Exhibit 10.4
57195-15
A Units
ESCROW AGREEMENT
(FOR CLASS A UNITS)
THIS AGREEMENT is made as of _______________, by and between MAN-AHL 130, LLC, a
Delaware limited liability company (the "Company"), MAN INVESTMENTS (USA) CORP.,
a Delaware corporation (the "Managing Member") 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 and the Managing Member desire that SEI provide services as
escrow agent for the purpose of receiving subscription funds ("Subscription
Funds") from potential investors in Class A Units of the Company (the "Potential
Investors") during an initial offering period ending June 30, 2007, subject to
extension until September 30, 2007 or earlier termination, as designated by the
Managing Member (the Initial Offering Period") and SEI wishes to provide such
services.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto agree as follows:
1. ACCEPTANCE BY ESCROW AGENT. The Escrow Agent hereby accepts the appointment
as escrow agent hereunder and agrees to act on the terms and conditions
hereinafter set forth.
2. RIGHTS AND RESPONSIBILITIES OF ESCROW AGENT. The acceptance by the Escrow
Agent of its duties hereunder is subject to the following terms and
conditions, which the parties to this Agreement hereby agree shall govern
and control the Escrow Agent's rights, duties, liabilities and immunities.
(a) The Escrow Agent shall act hereunder as a depositary only, and in its
capacity as such, it shall not be responsible or liable in any manner
whatever for the sufficiency, correctness, genuineness or validity of
any document furnished to the Escrow Agent or any asset deposited with
it.
(b) "Written Instructions" mean written instructions received by the
Escrow Agent and signed by any person duly authorized by the Managing
Member to give such instructions on behalf of the Company (each an
"Authorized Person"). The instructions may be (a) sent by facsimile
with confirmation of receipt, (b) delivered personally, (c) sent by
commercial overnight courier with written verification of receipt, or
(d) sent by certified or registered U.S. mail, postage prepaid and
return receipt requested. The Escrow Agent shall provide the Managing
Member with the name of the group or person to whom such instructions
should be directed. The Managing Member shall file from time to time
with the Escrow Agent a certified copy of each resolution of the board
of directors of the Managing Member 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 Managing Member to the contrary. The Escrow
Agent may rely
Page 1
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
directors, unless and until the Escrow Agent receives Written
Instructions to the contrary.
(c) The Escrow Agent shall be obligated to exercise care and diligence in
the performance of its duties hereunder, to act in good faith and to
use its best efforts, within reasonable limits, in performing services
provided for under this Agreement. The Escrow Agent shall be liable
for any damages arising out if its failure to perform its duties under
this Agreement to the extent such damages arise out of its willful
misfeasance, fraud, bad faith, gross negligence or reckless disregard
of such duties.
(d) Notwithstanding anything in this Agreement to the contrary, neither
the Escrow Agent nor its affiliates shall be liable to the Company or
the Managing Member for any consequential, special or indirect losses
or damages which the Company or Managing Member 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, telecommunications or power supply.
(f) The Managing Member and the Company each agree 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 Managing Member
or 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 Managing
Member and the Company shall each 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, no party shall be liable to any other party 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
Page 2
survive the resignation of the Escrow Agent and/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 Managing Member of any
discrepancy between the amounts set forth on any remittance advice
received by Escrow Agent and the sums delivered to it therewith.
3. DEPOSIT OF ESCROW FUND. The Escrow Agent shall establish an account at
Wachovia Bank, or a similar banking institution agreed to by the Company,
in the name of MAN-AHL 130, LLC --Class A Escrow Account for the Benefit of
Class A 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. Prior to
distribution to the Company, as described below in Section 5, the Company
shall have neither title to nor an interest in the funds deposited in the
Account, and such funds shall under no circumstances be subject to the
liabilities of the Company.
4. STATEMENTS. During the term of this Agreement, the Escrow Agent shall
provide the Company with (a) monthly statements with respect to
Subscription Funds in the Account and (b) a daily summary of amounts
deposited. All such statements shall be sent by mail to the attention of
Xxxxx XxXxxxx, Accounting Department, at the following address:
MAN-AHL 130, LLC
000 X Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
or by facsimile to at fax number 000-000-0000. 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 30 days after the
furnishing of the statement, file written objections with the Escrow Agent.
