Exhibit 99.(k)(i)
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 20th day of January, 2003, by and
between Man-Glenwood Lexington Associates Portfolio, LLC ("Portfolio Fund"), a
Delaware limited liability company, and SEI Investments Global Funds Services
(the "Administrator"), a Delaware business trust.
WHEREAS, Portfolio Fund is a registered, non-diversified, closed-end
management investment company under the Investment the Company Act of 1940, as
amended (the "1940 Act") consisting of limited liability company interests (the
"Units"); and
WHEREAS, Portfolio Fund desires the Administrator to provide, and the
Administrator is willing to provide, administrative and accounting services to
Portfolio Fund on the terms and conditions hereinafter set forth herein;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, Portfolio Fund and the Administrator hereby agree as
follows:
ARTICLE 1. Retention of the Administrator. Portfolio Fund hereby retains
the Administrator to furnish the Portfolio Fund with accounting and
administrative services as set forth in this Agreement, and the Administrator
hereby accepts such employment. The Administrator shall be deemed to be an
independent contractor for all purposes herein.
ARTICLE 2. Administrative and Accounting Services. The Administrator shall
perform or supervise the performance by others of the accounting and
administrative services set forth in Schedule A hereto. In performing its duties
under this Agreement, the Administrator will act in all material respects in
accordance with Portfolio Fund's Limited Liability Company Agreement (the "LLC
Agreement") and Offering Memorandum as they may be amended (provided copies are
delivered to 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 Portfolio Fund
and (ii) shall not provide any investment advisory services to Portfolio Fund,
and shall have no liability related to the foregoing. The Administrator shall
provide Portfolio Fund with all necessary office space, equipment, personnel,
compensation and facilities (including facilities for Members' and Board of
Managers' meetings) for providing such services identified in Schedule A. The
Administrator may sub-contract with third parties to perform certain of the
services to be performed by the Administrator hereunder; provided, however, that
the Administrator shall remain principally responsible to Portfolio Fund for the
acts and omissions of such other entities. In meeting its duties hereunder, 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.
ARTICLE 3. Allocation of Charges and Expenses.
(A) The Administrator. The Administrator shall furnish at its own expense
the executive, supervisory and clerical personnel necessary to perform its
obligations under this
1
Agreement. The Administrator shall also pay all compensation, if any, of
officers of Portfolio Fund who are affiliated persons of the Administrator or
any affiliated corporation of the Administrator; provided, however, that unless
otherwise specifically provided, the Administrator shall not be obligated to pay
the compensation of any employee of Portfolio Fund retained by the Managers of
Portfolio Fund to perform services on behalf of Portfolio Fund.
(B) Fund Expenses. Portfolio Fund assumes and shall pay or cause to be
paid all expenses of Portfolio Fund not otherwise allocated in this Agreement,
including, without limitation, organizational costs, taxes, expenses for legal
and auditing services, tax services (including the preparation of 1065s and
K-1s), the expenses of preparing (including typesetting), printing and mailing
reports, prospectuses, statements of additional information, proxy solicitation
and tender offer materials and notices to existing members, all expenses
incurred in connection with issuing and redeeming Units, the costs of pricing
services, the costs of custodial services, the cost of initial and ongoing
registration of the Units under Federal and state securities laws, fees and
out-of-pocket expenses of Managers who are not affiliated persons of the
Administrator or any affiliated corporation of the Administrator, the costs of
Managers' meetings, insurance, interest, brokerage costs, litigation and other
extraordinary or nonrecurring expenses, and all fees and charges of service
providers to Portfolio Fund. Portfolio Fund shall reimburse the Administrator
for its reasonable out-of-pocket expenses, including all reasonable charges for
SAS 70 audit charges, and reasonable copying, postage, telephone, and fax
charges incurred by the Administrator in the performance of its duties.
ARTICLE 4. Compensation of the Administrator. Portfolio Fund shall pay to
the Administrator compensation at the annual rate specified in Schedule B to
this Agreement until this Agreement is terminated in accordance with Article 6.
Such compensation shall be calculated and accrued monthly, and paid to the
Administrator quarterly, within 30 days of quarter-end, otherwise the
Administrator shall be entitled to charge and/or set-off such amounts against
any account of Portfolio Fund. If this Agreement becomes effective subsequent to
the first day of a month or terminates before the last day of a month, the
Administrator's compensation for that part of the month in which this Agreement
is in effect shall be prorated in a manner consistent with the calculation of
the fees as set forth above. Payment of the Administrator's compensation for the
preceding month shall be made promptly.
