THE
BANK OF
NEW
YORK
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ESCROW AGREEMENT
between
BACAP ALTERNATIVE MULTI-STRATEGY FUND, LLC
and
THE BANK OF NEW YORK
Dated as of March 17, 2003
ACCOUNT NUMBER(S)____________________________
SHORT TITLE OF ACCOUNT: BACAP Alternative Multi-Strategy Escrow
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ESCROW AGREEMENT made this 17th day of March 2003, by and between THE BANK OF
NEW YORK ("Escrow Agent") and the undersigned (the "Depositor").
Depositor and Escrow Agent hereby agree that, in consideration of the mutual
promises and covenants contained herein, Escrow Agent shall hold in escrow and
shall distribute Escrow Property (as defined herein) in accordance with and
subject to the following Instructions and Terms and Conditions:
I. INSTRUCTIONS:
1. Escrow Property
The property and/or funds deposited or to be deposited with Escrow Agent
by Depositor shall be as follows:
1. All property and funds of investors or prospective investors in
Depositor deposited by Depositor with the Escrow Agent in connection with
such investors or prospective investors subscribing for limited liability
company interests of Depositor (collectively, "Subscription Property");
and
2. All property and funds deposited by Depositor with the Escrow Agent in
connection with repurchases by the Depositor of its limited liability
company interests from its interestholders (collectively, "Repurchase
Property").
The foregoing property and/or funds, plus all interest, dividends and
other distributions and payments thereon (collectively the
"Distributions") received by Escrow Agent, less any property and/or funds
distributed or paid in accordance with this Escrow Agreement, are
collectively referred to herein as "Escrow Property."
Each of the Subscription Property and the Repurchase Property shall be
retained in a separate and distinguishable sub-account maintained by
Escrow Agent (the "Subscription Account" and "Repurchase Account",
respectively) and shall not be commingled in any way. Escrow Agent shall
place property and/or funds in the Subscription Account or the Repurchase
Account in accordance with the written instructions of two officers of
Depositor. If Depositor does not provide such written instructions with
respect to any particular property or funds, the Escrow Agent shall place
such property or funds in the Subscription Account.
2. Investment of Escrow Property Escrow Agent shall invest or reinvest Escrow
Property, without distinction between principal and income, in such manner
as the Escrow Agent and Depositor may agree from time to time. Escrow
Agent shall have no liability for any loss arising from or related to any
such investment other than in accordance with paragraph 4 of the Terms and
Conditions.
3. Distribution of Escrow Property
Escrow Agent is directed to hold and distribute the Escrow Property in the
following manner:
(a) Upon written instructions by two officers of Depositor, Escrow Agent
promptly shall wire or issue by check the principal and/or interest
balances on deposit in the Subscription Account to the account or
accounts or addresses designated by the Depositor on the closing
date of an offering of the Depositor's limited liability company
interests; and (b) Upon written instructions by two officers of
Depositor, Escrow Agent promptly shall issue: (i) principal balances
on deposit in the Repurchase Account in check or wire form to the
repurchasing member or as otherwise provided in the written
instructions and (ii) interest balances on deposit in the Repurchase
Account by wire to the Depositor.
4. Addresses
Notices, instructions, certifications and other communications shall be
sent to Escrow Agent, Insurance Trust and Escrow Department, 000 Xxxxxxx
Xxxxxx - 0X Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and to Depositors as follows:
Xxxxx X. Xxxxx and Xxxxx X. Xxxxxxx
BACAP Distributors, LLC
Bank of America Plaza
NC1-002-12-01
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
With a copy to:
Legal department
BACAP Distributors, LLC
Bank of America Plaza
NC1-002-33-31
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
5. Distribution of Escrow Property Upon Termination
Upon termination of this Escrow Agreement, Escrow Property then held
hereunder shall be distributed to a successor escrow agent as provided by
Depositor in written instructions signed by two officers of Depositor.
6. Compensation
(a) Depositor shall pay Escrow Agent an annual fee of $3,500, or such
other amount as the parties may agree to from time to time, payable
upon execution of this Agreement and thereafter on each anniversary
date of this Agreement. The annual fee shall be pro-rated for any
portion of a year in which the Escrow Agent provides services as
contemplated by this Agreement if the Agreement is terminated less
than six months into such year.
(b) Depositor shall be responsible for and shall reimburse Escrow Agent
upon demand for all expenses, disbursements and advances incurred or
made by Escrow Agent in connection with this Agreement.
