SEI LETTERHEAD
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 13th day of October, 2006 (the
"Effective Date"), by and between each of the Funds set forth on SCHEDULE I of
this Agreement (each a "FUND" and collectively, the "FUNDS") (the
"ADMINISTRATOR") and SEI Investments Global Funds Services (the
"ADMINISTRATOR"), a Delaware statutory trust.
WHEREAS, each Fund is a registered, non-diversified, closed-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 ACT") consisting of shares of beneficial interest ("INTERESTS"); and
WHEREAS, the Administrator has agreed, at the request of each Fund, to
provide each Fund with certain administrative services on the terms and subject
to the conditions hereinafter contained.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and intending to be legally bound, the Administrator, and
each Fund hereby agree as follows:
SECTION 1 DEFINITIONS
1.01 "AFFILIATED PERSON" shall have the meaning specified in the 1940 Act
and the rules and regulations there under, subject to such
exemptions as may be granted by the Securities and Exchange
Commission.
1.02 "BOARD" means any board of directors, board of trustees, board of
managers, managing members, general partners or other Persons having
similar responsibilities to any of the foregoing.
1.03 "CONFIDENTIAL INFORMATION" shall have the meaning given to such term
in SECTION 11.01 of this Agreement.
1.04 "DISCLOSING PARTY" shall have the meaning given to such term in
SECTION 11.01 of this Agreement.
1.05 Unless the context otherwise requires and except as otherwise
specified in this Agreement, the term "FUND" shall include those
Funds listed on Schedule I and, as applicable, any managing member,
general partner, director or other Person having similar status or
performing similar functions, as the case may be, acting on behalf
of such Fund.
1.06 "INITIAL TERM" shall have the meaning given to such term in SECTION
9.01 of this Agreement.
1.07 "INTERESTED PARTY" or "INTERESTED PARTIES" means the Administrator,
its subsidiaries and its affiliates and each of their respective
officers, directors, employees, agents, delegates and associates.
1.08 "INVESTMENT MANAGER" shall mean 0000 Xxxxx Xxxx, LLC, a Delaware
limited liability company.
1.09 "INVESTMENTS" shall mean such cash, securities and all other assets
and property of whatsoever nature now owned or subsequently acquired
by or for the account of a Fund.
1.10 "LIVE DATE" means the date on which a Fund is launched or
transferred from a prior administrator and the Administrator begins
calculating such Fund's official net asset values ("NAV").
1.11 "ORGANIZATIONAL DOCUMENTS" means, as applicable, the articles of
incorporation, certificate of formation, memorandum of association,
partnership agreement, bylaws or other similar documentation setting
forth the respective rights and obligations of directors, managers
and Interest holders in a Fund.
1.12 "PERSON" shall mean any natural person, partnership, estate,
association, custodian, nominee, limited liability company,
corporation, trust or other legal entity.
1.13 "PROSPECTUS" means any prospectus, statement of additional
information or registration statement, private placement memorandum,
notice, circular, proxy or other client/investor communication
issued by the Fund from time to time, as appropriate, including all
amendments or supplements thereto.
1.14 "RECEIVING PARTY" shall have the meaning given to such term in
SECTION 11.01 of this Agreement.
1.15 "RENEWAL TERM" shall have the meaning given to such term in SECTION
9.01 of this Agreement.
SECTION 2 APPOINTMENT AND CONTROL
2.01 SERVICES. Each Fund hereby appoints the Administrator to be, and the
Administrator agrees on behalf of such Fund to act as, the
administrative agent of each Fund for the term and subject to the
provisions hereof. The Administrator shall perform (and may delegate
or sub-contract, as provided below) the services set forth in this
Agreement, including the services set forth in SCHEDULE II of this
Agreement and those agreed to in writing and signed by the parties
from time to time (collectively, the "SERVICES"). In performing its
duties under this Agreement, the Administrator will act in all
material respects in accordance with the Fund's governing documents
and Prospectus as they may be amended (provided copies are delivered
to the Administrator).
2.02 AUTHORITY. Each of the activities engaged in under the provisions of
this Agreement by the Administrator on behalf of any Fund shall be
subject to the overall direction and control of such Fund or any
Person authorized to act on such Fund's behalf; provided, however,
that the Administrator shall have the general authority to do all
acts deemed in the Administrator's good faith belief to be necessary
and proper to perform its obligations under this Agreement. In
performing its duties hereunder, the Administrator shall observe and
generally comply with the applicable Prospectus, all applicable
resolutions and/or directives of any Person authorized to act on the
applicable Fund's behalf of which it has notice, and applicable laws
which may from time to time apply to the Services rendered by the
Administrator. The Administrator (i) shall not have or be required
to have any authority to supervise the investment or reinvestment of
the securities or other properties which comprise the assets of any
Fund and (ii) shall not provide any investment advisory services to
any Fund, and shall have no liability related to the foregoing.
2.03 THIRD PARTIES; AFFILIATES. The Administrator may delegate to, or
sub-contract with, third parties or affiliates administrative or
other functions it deems necessary to perform its obligations under
this Agreement; provided, however, all fees and expenses incurred in
any delegation or sub-contract shall be paid by the Administrator
and the Administrator shall remain responsible to each Fund for the
acts and omissions of such other entities as if such acts or
omissions were the acts or omissions of the Administrator. Each Fund
acknowledges that during the term of this Agreement, the services to
be performed by the Administrator may be completed by one or more of
the Administrator's affiliates or third parties located in or
outside of the United States of America.
2.04 FUND DATA. Each Fund shall be solely responsible for the accuracy,
completeness, and timeliness of all data and other information
provided to the Administrator by or on behalf of such Fund pursuant
to this Agreement (including, without limitation, (i) prices, (ii)
sufficient transaction supporting documentation, (iii) detailed
accounting methodologies with respect to such Fund's Investments,
(iv) the terms of any agreement between a Fund or its sponsor and an
investor regarding any special fee or specific fee arrangement or
access to portfolio information that may impact or affect the
Services, (v) trade and settlement information from prime brokers
and custodians, and (vi) the terms of any side letter or side pocket
arrangements that may impact or affect the Services) (collectively,
"FUND DATA"). All Fund Data shall be provided to the Administrator
on a timely basis and in a format and medium reasonably requested by
the Administrator from time to time. Each Fund shall have an ongoing
obligation to promptly update all Fund Data so that such information
remains current, complete and accurate. All Fund Data shall be
prepared and maintained, by or on behalf of each Fund, in accordance
with applicable law, the Prospectus and generally acceptable
accounting principles. The Administrator shall be entitled to rely
on all Fund Data and shall have no liability for any loss, damage or
expense incurred by any Fund or any other Person to the extent that
such loss, damage or expense
arises out of or is related to Fund Data that is not timely,
current, complete and accurate.
SECTION 3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE FUND
3.01 Each Fund represents and warrants that:
3.01.01 it has full power, right and authority to execute
and deliver this Agreement and to consummate the
transactions contemplated hereby; the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and
validly approved by all requisite actions on its part,
and no other proceedings on its part are necessary to
approve this Agreement or to consummate the transactions
contemplated hereby; this Agreement has been duly
executed and delivered by it; this Agreement constitutes
a legal, valid and binding obligation, enforceable
against it in accordance with its terms;
3.01.02 it is not a party to any, and there are no, pending or
threatened legal, administrative, arbitral or other
proceedings, claims, actions or governmental or
regulatory investigations or inquiries (collectively,
"ACTIONS") of any nature against it or its properties or
assets which could, individually or in the aggregate,
have a material effect upon its business or financial
condition. There is no injunction, order, judgment,
decree, or regulatory restriction imposed specifically
upon it or any of its properties or assets;
3.01.03 it is not in default under any contractual or statutory
obligations whatsoever (including the payment of any
tax) which, individually or in the aggregate, could
materially and adversely affect, or is likely to
materially and adversely affect, its business or
financial condition;
3.01.04 it has obtained all consents and given all notices
(regulatory or otherwise), made all required regulatory
filings and is in compliance with all applicable laws
and regulations;
3.01.05 it has a valid engagement with an independent auditor,
custodian and prime broker and will provide additional
information regarding such service providers, including
information regarding the terms of its agreement with
such service providers, upon request;
3.01.06 it has notified the Administrator of any and all
separate agreements between a Fund and any third party
that could have an
impact on the Administrator's performance of its
obligations pursuant to this Agreement; and
3.01.07 it has disclosed the terms of any agreement between a
Fund or its sponsor and an investor regarding any
special fee or specific fee arrangement or access to
portfolio information that may impact or affect the
Services.