ARTICLE 5. Limitation of Liability of the Administrator. The duties of the
Administrator shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against the Administrator
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 hereunder, except a loss resulting from
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of reckless disregard of its obligations and duties
hereunder. (As used in this Article 5, the term "Administrator" shall include
officers, employees and other agents of the Administrator as well as that entity
itself.) Under no circumstances shall the Administrator be liable to Portfolio
Fund for consequential, indirect or punitive damages.
2
So long as the Administrator, or its agents, acts without willful
misfeasance, bad faith or gross negligence in the performance of its duties, and
without reckless disregard of its obligations and duties hereunder, Portfolio
Fund assumes full responsibility and shall indemnify the Administrator and hold
it harmless 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 any act or omission of the Administrator in carrying out
its duties hereunder. The indemnity and defense provisions set forth herein
shall indefinitely survive the termination of this Agreement.
The indemnification rights hereunder shall include the right to reasonable
advances of defense expenses in the event of any pending or threatened
litigation with respect to which indemnification hereunder may ultimately be
merited. If in any case Portfolio Fund may be asked to indemnify or hold the
Administrator harmless, the Administrator shall promptly advise Portfolio Fund
of the pertinent facts concerning the situation in question, and the
Administrator will use all reasonable care to identify and notify Portfolio 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.
Portfolio Fund shall be entitled to participate at its own expense or, if
it so elects, to assume the defense of any suit brought to enforce any claims
subject to this indemnity provision. If Portfolio Fund elects to assume the
defense of any such claim, the defense shall be conducted by counsel chosen by
Portfolio Fund and satisfactory to the Administrator, whose approval shall not
be unreasonably withheld. In the event that Portfolio 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 Portfolio 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.
The Administrator may apply to Portfolio Fund at any time for instructions
and may consult counsel for Portfolio Fund or its own counsel and with Portfolio
Fund accountants and other experts, at Portfolio Fund's expense, with respect to
any matter arising in connection with the Administrator's duties, 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 opinion of
such counsel, accountants or other experts.
Also, the Administrator shall be protected in acting upon any document
which it reasonably in good faith believes to be genuine and to have been signed
or presented by the proper person or persons. Nor shall the Administrator be
held to have notice of any change of authority of any officers, employee or
agent of Portfolio Fund until receipt of written notice thereof from Portfolio
Fund.
Nothing herein shall make the Administrator liable for the performance or
omissions of unaffiliated third parties not under the Administrator's reasonable
control such as, by way of example and not limitation, custodians, investment
advisers or sub-advisers, postal or delivery services, telecommunications
providers and processing and settlement services.
3
The Administrator is entitled to rely on the price information provided by
the underlying funds into which Portfolio Fund invests, Portfolio Fund, brokers
and custodians in order to calculate Portfolio Fund's net asset value (and the
value of members' capital accounts based upon such valuation) and the
Administrator shall not be liable for any valuation errors resulting from the
use of such information.
ARTICLE 6. Duration and Termination of this Agreement. This Agreement
shall become effective on the date set forth in Schedule B hereto and shall
remain in effect for the full duration of the Initial Term and each Renewal
Term, each as set forth in Schedule B, unless terminated in accordance with the
provisions of this Article 6. This Agreement may be terminated only: (a) by
either party at the end of the Initial Term or the end of any Renewal Term on 90
days' prior written notice; (b) by either party hereto on such date as is
specified in written notice given by the terminating party, in the event of a
material breach of this Agreement by the other party, provided the terminating
party has notified the other party of such material breach at least 45 days
prior to the specified date of termination and the breaching party has not
remedied such breach by the specified date; or (c) effective upon the
liquidation of Portfolio Fund. For purposes of this paragraph, the term
"liquidation" shall mean a transaction in which the assets of Portfolio Fund are
sold or otherwise disposed of and proceeds therefrom are distributed in cash to
the shareholders in complete liquidation of the interests of such shareholders
in Portfolio Fund.
ARTICLE 7. Activities of the Administrator. The services of the
Administrator rendered to Portfolio Fund are not to be deemed to be exclusive.
The Administrator is free to render such services to others and to have other
businesses and interests.
ARTICLE 8. Confidentiality. The Administrator agrees on behalf of itself
and its employees to treat confidentially all records and other information
relative to Portfolio Fund and its members received by the Administrator in
connection with this Agreement, including any non-public personal information as
defined in Regulation S-P, and that it shall not use or disclose any such
information except for the purpose of carrying out the terms of this Agreement;
provided, however, that Administrator may disclose such information as required
by law or after prior notification to and approval in writing by Portfolio Fund,
which approval may not be withheld where the Administrator may be exposed to
civil or criminal contempt proceedings or penalties for failure to comply.