Upon request by the Company, the Escrow Agent shall provide the Company
with information concerning daily interest earned.
5. DISTRIBUTIONS AND CLOSINGS.
(a) If, prior to the end of the Initial Offering Period, as determined by
the Managing Member and subject to the terms and conditions set forth
in the Company's Prospectus, the Managing Member determines that the
requirements for the release of the Subscription Funds from Escrow set
forth in the Registration Statement for the Company have been
satisfied (such requirements being hereinafter referred to as the
"Minimum Class A Requirements"), then, the
Page 3
Managing Member shall notify the Escrow Agent that the Minimum Class A
Requirements have been met and shall provide Written Instructions to
the Escrow Agent directing the Escrow Agent to release the
Subscription Funds to the Company. Upon its receipt of Written
Instructions, the Escrow Agent will wire principal balances on deposit
and any accrued interest thereon in the Account, to the account
designated by the Company.
(b) In the event that at the conclusion of the Initial Offering Period, as
determined by the Managing Member and subject to the terms and
conditions set forth in the Company's Prospectus, the Managing Member
determines that the Minimum Class A Requirements have not been met,
the offering of Class A Units will be terminated, and the Managing
Member shall notify the Escrow Agent that the Minimum Class A
Requirements have not been met and the Managing Member shall provide
Written Instructions to the Escrow Agent directing the Escrow Agent to
refund the Subscription Funds to the Potential Investors. Upon its
receipt of Written Instructions, which instructions should include the
amount of each refund to be issued to each Potential Investor (which
amount shall include the amount of the principal balance plus any
interest that may be due to such Potential Investors), the Escrow
Agent will return the Subscription Funds received, together with any
interest earned thereon, to the Potential Investors. The Escrow Agent
shall have 5 business days from its receipt of such Written
Instructions to make such refunds.
(c) Prior to the release of Subscription Funds, as set forth in 5 (a) or
(b) above, if Escrow Agent receives funds from a Potential Investor
who is not admitted into the Company (each an "Unacceptable
Investor'), the Managing Member shall timely issue, or cause to be
issued, Written Instructions to the Escrow Agent directing Escrow
Agent to make a refund to each such Unacceptable Investor, which
instructions should include the amount of each refund to be issued to
each such Unacceptable Investor (which amount shall include the amount
of the principal balance plus any interest that may be due to such
Unacceptable Investor), and which instructions shall be provided to
the Escrow Agent prior to the issuance of Written Instructions under
Section 5(a) or prior to the return of Subscription Funds under 5(b),
whereupon the Escrow Agent shall issue such refunds. Unless otherwise
agreed, such refunds shall be made in wire form.
6. INTEREST. Except with respect to refunds that are made to Potential
Investors as set forth in Section 5(b) or (c) above, all interest earned on
the escrow funds deposited in the Account hereunder shall be credited to
the Company.
7. 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.
8. COMPENSATION. As compensation for the services rendered by Escrow Agent
under this Agreement, Escrow Agent shall receive from the Company such fees
as may be agreed to in writing, from time to time, by the Company and the
Escrow Agent. The Company shall also be responsible for and shall reimburse
the Escrow Agent for the Escrow Agent's reasonable costs and expenses
incurred in connection with the performance of its services under this
Agreement. The Company has delegated to the Managing Member, and the
Managing Member has agreed to assume, responsibility for
Page 4
paying the Escrow Agent the foregoing fees, costs and expenses. It is
further understood and agreed that standard account transaction charges
will be billed to the Company as an out-of-pocket expense.
9. 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.
10. TERMINATION. This Agreement shall continue until the earlier to occur of
the following:
(a) Terminated by either the Escrow Agent or the Managing Member on 30
days prior written notice as set forth in Section 13 of this
Agreement. Upon the termination of this Agreement and upon the
delivery of the balance of the Account to a successor escrow agent or
such other person as may be designated by Written Instructions, the
Escrow Agent shall be released and discharged of any and all further
obligations hereunder.
If no successor escrow agent has been designated pursuant to Written
Instructions to receive the balance of the Account at the expiration
of the 30-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;
or
(b) Disbursement of all Subscription Funds pursuant to Section 5. Upon
disbursement of the Subscription Funds as set forth in Section 5
above, the Escrow Agent shall be relieved of all further obligations
and released from all liability hereunder.