3.02 Each Fund covenants and agrees that:
3.02.01 it will furnish the Administrator from time to time with
copies, authenticated or certified, of its
Organizational Documents, a current version of the
applicable Prospectus and with any other information or
documents, including Fund Data, that the Administrator
may reasonably request;
3.02.02 it shall timely perform all obligations identified in
this Agreement as obligations of the Fund, including,
without limitation, providing the Administrator with all
Fund Data and Organizational Documents reasonably
requested by the Administrator;
3.02.03 it will promptly notify the Administrator of any matter
which could materially affect the Administrator's
performance of its duties and obligations under this
Agreement, including any amendment to the documents
referenced in Section 3.02.01 above;
3.02.04 it will promptly notify the Administrator in the event
that a Fund's investment strategy materially changes
from the strategy adopted by such Fund as of the
Effective Date;
3.02.05 it will comply in all material respects with all
applicable requirements of the Securities Act of 1933,
the Securities Exchange Act of 1934, the 1940 Act, and
any laws, rules and regulations of governmental
authorities having jurisdiction; and
3.02.06 it will promptly notify the Administrator in the event
of any changes to the representations and warranties
made hereunder.
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE ADMINISTRATOR
4.01 The Administrator represents and warrants that:
4.01.01 it has full power, right and authority to execute
and deliver this Agreement and to consummate the
transactions contemplated hereby; the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and
validly approved by all requisite action on its part,
and no other proceedings on its part are necessary to
approve this Agreement or to consummate the transactions
contemplated hereby; this Agreement has been duly
executed and delivered by it; this Agreement constitutes
a legal, valid and binding obligation, enforceable
against it in accordance with its terms.
4.01.02 it is not a party to any, and there are no, pending or
threatened Actions of any nature against it or its
properties or assets which could, individually or in the
aggregate, have a material effect upon its business or
financial condition. There is no injunction, order,
judgment, decree, or regulatory restriction imposed
specifically upon it or any of its properties or assets.
4.01.03 it is not in default under any statutory obligations
whatsoever (including the payment of any tax) which
materially and adversely affects, or is likely to
materially and adversely affect, its business or
financial condition.
SECTION 5 LIMITATION OF LIABILITY AND INDEMNIFICATION
5.01 The duties of the Administrator shall be confined to those expressly
set forth in this Agreement, and no implied duties are assumed by or
may be asserted against the Administrator. In the absence of gross
negligence, reckless disregard, bad faith or fraud in the
performance of the Services, the Administrator shall not be liable
for any error of judgment or mistake of law or for any loss arising
out of any investment or for any act or omission in carrying out its
duties under this Agreement. As used in this ARTICLE 5, the term
"ADMINISTRATOR" shall include the officers, directors, employees,
affiliates and agents of the Administrator as well as that entity
itself. Each Fund shall be solely responsible for its compliance
with applicable investment policies, the Prospectus, and any laws
and regulations governing the manner in which its assets may be
invested, and shall be responsible for any losses attributable to
non-compliance with the Prospectus, any applicable policies, laws
and regulations governing such Fund, its activities or the duties,
actions or omissions of the Investment Manager. The Administrator
shall not in any circumstances be liable for any indirect, special,
punitive or consequential damages of any nature whatsoever. The
Administrator shall not be responsible for any inaccuracy, failure
or delay in the performance of any of its obligations under this
Agreement if such inaccuracy, failure or delay was due to (i) the
failure or delay of any Fund, underlying fund or either of their
respective
agents to perform its obligations under this Agreement or (ii) the
Administrator's reliance on Fund Data. Each party shall have the
duty to mitigate its damages for which another party may become
responsible.
5.02 Each Fund shall indemnify and hold harmless the Administrator from
and against and the Administrator shall have no liability in
connection with any and all actions, suits and claims, whether
groundless or otherwise, and from and against any and all losses,
damages, costs, charges, reasonable counsel fees and disbursements,
payments, expenses and liabilities (including reasonable
investigation expenses) arising directly or indirectly out of: (i)
any act or omission of the Administrator in carrying out its duties
hereunder or as a result of the Administrator's reliance upon any
instructions, notice or instrument that the Administrator believes
is genuine and signed or presented by an authorized Person; provided
that this indemnification and agreement to hold harmless shall not
apply if any such loss, damage or expense is caused by or arises
from the Administrator's bad faith, fraud, reckless disregard or
gross negligence in the performance of the Services; (ii) any
violation by any Fund or the Investment Manager of any applicable
investment policy, law or regulation, (iii) any misstatement or
omission in the Prospectus or any Fund Data; (iv) any breach by a
Fund of any representation, warranty or agreement contained in this
Agreement; (v) any act or omission of a Fund, an underlying fund, a
Fund's former administrator prior to the Effective Date, a Fund's
other service providers that provide services other than those
delegated by the Administrator pursuant to SECTION 2.03 (such as
custodians, prime brokers, transfer agents, investment advisors and
sub-advisers); (vi) any pricing error caused by the failure of a
Fund's Investment Manager or sub-adviser to provide a trade ticket
or for incorrect information included in any trade ticket; (vii) any
side letter arrangement or other binding agreement between an
investor in a Fund and the Fund or its sponsor; or (viii) any act or
omission of the Administrator as a result of the Administrator's
compliance with the Regulations, including, but not limited to,
returning an investor's investment or restricting the payment of
redemption proceeds.
5.03 The Administrator may apply to any Fund, the Investment Manager or
any Person acting on a Fund's behalf at any time for instructions
and may consult counsel for any Fund or the Investment Manager or
with accountants, counsel and other experts with respect to any
matter arising in connection with the Administrator's duties
hereunder, and the Administrator shall not be liable or accountable
for any action taken or omitted by it in good faith in accordance
with such instruction or with the advice of counsel, accountants or
other experts. Also, the Administrator shall not be liable for
actions taken pursuant to any document which it reasonably believes
to be genuine and to have been signed by the proper Person or
Persons. The Administrator shall not be held to have notice of any
change of authority of any officer, employee or agent of a Fund
until receipt of written notice thereof. To the extent that the
Administrator consults with Fund counsel pursuant to this provision,
any such expense shall be borne by the applicable Fund.
5.04 The Administrator shall have no liability for its reliance on Fund
Data or the performance or omissions of unaffiliated third parties
such as, by way of example and not limitation, transfer agents,
sub-transfer agents, custodians, prime brokers, placement agents,
third party marketers, asset data service providers, investment
advisers (including, without limitation, the Investment Manager) or
sub-advisers, current or former third party service providers,
Pricing Sources, software providers, printers, postal or delivery
services, prior administrators, telecommunications providers and
processing and settlement services that provide services other than
those delegated by the Administrator pursuant to SECTION 2.03. The
Administrator may rely on and shall have no duty to investigate or
confirm the accuracy or adequacy of any information provided by any
of the foregoing third parties.
5.05 The Administrator shall have no obligations with respect to any laws
relating to the purchase or sale of Interests in a Fund. Further,
each Fund assumes full responsibility for the preparation, contents
and distribution of a Fund's Prospectus and its compliance with any
applicable laws, rules, and regulations.
The Administrator shall indemnify each Fund and its officers,
employees and agents and hold them harmless from and against any and
all actions, suits and claims, whether groundless or otherwise, and
from and against any and all losses, damages, (excluding
consequential, punitive or other indirect damages), costs, charges,
reasonable counsel fees and disbursements, payments, expenses, and
liabilities (including reasonable investigation expenses), including
claims by third-parties, arising directly or indirectly out of the
Services provided by the Administrator hereunder and arising or
based upon the gross negligence, reckless disregard, bad faith or
fraud of the Administrator, its directors, trustees, officers,
employees and agents in the performance of the Services.
5.06 The indemnification rights of the Administrator and each Fund
hereunder shall include the right to reasonable advances of defense
expenses in the event of any pending or threatened litigation or
Action with respect to which indemnification hereunder may
ultimately be merited. If in any case either party may be asked to
indemnify or hold the other party harmless, the party requesting
indemnification shall promptly advise the other party of the
pertinent facts concerning the situation in question, and the party
requesting indemnification will use all reasonable care to identify
and notify the other party promptly concerning any situation which
presents or appears likely to present the probability of such a
claim for indemnification, but failure to do so shall not affect the
rights hereunder.
5.07 The indemnifying party shall be entitled to participate at its own
expense or, if it so elects, to assume the defense of any suit
brought to enforce any claims subject to the foregoing
indemnification provisions. If the indemnifying party elects to
assume the defense of any such claim, the defense shall be conducted
by counsel chosen by such party and satisfactory to the other party,
whose approval shall not be unreasonably withheld. In the event that
the indemnifying party elects to assume the defense of any suit and
retain counsel, the other party shall bear the fees and expenses of
any additional counsel retained by it. If the indemnifying party
does not elect to assume the defense of a suit, it shall reimburse
the other party for the fees and expenses of any counsel retained by
the other party.