ARTICLE 9. Certain Records. The Administrator shall maintain customary
records in connection with its duties as specified in this Agreement. Any
records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by the Administrator
on behalf of Portfolio Fund shall be prepared and maintained at the expense of
the Administrator, but shall be the property of Portfolio Fund and will be made
available to or surrendered promptly to Portfolio Fund on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify Portfolio Fund and follow
Portfolio Fund's instructions as to permitting
4
or refusing such inspection; provided that the Administrator may exhibit such
records to any person in any case where it is advised by its counsel that it may
be held liable for failure to do so, unless (in cases involving potential
exposure only to civil liability) Portfolio Fund has agreed to indemnify the
Administrator against such liability.
ARTICLE 10. Compliance with Governmental Rules and Regulations. The
Administrator undertakes to comply in all material respects with applicable
requirements of the Securities Act of 1933, the Securities Exchange Act of 1934,
the 1940 Act, and any laws, rules and regulations of governmental authorities
having jurisdiction with respect to the duties to be performed by the
Administrator hereunder including any applicable anti-money laundering laws and
regulations.
ARTICLE 11. Internet Access. Data and information may be made
electronically accessible to Portfolio Fund and its adviser and/or
sub-adviser(s) through Internet access to one or more links provided by the
Administrator ("Web Links"). All rights in Web Links (including text and "look
and feel" attributes) are owned by the Administrator. Any commercial use of the
content or any other aspect of Web Link requires the written permission of the
Administrator. Use of the Web Links by Portfolio Fund or its agents will be
subject to any terms of use set forth on the web site. All Web Links and the
information (including text, graphics and functionality) in the Web Links 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 Links will be uninterrupted or error free, nor guarantees
the accessibility, reliability, performance, timeliness, sequence, or
completeness of information provided on the Web Links.
ARTICLE 12. Entire Agreement; Amendments. This Agreement constitutes the
entire agreement between the parties hereto and supersedes any prior agreement,
draft or proposal with respect to the subject matter hereof. This Agreement or
any part hereof may be changed or waived only by an instrument in writing signed
by the party against which enforcement of such change or waiver is sought.
ARTICLE 13. Assignment. This Agreement shall not be assignable by either
party without the prior written consent of the other party.
ARTICLE 14. Agreement for Sole Benefit of the Administrator and Portfolio
Fund. This Agreement is for the sole and exclusive benefit of the Administrator
and Portfolio Fund and will not be deemed to be for the direct or indirect
benefit of the clients or customers of the Administrator or Portfolio Fund. The
clients or customers of the Administrator or Portfolio 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. Such Indemnification shall be implemented in accordance with
Article 5.
ARTICLE 15. 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
5
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.
ARTICLE 16. Notice. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient if sent by registered or certified
mail, federal express (or substantially similar delivery service), postage
prepaid, addressed by the party giving notice to the other party at the last
address furnished by the other party to the party giving notice: if to Portfolio
Fund, Attention: Legal Counsel, 000 X. Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxxxx, XX
00000; and if to the Administrator, Attention: General Counsel, Xxx Xxxxxxx
Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx, 00000.
ARTICLE 17. 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: 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.
ARTICLE 18. Equipment Failures. In the event of equipment failures beyond
the Administrator's control, the Administrator shall take reasonable and prompt
steps to minimize service interruptions but shall have no liability with respect
thereto. The Administrator shall develop and maintain a plan for recovery from
equipment failures which may include contractual arrangements with appropriate
parties making reasonable provision for emergency use of electronic data
processing equipment to the extent appropriate equipment is available.
ARTICLE 19. Disaster Recovery. The Administrator represents and warrants
that it has and will maintain a comprehensive disaster recovery plan that
provides for full recovery of its administrative operations without any
diminution in the level or quality of services provided within forty-eight
hours. The Administrator covenants that it will test such disaster recovery plan
no less frequently than annually. The Administrator further covenants that it
will provide a summary of its disaster recovery plan and testing to Portfolio
Fund for review.
Article 20. Definitions of Certain Terms. The term "affiliated person,"
when used in this Agreement, shall have the meaning specified in the 1940 Act
and the rules and regulations thereunder, subject to such exemptions as may be
granted by the Securities and Exchange Commission.
ARTICLE 21. 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
6
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.
ARTICLE 22. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Delaware without giving effect to the conflicts of
laws principles therof, and the applicable provisions of the 1940 Act. To the
extent that the applicable laws of the State of Delaware, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act, the
latter shall control.
ARTICLE 23. Multiple Originals. 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.
ARTICLE 24. 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.
