Exhibit (k)(1)
ESCROW AGREEMENT
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THIS AGREEMENT is made as of ________, 2004, by and among BTOP50 CTA
INDEX FUND, a Delaware statutory trust (the "Company"), ASSET ALLIANCE
ADVISORS, INC., a Delaware corporation (the "Manager"), and PFPC INC., a
Massachusetts corporation ("Escrow Agent").
WITNESSETH
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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 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" means 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 in any way inconsistent with the provisions of the
organizational documents (the "Organizational Documents") 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 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.
(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 BTOP50 CTA Index Fund, Escrow Account for the Benefit of
Investors (the "Subscription Account") and an account in the name of
BTOP50 CTA Index Fund Repurchase Account (the "Repurchase Account", and
together with the Subscription Account, the "Accounts"). Potential
Investors also will 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 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 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 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
BTOP50 CTA Index Fund
c/o: Asset Alliance
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
(b) If to the Escrow Agent
PFPC Inc.
Attn: President
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
(c) If to the Manager
Asset Alliance Advisors, Inc.
c/o: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
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.
18. 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 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.
IN WITNESS THEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
BTOP50 CTA INDEX FUND
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
ASSET ALLIANCE ADVISORS, INC. (as "Manager")
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
PFPC INC.
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
