Exhibit 2(k)(2)
ESCROW AGREEMENT
THIS AGREEMENT is made as of October 1, 2003, by and among Xxxxxxxxxx
Long/Short Fund, LLC, a Delaware limited liability company (the "Fund") and SEI
Investments Global Funds Services, a Delaware business trust ("SEI" or "Escrow
Agent").
WITNESSETH
WHEREAS, the Fund has retained SEI to provide certain administration,
accounting and investor services pursuant to an Administration Agreement dated
as of October 1, 2003; and
WHEREAS, the Fund desires that SEI also provide services as escrow
agent for the purpose of receiving payments from potential subscribing members
in the Fund (the "Potential Investors") and SEI wishes to provide such services.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. ACCEPTANCE BY ESCROW AGENT. The Escrow Agent hereby accepts the appointment
as escrow agent hereunder and agrees to act on the terms and conditions
hereinafter set forth.
2. RIGHTS AND RESPONSIBILITIES OF ESCROW AGENT. The acceptance by the Escrow
Agent of its duties hereunder is subject to the following terms and conditions,
which the parties to this Agreement hereby agree shall govern and control the
Escrow Agent's rights, duties, liabilities and immunities.
(a) The Escrow Agent shall act hereunder as a depositary only,
and in its capacity as such, it shall not be responsible or liable in
any manner whatever for the sufficiency, correctness, genuineness or
validity of any document furnished to the Escrow Agent or any asset
deposited with it.
(b) "Written Instructions" mean written instructions received
by the Escrow Agent and signed by Xxxxxxxxxx Investors, LLC, a Delaware
limited liability company or such other entity retained to manage the
assets of the Fund (the "Investment Manager") or any other person duly
authorized by the Investment Manager, or by the Fund, to give such
instructions on behalf of the Fund. 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 Fund shall file from time to time with the Escrow Agent a
copy, certified by an officer, of each resolution of the Fund
authorizing the person or persons to give Written Instructions. Such
resolution shall include certified signatures of such persons
authorized to give Written Instructions. Such certificate 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 Fund or Investment Manager 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 Fund's limited liability
company agreement or this Agreement or of any vote, resolution or
proceeding of the Fund's Board of Managers or its members, 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 Fund or its Board of Managers for any consequential, special or
indirect losses or damages which the Fund 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 Fund 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 Fund 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
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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 Fund 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 Fund
shall not be liable to the Escrow Agent for any consequential, special
or indirect losses or damages which the Escrow Agent may incur or
suffer, whether or not the likelihood of such losses or damages was
known by the Fund. 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 Manager of any
discrepancy between the amounts set forth on any remittance advice
received by Escrow Agent and the sums delivered to it therewith.
3. DEFINITIONS. 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 Fund and SEI Investments Global Funds Services.
4. DEPOSIT OF ESCROW FUND. The Escrow Agent shall establish an account at
Wachovia Bank, or a similar banking institution agreed to by the Fund, in the
name of Xxxxxxxxxx Long/Short Fund, LLC, Escrow Account for the Benefit of
Investors (the "Subscription Account") and an account in the name of Xxxxxxxxxx
Long/Short Fund, LLC Repurchase Account (the "Repurchase Account", and, together
with the Subscription Account, the "Accounts"). The Escrow Agent shall promptly
deposit in the Subscription Account checks remitted by Potential Investors and
made payable to the Fund. Potential Investors also may deposit monies in the
Subscription Account by wire transfer pursuant to instructions provided to them
by the Fund. Balances on deposit in the Subscription Account will earn interest
at prevailing market rates pursuant to arrangements approved by the Fund.
5. STATEMENTS. During the term of this Agreement, the Escrow Agent shall provide
the Fund with (a) monthly statements containing the beginning balance in each
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 Fund shall be responsible for reconciling such statements. The Escrow
Agent shall be forever
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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
Fund shall, within 90 days after the furnishing of the statement, file written
objection with the Escrow Agent.
6. DISTRIBUTIONS AND CLOSINGS. Upon Written Instructions, at each closing of
each offering of Interests in the Fund, the Escrow Agent will wire principal
balances on deposit in the Subscription Account to the account designated by the
Fund. 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 Subscription Account is not admitted into
the Fund, 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 check form.
7. INTEREST. All interest earned on the escrow funds deposited in the Accounts
hereunder shall be added to and held in the Accounts. With respect to each
closing, interest attributable to each Potential Investor will be calculated
based upon its balance and duration in the Subscription Account and credited to
such investor's account as interest in the Fund.
8. REPURCHASES. The Fund from time to time may wire balances to the Repurchase
Account in connection with periodic repurchases of interests by the Fund from
its members. Upon Written Instructions, the Escrow Agent shall issue promptly
repurchase payments from the Repurchase Account to the repurchasing member or to
the Investment Manager, as the case may be. Upon Written Instructions, the
Escrow Agent will withhold specified amounts from repurchasing members. Any
interest earned thereon will be credited to the accounts of the Fund.
9. TAX IDENTIFICATION NUMBER. All deposits to the Accounts shall be subject to
the Escrow Agent's receipt of a valid tax identification number for the Fund,
Investment Manager or Potential Investor, as applicable.
10. COMPENSATION. The fee of the Escrow Agent for its services hereunder shall
be mutually agreed to in writing by the Fund and Escrow Agent. Notwithstanding
the foregoing, standard account transaction charges imposed by the banking
institution at which the Accounts are maintained will be billed to the Fund as
an out-of-pocket expense.
11. 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.
12. 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 Accounts 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.
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If no successor Escrow Agent has been designated pursuant to Written
Instructions to receive the balance of the Accounts 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 Fund of the appointment of the successor, the Escrow Agent shall promptly
deliver the balance of the Accounts 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.
13. 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.
14. 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.
15. 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 Fund
Mezzacappa Long/Short Fund, LLC
Attn: Chief Financial Officer
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
(b) If to the Escrow Agent
SEI Investments Global Funds Services
Attn: General Counsel
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
16. 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.
17. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding among the parties and supersedes all prior agreements and
understandings
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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.
18. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the substantive laws of the State of New York applicable to
contracts made and to be performed entirely therein without regard to any
conflict of laws principles.
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
XXXXXXXXXX LONG/SHORT FUND, LLC
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SEI INVESTMENTS GLOBAL FUNDS SERVICES
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
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