5.08 The provisions of this ARTICLE 5 shall survive the termination of
this Agreement.
SECTION 6 VALUATION
The Administrator is entitled to rely on the price and value information
(hereinafter "VALUATION INFORMATION") provided by prior administrators, brokers
and custodians, investment advisors (including, without limitation, the
Investment Manager), an underlying fund in which a Fund invests, if applicable,
or any third-party pricing services selected by the Administrator, the
Investment Manager or a Fund (collectively hereinafter referred to as the
"PRICING SOURCES") in order to calculate a Fund's aggregate NAV (and the value
of investors' capital accounts based upon such valuation). The Administrator
shall have no obligation to obtain Valuation Information from any sources other
than the Pricing Sources, and may rely on estimates provided by the Investment
Manager or the applicable underlying fund. In the event that the Investment
Manager does not provide a timely value for an underlying fund, the
Administrator shall have the right to use the prior month's valuation in its
calculation of the current month's NAV, and the Administrator shall have no
liability and shall be indemnified by the applicable Fund in connection with
such action. The Administrator shall have no liability or responsibility for the
accuracy of the Valuation Information provided by a Pricing Source or the
delegate of a Pricing Source and the applicable Fund shall indemnify and defend
the Administrator against any loss, damages, costs, charges or reasonable
counsel fees and expenses in connection with any inaccuracy of such Valuation
Information. No Fund shall use Valuation Information for any purpose other than
in connection with the Services and in accordance with the provisions of this
Agreement.
SECTION 7 ALLOCATION OF CHARGES AND EXPENSES
7.01 THE ADMINISTRATOR. The Administrator shall furnish at its own
expense the personnel necessary to perform its obligations
under this Agreement.
7.02 EXPENSES. Each Fund assumes and shall pay or causes to be paid all
expenses not otherwise allocated in this Agreement, which expenses
may include, without limitation, organizational costs; taxes;
expenses for legal and auditing services; the expenses of preparing
(including typesetting), printing and mailing reports, prospectuses,
statements of additional information, proxy solicitation and tender
offer materials, and notices to existing investors; all expenses
incurred in connection with issuing and redeeming Interests; the
costs of Pricing Sources; the costs of escrow and custodial
services; the costs of document retention and archival services, the
costs of responding to document production requests; the cost of
initial and ongoing registration of the Interests under Federal and
state securities laws; fees and out-of-pocket expenses of Directors;
the costs of Directors' meetings; insurance; interest; brokerage
costs; litigation and other
extraordinary or nonrecurring expenses; and all fees and charges of
service providers TO SUCH FUND. Each Fund shall reimburse the
Administrator for its reasonable out-of-pocket expenses, including
all reasonable charges for SAS 70 audit charges, printing, copying,
postage, telephone, and fax charges incurred by the Administrator in
the performance of its duties.
SECTION 8 COMPENSATION
Each Fund shall pay to the Administrator, as compensation for the services
performed and the facilities and personnel provided by the Administrator
pursuant to this Agreement, its portion of the fees set forth in the written fee
schedule annexed hereto as SCHEDULE III and incorporated herein. No Fund shall
have a right of set-off. The fees set forth herein are determined based on the
investment strategy of each Fund as of the Effective Date. Any material change
to the investment strategy of a Fund may give rise to an adjustment to the fees
set forth in this Agreement. In the event of a change in the investment strategy
of a Fund, the parties shall negotiate any adjustment to the fees payable
hereunder in good faith. Each Fund shall pay the Administrator's fees monthly in
U.S. Dollars, unless otherwise agreed to by the parties. The Administrator is
hereby authorized to, and may, at its option, automatically debit its fees due
from any Fund's portfolio account(s), as set forth on SCHEDULE III, which may be
amended from time to time in writing by the parties. The Funds shall pay the
foregoing fees despite the existence of any dispute among the parties. If this
Agreement becomes effective subsequent to the first day of any calendar month or
terminates before the last day of any calendar month, the Administrator's
compensation for that part of the month in which this Agreement is in effect
shall be prorated in a manner consistent with the calculation of the fees as set
forth in SCHEDULE III. Each Fund agrees to pay interest on all amounts past due
in an amount equal to the lesser of the maximum amount permitted by applicable
law or the monthly rate of one and one-half percent (1 1/2%) times the amount
past due multiplied by the number of whole or partial months from the date on
which such amount was first due up to and including the day on which payment is
received by the Administrator.
SECTION 9 DURATION AND TERMINATION
9.01 TERM AND RENEWAL. This Agreement shall become effective as of the
Effective Date and shall remain in effect for a period of three
years from and after the Live Date (the "INITIAL TERM"), and
thereafter shall automatically renew for successive one year terms
(each such period, a "RENEWAL TERM") unless terminated by any party
giving written notice of non-renewal at least ninety days prior to
the last day of the then current term to each other party hereto.
9.02 TERMINATION FOR CAUSE.
9.02.01 This Agreement may be terminated by any party giving at
least sixty days prior notice in writing to the other
parties if at anytime the other party or parties have
been first (i) notified in writing that such party shall
have materially failed to perform its duties and
obligations under this Agreement (such notice shall be
of the specific
asserted material breach) ("BREACH NOTICE") and (ii) the
party receiving the Breach Notice shall not have
remedied the noticed failure within sixty days after
receipt of the Breach Notice requiring it to be
remedied; provided, however, that the party delivering
the Breach Notice shall have the right to terminate this
Agreement without giving the party receiving the Breach
Notice an opportunity to remedy such material breach in
the event that the party receiving the Breach Notice has
committed a material breach two or more times during the
Initial Term or any Renewal Term of this Agreement.
9.02.02 This Agreement may be terminated by any party giving one
hundred twenty days prior notice in writing to the other
parties prior to the "liquidation" of a Fund. For
purposes of this paragraph, the term "liquidation" shall
mean a transaction in which all the assets of a Fund are
sold or otherwise disposed of and proceeds there from
are distributed in cash to the investors in complete
liquidation of the Interests of investors in such Fund.
A termination pursuant to this SECTION 9.02.02 shall be
effective with respect to any Fund as of the date of
such liquidation. Notwithstanding the foregoing, the
right to terminate set forth in this SECTION 9.02.02
shall not relieve the liquidating Fund of its obligation
to pay the fees set forth on SCHEDULE III for the
remainder of the one hundred eighty day period set forth
in this SECTION 9.02.02, which amount shall be payable
prior to the effective date of such liquidation.
9.02.03 If the Administrator is unable to successfully convert
any Fund to its operational environment within a
reasonable period of time following the Effective Date
due to untimely, inaccurate or incomplete Fund Data, the
Administrator shall have the right to terminate this
Agreement, in its entirety or solely with respect to
such Fund, upon written notice and such termination
shall be effective upon the date set forth in such
notice.
9.03 EFFECT OF TERMINATION.
9.03.01 The termination of this Agreement shall be without
prejudice to any rights that may have accrued hereunder
to any party hereto prior to such termination.
9.03.02 After termination of this Agreement and upon payment of
all accrued fees, reimbursable expenses and other moneys
owed to the Administrator, the Administrator shall
deliver to the applicable Fund, or as it shall direct,
all books of account, records, registers,
correspondence, documents and assets relating to the
affairs of or belonging to such Fund in the possession
of or under the control of the Administrator or any of
its agents or delegates.
9.03.03 In the event any and all accrued fees, reimbursable
expenses and other moneys owed to the Administrator
hereunder remain unpaid in whole or in part for more
than thirty days past due, the Administrator, without
further notice, may take any and all actions it deems
necessary to collect such amounts due, and any and all
of its collection expenses, costs and fees shall be paid
by the applicable Fund, including, without limitation,
administrative costs, attorneys' fees, court costs,
collection agencies or agents and interest.
9.03.04 Notwithstanding the foregoing, in the event this
Agreement is terminated and for any reason the
Administrator, with the written consent of the
applicable Fund, in fact continues to perform any one or
more of the services contemplated by this Agreement, the
pertinent provisions of this Agreement, including
without limitation, the provisions dealing with payment
of fees and indemnification shall continue in full force
and effect. The Administrator shall be entitled to
collect from the applicable Fund, in addition to the
compensation described in SCHEDULE III, the amount of
all of the Administrator's expenses in connection with
the Administrator's activities following such
termination, including without limitation, the delivery
to the applicable Fund and/or its designees of such
Funds' property, records, instruments and documents.
