ESCROW AGREEMENT
THIS AGREEMENT is made as of 8/24/2006, by and between Old Field Fund, LLC, a
Delaware limited liability company (the "Company") and SEI Private Trust
Company, a limited purpose federal savings bank regulated by the Office of
Thrift Supervision ("SEI" or "Escrow Agent").
WITNESSETH
WHEREAS, the Company desires that SEI provide services as escrow agent for the
purpose of receiving payments from potential subscribing shareholders in the
Company (the "Potential Investors") and SEI wishes to provide such services.
WHEREAS, except as specifically set forth herein, the terms used in this
Agreement shall have the same meaning as set forth in the Administration
Agreement between the Company and SEI Investments Global Funds Services.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto agree as follows:
1. ACCEPTANCE BY ESCROW AGENT. The Escrow Agent hereby accepts the
appointment as escrow agent hereunder and agrees to act on the terms and
conditions hereinafter set forth.
2. RIGHTS AND RESPONSIBILITIES OF ESCROW AGENT. The acceptance by the Escrow
Agent of its duties hereunder is subject to the following terms and
conditions, which the parties to this Agreement hereby agree shall govern
and control the Escrow Agent's rights, duties, liabilities and
immunities.
(a) The Escrow Agent shall act hereunder as a depositary only, and in
its capacity as such, it shall not be responsible or liable in any
manner whatever for the sufficiency, correctness, genuineness or
validity of any document furnished to the Escrow Agent or any asset
deposited with it.
(b) "Written Instructions" mean written instructions received by the
Escrow Agent and signed by the board of managers or any other
person duly authorized by the Company, to give such instructions on
behalf of the Company (each an "Authorized Person"). The
instructions may be delivered by hand, mail, facsimile, cable,
telex or telegram; except that any instruction terminating this
Agreement may be given only by hand or mail. The Company shall file
from time to time with the Escrow Agent a certified copy of each
resolution of the board of managers setting forth the names of the
Authorized Persons for the purpose of giving Written Instructions.
Such resolution shall include certified signatures of such
Authorized Persons. This shall constitute conclusive evidence of
the authority of the signatories designated therein to act. Such
resolution shall be considered in full force and effect with the
Escrow Agent fully protected in acting in reliance thereon unless
and until it receives written notice from the Company to the
contrary. The Escrow Agent may rely upon and shall be protected
for any action or omission it takes pursuant to Written
Instructions if it, in good faith, believes such Written
Instructions to be genuine. Unless otherwise provided in this
Agreement, the Escrow Agent shall act only upon Written
Instructions. The Escrow Agent shall be entitled to assume that
any Written Instruction received hereunder is not in any way
inconsistent with the provisions of the Company's formation
documents or this Agreement or of any vote, resolution or
proceeding of the Company's board of managers , unless and until
the Escrow Agent receives Written Instructions to the contrary.
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(c) The Escrow Agent shall be obligated to exercise care and diligence
in the performance of its duties hereunder, to act in good faith
and to use its best efforts, within reasonable limits, in
performing services provided for under this Agreement. The Escrow
Agent shall be liable for any damages arising out if its failure to
perform its duties under this Agreement to the extent such
damages arise out of its willful misfeasance, fraud, bad faith,
gross negligence or reckless disregard of such duties.
(d) Notwithstanding anything in this Agreement to the contrary, neither
the Escrow Agent nor its affiliates shall be liable to the Company
for any consequential, special or indirect losses or damages which
the Company may incur or suffer by or as a consequence of the
Escrow Agent's or its affiliates' performance of the services
provided hereunder, whether or not the likelihood of such losses or
damages was known by the Escrow Agent or its affiliates.
(e) Without limiting the generality of the foregoing or of any other
provision of this Agreement, the Escrow Agent shall not be liable
for losses beyond its control, provided it has acted in accordance
with the standard of care set forth above; and the Escrow Agent
shall not be liable for delays or errors or loss of data occurring
by reason of circumstances beyond its control, including acts of
civil or military authority, national emergencies, labor
difficulties, fire, flood, catastrophe, acts of God, insurrection,
war, riots or failure of the mails, transportation, communication
or power supply.
(f) The Company agrees to indemnify the Escrow Agent and hold it
harmless from and against any tax, charge, loss, liability, expense
(including reasonable attorneys fees and expenses), claim or demand
arising directly or indirectly from any action or omission to act
which the Escrow Agent takes (i) at the request or on the direction
of or in reliance on the advice of the Company or (ii) upon Written
Instructions; provided, however, that neither the Escrow Agent, nor
any of its affiliates, shall be indemnified against any liability
(or any expenses incident to such liability) arising out of the
Escrow Agent's or its affiliates own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties and
obligations under this Agreement. The Company shall indemnify and
hold harmless the Escrow Agent against and in respect of any
liability for taxes and for any penalties or interest in respect of
taxes attributable to the investment of funds held in escrow by the
Escrow Agent pursuant to this Agreement. Notwithstanding anything
in this Agreement to the contrary, the neither party shall be
liable to the other for any consequential, special or indirect
losses or damages which such party may incur or suffer, whether or
not the likelihood of such losses or damages was known by such
party. These indemnities shall survive the resignation of the
Escrow Agent or the termination of this Agreement.
(g) The Escrow Agent shall have no duties except those specifically set
forth in this Agreement.
(h) The Escrow Agent shall have the right at any time it deems
appropriate to seek an adjudication in a court of competent
jurisdiction as to the respective rights of the parties hereto and
shall not be held liable by any party hereto for any delay or the
consequences of any delay occasioned by such resort to court.
