EXHIBIT 10.01
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT (this "Agreement") is made as of the ___ day
of ____________, 2006, ("Effective Date") by and between MAN-AHL 130, LLC, a
Delaware limited liability company (the "Fund") and SEI Global Services, Inc.
(hereinafter referred to as the "Administrator").
WHEREAS, the Fund's managing member, Man Investments (USA) Corp., is
registered with the Commodity Futures Trading Commission ("CFTC") as a commodity
pool operator and a commodity trading advisor, and is responsible for the
overall management and administration of the Fund (hereinafter referred to as
the "Investment Manager").
WHEREAS, the Administrator has agreed, at the request of the Fund, to
provide the 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, the Fund and the Administrator hereby agree as follows:
SECTION 1 DEFINITIONS
1.01 "Confidential Information" shall have the meaning given to such term
in Section 11.01 of this Agreement.
1.02 "Disclosing Party" shall have the meaning given to such term in
Section 11.01 of this Agreement.
1.03 Unless the context otherwise requires and except as otherwise
specified in this Agreement, the term "Fund" shall include, where
applicable, any managing member, general partner or director, as the
case may be, acting on behalf of the Fund.
1.04 "Initial Term" shall have the meaning given to such term in Section
9.01 of this Agreement.
1.05 "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.
1.06 "Interests" means any limited liability company interests of the Fund.
1.07 "Investments" shall mean such cash, securities and all other assets
and property of whatsoever nature now owned or to be acquired by or
for the account of the Fund.
1.08 "Live Date" means the date on which the Fund is launched and
Administrator begins providing the Services hereunder.
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EXHIBIT 10.01
1.09 "Offering Memorandum" means any prospectus, registration statement,
notice, circular or other communication issued by the Fund from time
to time, as appropriate, including amendments or supplements thereto.
1.10 "Person" shall mean any individual, partnership, limited liability
company, corporation, trust or other legal entity.
1.11 "Receiving Party" shall have the meaning given to such term in Section
11.01 of this Agreement.
1.12 "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. The Fund hereby appoints the Administrator to be, and the
Administrator agrees to act as, the administrative agent of the 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 Schedule I, which may be amended from time
to time in writing by the parties ("Services").
2.02 Authority. Each of the activities engaged in under the provisions of
this Agreement by the Administrator on behalf of the Fund shall be
subject to the overall direction and control of the Fund or any Person
authorized to act on the 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 Offering Memorandum, all applicable resolutions and/or
directives of any Person authorized to act on the Fund's behalf of
which it has notice, and any other 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 the Fund and (ii) shall not
provide any investment advisory services to the Fund, and shall have
no liability related to the foregoing activities set forth in this
sentence.
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 the Fund for the acts and
omissions of such other entities. The 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.
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EXHIBIT 10.01
SECTION 3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE FUND
3.01 The Fund represents and warrants that:
3.01.1. 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.
3.01.2. 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 (collectively, "Actions") of any nature
against it or its properties or assets which would, 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.
3.01.3. to the best of its knowledge, it is not in default under any
contractual or statutory obligations whatsoever (including
the payment of any tax) which, in the aggregate, materially
and adversely affects, or is likely to materially and
adversely affect, its business or financial condition.
3.01.4. it has obtained or, within a reasonable period of time
following the Effective Date, will obtain all consents or
made all required filings with appropriate regulatory bodies
(including the Securities and Exchange Commission and the
Commodity Futures Trading Commission) to the extent necessary
to carry out its business.
3.02 The Fund covenants and agrees that:
3.02.1. it will furnish the Administrator from time to time with
copies, authenticated or certified, of its organizational
document(s), a current version of the applicable Offering
Memorandum and with any other documents that the
Administrator may reasonably request; and
3.02.2. it will promptly notify the Administrator of any matter of
which the Fund becomes aware and which it reasonably believes
would materially affect the Administrator's performance of
its duties and obligations under this Agreement, including
any amendment to the above-referenced documents.
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EXHIBIT 10.01
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE ADMINISTRATOR
4.01 The Administrator represents and warrants that:
4.01.1. 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.
