Exhibit 25(2)(k)(2)
ESCROW AGREEMENT
THIS AGREEMENT is made as of _____________, 2005 by and among
MULTI-STRATEGY HEDGE ADVANTAGE, a Delaware statutory trust (the "Trust"),
XXXXXXX XXXXX INVESTMENT MANAGERS, LLC, a Delaware limited liability company
(the "Adviser"), and PFPC INC., a Massachusetts corporation ("Escrow Agent").
WITNESSETH
WHEREAS, the Trust has retained PFPC Inc. to provide certain
administration, accounting and investor services pursuant to an Administration,
Accounting and Investor Services Agreement dated as of _________, 2005; and
WHEREAS, the Trust desires that PFPC Inc. also provide services as escrow
agent for the purpose of receiving payments from potential subscribing
shareholders in the Trust (the "Potential Investors") and holding funds
delivered by the Trust for the payment of shareholders who tender their shares
in the Trust pursuant to periodic tender offers made by the Trust, 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 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 Trustees of the Trust (the
"Board"), or the shareholders of the Trust ("Shareholders") to give
such instructions on behalf of the Trust. 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 Trust shall file from time to time with the Escrow
Agent a certified copy of each resolution, unanimous consent, or
other instrument of the Adviser, the Board or Shareholders
authorizing 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 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
declaration of trust agreement or this Agreement or of any vote,
resolution or proceeding of the Trust's Shareholders, 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 Trust or
the Board for any consequential, special or indirect losses or
damages which the Trust 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 Trust 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 Trust 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 Trust 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 Trust for any consequential,
special or indirect losses or damages which the Trust 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
Trust and PFPC Inc.
4. Deposit of Escrow Fund. The Escrow Agent shall establish and maintain an
account in the name of Multi-Strategy Hedge Advantage Escrow Account for
the subscriptions, or other similar name (the "Subscription Account") and
an account in the name of Multi-Strategy Hedge Advantage 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 Trust as described in the Subscription Agreement. Potential Investors
also may deposit monies in the Subscription Account by wire transfer
pursuant to instructions provided to them by the Trust. Balances on
deposit in the Subscription Account will earn interest at prevailing
market rates pursuant to arrangements approved by the Trust.
5. Statements. During the term of this Agreement, the Escrow Agent shall
provide the Trust 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 and (b)
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a daily summary of amounts deposited and the status of available funds.
The Trust 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 Trust 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 shares in the Trust, or at any other time as described in
the Trust's subscription agreement, the Escrow Agent will immediately wire
principal balances on deposit in the Subscription Account to the account
designated by the Trust. 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 Trust, 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 Trust from time to time may wire balances to the
Repurchase Account representing funds owed to Shareholders whose tenders
have been accepted by the Trust in connection with periodic repurchases of
shares by the Trust from its Shareholders. Upon Written Instructions, the
Escrow Agent shall issue promptly repurchase payments from the Repurchase
Account in check form to each repurchasing Shareholder. Upon Written
Instructions, the Escrow Agent will withhold specified amounts from
repurchasing Shareholders.
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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
Trust, Adviser or Potential Investor, as applicable.
9. Compensation. The fee of the Escrow Agent for its services hereunder shall
be paid by the Trust as may be mutually agreed to in writing by the Trust
and Escrow Agent. Notwithstanding the foregoing, standard account
transaction charges will be billed to the Trust 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 Trust 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 Trust:
Multi-Strategy Hedge Advantage
c/o: Treasurer
000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
(b) If to the Escrow Agent:
PFPC Inc.
Attn: _______________
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
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(c) If to the Adviser:
Xxxxxxx Xxxxx Investment Managers, LLC
c/o:_________________
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
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 Trust's
name, address and taxpayer identification number or other
government-issued identification number, and, if such party is a natural
person, that party's date of birth. PFPC Inc. may also ask (and may
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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 ADVANTAGE
By: __________________________
Name:
Title:
XXXXXXX XXXXX INVESTMENT
MANAGERS, LLC (as "Adviser")
By: ________________________,
its Managing Member
By: __________________________
Name:
Title:
PFPC INC.
By: __________________________
Name:
Title:
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