ESCROW AGREEMENT
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THIS AGREEMENT is made as of April 30, 2002, by and among [Antenor
Fund, LLC] [Beaumont Fund, LLC] [Curan Fund, LLC], a Delaware limited liability
company (the "Fund"), Prospero Capital Management, LLC (the "Investment
Adviser"), and _______, a Delaware corporation (the "Escrow Agent").
WITNESSETH
WHEREAS, the Fund is registered as a closed-end, management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Fund has retained ____________ to provide certain
administration, accounting and investor services pursuant to an Administration,
Accounting and Investor Services Agreement of even date; and
WHEREAS, the Fund desires that __________ also provide services as
escrow agent, as described herein, and _________ 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 Investment Adviser or any other person
duly authorized by the Investment Adviser, or by the Fund's Board (as
defined under the Fund's limited liability company agreement (the
"Limited Liability Company Agreement"), to give such instructions on
behalf of the Fund. 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 Fund
shall file from time to time with the Escrow Agent a certified copy
certified by the Investment Adviser of each resolution of its 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 Investment
Adviser or the Board 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 in any way
inconsistent with the provisions of the Limited Liability Company
Agreement or this Agreement or of any vote, resolution or proceeding of
the Board, or of the Fund'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 of its failure to perform its duties under this
Agreement to the extent such damages arise out of its willful
misfeasance, 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 Fund or the
Investment Adviser 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.
(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 God, insurrection, war, riots or failure of the
mails, transportation, communication or power supply.
(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.
(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 Investment Adviser 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 among the
parties.
4. Deposit of Escrow Fund. The Escrow Agent shall establish an account in
the name of [Antenor Fund, LLC] [Beaumont Fund, LLC] [Curan Fund, LLC],
Escrow Account for the Benefit of Investors (the "Subscription
Account") and an account in the name of [Antenor Fund, LLC] [Beaumont
Fund, LLC] [Curan 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 [Antenor
Fund, LLC] [Beaumont Fund, LLC] [Curan Fund, LLC] Potential Investors
also may deposit monies in the Subscription Account by wire transfer
pursuant to instructions provided to them by the Fund or by amounts
wire transferred from brokerage accounts at _________________. Balances
on deposit in the Subscription Account will earn interest at prevailing
market rates pursuant to arrangements approved by the Fund.
5. 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.
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6. Distributions and Closings. Upon Written Instructions, at each closing
of each offering of interests in the Fund, 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 1:00 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 Fund, 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 or by wire
transfer to the brokerage account of the Potential Investor at
______________.
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 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 Fund from time to time may wire balances to the
Repurchase Account in connection with periodic repurchases of interests
by the Fund 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 Fund.
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 Fund, Investment Adviser Potential Investor, as
applicable.
10. 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.
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 depositary. Upon written notification by the Fund
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.
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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
(a) If to the Fund:
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(b) If to the Escrow Agent:
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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.
[ANTENOR FUND, LLC]
[BEAUMONT FUND, LLC]
[CURAN FUND, LLC}
By:
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Name:
Title: Authorized Person
PROSPERO CAPITAL MANAGEMENT, LLC
By:
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Name:
Title: Authorized Person
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By:
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Name:
Title:
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