4.01.2. 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 would, 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.
4.01.3. to the best of its knowledge, 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.
4.01.4. it has obtained or, within a reasonable period of time
following the Effective Date, will obtain all consents or
made all required filings with appropriate regulatory bodies
(including the Securities and Exchange Commission and the
Commodity Futures Trading Commission) to the extent necessary
to carry out its business.
4.02 The Administrator covenants and agrees that it will promptly notify
the Fund of any matter of which the Administrator becomes aware and
which would materially affect the Administrator's performance of its
duties and obligations under this Agreement.
SECTION 5 LIMITATION OF LIABILITY AND INDEMNIFICATION
5.01 In the absence of gross negligence, bad faith or fraud in the
performance of the Services or willful or reckless disregard of its
obligations hereunder, 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. The Fund
shall be solely responsible for its compliance with applicable
investment policies, and any laws and regulations governing the manner
in which its assets may be invested, and
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EXHIBIT 10.01
shall be responsible for any losses attributable to non-compliance
with any applicable policies, laws and regulations governing the Fund
or the duties, actions or omissions of the Investment Manager;
provided, however, that the Administrator shall be responsible for any
such losses solely attributable to the gross negligence, bad faith,
fraud, willful or reckless disregard of its obligations. The
Administrator shall not in any circumstances be liable for any
indirect, special, punitive or consequential damages of any nature
whatsoever. Each party shall have the duty to mitigate its damages for
which another party may become responsible.
5.02 The Fund shall indemnify and hold harmless the Administrator from and
against 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 instructions of any authorized
person; provided that this indemnification shall not apply if any such
loss, damage or expense is caused by or arises from the
Administrator's bad faith, fraud or gross negligence or wilful or
reckless disregard of its obligations hereunder; (ii) any violation by
the Fund or the Investment Manager of any applicable investment
policy, law or regulation or (iii) any misstatement or omission in the
Offering Memorandum, except to the extent that such misstatement or
omission is caused by information received from the Administrator and
confirmed by the Administrator in writing.
5.03 The Administrator may apply to the Fund, the Investment Manager or any
Person acting on the Fund's behalf at any time for instructions and
may consult counsel for the Fund or the Investment Manager or with
accountants, counsel and other experts with known industry experience
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
the Fund until receipt of written notice thereof.
5.04 Nothing herein shall make the Administrator liable for the performance
or omissions of unaffiliated third parties such as, by way of example
and not limitation, transfer agents, custodians, investment advisers
or sub-advisers, postal or delivery services, telecommunications
providers and processing and settlement services, except as set forth
in Sections 2.03 and 11.03.
5.05 The Administrator shall have no obligations with respect to any laws
relating to the purchase or sale of Interests in the Fund. Further,
the Fund assumes full
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EXHIBIT 10.01
responsibility for the preparation, contents and distribution of its
Offering Memorandum (except to the extent that such misstatement or
omission is caused by information received from the Administrator and
confirmed by the Administrator in writing) and its compliance with any
applicable laws, rules, and regulations.
5.06 The indemnification rights hereunder shall include the right to
reasonable advances of defense expenses (except where the Fund assumes
the defense pursuant to Section 5.07 of this Agreement) in the event
of any pending or threatened litigation with respect to which
indemnification hereunder may ultimately be merited; provided that the
party seeking indemnification shall provide reasonably prompt
notification to the indemnifying party of all such expenses. If in any
case the Fund may be asked to indemnify or hold the Administrator
harmless, the Administrator shall promptly advise the Fund of the
pertinent facts concerning the situation in question, and the
Administrator will use all reasonable care to identify and notify the
Fund 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, unless
such failure to promptly notify or advise the Fund materially impairs
the rights of the Fund and would have been avoided if prompt notice
were given.
5.07 The Fund shall be entitled to participate at its own expense or, if it
so elects, to assume the defense of any suit brought against the
Administrator to enforce any claims subject to this indemnity
provision. If the Fund elects to assume the defense of any such claim,
the defense shall be conducted by counsel chosen by the Fund and
satisfactory to the Administrator, whose approval shall not be
unreasonably withheld. In the event that the Fund elects to assume the
defense of any suit and retain counsel, the Administrator shall bear
the fees and expenses of any additional counsel retained by it. If the
Fund does not elect to assume the defense of a suit, it will reimburse
the Administrator for the reasonable fees and expenses of any counsel
retained by the Administrator.