ARTICLE 25. 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 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.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
MAN-GLENWOOD LEXINGTON ASSOCIATES PORTFOLIO, LLC
By:
-----------------------------------------
Name:
Title:
SEI INVESTMENTS GLOBAL FUNDS SERVICES
By:
-----------------------------------------
Name:
Title:
7
SCHEDULE A
LIST OF SERVICES
1. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
The Administrator will perform the following accounting services for Portfolio
Fund:
(i) Journalize investment, capital and income and expense activities;
(ii) Receive investment activity for hedge fund-of-fund investments from
investment adviser in written form and facilitate notification and
wire movement process to such funds;
(iii) Receive buy/sell trade tickets from the Adviser, process the
activity on the books and records of Portfolio Fund and reconcile
such activity with Portfolio Fund's custodian;
(iv) Maintain historical tax lots for each security;
(v) Record and reconcile corporate action activity and all other capital
changes;
(vi) Reconcile cash and investment balances of Portfolio Fund with
Portfolio Fund's custodian(s), and provide the Adviser with the
beginning cash balance available for investment purposes;
(vii) Calculate contractual expenses, including management fees and
incentive allocation, as applicable, in accordance with Portfolio
Fund's prospectus;
(viii) Post to and prepare the Statement of Assets and Liabilities and the
Statement of Operations in U.S. dollar terms;
(ix) Prepare and monitor the expense accruals and notify any officer of
Portfolio Fund of any proposed adjustments;
(x) Control all disbursements and authorize such disbursements from
Portfolio Fund's account with the custodian(s) upon Written
Instructions;
(xi) Calculate capital gains and losses;
(xiii) Determine net income;
8
(xiv) Determine applicable foreign exchange gains and losses on payables
and receivables, if applicable;
(xv) Transmit or mail copy of the monthly portfolio valuation to the
Adviser;
(xvi) Arrange for the computation of the net asset value in accordance
with the provisions of Portfolio Fund's LLC Agreement and
prospectus; and
(xvii) As appropriate, compute total return and expenses.
2. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
The Administrator will perform the following administration services:
(i) Prepare and file Portfolio Fund's Annual and Semi-Annual Reports
with the SEC on Form N-SAR via XXXXX;
(ii) Coordinate with the adviser the preparation and printing of
Portfolio Fund's annual and semi-annual shareholder reports;
(iii) Provide such fund accounting and financial reports in connection
with quarterly meetings of the Board of Managers as are required or
as the Board may reasonably request;
(iv) Manage the tender offer process, including coordinating with outside
service provider to distribute tender offers, track shareholder
responses and tabulate tender offer results;
(v) Coordinate with Portfolio Fund's counsel on drafting, reviewing and
filing registration statements and tender offers, and coordinate
printing and delivery of prospectus and tender offers;
(vi) Provide consultation to Portfolio Fund and its Adviser on regulatory
matters relating to the operation of Portfolio Fund, and update
Portfolio Fund and its Adviser on significant regulatory and
legislative developments which may affect Portfolio Fund;
(vii) Develop or assist legal counsel to Portfolio Fund in the development
of policies and procedures relating to the operation of Portfolio
Fund;
9
(viii) Assist Portfolio Fund in handling and responding to routine
regulatory examinations with respect to records retained or services
provided by the Administrator, and coordinate with Portfolio Fund's
legal counsel in responding to any non-routine regulatory matters
with respect to such matters;
(ix) Coordinate as necessary the registration or qualification of Units
of Portfolio Fund with appropriate state securities authorities;
(x) Coordinate the Funds' Board of Director's schedule, agenda and
production of Board meeting materials; and, participate in meetings
upon request; and.
(xi) Perform such additional administrative duties relating to the
administration of Portfolio Fund as may subsequently be agreed upon
in writing between Portfolio Fund and the Administrator.
3. DESCRIPTION OF INVESTOR SERVICES ON A CONTINUOUS BASIS.
The Administrator will perform the following functions:
(i) Maintain the register of Members and enter on such register all
issues, transfers and repurchases of Units in Portfolio Fund;
(ii) Arrange for the calculation of the issue and repurchase prices of
Units in Portfolio Fund in accordance with Portfolio Fund's LLC
Agreement;
(iii) Allocate income, expenses, gains and losses to individual Members'
capital accounts in accordance with Portfolio Fund's LLC Agreement;
(iv) Assist with Member inquiries regarding Portfolio Fund, capital
account balances and transactions; and verify member identity; and
(v) Provide statements to Members on a quarterly basis or as frequently
as may otherwise be agreed that set forth the value of and
appropriate detail for the Members' Units in Portfolio Fund.
[END OF SCHEDULE A]
10
