ESCROW AGREEMENT
THIS AGREEMENT is made as of __________, 2002, by and among BACAP
OPPORTUNITY STRATEGY, LLC, a Delaware limited liability company (the "Company"),
[_________________________, a ________________ corporation (the "Manager")], and
PFPC INC., a Massachusetts corporation ("Escrow Agent").
WITNESSETH
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 _________, 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" mean 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, 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
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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 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
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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 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.
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(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 BACAP Opportunity Strategy, LLC, Escrow Account for the
Benefit of Investors (the "Subscription Account") and an account in the
name of BACAP Opportunity Strategy, 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
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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 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
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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 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
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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.
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
BACAP Opportunity Strategy, LLC
c/o: _____________________
__________________________
__________________________
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(b) If to the Escrow Agent
PFPC Inc.
Attn: _______________
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
(c) If to the Manager
_________________________
c/o: ____________________
_________________________
_________________________
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.
BACAP OPPORTUNITY STRATEGY, LLC
By: __________________________________
Name: ________________________________
Title: _______________________________
_________________________(as "Manager")
By: __________________________________
Name: ________________________________
Title: _______________________________
PFPC INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
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