5.08 The Administrator shall indemnify and hold harmless the Fund from and
against any and all actions, suits and claims, whether groundless or
otherwise, and from and against any and all reasonable losses, costs,
out of pocket costs, charges, reasonable counsel fees and
disbursements, payments, and expenses arising directly or indirectly
out of the Administrator's bad faith, fraud or gross negligence or
willful or reckless breach of its obligations hereunder.
5.09 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 the
underlying fund(s) into which the Fund invests, brokers and
custodians, investment advisors or any third-party pricing services
selected by the Administrator (collectively hereinafter referred to as
the
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EXHIBIT 10.01
"Pricing Sources") in order to calculate the Fund's net asset value
(and the value of interest holders' capital accounts based upon such
valuation). The Administrator shall have no obligation to obtain
Valuation Information from any sources other than the Pricing Sources.
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.
SECTION 7 ALLOCATION OF CHARGES AND EXPENSES
7.01 The Administrator. The Administrator shall furnish at its own expense
the executive, supervisory and clerical personnel necessary to perform
its obligations under this Agreement.
7.02 Fund Expenses. The Fund assumes and shall pay or cause to be paid all
expenses of the Fund not otherwise allocated in this Agreement,
including, without limitation, organizational costs; taxes; expenses
for legal and auditing services; the expenses of preparing (including
typesetting), printing and mailing reports, Offering Memorandum,
statements of additional information, proxy solicitation and tender
offer materials; and notices to existing Interest holders, all
expenses incurred in connection with issuing and redeeming Interests,
the costs of pricing services, the costs of custodial services, the
cost of initial and ongoing registration of the Interests under
Federal and state securities laws, fees and out-of-pocket expenses of
Directors who are not affiliated persons of the Administrator or any
affiliated corporation of the Administrator, 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 the Fund. The Fund shall reimburse the
Administrator for its reasonable out-of-pocket expenses, including all
reasonable charges for copying, postage, telephone, and fax charges
incurred by the Administrator in the performance of its duties.
SECTION 8 COMPENSATION
The 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, service fees as set out in
the written fee schedule annexed hereto as Schedule II and
incorporated herein. The Fund shall pay the Administrator's fees
quarterly in arrears in U.S. Dollars, unless otherwise agreed to by
the parties. In the event that the Fund is more than sixty days past
due with respect to any amounts due under this Agreement, the
Administrator is hereby authorized to, and may, at its option,
automatically debit its fees due from the Fund's portfolio account(s),
as set forth on Schedule II, which may be amended from time to time in
writing by the parties.
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 two years
from and after the Live
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EXHIBIT 10.01
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
the other party hereto.
9.02 Termination for Cause.
9.02.1. This Agreement may be terminated by any party giving at least
forty-five days prior notice in writing to the other party if
at anytime the other party has 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
forty-five days after the service of the Breach Notice
requiring it to be remedied.
9.02.2. This Agreement may be terminated by any party giving thirty
days notice in writing to the other parties prior to the
"liquidation" of the Fund. For purposes of this paragraph,
the term "liquidation" shall mean a transaction in which all
the assets of the Fund are sold or otherwise disposed of and
proceeds there from are distributed in cash to the Interest
holders in complete liquidation of the interests of Interest
holders in the Fund. A termination pursuant to this Section
9.02.2 shall be effective as of the date of such liquidation.
9.03 Effect of Termination.
9.03.1. 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.
9.03.2. 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
Fund, or as it shall direct, all books of account, records,
registers, correspondence, documents and assets relating to
the affairs of or belonging to the Fund in the possession of
or under the control of the Administrator or any of its
agents or delegates.
9.03.3. 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 Fund, including, without
limitation, administrative costs, attorneys fees, court
costs, and interest.
