Exhibit 99(k)(2)
ESCROW AGREEMENT
THIS AGREEMENT is made as of February 26, 2007, by and between CENTRAL
PARK GROUP MULTI-EVENT FUND, a Delaware statutory business trust (the
“Fund”), CENTRAL PARK ADVISERS, LLC, a Delaware limited
liability company (the “Manager”), and UNION BANK OF
CALIFORNIA, N.A., a national banking association (the “Escrow Agent”).
WITNESSETH
WHEREAS,
the Fund is registered as a closed-end, diversified management investment company
under the Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS,
the Fund desires that Union Bank of California, N.A. provide services as escrow agent,
as described herein, and Union Bank of California, N.A. 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.
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(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. |
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(b) |
“Written Instructions” mean written instructions
received by the Escrow Agent and purported to be signed by the Manager or any
other person duly authorized by the Manager, or by the Fund’s Board of
Trustees (the “Board”), to give such instructions on behalf of the
Fund. The instructions may be delivered by hand, mail, facsimile, or cable;
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 an authorized officer of the Fund, of each resolution of the
Board 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 or the Board to the contrary. |
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The Escrow Agent may rely upon, and shall be protected for any
action or omission it takes pursuant to, Written Instructions if the Escrow
Agent, 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 and Declaration of Trust or this
Agreement or of any vote, resolution or proceeding of the Board, unless and
until the Escrow Agent receives Written Instructions to the contrary.
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(c) |
The duties and responsibilities of Escrow Agent shall be limited to those
expressly set forth in this Escrow Agreement. With the exception of this
Agreement, Escrow Agent is not responsible for, or chargeable with knowledge of,
any terms or provisions contained in any underlying agreement referred to in
this Agreement or any other separate agreements and understandings between the
parties. The Escrow Agent shall not be liable for the accuracy of any
calculations or the sufficiency of any funds for any purpose. The Escrow Agent
shall not have any liability under this Agreement except to the extent of its
own gross negligence or willful misconduct. |
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(d) |
Notwithstanding anything in this Agreement to the contrary, neither the Escrow
Agent nor its affiliates shall be liable to the Fund or the Manager 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.
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(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. Such acts shall
include but not be limited to acts of God, strikes, lockouts, riots, acts of
war, epidemics, governmental regulations promulgated after the fact, fire,
communication line failures, computer viruses, power failures, earthquakes or
other disasters. |
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(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 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. |
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(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. In the event of any disagreement resulting in adverse claims or
demands being made in respect of the assets held hereunder, or in the event that
Escrow Agent, in good faith, shall be in doubt as to what action it should take
hereunder, Escrow Agent may, at its option, refuse to comply with any claims or
demands or it may refuse to take any other action hereunder, so long as such
disagreement continues or such doubt exists, and in any such event, Escrow Agent
shall not be or become liable in any way or to any person for its failure or
refusal to act, and Escrow Agent shall be entitled to continue so to refrain
from acting until (i) the rights of the parties have been fully and finally
adjudicated by a court of competent jurisdiction, or (ii) all differences shall
have been adjusted and all doubt resolved by agreement among the parties and the
Escrow Agent shall have been notified thereof in writing signed by or on behalf
of all such persons. The rights of Escrow Agent under this paragraph are in
addition to all other rights which it may have by law or otherwise. |
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(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. |
Deposit of Escrow Fund. The Escrow Agent shall establish an
account in the name of Central Park Group Multi-Event Fund, Escrow Account for
the Benefit of Investors (the “Subscription Account”). The Escrow
Agent shall promptly deposit in the Subscription Account checks remitted by
potential investors in the Fund (“Potential Investors”) and made
payable to Central Park Group Multi-Event 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 be held univested. |
| 4. |
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. |
| 5. |
Distributions and Closings. Upon Written Instructions, at each
closing of each offering of Fund shares, 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 fund transfer
instructions are given (other than in writing at the time of the execution of
this Agreement), whether in writing, by telecopier or otherwise, Escrow Agent is
authorized to seek confirmation of such instructions by telephone call-back to
the person or persons designated to provide instructions to Escrow Agent, and
Escrow Agent may rely upon the confirmations of anyone purporting to be the
person or persons so designated. The persons and telephone numbers for
call-backs may be changed only in writing actually received and acknowledged by
Escrow Agent. Escrow Agent and the beneficiary’s bank in any funds transfer
may rely solely upon any account numbers or similar identifying numbers provided
by the Fund to identify (i) the beneficiary, (ii) the beneficiary’s bank,
or (iii) an intermediary bank. Escrow Agent may apply any of escrowed funds for
any payment order it executes using any such identifying number, even when its
use may result in a person other than the beneficiary being paid, or the
transfer of funds to a bank other than the beneficiary’s bank or an
intermediary bank designated. The parties to this Agreement acknowledge that
such security procedure is commercially reasonable. |
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In the event that a Potential Investor who has escrow funds in the
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 without interest. Such refunds shall be made in
check form. |
| 6. |
Tax Identification Number. All deposits to the Subscription
Account shall be subject to the Escrow Agent’s receipt of a valid tax
identification number for the Fund, Manager or Potential Investor, as
applicable. |
| 7. |
Compensation. The fee of the Escrow Agent for its services
hereunder shall be paid by the Fund as 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.
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| 8. |
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. |
| 9. |
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 Subscription Account 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 Subscription
Account 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 Subscription Account 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. |
| 10. |
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. |
| 11. |
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 New York without regard to principles of
conflicts of law. |
| 12. |
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: |
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(b) |
If to the Escrow Agent: |
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Union Bank of California, NA.
Attn: Moon Xxxx Xxx
000 Xxxxxxxxxx Xxxxxx, 0xxXxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 |
| 13. |
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. |
| 14. |
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. |
IN
WITNESS THEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
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CENTRAL PARK GROUP MULTI EVENT FUND
By:
Name:
Title:
CENTRAL PARK ADVISERS, LLC
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A., as Escrow Agent
By:
Name:
Title:
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