EXHIBIT 24.2.k(iii)
ESCROW AGREEMENT
THIS AGREEMENT is made as of __________ ___, 2003, by and among SEI
OPPORTUNITY FUND, L.P., a Delaware limited partnership (the "Fund"), SEI
INVESTMENTS MANAGEMENT CORPORATION, a Delaware corporation (the "Adviser"), and
SEI PRIVATE TRUST COMPANY, a savings association supervised by the Office of
Thrift Supervision ("SEI Trust" or the "Escrow Agent").
WITNESSETH
WHEREAS, the Fund is registered as a closed-end, non-diversified,
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act");
WHEREAS, the Fund has retained SEI Trust to provide certain custodian
services pursuant to a Custodian Services Agreement dated as of _________ __,
2003 (the "Custodian Agreement");
WHEREAS, the Fund desires that SEI Trust provide services as escrow
agent for the purpose of receiving payments from potential subscribing investors
in the Fund (the "Potential Investors") and SEI Trust 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 Adviser or any other person duly
authorized by the Adviser, 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
the Adviser of each resolution of the Adviser or Fund authorizing the
person or persons to give Written Instructions. Such resolution shall
include certified signatures of such persons authorized to give Written
Instructions.
1
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 Adviser 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 Agreement of Limited Partnership or this
Agreement or of any vote, resolution or proceeding of the Fund's
limited partners, 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 the Adviser 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 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
2
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 Adviser 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 Custody Agreement.
4. DEPOSIT OF ESCROW FUND. The Escrow Agent shall establish an account in the
name of SEI Opportunity Fund, L.P. Escrow Account for the Benefit of Investors
(the "Subscription Account"), and an account in the name of SEI Opportunity
Fund, L.P. 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 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 objections with the Escrow Agent.
6. DISTRIBUTIONS AND CLOSINGS. Upon Written Instructions, at each closing of
each offering of limited partnership 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
3
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, pursuant to Written Instructions, within 5 business days of the
crediting of such interest the Escrow Agent shall issue interest payments in
check form to each Potential Investor based on his or her individual balance in
the Subscription Account along with a cover letter and to the Adviser 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 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 in check form to the
repurchasing member or to the Adviser, 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,
the Adviser or Potential Investor, as applicable.
10. COMPENSATION. The fee of the Escrow Agent for the Fund as hereunder shall
pay its services may be mutually agreed to in writing by the Fund and Escrow
Agent. Notwithstanding the foregoing, standard account transaction charges 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.
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.
4
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. This
Agreement shall be construed and enforced in accordance with the laws of
Delaware without regard to principles of conflicts of law.
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:
SEI Opportunity Fund, L.P.
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
(b) If to the Escrow Agent:
SEI Private Trust Company
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
(c) If to the Adviser:
SEI Investments Management Corporation
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 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.
5
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
SEI OPPORTUNITY FUND, L.P.
By: ___________________________
Name: _________________________
Title: ________________________
SEI PRIVATE TRUST COMPANY
By: ___________________________
Name: _________________________
Title: ________________________
SEI INVESTMENTS MANAGEMENT CORPORATION
By: ___________________________
Name: _________________________
Title: ________________________
6