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EXHIBIT 10.01
SECTION 10 CONFLICTS OF INTEREST
10.01 Non-Exclusive. The services of the Administrator rendered to the
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 the Fund or Person acting on the 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.
10.02 Rights of Interested Parties. Subject to applicable law, nothing
herein contained shall prevent:
10.02.1. an Interested Party from buying, holding, disposing of or
otherwise dealing in any Interests for its own account or
the account of any of its customers or from receiving
remuneration in connection therewith, with the same rights
which it would have had if the Administrator were not a
party to this Agreement; provided, however, that the
activity of the Interested Party is not based on any part
upon any information received from or on behalf of the
Fund and the prices quoted by the Administrator are no
more favorable to the Interested Party than to a similarly
situated investor in or redeeming holder of Interests;
10.02.2. an Interested Party from buying, holding, disposing of or
otherwise dealing in any securities or other investments
for its own account or for the account of any of its
customers and receiving remuneration in connection
therewith, notwithstanding that the same or similar
securities or other investments may be held by or for the
account of the Fund provided, however, that the activity
of the Interested Party is not based on any part upon any
information received from or on behalf of the Fund.
10.02.3. an Interested Party from receiving any commission or other
remuneration which it may negotiate in connection with any
sale or purchase of Interests or Investments effected by
it for the account of the Fund; provided, however, that
the amount of such commission or other remuneration is
negotiated at arm's length; and
10.02.4. an Interested Party from contracting or entering into any
financial, banking or other transaction with the Fund or
from being interested in any such contract or transaction;
provided, however, that the terms of such transaction are
negotiated at arm's length.
SECTION 11 CONFIDENTIALITY
11.01 Confidential Information. Each of the Administrator and the Fund (in
such capacity, the "Receiving Party") acknowledges and agrees to
maintain the
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EXHIBIT 10.01
confidentiality of Confidential Information (as hereinafter defined)
provided by or on behalf of the Administrator and the Fund,
respectively, in connection with the rights and obligations of such
party pursuant to this Agreement (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 or entity other than those employees,
agents, contractors, subcontractors and licensees of the Receiving
Party, or 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 or entities 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, trading positions, and other
confidential information and materials of the Disclosing Party, its
affiliates, their respective clients or suppliers, or other persons
or entities 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 this Agreement.
11.02 Exclusions. The provisions of this Article 11 respecting
Confidential Information shall not apply to the extent, but only to
the extent, that such Confidential Information: (i) is not nonpublic
information (as such term is used in the Xxxxx-Xxxxx-Xxxxxx Act) and
(ii) (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
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EXHIBIT 10.01
their employees, agents, contractors, subcontractors and licensees,
of the Receiving Party's obligations of confidentiality and non-use
under this Article 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 and entities
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 Article 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 or entities.
11.04 Effect of Termination. 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 Law, and (b) the Administrator shall have no obligation
to return or destroy Confidential Information of the 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 Article 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 the Fund, its adviser and/or sub-adviser(s) and its
investors through Internet access to one or more web sites provided
by the Administrator ("Web Access"). All rights in Web Access
(including text and "look and feel" attributes) are owned by the
Administrator. Any commercial use of the content or any other aspect
of Web Access requires the written permission of the Administrator.
Use of the Web Access by the 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.
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EXHIBIT 10.01
12.02 Entire Agreement; Amendments. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter
hereof and thereof. 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.
12.03 Notice. All notices, requests, demands, claims and other
communications required or permitted to be delivered, given or
otherwise provided under this Agreement must be in writing and must
be delivered, given or otherwise provided: (i) by hand (in which
case, it will be effective upon delivery); (ii) by facsimile (in
which case, it will be effective upon receipt of confirmation of
good transmission); or (iii) by overnight delivery by a nationally
recognized courier service (in which case, it will be effective on
the business day after being deposited with such courier service);
in each case, to the address (or facsimile number) listed below:
If to the Administrator, to it at:
SEI Global Services, Inc.
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
Facsimile number: (000) 000-0000
Attention: General Counsel
If to the Fund, as specified in Schedule III.
