EXHIBIT (d)(28)
ESCROW AGREEMENT
This ESCROW AGREEMENT (the "Agreement"), is effective as of October 31,
2007 by and among Aston Funds (the "Company") on behalf of its series set forth
on Schedule A hereto (each a "Portfolio"); ABN AMRO Asset Management, Inc.
("Adviser"); and PFPC Trust Company ("Escrow Agent").
BACKGROUND
Pursuant to an Interim Investment Advisory Agreement, dated as of October
17, 2007, by and between the Company on behalf of each Portfolio and Adviser
pursuant to Rule 15a-4 of the Investment Company Act of 1940, as amended (the
"Interim Agreement"), Adviser has agreed to provide certain investment advisory
services to the Company with respect to the Portfolios. The compensation payable
to Adviser by the Company with respect to Adviser's services under the Interim
Agreement (less any applicable fee waivers and expense reimbursements) is
required to be deposited into escrow. The Company, Adviser and Escrow Agent now
wish to enter into this Agreement providing for the appointment by the Company
and Adviser of Escrow Agent to maintain such escrowed funds and to set forth the
terms and conditions under which such funds held in escrow shall be disbursed.
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound, the parties hereto agree as
follows:
1. Appointment of Escrow Agent. The Company on behalf of each Portfolio
and Adviser hereby appoint Escrow Agent as the escrow agent under this
Agreement, and Escrow Agent hereby accepts such appointment and agrees to
maintain all of the funds deposited into escrow with it and investments
purchased with such funds, together with all interest and income thereon and
other proceeds thereof, including proceeds of the sale or maturity of
investments constituting any of the assets held by Escrow Agent hereunder
(collectively, the "Escrow Money") and to perform its other duties hereunder in
accordance with the terms hereof.
2. Establishment of Escrow. Escrow Agent shall establish a separate
segregated account with respect to each separate Portfolio (each a "Segregated
Account"). The Company shall cause to be deposited with Escrow Agent as Escrow
Money the monthly advisory fees (less any applicable fee waivers and expense
reimbursements) payable by each separate Portfolio to Adviser pursuant to the
Interim Agreement, and in connection with such deposit the Company shall
instruct Escrow Agent via written directions as to the amount of such Escrow
Money that is to be deposited into each separate Segregated Account. Escrow
Agent shall receive, maintain and dispose of the Escrow Money separately with
respect to each separate Portfolio. Escrow Agent shall have no obligation to
require any Escrow Money to be deposited with it and Escrow Agent shall have no
obligation to determine whether the amount or form of any Escrow Money satisfies
any applicable requirements.
3. Investment of Escrow Money. Until all of the Escrow Money shall have
been disbursed as provided in this Agreement, the same shall be invested in the
Institutional Class shares of the TempCash portfolio of BlackRock Liquidity
Funds. The TempCash portfolio is advised by an affiliate of the Escrow Agent,
the TempCash portfolio is a client of the Escrow Agent, and Escrow Agent and its
affiliates receive compensation with respect to the TempCash portfolio. All
income earned on and other proceeds of the Escrow Money shall be added to the
amount thereof and distributed in accordance with the terms hereof; Escrow Agent
shall have no tax-related filing, reporting or other obligations with respect
thereto. If so directed in writing by the Company, Escrow Agent shall settle the
sale of such specific investments comprising all or a portion of the Escrow
Money as the Company shall direct in writing. Escrow Agent shall make available
to the Company and Adviser (via access to the Escrow Agent's web browser) a
monthly statement of the assets comprising the Escrow Money at the end of such
month and of all debits and credits relating to the Escrow Money during such
month.
4. Disposition of Escrow Money. Escrow Agent shall disburse the Escrow
Money, or any portion thereof, only pursuant to the written direction of the
Company and the written consent of Adviser. As between the Company and Adviser,
the Company and Adviser agree that the Escrow Money shall be disbursed to
Adviser upon satisfaction of the conditions set forth in Rule 15a-4 and only in
accordance with the provisions of that rule and that amounts not disbursed to
Adviser pursuant to such rule shall be disbursed to the Company. Without
limiting any other limitation of responsibility applicable to Escrow Agent in
connection with this Agreement, Escrow Agent shall have no duty to monitor
compliance or non-compliance with the provisions of the immediately preceding
sentence, no duty to inform any entity of any non-compliance with the provisions
of the immediately preceding sentence, and no liability relating to compliance
or non-compliance with the provisions of the immediately preceding sentence.