Upon termination, the Company and the Managing Member shall execute and
deliver to the Escrow Agent the Release and Discharge attached hereto as
Attachment A, provided that the failure to execute and deliver such Release
and Discharge shall not affect the termination of this Agreement.
11. 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.
12. 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.
13. NOTICES. Except to the extent specifically provided elsewhere in this
Agreement, all instructions, notices and other communications hereunder
must be in writing and shall be
Page 5
deemed to have been duly given if (a) sent by facsimile with confirmation
of receipt, (b) delivered personally, (c) sent by commercial overnight
courier with written verification of receipt, or (d) sent by certified or
registered U.S. mail, postage prepaid and return receipt requested, to the
party to be notified (except that any notice terminating this Agreement may
not be sent by facsimile) and addressed as follows:
(a) If to the Company, to
MAN-AHL 130, LLC
000 X Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxx XxXxxxx, Accounting Department
(b) If to the Managing Member, to
Man Investments (USA) Corp.
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx
(c) If to the Escrow Agent
SEI Private Trust Company
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
Attention: Xxxx Xxxx
With a copy to:
SEI Private Trust Company
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
Attention: General Counsel
Page 6
14. 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.
15. 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.
16. MANAGING MEMBER IS AUTHORIZED TO ACT ON BEHALF OF THE COMPANY. The Company
and the Managing Member represent and warrant that the Managing Member is
responsible for its overall management and administration of the Company
and is authorized to act on behalf of the Company, including but not
limited to issuing instructions to the Escrow Agent, as more fully set
forth herein.
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
MAN-AHL 130, LLC
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
MAN INVESTMENTS (USA) CORP.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SEI PRIVATE TRUST COMPANY
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Page 7
ATTACHMENT A
Release and Discharge
The undersigned on behalf of MAN-AHL 130, LLC and MAN INVESTMENTS (USA) CORP.
hereby release and discharge SEI PRIVATE TRUST COMPANY from all further
responsibility or liability as Escrow Agent under the Escrow Agreement (For
Class A Units) dated ___________________.
Executed this _________ day of ______________, 200__.
MAN-AHL 130, LLC
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
MAN INVESTMENTS (USA) CORP.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Page 8
57195-14
B Units
ESCROW AGREEMENT
(FOR CLASS B UNITS)
THIS AGREEMENT is made as of _______________, by and between MAN-AHL 130, LLC, a
Delaware limited liability company (the "Company"), MAN INVESTMENTS (USA) CORP.,
a Delaware corporation (the "Managing Member") 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 and the Managing Member desire that SEI provide services as
escrow agent for the purpose of receiving subscription funds ("Subscription
Funds") from potential investors in Class B Units of the Company (the "Potential
Investors") during an initial offering period ending June 30, 2007, subject to
extension until September 30, 2007 or earlier termination, as designated by the
Managing Member (the Initial Offering Period") and SEI wishes to provide such
services.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto agree as follows:
1. ACCEPTANCE BY ESCROW AGENT. The Escrow Agent hereby accepts the appointment
as escrow agent hereunder and agrees to act on the terms and conditions
hereinafter set forth.
2. RIGHTS AND RESPONSIBILITIES OF ESCROW AGENT. The acceptance by the Escrow
Agent of its duties hereunder is subject to the following terms and
conditions, which the parties to this Agreement hereby agree shall govern
and control the Escrow Agent's rights, duties, liabilities and immunities.
(a) The Escrow Agent shall act hereunder as a depositary only, and in its
capacity as such, it shall not be responsible or liable in any manner
whatever for the sufficiency, correctness, genuineness or validity of
any document furnished to the Escrow Agent or any asset deposited with
it.
(b) "Written Instructions" mean written instructions received by the
Escrow Agent and signed by any person duly authorized by the Managing
Member to give such instructions on behalf of the Company (each an
"Authorized Person"). The instructions may be (a) sent by facsimile
with confirmation of receipt, (b) delivered personally, (c) sent by
commercial overnight courier with written verification of receipt, or
(d) sent by certified or registered U.S. mail, postage prepaid and
return receipt requested. The Escrow Agent shall provide the Managing
Member with the name of the group or person to whom such instructions
should be directed. The Managing Member shall file from time to time
with the Escrow Agent a certified copy of each resolution of the board
of directors of the Managing Member 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 Managing Member 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
Page 1
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 directors, unless and until the Escrow Agent
receives Written Instructions to the contrary.