II. TERMS AND CONDITIONS:
1. The duties, responsibilities and obligations of Escrow Agent shall be
limited to those expressly set forth herein and no duties,
responsibilities or obligations shall be inferred or implied. Escrow
Agent shall not in its capacity as Escrow Agent be subject to, nor
required to comply with, any other agreement to which the Depositor is
a party, even though reference thereto may be made herein, or to comply
with any direction or instruction (other than those contained herein or
delivered in accordance with this Escrow Agreement) from any Depositor
or any entity acting on its behalf. Escrow Agent shall not be required
to, and shall not, expend or risk any of its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder.
2. This Agreement is for the exclusive benefit of the parties hereto and
their respective successors hereunder, and shall not be deemed to give,
either express or implied, any legal or equitable right, remedy or claim
to any other entity or person whatsoever.
3. If at any time Escrow Agent is served with any judicial or
administrative order, judgment, decree, writ or other form of judicial
or administrative process which in any way affects Escrow Property
attributable to one or both sub-accounts (including but not limited to
orders of attachment or garnishment or other forms of levies or
injunctions or stays relating to the transfer of Escrow Property),
Escrow Agent is authorized to comply therewith in any reasonable manner
as it or its legal counsel of its own choosing deems appropriate; and
if Escrow Agent reasonably complies with any such judicial or
administrative order, judgment, decree, writ or other form of judicial
or administrative process, Escrow Agent shall not be liable to any of
the parties hereto or to any other person or entity even though such
order, judgment, decree, writ or process may be subsequently modified
or vacated or otherwise determined to have been without legal force or
effect.
4. (a) Escrow Agent shall not be liable for any action taken or omitted or
for any loss or injury resulting from its actions or its performance or
lack of performance of its duties hereunder in the absence of
negligence or willful misconduct on its part. In no event shall Escrow
Agent be liable (i) for acting in accordance with or relying upon any
instruction, notice, demand, certificate or document reasonably
believed to be from the Depositor or any duly authorized entity acting
on behalf of the Depositor or (ii) for any consequential, punitive or
special damages.
(b) Notwithstanding the foregoing or any other provisions contained in
this Escrow Agreement, Escrow Agent may distribute Escrow Property in
reliance upon any certificate or document that the Escrow Agent reasonably
believes meets the provisions for distributing Escrow Property pursuant to
Sections I.3 and I.5 of this Escrow Agreement.
(c) If any fees, expenses or costs incurred by, or any obligations owed
to, Escrow Agent hereunder with respect to a sub-account are not promptly
paid when due, Escrow Agent may reimburse itself therefor from the Escrow
Property attributable to such sub-account and may sell, convey or
otherwise dispose of any Escrow Property attributable to such sub-account
for such purpose.
(d) As security for the due and punctual performance of any and all of
Depositor's obligations to Escrow Agent hereunder, now or hereafter
arising with respect to a sub-account, Depositor hereby pledges, assigns
and grants to Escrow Agent a continuing security interest in, and a lien
on, the Escrow Property and all Distributions thereon or additions thereto
(whether such additions are the result of deposits by Depositor or the
investment of Escrow Property) attributable to such sub-account. The
security interest of Escrow Agent shall at all times be valid, perfected
and enforceable by Escrow Agent against Depositor and all third parties in
accordance with the terms of this Escrow Agreement.
(e) Escrow Agent may consult with legal counsel as to any matter relating
to this Escrow Agreement, and Escrow Agent shall not incur any liability
in acting in good faith in accordance with any advice from such counsel.
(f) Escrow Agent shall not incur any liability for not performing any act
or fulfilling any duty, obligation or responsibility hereunder by reason
of any occurrence beyond the control of Escrow Agent (including but not
limited to any act or provision of any present or future law or regulation
or governmental authority, any act of God or war, or the unavailability of
the Federal Reserve Bank wire or telex or other wire or communication
facility), provided that the Escrow Agent is maintaining such back-up
systems and disaster recovery plans as are required by applicable law and
its regulators, or, in the event it is not, then such loss or delay would
have arisen even if it were.
5. Unless otherwise specifically set forth herein, Escrow Agent shall
promptly proceed to collect any checks or other collection items at any
time deposited hereunder. All such collections shall be subject to
Escrow Agent's usual collection practices or terms regarding items
received by Escrow Agent for deposit or collection. Escrow Agent shall
not be required, or have any duty, to notify anyone of any payment or
maturity under the terms of any instrument deposited hereunder, nor to
take any legal action to enforce payment of any check, note or security
deposited hereunder or to exercise any right or privilege which may be
afforded to the holder of any such security.
6. Escrow Agent shall provide to Depositor monthly statements identifying
transactions, transfers or holdings of Escrow Property by sub-account.