SECTION 10 CONFLICTS OF INTEREST
10.01 NON-EXCLUSIVE. The services of the Administrator rendered to any
Fund are not deemed to be exclusive. The Administrator is free to
render such services to others. The Administrator shall not be
deemed to be affected by notice of, or to be under any duty to
disclose to any Fund or Person acting on such Fund's behalf,
information which has come into its possession or the possession of
an Interested Party in the course of or in connection with providing
administrative or other services to any other person or in any
manner whatsoever other than in the course of carrying out its
duties pursuant to this Agreement.
SECTION 11 CONFIDENTIALITY
11.01 CONFIDENTIAL INFORMATION. The Administrator and each Fund (in such
capacity, the "RECEIVING PARTY") acknowledge and agree to maintain
the confidentiality of Confidential Information (as hereinafter
defined) provided by the Administrator and any Fund (in such
capacity, the "DISCLOSING PARTY") in connection with this Agreement.
The Receiving Party shall not disclose or disseminate the Disclosing
Party's Confidential Information to any Person other than those
employees, agents, contractors, subcontractors and licensees of the
Receiving Party, or with respect to the Administrator as a Receiving
Party, to those employees, agents, contractors, subcontractors and
licensees of any agent or affiliate, who have a need to know it in
order to assist the Receiving Party in performing its obligations,
or to permit the Receiving Party to exercise its rights under this
Agreement. In addition, the Receiving Party (a) shall take all
reasonable steps to prevent unauthorized access to the Disclosing
Party's Confidential Information, and (b) shall not use the
Disclosing Party's Confidential Information, or authorize other
Persons to use the Disclosing Party's Confidential Information, for
any purposes other than in connection with performing its
obligations or exercising its rights hereunder. As used herein,
"reasonable steps" means steps that a party takes to protect its
own, similarly confidential or proprietary information of a similar
nature, which steps shall in no event be less than a reasonable
standard of care.
The term "CONFIDENTIAL INFORMATION," as used herein, shall mean all
business strategies, plans and procedures, proprietary information,
methodologies, data and trade secrets, non-public personal
information (as defined in Regulation S-P) and other confidential
information, communications and materials of the Disclosing Party,
its affiliates, their respective clients or suppliers, or other
Persons with whom they do business, that may be obtained by the
Receiving Party from any source or that may be developed as a result
of or related to this Agreement.
11.02 EXCLUSIONS. The provisions of this SECTION 11 respecting
Confidential Information shall not apply to the extent, but only to
the extent, that such Confidential Information: (a) is already known
to the Receiving Party free of any restriction at the time it is
obtained from the Disclosing Party, (b) is subsequently learned from
an independent third party free of any restriction and without
breach of this Agreement; (c) is or becomes publicly available
through no wrongful act of the Receiving Party or any third party;
(d) is independently developed by or for the Receiving Party without
reference to or use of any Confidential Information of the
Disclosing Party; or (e) is required to be disclosed pursuant to an
applicable law, rule, regulation, government requirement or court
order, or the rules of any stock exchange (provided, however, that
the Receiving Party shall advise the Disclosing Party of such
required disclosure promptly upon learning thereof in order to
afford the Disclosing Party a reasonable opportunity to contest,
limit and/or assist the Receiving Party in crafting such
disclosure).
11.03 PERMITTED DISCLOSURE. The Receiving Party shall advise its
employees, agents, contractors, subcontractors and licensees, and
shall require its affiliates to advise their employees, agents,
contractors, subcontractors and licensees, of the Receiving Party's
obligations of confidentiality and non-use under this SECTION 11,
and shall be responsible for ensuring compliance by its and its
affiliates' employees, agents, contractors, subcontractors and
licensees with such obligations. In addition, the Receiving Party
shall require all Persons that are provided access to the Disclosing
Party's Confidential Information, other than the Receiving Party's
accountants and legal counsel, to execute confidentiality or
non-disclosure agreements containing provisions substantially
similar to those set forth in this SECTION 11. The Receiving Party
shall promptly notify the Disclosing Party in writing upon learning
of any unauthorized disclosure or use of the Disclosing Party's
Confidential Information by such Persons.
11.04 CERTAIN RECORDS. The Administrator shall maintain customary records
in connection with its duties as specified in this Agreement. Any
records required to be maintained and preserved pursuant to Rules
31a-1 and 31a-2 under the 1940 Act which are prepared or maintained
by the Administrator on behalf of the Fund shall be prepared and
maintained at the expense of the Administrator, but shall be the
property of the Fund and will be made available to or surrendered
promptly to the Fund on request. In case of any request or demand
for the inspection of such records by another party, the
Administrator shall notify the Fund and follow the Fund's
instructions as to permitting or refusing such inspection; provided
that the Administrator may exhibit such records to any Person in any
case where it is advised by its counsel that it may be held liable
for failure to do so, unless (in cases involving potential exposure
only to civil liability) the Fund has agreed to indemnify the
Administrator against such liability.
11.05 EFFECT OF TERMINATION. Except with respect to the records addressed
in Section 11.04 of this Agreement, upon the Disclosing Party's
written request following the termination of this Agreement, the
Receiving Party promptly shall return to the Disclosing Party, or
destroy, all Confidential Information of the Disclosing Party
provided under or in connection with this Agreement, including all
copies, portions and summaries thereof. Notwithstanding the
foregoing sentence, (a) the Receiving Party may retain one copy of
each item of the Disclosing Party's Confidential Information for
purposes of identifying and establishing its rights and obligations
under this Agreement, for archival or audit purposes and/or to the
extent required by applicable law, and (b) the Administrator shall
have no obligation to return or destroy Confidential Information of
a Fund that resides in save tapes of Administrator; provided,
however, that in either case all such Confidential Information
retained by the Receiving Party shall remain subject to the
provisions of SECTION 11 for so long as it is so retained. If
requested by the Disclosing Party, the Receiving Party shall certify
in writing its compliance with the provisions of this paragraph.
SECTION 12 MISCELLANEOUS PROVISIONS
12.01 INTERNET ACCESS. Data and information may be made electronically
accessible to a Fund, its Investment Manager and/or sub-adviser(s)
and its investors through Internet access to one or more web sites
provided by the Sub-Administrator ("WEB ACCESS"). As between any
Fund and the Administrator, the Administrator shall own all right,
title and interest to such Web Access, including, without
limitation, all content, software, interfaces, documentation, data,
trade secrets, design concepts, "look and feel" attributes,
enhancements, improvements, ideas and inventions and all
intellectual property rights inherent in any of the foregoing or
appurtenant thereto including all patent rights, copyrights,
trademarks, know-how and trade secrets (collectively, the
"PROPRIETARY INFORMATION"). Each Fund recognizes that the
Proprietary Information is of substantial value to the Administrator
and no Fund shall use or disclose the Proprietary Information except
as specifically authorized in writing by the Administrator. Use of
the Web Access by a Fund or its agents or investors will be subject
to any additional terms of use set forth on the web site. All Web
Access and the information (including text, graphics and
functionality) on the web sites related to such Web Access is
presented "As Is" and "As Available" without express or implied
warranties including, but not limited to, implied warranties of
non-infringement, merchantability and fitness for a particular
purpose. The Administrator neither warrants that the Web Access will
be uninterrupted or error free, nor guarantees the accessibility,
reliability, performance, timeliness, sequence, or completeness of
information provided on the Web Access.
12.02 INDEPENDENT CONTRACTOR. In making, and performing under, this
Agreement, the Administrator shall be deemed to be acting as an
independent contractor of each Fund and neither the Administrator
nor its employees shall be deemed an agent, affiliate, legal
representative, joint venture or partner of the Administrator. No
party is authorized to bind any other party to any obligation,
affirmation or commitment with respect to any other Person.
12.03 ASSIGNMENT; BINDING EFFECT. No Fund may assign, delegate or
transfer, by operation of law or otherwise, this Agreement (in whole
or in part), or any of such Fund's obligations hereunder, without
the prior written consent of the Administrator, which consent shall
not be unreasonably withheld or delayed. The Administrator may
assign, delegate or transfer, by operation of law or otherwise, all
or any portion of its rights under this Agreement to an affiliate of
the Administrator or to any person or entity who purchases all or
substantially all of the business or assets of the Administrator to
which this Agreement relates, provided that such affiliate, person
or entity agrees in advance and in writing to be bound by the terms,
conditions and provisions of this Agreement, and provided, further
that the Administrator provides the Funds at least thirty days prior
written notice of such assignment. Subject to the foregoing, all of
the terms, conditions and provisions of this Agreement shall be
binding upon and shall inure to the benefit of each party's
successors and permitted assigns. Any assignment, delegation, or
transfer in violation of this provision shall be void and without
legal effect.