5. Resignation or Removal of Escrow Agent . Escrow Agent may resign at any
time upon 30 days' prior written notice to the Company and Adviser and may be
removed by the mutual consent of the Company and Adviser upon 30 days' prior
written notice to Escrow Agent. Prior to the effective date of the resignation
or removal of Escrow Agent or any successor escrow agent, the Company and
Adviser shall appoint a successor escrow agent to maintain the Escrow Money, and
any such successor escrow agent shall execute and deliver to the predecessor
escrow agent an instrument accepting such appointment, upon which delivery such
successor agent shall, without further act, become vested with all of the
rights, powers and duties of the predecessor escrow agent as if originally named
herein. The Escrow Money shall be delivered to the successor escrow agent only
upon receipt of written directions authorizing such delivery by the Company and
Adviser.
6. Liability of Escrow Agent.
(a) The duties of Escrow Agent hereunder are only as specifically
set forth herein and are entirely administrative and not discretionary. Escrow
Agent is obligated to act only in accordance with written directions received by
it as provided in this Agreement, is authorized hereby to comply with any
orders, judgments
or decrees of any court or arbitration panel and shall not incur any liability
as a result of its compliance with such directions, orders, judgments or
decrees. Escrow Agent may assume the due execution, validity and effectiveness
of, and the truth and accuracy of any information contained in, any direction or
any instrument or other document presented to it which Escrow Agent shall in
good faith reasonably believe to be genuine, and to have been signed or
presented by the persons or parties purporting to sign or present the same.
(b) Escrow Agent shall have no liability under, or duty to inquire
into, or responsibility for or duty to inquire into compliance or non-compliance
with, the terms or provisions of any agreement or arrangement between or
requirement applicable to any of the other parties hereto (including without
limitation Rule 15a-4 of the Investment Company Act of 1940, as amended). In
the event that any of the terms or provisions of any other agreement,
arrangement or requirement conflict or are inconsistent with any of the terms or
provisions of this Agreement, the terms and provisions of this Agreement in
respect of Escrow Agent's rights and duties shall govern and control in all
respects.
(c) If Escrow Agent shall be uncertain as to its duties or rights
hereunder, it shall be entitled to refrain from taking any action other than to
keep safely all property maintained by it pursuant hereto until it shall be
directed otherwise in a writing signed by the Company and Adviser or by an order
of a court of competent jurisdiction. Escrow Agent may consult with counsel of
its choice and shall not be liable for any action taken, suffered, or omitted
by it in accordance with the advice of such counsel. Escrow Agent (i) shall not
be required to institute legal proceedings of any kind and (ii) shall not be
required to defend any legal proceedings which may be instituted in respect of
the subject matter of this Agreement unless requested to do so by another party
hereto and indemnified to its reasonable satisfaction against the potential
costs and expenses of such defense.
(d) The Company on behalf of each Portfolio and Adviser hereby waive
any suit, claim, demand or cause of action of any kind which either one or both
may have to assert against Escrow Agent arising out of or relating to this
Agreement, unless such suit, claim, demand or cause of action is the result of
the intentional misconduct, fraudulent conduct, gross negligence or bad faith
of Escrow Agent in performing an express obligation hereunder; provided that
Escrow Agent's cumulative maximum liability in the aggregate for all suits,
claims, demands and causes of action of any kind arising out of or relating to
this Agreement and regardless of the form of action or legal theory shall not
exceed $500,000 (the provisions of this proviso shall not be deemed to limit
Escrow Agent's liability for any damages that a court of competent jurisdiction
determines resulted from the fraudulent conduct of Escrow Agent or an employee
of Escrow Agent). In no event shall Escrow Agent have any responsibility with
respect to any investment losses relating to the Escrow Money. Adviser shall
indemnify, defend and hold harmless Escrow Agent against any and all claims,
liabilities (including judgments), costs and reasonable counsel fees relating to
anything done or omitted by Escrow Agent in the performance of this Agreement
except such as result from the intentional misconduct, gross negligence or bad
faith of Escrow Agent in performing an express obligation hereunder. Escrow
Agent's rights pursuant to the preceding sentence shall survive its resignation
or removal and/or termination of this Agreement.
(e) Notwithstanding anything in this Agreement to the contrary, the
Escrow Agent shall not have any liability for any indirect, special, punitive or
consequential damages, regardless of whether the Escrow Agent was aware of the
possibility thereof. Notwithstanding anything in this Agreement to the contrary,
Escrow Agent shall not have any liability for any failure, delays or damages
occurring by reason of circumstances beyond its reasonable control.