Each of the parties to this Agreement may specify a different
address or facsimile number by giving notice in accordance
with this Section 12.03 to each of the other parties hereto.
12.04 Agreement for Sole Benefit of the Administrator and the Fund. This
Agreement is for the sole and exclusive benefit of the Administrator
and the Fund and will not be deemed to be for the direct or indirect
benefit of the clients or customers of the Administrator or the
Fund. The clients or customers of the Administrator or the 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 Severability. If any part, term or provision of this Agreement is
held to be illegal, in conflict with any law or otherwise invalid,
the remaining portion or portions
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EXHIBIT 10.01
shall be considered severable and not be affected, and the rights
and obligations of the parties shall be construed and enforced as if
the Agreement did not contain the particular part, term or provision
held to be illegal or invalid.
12.06 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.
12.07 Independent Contractor. In making and performing this Agreement,
Administrator shall be deemed to be acting as an independent
contractor of the Fund and shall not be deemed an agent, affiliate,
legal representative, joint venturer or partner of the Fund. Neither
Party is authorized to bind the other to any obligation, affirmation
or commitment with respect to any other person or entity.
12.08 Anti-Money Laundering Laws. In connection with performing the
Services set forth herein, the Administrator may provide information
that the Fund may rely upon in connection with the Fund's compliance
with applicable laws and regulations aimed at the prevention and
detection of money laundering and/or terrorism activities
(hereinafter, the "Regulations"). The Fund and the Administrator
agree that the Fund shall be responsible for its compliance with all
such Regulations.
12.09 Force Majeure. No breach of any obligation of a party to this
Agreement 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: acts of
terrorism, work action or strike; lockout or other labor dispute;
flood; war; riot; theft; earthquake or natural disaster. Either
party desiring to rely upon any of the foregoing as an excuse for
default or breach will, 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.
12.10 Equipment Failures. In the event of equipment failures beyond the
Administrator's control and not caused by the Administrator's gross
negligence, the Administrator shall take reasonable and prompt steps
to minimize service interruptions but shall have no liability with
respect thereto, except to the extent that such service
interruptions are the result of the Administrator's failure to
develop and maintain a plan for recovery as set forth in this
Section 12.10. 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.
Page 13 of 15
EXHIBIT 10.01
12.11 Governing Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware
without giving effect to any choice or conflict of law provision or
rule that would cause the application of the laws of any other
jurisdiction. Each party to this Agreement, by its execution hereof,
(i) hereby irrevocably submits to the nonexclusive jurisdiction of
the state or federal courts located within the State of Delaware for
the purpose of any action between the parties arising in whole or in
part under or in connection with this Agreement, and (ii) hereby
waives to the extent not prohibited by applicable law, and agrees
not to assert, by way of motion, as a defense or otherwise, in any
such action, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that its property is exempt
or immune from attachment or execution, that any such action brought
in one of the above-named courts should be dismissed on grounds of
forum non conveniens, should be transferred or removed to any court
other than one of the above-named courts, or should be stayed by
reason of the pendency of some other proceeding in any other court
other than one of the above-named courts, or that this Agreement or
the subject matter hereof may not be enforced in or by such court.
12.12 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. Words used herein, regardless of the number and gender
specifically used, will be deemed and construed to include any other
number, singular or plural, and any other gender, masculine,
feminine, or neuter, as the contract requires.
12.13 Counterparts. This Agreement may be executed in two or more
counterparts, each of which when so executed shall be deemed to be
an original, but such counterparts shall together constitute but one
and the same instrument.
12.14 Assignment. The Administrator may assign its rights and delegate its
duties hereunder to any affiliate of SEI Investments Company without
consent; provided that the Administrator shall notify the Fund
within a reasonable period of time prior to any such assignment.
12.15 Binding Agreement. This Agreement, and the rights and obligations of
the parties hereunder, shall be binding on, and inure to the benefit
of, the parties and their respective successors and assigns.
[THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK.]
Page 14 of 15
EXHIBIT 10.01
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
SEI GLOBAL SERVICES, INC.