12.04 AGREEMENT FOR SOLE BENEFIT OF THE ADMINISTRATOR AND THE FUNDS. This
Agreement is for the sole and exclusive benefit of the Administrator
and the Funds and will not be deemed to be for the direct or
indirect benefit of either (i) the clients or customers of the
Administrator or any Fund or (ii) the Investment Manager. The
clients or customers of the Administrator or any Fund will not be
deemed to be third party beneficiaries of this Agreement nor to have
any other contractual relationship with the Administrator by reason
of this Agreement and each party hereto agrees to indemnify and hold
harmless the other party from any claims of its clients or customers
against the other party including any attendant expenses and
attorneys' fees, based on this Agreement or the services provided
hereunder.
12.05 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without
giving effect to any conflict of laws or choice of laws rules or
principles thereof, and the applicable provisions of the 1940 Act.
To the extent that the applicable laws of the Commonwealth of
Pennsylvania, or any of the provisions herein, conflict with
the applicable provisions of the 1940 Act, the latter shall control.
12.06 EQUITABLE RELIEF. Each party agrees that any other party's violation
of the provisions of SECTION 11 (CONFIDENTIALITY) may cause
immediate and irreparable harm to the other party for which money
damages may not constitute an adequate remedy at law. Therefore, the
parties agree that, in the event either party breaches or threatens
to breach said provision or covenant, the other party shall have the
right to seek, in any court of competent jurisdiction, an injunction
to restrain said breach or threatened breach, without posting any
bond or other security.
12.07 DISPUTE RESOLUTION. Whenever either party desires to institute legal
proceedings against the other concerning this Agreement, it shall
provide written notice to that effect to such other party. The party
providing such notice shall refrain from instituting said legal
proceedings for a period of thirty days following the date of
provision of such notice. During such period, the parties shall
attempt in good faith to amicably resolve their dispute by
negotiation among their executive officers. This SECTION 12.07 shall
not prohibit either party from seeking, at any time, equitable
relief as permitted under SECTION 12.06.
12.08 NOTICE. All notices provided for or permitted under this Agreement
(except for correspondence between the parties related to operations
in the ordinary course) shall be deemed effective upon receipt, and
shall be in writing and (a) delivered personally, (b) sent by
commercial overnight courier with written verification of receipt,
or (c) sent by certified or registered U.S. mail, postage prepaid
and return receipt requested, to the party to be notified, at the
address for such party set forth below, or at such other address of
such party specified in the opening paragraph of this Agreement.
Notices to the Administrator shall be sent to the attention of:
General Counsel, SEI Global Services, Inc., Xxx Xxxxxxx Xxxxxx
Xxxxx, Xxxx, Xxxxxxxxxxxx 00000, with a copy, given in the manner
prescribed above, to your current relationship manager. Notices to a
Fund shall be sent to the persons specified in SCHEDULE IV.
12.09 ENTIRE AGREEMENT; AMENDMENTS. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter
hereof. This Agreement supersedes all prior or contemporaneous
representations, discussions, negotiations, letters, proposals,
agreements and understandings between the parties hereto with
respect to the subject matter hereof, whether written or oral. This
Agreement may be amended, modified or supplemented only by a written
instrument duly executed by an authorized representative of each of
the parties.
12.10 SEVERABILITY. Any provision of this Agreement that is determined to
be invalid or unenforceable in any jurisdiction shall be ineffective
to the extent of such invalidity or unenforceability in such
jurisdiction, without rendering invalid or unenforceable the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. If a
court of competent jurisdiction declares any provision of this
Agreement to be invalid or unenforceable, the parties agree that the
court making such determination shall have the power to reduce the
scope, duration, or area of the provision, to delete specific words
or phrases, or to replace the provision with a provision that is
valid and enforceable and that comes closest to expressing the
original intention of the parties, and this Agreement shall be
enforceable as so modified.
12.11 WAIVER. Any term or provision of this Agreement may be waived at any
time by the party entitled to the benefit thereof by written
instrument executed by such party. No failure of either party hereto
to exercise any power or right granted hereunder, or to insist upon
strict compliance with any obligation hereunder, and no custom or
practice of the parties with regard to the terms of performance
hereof, will constitute a waiver of the rights of such party to
demand full and exact compliance with the terms of this Agreement.
12.12 ANTI-MONEY LAUNDERING LAWS. In connection with performing the
Services set forth herein, the Administrator may provide information
that a Fund may rely upon in connection with such Fund's compliance
with applicable laws and regulations aimed at the prevention and
detection of money laundering and/or terrorism financing activities
(hereinafter, the "REGULATIONS"). Each Fund and the Administrator
agree that the Administrator shall not be responsible for a Fund's
compliance with all such Regulations. It shall be a condition
precedent to providing Services to any Fund under this Agreement and
the Administrator shall have no liability for non-performance of its
obligations under this Agreement unless it is satisfied, in its
absolute discretion, that it has sufficient and appropriate
information and material to discharge its obligations under the
Regulations, and that the performance of such obligations will not
violate any Regulations applicable to it. Without in any way
limiting the foregoing, each Fund acknowledges that the
Administrator is authorized to return an investor's Investment in
any Fund and take any action necessary to restrict repayment of
redemption proceeds to the extent necessary to comply with its
obligations pursuant to the Regulations.
12.13 FORCE MAJEURE. No breach of any obligation of a party to this
Agreement (other than obligations to pay amounts owed) will
constitute an event of default or breach to the extent it arises out
of a cause, existing or future, that is beyond the control and
without negligence of the party otherwise chargeable with breach or
default, including without limitation: work action or strike;
lockout or other labor dispute; flood; war; riot; theft; act of
terrorism, earthquake or natural disaster. Either party desiring to
rely upon any of the foregoing as an excuse for default or breach
shall, when the cause arises, give to the other party prompt notice
of the facts which constitute such cause; and, when the cause ceases
to exist, give prompt notice thereof to the other party.
12.14 EQUIPMENT FAILURES. In the event of equipment failures beyond the
Administrator's control, the Administrator shall take reasonable and
prompt steps to minimize service interruptions but shall have no
liability with respect thereto. The Administrator shall develop and
maintain a plan for recovery from equipment failures which may
include contractual arrangements with appropriate parties making
reasonable provision for emergency use of electronic data processing
equipment to the extent appropriate equipment is available.
12.15 NON-SOLICITATION. During the term of this Agreement and for a period
of one year thereafter, no Fund shall solicit, make an offer of
employment to, hire, or enter into a consulting relationship with,
any person who was an employee of the Administrator during the term
of this Agreement. If a Fund breaches this provision, such Fund
shall pay to the Administrator liquidated damages equal to 100% of
the most recent twelve month salary of the Administrator's former
employee together with all legal fees reasonably incurred by the
Administrator in enforcing this provision. The foregoing restriction
on solicitation does not apply to unsolicited applications for jobs,
responses to public advertisements or candidates submitted by
recruiting firms, provided that such firms have not been contacted
to circumvent the spirit and intention of this SECTION 12.15.
12.16 HEADINGS. All Article headings contained in this Agreement are for
convenience of reference only, do not form a part of this Agreement
and will not affect in any way the meaning or interpretation of this
Agreement.
12.17 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall constitute one and the same
instrument. Each such counterpart shall be deemed an original, and
it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart. This
Agreement shall be deemed executed by both parties when any one or
more counterparts hereof or thereof, individually or taken together,
bears the original or facsimile signatures of each of the parties.
12.18 PUBLICITY. Except to the extent required by applicable Law, neither
the Administrator nor any Fund shall issue or initiate any press
release arising out of or in connection with this Agreement or the
Services rendered hereunder; PROVIDED, HOWEVER, that if no special
prominence is given or particular reference made to any Fund over
other clients, nothing herein shall prevent the Administrator from
(i) placing any Fund on the Administrator's client list(s) (and
sharing such list(s) with current or potential clients of the
Administrator); (ii) using any Fund as reference; or (iii) otherwise
orally disclosing that a Fund is a client of the Administrator at
presentations, conferences or other similar meetings. If the
Administrator desires to engage in any type of publicity other than
as set forth in subsections (i) through (iii) above or if a Fund
desires to engage in any type of publicity, the party desiring to
engage in such publicity shall obtain the prior written consent of
the other party hereto, such consent not to be unreasonably
withheld, delayed or conditioned.
