ESCROW AGREEMENT
THIS AGREEMENT is made as of October 13, 2006, by and between Old Mutual 2100
Emerging Managers 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 Agents).
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
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 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 Old Mutual 2100 Emerging Managers Fund, L.L.C.
Escrow Account for the Benefit of 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 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.
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
c/o 0000 Xxxxx Xxxx LLC
000 Xxxxxx Xxx., Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
(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.
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 FUND, L.L.C.
By:
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Name:
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Title:
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SEI PRIVATE TRUST COMPANY
By:
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Name:
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Title:
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