(c) The Escrow Agent shall be obligated to exercise care and diligence in
the performance of its duties hereunder, to act in good faith and to
use its best efforts, within reasonable limits, in performing services
provided for under this Agreement. The Escrow Agent shall be liable
for any damages arising out if its failure to perform its duties under
this Agreement to the extent such damages arise out of its willful
misfeasance, fraud, bad faith, gross negligence or reckless disregard
of such duties.
(d) Notwithstanding anything in this Agreement to the contrary, neither
the Escrow Agent nor its affiliates shall be liable to the Company or
the Managing Member for any consequential, special or indirect losses
or damages which the Company or Managing Member 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, telecommunications or power supply.
(f) The Managing Member and the Company each agree 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 Managing Member
or 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 Managing
Member and the Company shall each 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, no party shall be liable to any other party 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 and/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
Page 2
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 Managing Member of any
discrepancy between the amounts set forth on any remittance advice
received by Escrow Agent and the sums delivered to it therewith.
3. DEPOSIT OF ESCROW FUND. The Escrow Agent shall establish an account at
Wachovia Bank, or a similar banking institution agreed to by the Company,
in the name of MAN-AHL 130, LLC -Class B Escrow Account for the Benefit of
Class B 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. Prior to
distribution to the Company, as described below in Section 5, the Company
shall have neither title to nor an interest in the funds deposited in the
Account, and such funds shall under no circumstances be subject to the
liabilities of the Company.
4. STATEMENTS. During the term of this Agreement, the Escrow Agent shall
provide the Company with (a) monthly statements with respect to
Subscription Funds in the Account and (b) a daily summary of amounts
deposited. All such statements shall be sent by mail to the attention of
Xxxxx XxXxxxx, Accounting Department, at the following address:
MAN-AHL 130, LLC
000 X Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
or by facsimile to at fax number 000-000-0000. 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 30 days after the
furnishing of the statement, file written objections with the Escrow Agent.
Upon request by the Company, the Escrow Agent shall provide the Company
with information concerning daily interest earned.
5. DISTRIBUTIONS AND CLOSINGS.
(a) If, prior to the end of the Initial Offering Period, as determined by
the Managing Member and subject to the terms and conditions set forth
in the Company's Prospectus, the Managing Member determines that the
requirements for the release of the Subscription Funds from Escrow set
forth in the Registration Statement for the Company have been
satisfied (such requirements being hereinafter referred to as the
"Minimum Class B Requirements"), then, the Managing Member shall
notify the Escrow Agent that the Minimum Class B Requirements have
been met and shall provide Written Instructions to the Escrow Agent
directing the Escrow Agent to release the Subscription Funds to the
Company. Upon its receipt of Written Instructions, the Escrow Agent
will wire principal balances on deposit and any accrued interest
thereon in the Account, to the account designated by the Company.
(b) In the event that at the conclusion of the Initial Offering Period, as
determined by the Managing Member and subject to the terms and
conditions set forth in the Company's Prospectus, the Managing Member
determines that the Minimum Class B Requirements have not been met,
the offering of Class B Units will be terminated, and the Managing
Member shall notify the Escrow Agent that the
Page 3
Minimum Class B Requirements have not been met and the Managing Member
shall provide Written Instructions to the Escrow Agent directing the
Escrow Agent to refund the Subscription Funds to the Potential
Investors. Upon its receipt of Written Instructions, which
instructions should include the amount of each refund to be issued to
each Potential Investor (which amount shall include the amount of the
principal balance plus any interest that may be due to such Potential
Investors), the Escrow Agent will return the Subscription Funds
received, together with any interest earned thereon, to the Potential
Investors. The Escrow Agent shall have 5 business days from its
receipt of such Written Instructions to make such refunds.
