be amended or supplemented, and no
provision hereof may be modified or waived, except by an instrument in
writing, signed by all of the parties hereto.
11. TERMINATION. This Agreement shall continue until terminated by either party
on 60 days' prior written notice. Upon the termination of this Agreement
and upon the delivery of the balance of the Account to a successor escrow
agent or such other person as may be designated by Written Instructions,
the Escrow Agent shall be released and discharged of any and all further
obligations hereunder.
If no successor escrow agent has been designated pursuant to Written
Instructions to receive the balance of the Account at the expiration of the
60-day period, the Escrow Agent shall have no further obligation hereunder
except to hold the escrow funds as a depositary. Upon written notification
by the Company of the appointment of the successor, the Escrow Agent shall
promptly deliver the balance of the Account to such successor, and the
duties of the resigning Escrow Agent shall thereupon in all respects
terminate, and it shall be released and discharged of any and all further
obligations hereunder.
12. EXECUTION. This Agreement may be executed in several counterparts, each of
which shall be deemed an original, but such counterparts together shall
constitute one and the same instrument.
13. MISCELLANEOUS. All covenants and agreements contained in this Agreement by
or on behalf of the parties hereto shall bind and inure to the benefit of
such parties and their respective heirs, administrators, legal
representatives, successors and assigns, as the case may be. The headings
in this Agreement are for convenience of reference only and shall neither
be considered as part of this Agreement, nor limit or otherwise affect the
meaning thereof. This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania without regard
to principles of conflicts of law.
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14. NOTICES. All instructions, notices and other communications hereunder must
be in writing and shall be deemed to have been duly given if delivered by
hand or facsimile or mailed by first class, registered mail, return receipt
requested, postage prepaid, and addressed as follows:
(a) IF TO THE COMPANY
XXXX XXXXXXXX, CPA
CHIEF FINANCIAL OFFICER
0000 XXXXX XXXX LLC
000 XXXXXXXXXXX XXX, X-000
XXX XXXXX, XX 00000
(b) If to the Escrow Agent
SEI Private Trust Company
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
Attention: General Counsel
15. PARTIAL INVALIDITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby.
16. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding among the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof; provided that, the
parties may embody in one or more separate documents their agreement, if
any, with respect to delegated duties and instructions.
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IN WITNESS THEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
COMPANY:
OLD MUTUAL 2100 EMERGING MANAGERS INSTITUTIONAL FUND, L.L.C.
By: _______________________
Name: _____________________
Title: ____________________
SEI PRIVATE TRUST COMPANY
By: ______________________
Name: ____________________
Title: ___________________
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