Escrow Agent also shall provide a daily summary of amounts deposited and
the status of available funds by sub-account. Each such statement shall be
deemed to be correct and final upon receipt thereof by the Depositor
unless Escrow Agent is notified in writing to the contrary within thirty
(30) business days of the date of such statement.
7. Escrow Agent shall not in the absence of its own negligence or willful
misconduct be responsible in any respect for the form, execution,
validity, value or genuineness of documents or securities deposited
hereunder, or for any description therein, or for the identity, authority
or rights of persons executing or delivering or purporting to execute or
deliver any such document, security or endorsement.
8. Notices, instructions or other communications shall be in writing and
shall be given to the address set forth in the "Addresses" provision
herein (or to such other address as may be substituted therefor by
written notification to Escrow Agent or Depositor). Notices shall be
deemed to be given when actually received by the Escrow Agent or the
Depositor, as the case may be. Escrow Agent is authorized to comply
with and rely upon any notices, instructions or other communications
that are reasonably believed by it to have been sent or given by two
officers of the Depositor or by a person or persons duly authorized by
Depositor. Whenever under the terms hereof the time for giving a
notice or performing an act falls upon a Saturday, Sunday, or banking
holiday, such time shall be extended to the next day on which Escrow
Agent is open for business.
9. Depositor shall be liable for and shall reimburse and indemnify Escrow
Agent and hold Escrow Agent harmless from and against any and all
claims, losses, liabilities, costs, damages or expenses (including
reasonable attorneys' fees and expenses) (collectively, "Losses")
arising from or in connection with or related to this Escrow Agreement
or being Escrow Agent hereunder (including but not limited to Losses
incurred by Escrow Agent in connection with its successful defense, in
whole or in part, of any claim of negligence or willful misconduct on
its part), provided, however, that nothing contained herein shall
require Escrow Agent to be indemnified for Losses caused by its
negligence or willful misconduct.
10. (a) Depositor may remove Escrow Agent at any time by giving to Escrow
Agent thirty (30) calendar days' prior notice in writing signed by the
Depositor. Escrow Agent may resign at any time by giving to Depositor
fifteen (15) calendar days' prior written notice thereof.
(b) Within ten (10) calendar days after giving the foregoing notice of
removal to Escrow Agent or receiving the foregoing notice of resignation
from Escrow Agent, Depositor shall appoint a successor Escrow Agent. If a
successor Escrow Agent has not accepted such appointment by the end of
such 10-day period, Escrow Agent may, in its sole discretion, deliver the
Escrow Property to the Depositor at the address provided herein or may
apply to a court of competent jurisdiction for the appointment of a
successor Escrow Agent or for other appropriate relief. The costs and
expenses (including reasonable attorneys' fees and expenses) incurred by
Escrow Agent in connection with such proceeding shall be paid by, and be
deemed an obligation of, the Depositor.
(c) Upon receipt of the identity of the successor Escrow Agent, Escrow
Agent shall either deliver the Escrow Property then held hereunder to the
successor Escrow Agent, less Escrow Agent's fees, costs and expenses or
other obligations owed to Escrow Agent, or hold such Escrow Property (or
any portion thereof), pending distribution, until all such fees, costs and
expenses or other obligations are paid.
(d) Upon delivery of the Escrow Property to a successor Escrow Agent,
Escrow Agent shall have no further duties, responsibilities or obligations
hereunder and this Agreement shall terminate immediately.
11. (a) In the event of any ambiguity or uncertainty hereunder or in any
notice, instruction or other communication received by Escrow Agent
hereunder, Escrow Agent may, in its sole discretion, refrain from taking
any action other than retain possession of the Escrow Property, unless
Escrow Agent receives written instructions, signed by two officers of
Depositor, which eliminates such ambiguity or uncertainty.
(b) In the event of any dispute between or conflicting claims by the
Depositor and/or any other person or entity with respect to any Escrow
Property, Escrow Agent shall be entitled, in its sole and reasonable
discretion, to refuse to comply with any and all claims, demands or
instructions with respect to such Escrow Property so long as such dispute
or conflict shall continue, and Escrow Agent shall not be or become liable
in any way to the Depositor for failure or refusal to comply with such
conflicting claims, demands or instructions. Escrow Agent shall be
entitled to refuse to act until, in its sole and reasonable discretion,
either (i) such conflicting or adverse claims or demands shall have been
determined by a final order, judgment or decree of a court of competent
jurisdiction, which order, judgment or decree is not subject to appeal, or
settled by agreement between the conflicting parties as evidenced in a
writing satisfactory to Escrow Agent or (ii) Escrow Agent shall have
received security or an indemnity satisfactory to it sufficient to hold it
harmless from and against any and all Losses which it may incur by reason
of so acting. Escrow Agent may, in addition, elect, in its sole
discretion, to commence an interpleader action or seek other judicial
relief or orders as it may deem, in its sole discretion, necessary. The
costs and expenses (including reasonable attorneys' fees and expenses)
incurred in connection with such proceeding shall be paid by, and shall be
deemed an obligation of the Depositor.