(i) The Escrow Agent shall notify promptly the Company of any
discrepancy between the amounts set forth on any remittance
advice received by Escrow Agent and the sums delivered to it
therewith.
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3. DEPOSIT OF ESCROW FUND. The Escrow Agent shall establish an account at
Wachovia, or a similar banking institution agreed to by the Company, in
the name of Old Field Fund, LLC, Escrow Account for the Benefit of
Investors (the "Account"). The Escrow Agent shall promptly deposit in
the Account checks remitted by Potential Investors and made payable to
the Company. Potential Investors also may deposit monies in the Account
by wire transfer pursuant to instructions provided to them by the
Company. Balances on deposit in the Account will earn interest at
prevailing market rates pursuant to arrangements approved by the Company.
4. STATEMENTS. During the term of this Agreement, the Escrow Agent shall
provide the Company with (a) monthly statements containing the beginning
balance in the Account as well as all principal and income transactions
for the statement period and (b) a daily summary of amounts deposited and
the status of available funds. The Company shall be responsible for
reconciling such statements. The Escrow Agent shall be forever released
and discharged from all liability with respect to the accuracy of such
statements, except with respect to any such act or transaction as to
which the Company shall, within 90 days after the furnishing of the
statement, file written objections with the Escrow Agent.
5. DISTRIBUTIONS AND CLOSINGS. Upon Written Instructions, at each closing
of each offering of interests in the Company, the Escrow Agent will wire
principal balances on deposit in the Account to the account designated by
the Company. Such Written Instructions shall be sent to the Escrow Agent
by 2:00 p.m. on the closing date with respect to each closing. In the
event that a Potential Investor who has escrow funds in the Account is
not admitted into the Company, upon Written Instructions, the Escrow
Agent shall promptly issue refunds to the Potential Investor in the
amount of the principal balance with accrued interest. Such refunds shall
be made in wire form.
6. INTEREST. All interest earned on the escrow funds deposited in the
Account hereunder shall be added to and held in the Account. With
respect to each closing, Interest attributable to each Potential Investor
will be calculated based upon its balance and duration in the escrow
account and credited to each Investor account as interest in the Fund.
7. REPURCHASES. The Company from time to time may wire balances to the
Account in connection with periodic repurchases of interests by the
Company from its shareholders. Upon Written Instructions, the Escrow
Agent shall issue repurchase payments from the Account via wire to the
repurchasing shareholder. Upon Written Instructions, the Escrow Agent
will withhold specified amounts from repurchasing shareholders. Any
interest earned thereon will be credited to the accounts of the Company.
8. TAX IDENTIFICATION NUMBER. All deposits to the Account shall be subject
to the Escrow Agent's receipt of a valid tax identification number for
the Company or Potential Investor, as applicable.
9. COMPENSATION. The fee of the Escrow Agent for the Company as hereunder
shall pay its services may be mutually agreed to in writing by the
Company and Escrow Agent. Notwithstanding the foregoing, standard
account transaction charges will be billed to the Company as an out-of-
pocket expense.
10. AMENDMENT. This Agreement may not be amended or supplemented, and no
provision hereof may be modified or waived, except by an instrument in
writing, signed by all of the parties hereto.
11. TERMINATION. This Agreement shall continue until terminated by either
party on 60 days prior written notice. Upon the termination of this
Agreement and upon the delivery of the balance of the Account to a
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successor escrow agent or such other person as may be designated by
Written Instructions, the Escrow Agent shall be released and discharged
of any and all further obligations hereunder.
If no successor escrow agent has been designated pursuant to Written
Instructions to receive the balance of the Account at the expiration of
the 60-day period, the Escrow Agent shall have no further obligation
hereunder except to hold the escrow funds as a depositary. Upon written
notification by the Company of the appointment of the successor, the
Escrow Agent shall promptly deliver the balance of the Account to such
successor, and the duties of the resigning Escrow Agent shall thereupon
in all respects terminate, and it shall be released and discharged of any
and all further obligations hereunder.
12. EXECUTION. This Agreement may be executed in several counterparts, each
of which shall be deemed an original, but such counterparts together
shall constitute one and the same instrument.
13. MISCELLANEOUS. All covenants and agreements contained in this Agreement
by or on behalf of the parties hereto shall bind and inure to the benefit
of such parties and their respective heirs, administrators, legal
representatives, successors and assigns, as the case may be. The
headings in this Agreement are for convenience of reference only and
shall neither be considered as part of this Agreement, nor limit or
otherwise affect the meaning thereof. This Agreement shall be construed
and enforced in accordance with the laws of the Commonwealth of
Pennsylvania without regard to principles of conflicts of law.
14. NOTICES. All instructions, notices and other communications hereunder
must be in writing and shall be deemed to have been duly given if
delivered by hand or facsimile or mailed by first class, registered mail,
return receipt requested, postage prepaid, and addressed as follows:
(a) If to the Company, to
Old Field Fund, LLC
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
(b) If to the Escrow Agent
SEI Private Trust Company
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
Attention: General Counsel
15. PARTIAL INVALIDITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
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16. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding among the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof; provided that, the
parties may embody in one or more separate documents their agreement, if
any, with respect to delegated duties and instructions.
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
OLD FIELD FUND, LLC
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
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Title: Secretary
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SEI PRIVATE TRUST COMPANY
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
------------------------
Title: VP
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