ESCROW AGREEMENT
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THIS AGREEMENT is made as of December 19, 2002, by and among between
PHOENIX LJH ADVISORS FUND, LLC, a Delaware limited liability company (the
"Company"), PHOENIX-LJH ALTERNATIVE INVESTMENTS, LLC, a Delaware limited
liability company (the "Manager"), and PFPC INC., a Massachusetts corporation
("Escrow Agent").
WITNESSETH
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WHEREAS, the Company has retained PFPC Inc. to provide certain
administration, accounting and investor services pursuant to an Administration,
Accounting and Investor Services Agreement dated as of December 19, 2002; and
WHEREAS, the Company desires that PFPC Inc. also provide services as
escrow agent for the purpose of receiving payments from potential subscribing
members in the Company (the "Potential Investors") and PFPC Inc. 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" means written instructions received by
the Escrow Agent and signed by the Manager or any other person
duly authorized by the Manager, or by the members of the
Company, 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 the Manager of each resolution
of the Manager or members 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 Manager 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,
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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 Company's
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 or the Manager 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
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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 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
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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 Manager 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, Accounting and Investor Services Agreement between the
Company and PFPC Inc.
4. DEPOSIT OF ESCROW FUND. The Escrow Agent shall establish an account in
the name of Phoenix-LJH Advisors Fund, LLC, Escrow Account for the
Benefit of Investors (the "Subscription Account") and an account in the
name of Phoenix-LJH Advisors Fund, 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
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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. 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 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
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Manager 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 Manager, 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 Company.
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 Company, Manager or Potential Investor, as applicable.
10. COMPENSATION. The fee of the Escrow Agent for its services hereunder
shall be paid by the Company as 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.
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
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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 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.
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.
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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 Company
PHOENIX- LJH ADVISORS FUND, LLC
Attn: Xxxxx Xxxxx
0000 Xxxxxx Xxxx Xxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
(b) If to the Escrow Agent
PFPC Inc.
Attn: Xxxxxx Xxxxxxx
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
(c) If to the Manager
PHOENIX-LJH ALTERNATIVE INVESTMENTS, LLC
Attn: Xxxxx Xxxxx
0000 Xxxxxx Xxxx Xxxxxxx
Xxxxx 000
Xxxxxx, 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.
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IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
PHOENIX- LJH ADVISORS FUND, LLC
By: __________________________________
Name: _______________________________
Title: ______________________________
PHOENIX-LJH ALTERNATIVE INVESTMENTS, LLC (as "Manager")
By: __________________________________
Name: _______________________________
Title: ______________________________
PFPC INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
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