7. Fees and Out-of-Pocket Expenses of Escrow Agent . Escrow Agent's fees
and out-of-pocket expenses shall be paid by Adviser and shall be paid promptly
upon receipt of an invoice from Escrow Agent. Escrow Agent's fees shall be as
set forth on Schedule B hereto.
8. Notices. All notices or other communications permitted or required
under this Agreement shall be in writing and shall be sufficiently given if and
when hand delivered to the persons set forth below or if sent by documented
overnight delivery service or registered or certified mail, postage prepaid,
return receipt requested, or by telecopy, receipt acknowledged, addressed as set
forth below or to such other person or persons and/or at such other address or
addresses as shall be furnished in writing by any party hereto to the others.
Any such notice or communication shall be deemed to have been given as of the
date received, in the case of personal delivery, or on the date shown on the
receipt or confirmation therefor in all other cases.
To Company:
Aston Funds
ATTN: Xxxxxx Xxxxxxxxxx, CFO
000 X XxXxxxx Xx. - 00xx Xxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
To Adviser:
ABN AMRO Asset Management, Inc.
Attention: Chief Executive Officer
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
with a copy to:
ABN AMRO Asset Management, Inc.
Attention: Chief Compliance Officer
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
To Escrow Agent:
PFPC Trust Company
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Fax: (000) 000-0000
9. Modification. This Agreement (and solely with respect to the Company
and Adviser, the Escrow Release Agreement between the Company and Adviser dated
as of the date hereof) constitutes the entire agreement among the parties hereto
with respect to the matters contemplated herein and supersedes all prior
agreements and understandings with respect thereto. Any amendment, modification
or waiver of this Agreement shall not be effective unless agreed among the
parties hereto in writing. Neither the failure nor any delay on the part of any
party to exercise any right, remedy, power or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
remedy, power or privilege preclude any other or further exercise of the same
nor shall the exercise of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of any right, remedy, power or privilege
with respect to any other occurrence. This Agreement shall automatically
terminate upon disbursement of all the Escrow Money maintained hereunder.
10. Governing Law. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the internal laws of the State of
Delaware, without giving effect to otherwise applicable principles of conflicts
of law.
11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which,
when taken together, shall be deemed to constitute but one and the same
agreement.
12. Binding Effect. Except as contemplated by Section 5 hereof, no party
may assign its rights or delegate its obligations under this Agreement without
the prior written consent of the other parties hereto (provided that Escrow
Agent may utilize a sub-custodian in connection with its services under this
Agreement and provided further that Escrow Agent shall be responsible for the
acts and omissions of such sub-custodian to the same extent that Escrow Agent is
responsible for its own acts and omissions under this Agreement). Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors, assigns, heirs,
executors and administrators. If any provision of this Agreement shall be or
become illegal or unenforceable in whole or in part for any reason whatsoever,
the remaining provisions shall nevertheless be deemed valid, binding and
subsisting.
13. Limitation of Liability. This Agreement is executed by the Company on
behalf of each Portfolio, and Adviser and Escrow Agent are hereby expressly put
on notice of the limitation of shareholder liability contained in the Trust
Instrument of the Company and agree that the obligations assumed by the Company
hereunder shall be limited in all cases to the assets of the applicable
Portfolio, and neither Adviser nor Escrow Agent shall seek satisfaction of any
such obligations from the directors, trustees, officers or shareholders of the
Company.
14. Single Agreement. The use of a single agreement is for administrative
purposes only, and each Portfolio shall be liable solely for its own obligations
and shall not be liable for the obligations of any other Portfolio.
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first-above written.
ASTON FUNDS
By: _______________________________
Name:
Title:
ABN AMRO ASSET MANAGEMENT, INC.
By: _______________________________
Name:
Title:
PFPC TRUST COMPANY
By: _______________________________
Name:
Title:
SCHEDULE A
Aston/ABN AMRO Investor Money Market Fund
ABN AMRO Money Market Fund
ABN AMRO Government Money Market Fund
ABN AMRO Institutional Prime Money Market Fund
ABN AMRO Tax-Exempt Money Market Fund
ABN AMRO Treasury Money Market Fund
SCHEDULE B
Fees of Escrow Agent
Fee for each Segregated Account upon its establishment in $100 per month
accordance with Section 2 of the Agreement
Out of pocket expenses As incurred by Escrow
Agent