EXHIBIT Item 24(2)(k)((2)
ESCROW AGREEMENT
THIS AGREEMENT is made as of __________, 2004, by and among,
MULTI-STRATEGY HEDGE OPPORTUNITIES LLC, a Delaware limited liability company
(the "Company"), Xxxxxxx Xxxxx Investment Managers, LLC, a Delaware limited
liability company (the "Adviser"), 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 _________, 2004; 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 holding funds delivered
by the Company for the payment of members who tender their interests in the
Company pursuant to periodic tender offers made by the Company, 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.
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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 whatsoever 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 Adviser or by any other person duly
authorized by the Adviser, the Board of Directors of the Company
(the "Board"), or the members of the Company ("Members") 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 of each resolution,
unanimous consent, or other instrument of the Adviser, the Board or
Members authorizing persons to give Written Instructions. Such
resolution shall include certified signatures of such person
authorized to give Written Instructions. This shall constitute
conclusive evidence of the authority of the signatories designated
therein to provide Written Instructions. 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 Adviser 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
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shall be entitled to assume that any Written Instruction received
hereunder is not in any way inconsistent with the provisions of the
limited liability 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, 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
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authority, national emergencies, 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 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 relating to this
Agreement 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
Escrow Agent shall not be liable to the Company for any
consequential, special or indirect losses or damages which the
Company may incur or suffer, whether or not the likelihood of such
losses or damages was known by the Escrow Agent. 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 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 between the
Company and PFPC Inc.
4. Deposit of Escrow Fund. The Escrow Agent shall establish and maintain an
account in the name of Xxxxxxx Xxxxx Multi-Strategy Opportunities Fund LLC
Escrow Account for the subscriptions, or other similar name (the
"Subscription Account") and an account in the name of Xxxxxxx Xxxxx
Multi-Adviser Hedge 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 all funds
remitted by Potential Investors 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
and ending balance in each Account as well as all principal and income
transactions for the statement period
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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
immediately 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 Potential Investor's principal
balance. Such refunds shall be made in check form.
7. Repurchases. The Company from time to time may wire balances to the
Repurchase Account representing funds owed to Members whose tenders have
been accepted by the Company 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 each repurchasing Member. Upon Written
Instructions, the Escrow Agent will withhold specified amounts from
repurchasing Members.
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8. 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, Adviser or Potential Investor, as applicable.
9. 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.
10. 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.
11. Termination. This Agreement shall continue until terminated by either
party on sixty (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 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 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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12. Execution. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but such counterparts together
shall constitute one and the same instrument.
13. 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.
14. 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
Multi-Strategy Hedge Opportunities LLC
c/o: Treasurer
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
(b) If to the Escrow Agent
PFPC Inc.
Attn:
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000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
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(c) If to the Adviser
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c/o:
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15. 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.
16. 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.
17. Authority. Each party hereto represents that it has the legal power and
authority to execute and deliver this Agreement and each party is in
receipt of all requisite authorizations and consents (if any) necessary to
enable it to execute and perform this Agreement.
18. Binding Agreement. Each party hereto represents that this Agreement is
enforceable against such party in accordance with its terms.
19. Customer Identification Program Notice. To help the U.S. government fight
the funding of terrorism and money laundering activities, U.S. Federal law
requires each financial institution to obtain, verify, and record certain
information that identifies each person who initially opens an account
with that financial institution on or after October 1, 2003. Certain of
PFPC Inc.'s affiliates are financial institutions, and PFPC Inc. may, as a
matter of policy, request (or may have already requested) the Company's
name, address and taxpayer identification number or other
government-issued identification number, and, if
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such party is a natural person, that party's date of birth. PFPC Inc. may
also ask (and may have already asked) for additional identifying
information, and PFPC Inc. may take steps (and may have already taken
steps) to verify the authenticity and accuracy of these data elements.
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IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
MULTI-STRATEGY HEDGE OPPORTUNITIES LLC
By:
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Name:
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Title:
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(as "Adviser")
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By:
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Name:
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Title:
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PFPC INC.
By:
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Name:
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Title:
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