By:
------------------------------
Name:
Title:
MAN-AHL 130, LLC
By:
------------------------------
Name:
Title:
Page 15 of 15
EXHIBIT 10.01
SCHEDULE I
LIST OF SERVICES
1. ACCOUNTING SERVICES
(a) Journalize investment, capital and income and expense activities;
(b) Maintain historical tax lots for each security;
(c) Record and reconcile corporate action activity and all other capital
changes;
(d) Reconcile cash and investment balances of the Fund with the Fund's
custodian(s), and provide the Investment Adviser with the beginning
cash balance available for investment purposes;
(e) Calculate contractual expenses, including management fees and
incentive allocation, as applicable, in accordance with the Fund's
prospectus;
(f) Post to and prepare the Balance Sheet and the Statement of Operations,
Statement of Changes in Net Assets, and Statement of Cash Flows in
U.S. dollar terms;
(g) Prepare and monitor the expense accruals and notify any officer of the
Fund of any proposed adjustments;
(h) Control all disbursements and authorize such disbursements from the
Fund's account with the custodian(s) upon written instructions;
(i) Calculate capital gains and losses;
(j) Determine net income;
(k) Determine applicable foreign exchange gains and losses on payables and
receivables, if applicable;
(l) Arrange for the computation of the net asset value in accordance with
the provisions of the Fund's Registration Statement on Form S-1;
(m) Provide performance information to designated third-parties, upon
written request;
(n) As appropriate, compute total return and expense ratios;
(o) Calculate net asset value per interest for the Fund:
I-1
EXHIBIT 10.01
(i) Complete monthly market valuation of securities held by the Fund
using standard Pricing Sources (IDC, Bloomberg, Reuters, etc.
for direct securities) and the Investment Manager.
(ii) Review net asset value change from previous month for
reasonableness.
(iii) Reasonableness checks include a review of relevant market
fluctuations.
(iv) Review individual security price variation via automated
reporting.
(v) Maintain fund accounting records including general ledger;
(p) Reconcile and record expense accruals
(i) Accrue expenses based upon budget either as a percentage of Fund
net assets or specific dollar amounts.
(ii) Monitor expense limitations, if applicable.
(iii) Accrue and calculate amortization of organization expenses, if
applicable.
(iv) Accrue and calculate performance expense.
(v) Track side pocket capital (with Investment Manager's
assistance);
(q) Enter futures and forward transactions into the accounting records:
(i) Receive and record transaction information provided by the
Investment Manager/custodian(s).
(ii) Verify and reconcile individual security settlements with the
prime broker.
(iii) Maintain a ledger of transactions.
(iv) Maintain individual tax lots for each security purchase/sale.
(v) Determine realized gains or losses on security trades; and
(r) Review prime brokers statements:
(i) Reconcile cash and currency balances.
(ii) Reconcile security positions via automated systems.
(iii) Reconcile interest and dividend receivable balances.
I-2
EXHIBIT 10.01
2. ADMINISTRATION SERVICES
(a) Support annual audits of financial statements as well as preparation
of Annual Reports on Form 10-k and Quarterly Reports on Form 10-Q;
(b) Coordinate with the adviser the preparation and printing of the Fund's
annual and semi-annual member reports;
(c) Provide such fund accounting and financial reports in connection with
quarterly meetings of the Board of Managers as are required or as they
may reasonably request;
(d) Coordinate with the Fund's counsel on drafting, reviewing and filing
registration statements, and coordinate printing and delivery of
prospectus and financial statements;
(e) Provide consultation to the Fund and its Investment Adviser on
regulatory matters relating to the operation of the Fund, and update
the Fund and its Investment Adviser on significant regulatory and
legislative developments which may affect the Fund;
(f) Develop or assist legal counsel to the Fund in the development of
policies and procedures relating to the operation of the Fund;
(g) Assist the Fund in handling and responding to routine regulatory
examinations with respect to records retained or services provided by
the Administrator, and coordinate with the Fund's legal counsel in
responding to any non-routine regulatory matters with respect to such
matters;
(h) Coordinate as necessary the registration or qualification of Interests
of the Fund with appropriate state securities authorities;
(i) Introduce vendors who are experts in areas of interest; and
(j) Perform such additional administrative duties relating to the
administration of the Fund as may subsequently be agreed upon in
writing between the Fund and the Administrator.