[The remainder of this page has intentionally been left blank.]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the Effective Date.
FUNDS: ADMINISTRATOR:
OLD MUTUAL 2100 ABSOLUTE RETURN SEI INVESTMENTS GLOBAL FUNDS
MASTER FUND, L.L.C. SERVICES
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
OLD MUTUAL 2100 ABSOLUTE RETURN
FUND, L.L.C.
By:
----------------------------------
Name:
Title:
OLD MUTUAL 2100 EMERGING
MANAGERS MASTER FUND, L.L.C.
By:
----------------------------------
Name:
Title:
OLD MUTUAL 2100 EMERGING
MANAGERS FUND, L.L.C.
By:
----------------------------------
Name:
Title:
SEI LETTERHEAD
SCHEDULE I
FUNDS
--------------------------------------------------------------------------------
MASTER FUNDS FEEDER FUNDS
--------------------------------------------------------------------------------
Old Mutual 2100 Absolute Return Master Old Mutual 2100 Absolute Return Fund,
Fund, L.L.C. L.L.C.
--------------------------------------------------------------------------------
Old Mutual 2100 Emerging Managers Master Old Mutual 2100 Emerging Managers
Fund, L.L.C. Fund, L.L.C.
--------------------------------------------------------------------------------
SEI LETTERHEAD
SCHEDULE II
LIST OF SERVICES
ADMINISTRATIVE SERVICES:
1) STRATEGIC PLANNING AND PRODUCT DEVELOPMENT:
o Assist with the development of a business plan.
o Consult on product domicile issues, if needed.
o Consult on product structure.
o Introduce vendors who are experts in domicile and product structure.
2) COORDINATE PREPARATION OF FUND FINANCIAL STATEMENTS:
o Prepare Fund financial statements and supporting schedules, as
required.
o Send financial statements to investors.
o N-CSR preparation and filing.
o Provide sub-certification of financial reports to chief executive
officer and chief financial officer.
3) COORDINATE ANNUAL FUND AUDITS:
o Liaison with Fund auditors.
o Complete audit assistance schedules.
o Coordinate audit timetables.
4) BOARD OF DIRECTOR REPORTS/MEETINGS:
o Provide financial information for Board meetings.
o Attend meetings, if requested (provided the Administrator's out of
pocket expenses are paid for by the applicable Fund).
5) LEGAL SUPPORT SERVICES:
o Consult on Fund regulatory issues and anti-money laundering
requirements.
o Liaise with Fund counsel.
6) FUND PERFORMANCE REPORTING (MONTHLY):
o Provide investment status report.
o Provide performance information to client and client-designated
third parties.
7) INCOME AND EXPENSE REVIEWS:
o Prepare Fund expense budgets.
o Set expense accruals.
o Monitor Fund expense limitations/caps.
o Approve and authorize payment of expenses.
o Track expenses to be paid by third parties (with assistance of
Investment Manager).
8) PORTFOLIO AND REGULATORY COMPLIANCE SUPPORT (SECONDARY COMPLIANCE) IN
CONJUNCTION WITH THE CHIEF COMPLIANCE OFFICER:
o 5% and 10% Registered Investment Company limitation.
o Limitation of investments of Fund assets in any one Fund.
o Monitor shares sold to not exceed authorized amount.
o File TO 13-e-f on a quarterly basis (tender offer), Form N-Q
(quarterly holdings) and Form N-PX (proxy results).
9) TAX REPORTING:
o Coordinate necessary Federal Tax Returns (K-1).
o Coordinate necessary State Tax Returns.
o Provide Fund Auditor with data for tax filings
10) CHIEF COMPLIANCE OFFICER SUPPORT:
o Knowledge Partnership.
o CCO information and consulting.
ACCOUNTING SERVICES:
1) CALCULATE NET ASSET VALUE PER INTEREST:
o Update the final monthly market value of investments.
o Review Net Asset Value change from previous valuation for
reasonableness.
o Obtain hard copy valuations for each Investment held by the Funds.
2) DETERMINE AND REPORT CASH AVAILABILITY TO THE INVESTMENT MANAGER:
o Provide Investment Manager with intra-month hard copy cash
availability.
o Prepare and complete bank reconciliations, including notifying the
appropriate agent of any unusual reconciling items.
3) PARTNERSHIP ACCOUNTING RECORDS
o Allocate book basis profit and loss to individual partner capital
accounts in accordance with the partnership agreements.
o Calculate incentive / performance re-allocation/fee for each capital
account in accordance with the partnership agreement.
o Track high water xxxx and loss recovery accounts for purposes of the
incentive fee calculation in accordance with the partnership
agreements.
4) ASSIST INVESTMENT MANAGER WITH UNDERLYING FUND PURCHASES/ REDEMPTIONS:
o Facilitate the appropriate money movements to/from the custody bank
to the underlying fund manager.
o Complete necessary documents relating to the Fund's purchases and
sales of the underlying funds (i.e. subscription documents and
redemption letters).
5) RECONCILE AND RECORD ALL EXPENSE ACCRUALS:
o Accrue expenses based upon budget either as a percentage of Fund's
net assets or specific dollar amounts.
o Accrue and calculate amortization of organizational expenses, if
applicable.
o Monitor expense limitations, if applicable.
o Pay Fund expenses.
6) ENTER ALL INVESTMENT TRANSACTIONS INTO THE ACCOUNTING RECORDS:
o Receive and record all transaction information provided by the
Investment Manager.
o Verify individual security settlements with the custody agent.
o Maintain a security ledger of transactions.
o Determine realized gains or losses on security trades.
o Provide currency exchange rate realized and unrealized gain/loss
detail.
7) ENTER ALL INVESTOR TRANSACTIONS INTO THE ACCOUNTING RECORDS:
o Process all subscriptions and redemptions.
o Verify individual settlements with the custody agent.
o Reconcile all outstanding interest/partner balances to the transfer
agent's records.
8) REVIEW CUSTODY AGENT'S STATEMENTS:
o Reconcile cash and currency balances.
o Reconcile all security positions.
o Reconcile all interest and dividend receivable balances.
o Reconcile all foreign tax reclaim receivable balances, if
applicable.
9) SUBMIT ACCOUNTING REPORTS TO THE INVESTMENT MANAGER/CLIENT:
o Portfolio Valuation (listing of individual holdings, cost basis,
market value, unrealized appreciation/depreciation and percentage of
portfolio).
o Net Asset Value Calculation.
o Expense Summary
o Income Statement
o Balance Sheet
10) SUPPORT INVESTMENT MANAGER DUE DILIGENCE PROCESS FOR PROSPECTIVE
INTERESTHOLDERS THROUGH ON-SITE VISITS AS REQUESTED.
INVESTOR SERVICING:
1) PROCESSING OF INTERESTHOLDER ACTIVITY:
o Process new issues, subscriptions, redemptions, conversions and
exchanges of interests.*
o Manage tender process including defining the timeline, distributing
materials to investors, tracking member responses, tabulating tender
offer results and calculating tender payments.
o Report investor activity through investor deal board.
o Instruct money movements pertaining to investor transactions.
o Confirm transactions to investors and/or distributors and complete
audit request from auditors of the investors.
o Administer required payments for commission, sales loads and member
servicing fees.
o Retain correspondence and other information pertaining to the
investor register.
o Address investor inquiries.
o Fulfill investor document requests (e.g. prospectuses, financial
statements)
o Issue interests in accordance with the applicable Fund documents
upon receipt of: (a) duly completed subscription documents; (b) the
full amount of the subscription monies payable in respect of the
interests being subscribed in available Funds; and (c) documents or
evidence satisfactory to the Administrator that applicable
anti-money laundering regulations in any applicable jurisdiction
have been complied with in relation to the prospective investor and
the subscription.
2) REPORTING OF INVESTOR ACTIVITY:
o Mail account statements, notices of meetings and reports to
investors of record.
o Provide Fund accountants with reports and other interestholder
activity information.
3) MAINTAIN FUND INVESTOR RECORDS:
o Maintain the investor register.
o Maintain investor files.
o Provide liaison with independent auditors for transfer agency
inspection.