(c) Prior to the release of Subscription Funds, as set forth in 5 (a) or
(b) above, if Escrow Agent receives funds from a Potential Investor
who is not admitted into the Company (each an "Unacceptable
Investor"), the Managing Member shall timely issue, or cause to be
issued, Written Instructions to the Escrow Agent directing Escrow
Agent to make a refund to each such Unacceptable Investor, which
instructions should include the amount of each refund to be issued to
each such Unacceptable Investor (which amount shall include the amount
of the principal balance plus any interest that may be due to such
Unacceptable Investor), and which instructions shall be provided to
the Escrow Agent prior to the issuance of Written Instructions under
Section 5(a) or prior to the return of Subscription Funds under 5(b),
whereupon the Escrow Agent shall issue such refunds. Unless otherwise
agreed, such refunds shall be made in wire form.
6. INTEREST. Except with respect to refunds that are made to Potential
Investors as set forth in Section 5(b) or (c) above, all interest earned on
the escrow funds deposited in the Account hereunder shall be credited to
the Company.
7. 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.
8. COMPENSATION. As compensation for the services rendered by Escrow Agent
under this Agreement, Escrow Agent shall receive from the Company such fees
as may be agreed to in writing, from time to time, by the Company and the
Escrow Agent. The Company shall also be responsible for and shall reimburse
the Escrow Agent for the Escrow Agent's reasonable costs and expenses
incurred in connection with the performance of its services under this
Agreement. The Company has delegated to the Managing Member, and the
Managing Member has agreed to assume, responsibility for paying the Escrow
Agent the foregoing fees, costs and expenses. It is further understood and
agreed that standard account transaction charges will be billed to the
Company as an out-of-pocket expense.
9. 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.
10. TERMINATION. This Agreement shall continue until the earlier to occur of
the following:
(a) Terminated by either the Escrow Agent or the Managing Member on 30
days prior written notice as set forth in Section 13 of this
Agreement. Upon the termination of this Agreement and upon the
delivery of the balance of the Account to a successor escrow agent or
such other person as may be designated by Written Instructions, the
Escrow Agent shall be released and discharged of any and all further
obligations hereunder.
Page 4
If no successor escrow agent has been designated pursuant to Written
Instructions to receive the balance of the Account at the expiration
of the 30-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;
or
(b) Disbursement of all Subscription Funds pursuant to Section 5. Upon
disbursement of the Subscription Funds as set forth in Section 5
above, the Escrow Agent shall be relieved of all further obligations
and released from all liability hereunder.
Upon termination, the Company and the Managing Member shall execute and
deliver to the Escrow Agent the Release and Discharge attached hereto as
Attachment A, provided that the failure to execute and deliver such Release
and Discharge shall not affect the termination of this Agreement.
11. 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.
12. 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.
13. NOTICES. Except to the extent specifically provided elsewhere in this
Agreement, all instructions, notices and other communications hereunder
must be in writing and shall be deemed to have been duly given if (a) sent
by facsimile with confirmation of receipt, (b) delivered personally, (c)
sent by commercial overnight courier with written verification of receipt,
or (d) sent by certified or registered U.S. mail, postage prepaid and
return receipt requested, to the party to be notified (except that any
notice terminating this Agreement may not be sent by facsimile) and
addressed as follows:
(a) If to the Company, to
MAN-AHL 130, LLC
000 X Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxx XxXxxxx, Accounting Department
(b) If to the Managing Member, to
Man Investments (USA) Corp.
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000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx
(c) If to the Escrow Agent
SEI Private Trust Company
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
Attention: Xxxx Xxxx
With a copy to:
SEI Private Trust Company
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
Attention: General Counsel
14. 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.
15. 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.
16. MANAGING MEMBER IS AUTHORIZED TO ACT ON BEHALF OF THE COMPANY. The Company
and the Managing Member represent and warrant that the Managing Member is
responsible for its overall management and administration of the Company
and is authorized to act on behalf of the Company, including but not
limited to issuing instructions to the Escrow Agent, as more fully set
forth herein.
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IN WITNESS THEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
MAN-AHL 130, LLC
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
MAN INVESTMENTS (USA) CORP.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SEI PRIVATE TRUST COMPANY
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Page 7
ATTACHMENT A
Release and Discharge
The undersigned on behalf of MAN-AHL 130, LLC and MAN INVESTMENTS (USA) CORP.
hereby release and discharge SEI PRIVATE TRUST COMPANY from all further
responsibility or liability as Escrow Agent under the Escrow Agreement (For
Class B Units) dated ___________________.
Executed this _________ day of ______________, 200__.
MAN-AHL 130, LLC
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
MAN INVESTMENTS (USA) CORP.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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