EXHIBIT (j)(ii)
ESCROW AGREEMENT
THIS AGREEMENT is made as of April 1, 2004, by and among Man-Glenwood
Lexington TEI, LLC, a Delaware limited liability company (the "Company"), and
SEI Investments Global Funds Services, a Delaware business trust ("SEI" or
"Escrow Agent").
WITNESSETH
WHEREAS, the Company has retained SEI to provide certain
administration, accounting and investor services pursuant to an Administration
Agreement dated as of April 1, 2004; and
WHEREAS, the Company desires that SEI also provide services as escrow
agent for the purpose of receiving payments from potential subscribing members
in the Company (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 the Board of Managers ("Managers") of the Company, or
any other person duly authorized by the Company, including officials of Glenwood
Capital Investments, L.L.C. ("Glenwood"), to give such instructions on behalf of
the Company. 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 certified by Glenwood of each resolution of
Glenwood or Managers authorizing the person or persons to give Written
Instructions. Such resolution shall include certified signatures of such persons
authorized to give Written Instructions. 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
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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 limited
liability company agreement (the "Limited Liability Company Agreement") or this
Agreement or of any vote, resolution or proceeding of the 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 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 Company shall not be liable to the Escrow Agent for any
consequential, special or indirect losses or damages which the Escrow
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Agent may incur or suffer, whether or not the likelihood of such losses or
damages was known by the Company. 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.
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 Company 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 Company, in the
name of Man-Glenwood Lexington TEI, LLC, Escrow Account for the Benefit of
Investors (the "Subscription Account") and an account in the name of
Man-Glenwood Lexington TEI, 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 Company. Potential Investors also may deposit
monies in the Subscription Account by wire transfer pursuant to instructions
provided to them by the Company. Balances on deposit in the Subscription Account
will earn interest at prevailing market rates pursuant to arrangements approved
by the Company.
5. STATEMENTS. During the term of this Agreement, the Escrow Agent shall
provide the Company 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 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.
6. 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 Subscription Account to the account
designated by the Company. Such Written Instructions shall be sent to the Escrow
Agent by 2:00 p.m. E.T.
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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 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 by wire transfer.
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, pursuant to Written Instructions, within 5 business days of the
crediting of such Interest the Escrow Agent shall issue interest payments by
wire transfer to each Potential Investor based on his or her individual balance
in the Subscription Account along with a cover letter and, if applicable, to
Glenwood based upon its balance in the Subscription Account along with a cover
letter. The Escrow Agent will prepare and send notifications on Form 1099 for
each calendar year.
8. REPURCHASES. The Company from time to time may wire balances to the
Repurchase Account in connection with periodic repurchases of interests by the
Company from its members. Upon Written Instructions, the Escrow Agent shall
issue promptly repurchase payments from the Repurchase Account in check form to
the repurchasing member or to the Company or Glenwood if the Company so directs,
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 withdrawing member.
9. COMPLIANCE WITH RULE 15C2-4. This Agreement and the services provided
hereunder shall comply with Rule 15c2-4 of the rules promulgated under the
Securities Exchange Act of 1934, as amended.
10. 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 Company, Glenwood or Potential Investor, as applicable.
11. 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.
12. 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.
13. 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 Company 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.
14. 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.
15. 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.
16. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of Delaware without regard to principles of conflicts
of law.
17. 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
Man-Glenwood Lexington TEI, LLC
c/o: Legal Counsel
000 X. Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
(b) If to the Escrow Agent
SEI Investments Global Funds Services
Attn: General Counsel
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
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18. 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.
19. 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.
MAN-GLENWOOD LEXINGTON TEI, LLC
By: _______________________
Name: _____________________
Title: _____________________
SEI INVESTMENTS GLOBAL FUNDS SERVICES
By: ___________________
Name: _________________
Title: __________________
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