4) ANTI-MONEY LAUNDERING ("AML")
o Verify the identity of any Person seeking to open an account with a
Fund;
o maintain records of the information used to verify the Person's
identity;
o determine whether the Person appears on any lists of known or
suspected terrorists or terrorist organizations provided to a Fund
by any government agency in accordance with the Regulations;
o Determine when a suspicious activity report ("SAR") should be filed
as required by the Regulations; prepare and file the SAR; notify the
Funds of the SAR unless prohibited by law;
o Submit all financial transactions against the Office of Foreign
Asset Control ("OFAC") database and Financial Crimes and Enforcement
Network's ("FinCEN") 314(a) List or any successor list as may be
required from time to time;
o Compare account information to any FinCEN request received by the
Fund and provided to the transfer agent pursuant to USA PATRIOT Act
Sec. 314(a). Provide the Funds with documents/information necessary
to respond to requests under USA PATRIOT Act Sec. 314(a) within
required time frames;
o Place holds on transactions in member accounts or freeze assets in
member accounts, as provided in the Administrator's anti-money
laundering programs and in accordance with the Regulations, subject
to the provisions of this Amendment;
o Maintain all records or other documentation related to member
accounts and transactions therein that are required to be prepared
and maintained pursuant to the Administrator's internal AML program,
and make the same available for inspection by (i) the Funds' chief
AML compliance officer, (ii) any auditor of the Funds' AML program
or related procedures, policies or controls that has been designated
by the Funds in writing, or (iii) regulatory or law enforcement
authorities, and otherwise make said records or other documents
available at the direction of the Funds' AML compliance officer.
*SUBSCRIPTION/REDEMPTION ACCOUNT SERVICES:
1) AUTHORIZE THE TRANSFER OF MONEY FROM A FUND'S SUBSCRIPTION/REDEMPTION
ACCOUNT INTO A FUND'S TRADING ACCOUNT UPON WRITTEN INSTRUCTION FROM AN
INDIVIDUAL AUTHORIZED BY THE INVESTMENT MANAGER.
2) AUTHORIZE THE TRANSFER OF MONEY IN CONNECTION WITH REDEMPTION OF INTERESTS
FROM A FUND'S SUBSCRIPTION/REDEMPTION ACCOUNT TO INDIVIDUAL INVESTORS UPON
WRITTEN INSTRUCTION FROM AN INDIVIDUAL AUTHORIZED BY THE INVESTMENT
MANAGER.
3) AUTHORIZE THE RETURN OF INITIAL INVESTMENT MONEY TO A SUBSCRIBER IF THE
SUBSCRIBER DOES NOT MEET A FUND'S INVESTMENT REQUIREMENTS OR AS DIRECTED
BY A FUND OR THE INVESTMENT MANAGER UPON WRITTEN INSTRUCTION FROM AN
INDIVIDUAL AUTHORIZED BY THE INVESTMENT MANAGER.
4) PERFORM THE ANTI-MONEY LAUNDERING SERVICES SET FORTH IN THE
-ADMINISTRATION AGREEMENT.
5) AUTHORIZE THE TRANSFER OF MONEY FROM A FUND'S SUBSCRIPTION/REDEMPTION
ACCOUNT TO AN APPROPRIATE REGULATORY/LEGAL ENTITY UPON: (A) THE ORDER OF A
COURT WITH JURISDICTION, A PROPER GOVERNMENTAL AUTHORITY OR A SELF
REGULATORY ORGANIZATION; OR (B) WRITTEN INSTRUCTION FROM AN INDIVIDUAL
AUTHORIZED BY THE INVESTMENT MANAGER.
SUB-TRANSFER AGENCY SERVICING
1) INTERESTHOLDER RECORDKEEPING, TRANSACTION PROCESSING AND REPORTING.
2) DEALER AND INTERMEDIARY PROCESSING AND SUPPORT.
3) RECONCILIATION OF BANK ACCOUNTS AND CASH MOVEMENT.
4) AML SERVICES, ESCHEATMENT SERVICES AND COMPLIANCE WITH FUND PRIVACY
POLICIES.
5) INTERESTHOLDER STATEMENTS AND CONFIRMATIONS.
6) INTERESTHOLDER AND INTERMEDIARY INTERNET INQUIRY.
7) INVESTOR SALES DATA FOR BLUE SKY REPORTING.
CUSTODY SERVICES:
CUSTODY SERVICES WILL BE PROVIDED VIA A SEPARATE AGREEMENT BETWEEN THE FUNDS AND
SEI PRIVATE TRUST COMPANY.
SEI LETTERHEAD
SCHEDULE III
SCHEDULE OF FEES
ADMINISTRATION AND ACCOUNTING FEE:
The following fees are due and payable monthly to Administrator pursuant to
SECTION 8 of the Agreement. Each Fund will be charged the greater of the Asset
Based Fee or the Annual Minimum Fee, in each case calculated in the manner set
forth below.
ASSET BASED FEES: (calculated and assessed monthly in arrears based on the
net assets of the applicable Fund as of the prior month-end):
BASIS POINTS
------------------------------------
EACH EACH TOTAL
FEEDER FUND MASTER FUND
--------------------------------------------------------------------------------
First $100 million in net assets of the 13 1 14
applicable Fund
--------------------------------------------------------------------------------
Next $200 million in aggregate net assets 11 1 12
of the applicable Fund
--------------------------------------------------------------------------------
Next $200 million in aggregate net assets 9 1 10
of the applicable Fund
--------------------------------------------------------------------------------
Net assets of the applicable Fund in 7 1 8
excess of $500 million
--------------------------------------------------------------------------------
The Administration and Accounting Fee assumes a tiered minimum fee per fund
schedule as follows:
Year 1** Year 2 Year 3
-----------------------------
Old Mutual 2100 Absolute Return Master Fund, $ 5,000 $ 5,000 $ 5,000
L.L.C.
Old Mutual 2100 Absolute Return Fund, L.L.C. $70,000 $120,000 $145,000
Old Mutual 2100 Emerging Managers Master Fund, $ 5,000 $ 5,000 $ 5,000
L.L.C.
Old Mutual 2100 Emerging Managers Fund, L.L.C. $70,000 $120,000 $145,000
**For purposes of clarification, the term year 1, year 2 and year 3 shall
refer to the twelve month period beginning as of the Effective Date (with
respect to year 1) or the first or second anniversary of the Effective
Date (with respect to year 2 and year 3, respectively) and continuing for
a period of twelve months thereafter.
In consideration for the minimum fee concessions given by the Administrator
during the period immediately following the Effective Date, each Fund hereby
agrees that, in the event that a Fund is liquidated during the 18 months
immediately following the Effective Date, such liquidating Fund shall pay the
Administrator an early termination fee in an amount equal to $150,000.
SUB-TRANSFER AGENCY FEE:
Base Fee:
$2,000 per month per CUSIP
Shareholder Account Fees:
$1.50 per month per directly held shareholder account (assuming no phone
servicing)
$2.00 per month per directly held shareholder account (assuming Citigroup
performs telephone shareholder servicing)
$0.25 per month per closed shareholder account
Account Set-up Fees:
$25 per new shareholder account
The sub-transfer agency fee assumes a $50,000 complex minimum fee ($25,000 for
each Feeder Fund) based on the assumption that there will be two Funds within
this complex.
CUSTODY AND ESCROW FEE:
0.75 basis points annually on the month-end net assets of each Master Fund
and 0.25 basis points annually on the month-end net assets of each Feeder
Fund. The Custody and Escrow Fee assumes a $1,500 minimum fee for each
escrow and operating account opened on behalf of each Fund.
For purposes of clarification, the parties acknowledge and agree that the
Custody Fee paid by the Funds to the Administrator hereunder shall be
remitted to SEI Private Trust Company, as custodian to the Funds, in
accordance with the Administrator's duties hereunder.
ADDITIONAL FEEDERS/CLASSES:
$15,000 per feeder/class (if the Administrator is selected as the
administrator of such feeder/class)
OUT OF POCKET EXPENSES:
All reasonable out of pocket expenses (as set forth in Section 7.02 of this
Agreement) incurred by the Administrator on behalf of any Fund will be billed to
the applicable Fund quarterly in arrears. For purposes of clarification,
out-of-pocket charges include banking, NSCC, Fund paper stock, proxy solicitor,
escheatment, anti-money laundering expenses and related audit, SAS 70,
communications, document preparation and insertion, postage and delivery
services, reproduction and record storage and retention expenses.
