ESCROW AGREEMENT
THIS AGREEMENT is made as of March __, 2003, by and among ACP Funds Trust
a Delaware business trust (the "Company"), Ascendant Capital Partners, LLC, a
Delaware limited liability company (the "Manager"), and PFPC Inc., a
Massachusetts corporation ("Escrow Agent").
WITNESSETH
WHEREAS, the Company has retained PFPC Inc. to provide certain
administration and accounting services pursuant to an Administration and
Accounting Services Agreement dated as of March __, 2003; and
WHEREAS, the Company desires that PFPC Inc. also provide services as
escrow agent for the purpose of receiving payments from potential subscribing
shareholders 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 shareholders 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 shareholders 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
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with the provisions of the declaration of trust (the "Trust
Agreement") or this Agreement or of any vote, resolution or
proceeding of the Company'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, 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,
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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
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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 and Accounting Services Agreement between the Company and
PFPC Inc.
4. DEPOSIT OF ESCROW FUND. The Escrow Agent shall establish an account in the
name of ACP Advantage Continuum Return Fund, Escrow Account for the
Benefit of Investors, an account in the name of ACP Adviser Series
Continuum Return Fund, Escrow Account for the Benefit of Investors, an
account in the name of ACP Advantage Strategic Opportunities Fund, Escrow
Account for the Benefit of Investors and an account in the name of ACP
Adviser Series Strategic Opportunities Fund, Escrow Account for the
Benefit of Investors (each a "Subscription Account" and together, the
"Subscription Accounts") and an account in the name of ACP Advantage
Continuum Return Fund Repurchase Account, an Account in the name of ACP
Adviser Series Continuum Return Fund Repurchase Account, an account in the
name of ACP Advantage Strategic Opportunities Fund Repurchase Account and
an Account in the name of ACP Adviser Series Strategic Opportunities Fund
Repurchase Account (each a "Repurchase Account" and together, the
"Repurchase Accounts") (and together with the
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Subscription Accounts, the "Accounts"). The Escrow Agent shall promptly
deposit in a Subscription Account checks remitted by Potential Investors
and made payable to the Company. Potential Investors also may deposit
monies in a Subscription Account by wire transfer pursuant to instructions
provided to them by the Company. Balances on deposit in a 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 shares in the Company, the Escrow Agent will wire
principal balances on deposit in a Subscription Account to an 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 a
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.
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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 a
Repurchase Account in connection with periodic repurchases of shares by
the Company from its shareholders. Upon Written Instructions, the Escrow
Agent shall issue promptly repurchase payments from a Repurchase Account
in check form to the repurchasing shareholder or to the Manager, as the
case may be. Upon Written Instructions, the Escrow Agent will withhold
specified amounts from repurchasing shareholders. 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
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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
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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
ACP Fund Trust
c/o: 0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
(b) If to the Escrow Agent
PFPC Inc.
Attn: Xxxx Xxxxxxxx
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
(c) If to the Manager
Ascendant Capital Partners LLC
c/o: 0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, 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.
16. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding among
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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.
ACP FUNDS TRUST
By: ________________________________
Name: _____________________________
Title: ______________________________
ASCENDANT CAPITAL PARTNERS LLC (as "Manager")
By: ________________________________
Name: _____________________________
Title: ______________________________
PFPC INC.
By: _______________________________
Name: _____________________________
Title: ______________________________
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