3. INVESTOR SERVICES
(a) Processing of investor activity:
(i) Process new issues, subscriptions, redemptions, conversions, and
exchanges of Interests.
(ii) Instruct money movements pertaining to investor transactions.
(iii) Confirm transactions to investors and/or distributors.
I-3
EXHIBIT 10.01
(iv) Retain correspondence and other information pertaining to the
investor register.
(v) Address investor inquiries.
(vi) Fulfill investor document requests (prospectuses, financial
statements, etc.).
(vii) 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.
(b) Reporting of investor activity:
(i) Mail or otherwise distribute to investors of record, account
statements, notices of meetings and reports.
(ii) Provide Fund accountants with reports and other investor
activity information.
(c) Maintain Fund investor records:
(i) Maintain the investor register.
(ii) Maintain investor files.
(iii) Provide liaison with independent auditors for transfer agency
inspection.
(iv) Address Fund anti-money laundering and USA PATRIOT Act.
4. ANTI-MONEY LAUNDERING SERVICES
(a) Verify the identity of all interest holders and maintain
identification verification and transactional records in accordance
with the requirements of the Regulations.
(b) Verify that the interest holders are not designated nationals and/or
blocked persons as identified on the OFAC list maintained by the U.S.
Department of Treasury (found at xxxx://xxx.xxxxx.xxx.xxxx), or any
other relevant regulatory or law enforcement agencies, as applicable.
(c) Pursuant to the Regulations, report any information or other matter
which comes to its attention relating to any person that the
Administrator knows or suspects is engaged in money laundering, to the
relevant authorities, as applicable.
I-4
EXHIBIT 10.01
SCHEDULE II
FEES & EXPENSES
ADMINISTRATION AND ACCOUNTING FEE:
The following fees are due and payable quarterly in arrears to Administrator
pursuant to Article 8 of the Agreement. The 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 FEE (calculated monthly and paid on a quarterly basis):
----------------------------------------------------------------------------
Fund Assets Basis Points
----------------------------------------------------------------------------
First $150 million in assets 9
----------------------------------------------------------------------------
Next $150 million in assets 8
----------------------------------------------------------------------------
Excess of $300 million in assets 6
----------------------------------------------------------------------------
The Asset Based Fee shall be calculated based on the aggregate average daily net
assets of the Fund during the period.
ANNUAL MINIMUM FEE (calculated monthly and paid on a quarterly basis):
----------------------------------------------------------------------------
Annual Minimum Fee Fee
----------------------------------------------------------------------------
As of the Effective Date $150,000
----------------------------------------------------------------------------
Additional minimum fee for classes added after $15,000 per additional
the Effective Date class
----------------------------------------------------------------------------
INVESTOR SERVICING FEE:
$20 annual per investor account charge for first 1,500 accounts;
$18 annual per investor account charge for each account over 1,500 accounts;
$25 per new investor set up charge first 1,500 accounts;
$23 per new investor set up charge for each account over 1,500 accounts; and
$12 per investor fulfillment item/phone call (i.e., offering documents, annual
reports, prospectuses.
OUT OF POCKET EXPENSES:
Pursuant to Section 7.02, the Fund shall pay all reasonable out of pocket
expenses (i.e., banking and wire transfer fees, fulfillment charges, pricing
service fees, postage, registration fees, facsimile and telephone charges)
incurred by the Administrator on behalf of the Fund. Such expenses shall be
billed to the Fund quarterly in arrears.
II-1
EXHIBIT 10.01
SCHEDULE III
NOTICE INSTRUCTION FORM
TO WHOM NOTICES SHOULD BE SENT PURSUANT TO SECTION 12.03 OF THE AGREEMENT:
Name of Party or Parties:
---------------------------------------
Name of Contact:
---------------------------------------
Address:
---------------------------------------
Telephone No.:
---------------------------------------
Facsimile No.:
---------------------------------------
Email Address:
---------------------------------------
[END OF SCHEDULE III]
III-1