12. This Agreement shall be interpreted, construed, enforced and
administered in accordance with the internal substantive laws (and not
the choice of law rules) of the State of New York. The Depositor
hereby submits to the personal jurisdiction of and agrees that all
proceedings relating hereto shall be brought in courts located within
the City and State of New York. Each party hereby waives the right to
trial by jury. To the extent that in any jurisdiction the Depositor
may be entitled to claim, for itself or its assets, immunity from suit,
execution, attachment (whether before or after judgment) or other legal
process, hereby irrevocably agrees not to claim, and hereby waives,
such immunity. Each party waives personal service of process and
consents to service of process by certified or registered mail, return
receipt requested, directed to it at the address last specified for
notices hereunder, and such service shall be deemed completed ten (10)
calendar days after the same is so mailed.
13. Except as otherwise permitted herein, this Escrow Agreement may be
modified only by a written amendment signed by all the parties hereto, and
no waiver of any provision hereof shall be effective unless expressed in a
writing signed by the party to be charged.
14. The rights and remedies conferred upon the parties hereto shall be
cumulative, and the exercise or waiver of any such right or remedy shall
not preclude or inhibit the exercise of any additional rights or remedies.
The waiver of any right or remedy hereunder shall not preclude the
subsequent exercise of such right or remedy.
15. Each party hereby represents and warrants (a) that this Escrow Agreement
has been duly authorized, executed and delivered on its behalf and
constitutes its legal, valid and binding obligation and (b) that the
execution, delivery and performance of this Escrow Agreement by the party
does not and will not violate any applicable law or regulation.
16. The invalidity, illegality or unenforceability of any provision of this
Agreement shall in no way affect the validity, legality or enforceability
of any other provision; and if any provision is held to be enforceable as
a matter of law, the other provisions shall not be affected thereby and
shall remain in full force and effect.
17. This Agreement shall constitute the entire agreement of the parties with
respect to the subject matter and supersedes all prior oral or written
agreements in regard thereto.
18. In addition to the termination provided for in Section 10(d) of this
Agreement, this Agreement shall terminate automatically upon liquidation
or other termination of the business of the Depositor. The provisions of
these Terms and Conditions shall survive termination of this Escrow
Agreement and/or the resignation or removal of the Escrow Agent.
19. No printed or other material in any language, including notices,
reports and promotional material which mentions "The Bank of New York"
by name or the rights, powers, or duties of the Escrow Agent under this
Agreement shall be issued by the Depositor, or on the Depositor's
behalf, without the prior written consent of Escrow Agent, except the
Registration Statement of the Depositor (including the prospectus and
statement of additional information of the Depositor) and the
subscription documentation of the Depositor.
20. The headings contained in this Agreement are for convenience of reference
only and shall have no effect on the interpretation or operation hereof.
21. This Escrow Agreement may be executed by each of the parties hereto in any
number of counterparts, each of which counterpart, when so executed and
delivered, shall be deemed to be an original and all such counterparts
shall together constitute one and the same agreement.
22. The Escrow Agent does not have any interest in the Escrowed Property
deposited hereunder but is serving as escrow holder only and having
only possession thereof. The Depositor shall pay or reimburse the
Escrow Agent upon request for any transfer taxes or other taxes
relating to the Escrowed Property incurred in connection herewith and
shall indemnify and hold harmless the Escrow Agent any amounts that it
is obligated to pay in the way of such taxes. Any payments of income
from this Escrow Account shall be subject to withholding regulations
then in force with respect to United States taxes. The Depositor will
provide the Escrow Agent with appropriate tax documentation. It is
understood that the Escrow Agent shall be responsible for income
reporting only with respect to income earned on investment of funds
which are a part of the Escrowed Property and is not responsible for
any other reporting. This paragraph and paragraph (9) shall survive
notwithstanding any termination of this Escrow Agreement or the
resignation of the Escrow Agent.
IN WITNESS WHEREOF, each of the parties has caused this Escrow Agreement
to be executed by a duly authorized officer as of the day and year first written
above.
BACAP ALTERNATIVE MULTI-STRATEGY FUND, LLC
By:___________________________________
Name:_________________________________
Title:________________________________
THE BANK OF NEW YORK, as Escrow Agent
By:___________________________________
Name:_________________________________
Title:________________________________
03564.0004 #393516