SEI LETTERHEAD
Schedule IV
NOTICE INSTRUCTION FORM
TO WHOM NOTICES SHOULD BE SENT PURSUANT TO SECTION 12.08 OF THE AGREEMENT (ONE
CONTACT PER FUND PARTY, PLEASE):
Name of Party or Parties:
Name of Contact:
Address:
Telephone No.:
Facsimile No.:
Email Address:
AMENDMENT NO. 1 TO
ADMINISTRATION AGREEMENT
THIS AMENDMENT NO. 1 TO ADMINISTRATION AGREEMENT (this "AMENDMENT"), effective
as of February 8, 2007 (the "AMENDMENT EFFECTIVE DATE"), between and among Old
Mutual 2100 Absolute Return Master Fund, L.L.C.; Old Mutual 2100 Absolute Return
Fund, L.L.C.; Old Mutual 2100 Emerging Managers Master Fund, L.L.C.; Old Mutual
2100 Emerging Managers Fund, L.L.C. (collectively, the "EXISTING FUNDS"); Old
Mutual 2100 Emerging Managers Institutional Fund, L.L.C. and Old Mutual 2100
Absolute Return Institutional Fund, L.L.C. (collectively, the "NEW FEEDER FUNDS"
and together with the Existing Funds, the "FUNDS") and SEI Investments Global
Funds Services (hereinafter referred to as the "ADMINISTRATOR").
WHEREAS:
1. The Administrator and the Existing Funds entered into an
Administration Agreement, dated as of October 13, 2006 (the
"AGREEMENT"), pursuant to which, among other things, the
Administrator agreed to provide certain administration services
on behalf of the Existing Funds; and
2. The parties hereto desire to amend the Agreement on the terms and
subject to the conditions provided herein.
NOW THEREFORE, in consideration of the premises, covenants, representations and
warranties contained herein and intending to be legally bound hereby, the
parties hereto agree as follows:
1. SCHEDULE I (FUNDS). Schedule I (Funds) of the Agreement is hereby deleted
in its entirety and replaced as set forth in Attachment I hereto.
2. SCHEDULE III (SCHEDULE OF FEES). The terms set forth under the heading,
"Administration and Accounting Fee" of Schedule III (Schedule of Fees) of
the Agreement are hereby deleted in their entirety and replaced as set
forth in Attachment II hereto.
3. TERM AND RENEWAL. Section 9.01 of the Agreement is hereby deleted in its
entirety and replaced as set forth below:
TERM AND RENEWAL. This Agreement shall become effective as of the Effective
Date and shall remain in effect for a period of three years from and after
the Live Date of Old Mutual 2100 Absolute Return Fund, L.L.C. (November 1,
2006) (the "Initial Term"), and thereafter shall automatically renew for
successive one-year terms (each such period, a "Renewal Term") unless
terminated by any party giving written notice of non-renewal at least
ninety days prior to the last of the then current term to each other party
hereto.
4. RATIFICATION OF AGREEMENT. Except as expressly amended and provided herein,
all of the terms, conditions and provisions of the Agreement shall continue
in full force and effect.
5. COUNTERPARTS. This Amendment may be executed in two or more counterparts,
all of which shall constitute one and the same instrument. Each such
counterpart shall be deemed an original, and it shall not be necessary in
making proof of this Amendment to produce or account for more than one such
counterpart. This Amendment shall be deemed executed by each party when any
one or more counterparts hereof or thereof, individually or taken together,
bears the original, facsimile or scanned signatures of each of the parties.
6. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without giving
effect to any conflict of laws or choice of laws rules or principles
thereof.
[SIGNATURE PAGE FOLLOWS]
1
IN WITNESS WHEREOF this Amendment has been entered into as of the day and year
first above written.
FUNDS: ADMINISTRATOR:
OLD MUTUAL 2100 ABSOLUTE RETURN MASTER FUND, SEI INVESTMENTS GLOBAL FUNDS
L.L.C. SERVICES
By: _______________________
By: _______________________________________ Name:
Name: Title:
Title:
OLD MUTUAL 2100 ABSOLUTE RETURN FUND, L.L.C.
By: _______________________________________
Name:
Title:
OLD MUTUAL 2100 EMERGING MANAGERS MASTER FUND, L.L.C.
By: _______________________________________
Name:
Title:
OLD MUTUAL 2100 EMERGING MANAGERS FUND, L.L.C.
By: _______________________________________
Name:
Title:
OLD MUTUAL 2100 ABSOLUTE RETURN
INSTITUTIONAL FUND, L.L.C.
By: _______________________________________
Name:
Title:
OLD MUTUAL 2100 EMERGING MANAGERS INSTITUTIONAL
FUND, L.L.C.
By: _______________________________________
Name:
Title:
2
ATTACHMENT I
SCHEDULE I
FUNDS
MASTER FUNDS FEEDER FUNDS
--------------------------------------------------------------------------------
Old Mutual 2100 Absolute Return Master Fund, Old Mutual 2100 Absolute
L.L.C. Return Fund, L.L.C.
--------------------------------------------------------------------------------
Old Mutual 2100 Absolute
Return Institutional
Fund, L.L.C.
--------------------------------------------------------------------------------
Old Mutual 2100 Emerging Managers Master Fund, Old Mutual 2100 Emerging
L.L.C. Managers Fund, L.L.C.
--------------------------------------------------------------------------------
Old Mutual 2100 Emerging
Managers Institutional Fund,
L.L.C.
--------------------------------------------------------------------------------
3
ATTACHMENT II
ADMINISTRATION AND ACCOUNTING FEE:
The following fees are due and payable monthly to Administrator pursuant to
SECTION 8 of the Agreement. Each Fund will be charged the greater of the Asset
Based Fee or the Annual Minimum Fee, in each case calculated in the manner set
forth below.
ASSET BASED FEES: (calculated and assessed monthly in arrears based on the net
assets of the applicable Fund as of the prior month-end):
--------------------------------------------
BASIS POINTS
-----------------------------------------------------------------------------------------
EACH FEEDER EACH MASTER FUND TOTAL
FUND
-----------------------------------------------------------------------------------------
First $100 million in net assets of the 13 1 14
applicable Fund
-----------------------------------------------------------------------------------------
Next $200 million in aggregate net assets 11 1 12
of the applicable Fund
-----------------------------------------------------------------------------------------
Next $200 million in aggregate net assets 9 1 10
of the applicable Fund
-----------------------------------------------------------------------------------------
Net assets of the applicable Fund in excess 7 1 8
of $500 million
-----------------------------------------------------------------------------------------
ANNUAL MINIMUM FEE: (The Administration and Accounting Fee assumes a tiered
minimum fee per fund as follows):
Year 1** Year 2 Year 3
Old Mutual 2100 Absolute Return Master Fund, L.L.C. $5,000 $5,000 $5,000
Old Mutual 2100 Emerging Managers Master Fund, L.L.C. $5,000 $5,000 $5,000
The Annual Minimum Fee with respect to each Feeder Fund shall be an amount equal
to (1) such Feeder Fund's Applicable Percentage multiplied by (2) the Annual
Feeder Minimum. For purposes of the foregoing:
"APPLICABLE PERCENTAGE" means the portion (expressed as a percentage) of
the aggregate net assets of all of the Feeder Funds attributed to the
applicable Feeder Fund. For example, if the aggregate net assets of all
of the Feeder Funds equals $25,000,000 and Feeder Fund A has net assets
equal to $5,000,000, then the Applicable Percentage of Feeder Fund A is
20% (5,000,000/25,000,000= 0.2 or 20%).
"ANNUAL FEEDER MINIMUM" means (a) with respect to Year 1, $70,000 for
the initial Feeder Fund in each master/feeder fund structure plus
$15,000 for each Feeder Fund within the same master/feeder fund
structure added after the Effective Date; (b) with respect to Year 2,
$120,000 for the initial Feeder Fund in each master/feeder fund
structure plus $15,000 for each Feeder Fund within the same
master/feeder fund structure added after the Effective Date and (c) with
respect to Year 3, $145,000 for the initial Feeder Fund in each
master/feeder fund structure plus $15,000 for each Feeder Fund within
the same master/feeder fund structure added after the Effective Date.
** For purposes of clarification, the term year 1, year 2 and year 3 shall refer
to the twelve month period beginning as of the Effective Date (with respect to
year 1) or the first or second anniversary of the Effective Date (with respect
to year 2 and year 3, respectively) and continuing for a period of twelve months
thereafter.
In consideration for the minimum fee concessions given by the Administrator
during the period immediately following the Effective Date, each Fund hereby
agrees that, in the event that a Fund is liquidated during the 18 months
immediately following the Effective Date, such liquidating Fund shall pay the
Administrator an early termination fee in an amount equal to $150,000.
SUB-TRANSFER AGENCY FEE:
Base Fee:
$2,000 per month per CUSIP
Shareholder Account Fees:
$1.50 per month per directly held shareholder account (assuming no phone
servicing)
$2.00 per month per directly held shareholder account
(assuming Citigroup performs telephone shareholder servicing)
$0.25 per month per closed shareholder account
Account Set-up Fees:
$25 per new shareholder account
The sub-transfer agency fee assumes a $50,000 complex minimum fee for the Funds.
