ESCROW AGREEMENT
THIS AGREEMENT is made as of __________, 2003, by and among BACAP
ALTERNATIVE MULTI-STRATEGY FUND LLC, a Delaware limited liability company (the
"Fund"), Banc of America Capital Management, Inc, a North Carolina corporation
(the "Manager"), and [______] ("Escrow Agent").
WITNESSETH
WHEREAS, the Fund has retained the Escrow Agent to provide certain
administration, accounting and investor services pursuant to an Administration,
Accounting and Investor Services Agreement dated as of _________, 2003; and
WHEREAS, the Fund desires that the Escrow Agent also provide services as escrow
agent for the purpose of receiving payments from potential subscribing Investors
in the Fund (the "Potential Investors") and the Escrow Agent 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 Manager or any other person duly
authorized by the Manager, or by the Investors of the Fund, 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 copy certified by the Manager of each resolution of the
Manager or Investors 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 limited liability company
agreement (the "Limited Liability Company Agreement") or this
Agreement or of any vote, resolution or proceeding of the Fund's
Investors, 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 Fund or
the Manager 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.
(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
Fund and The Escrow Agent.
4. Deposit of Escrow Fund. The Escrow Agent shall establish an account in
the name of BACAP Alternative Multi-Strategy Fund, LLC, Escrow Account
for the Benefit of Investors (the "Subscription Account") and an account
in the name of BACAP Alternative Multi-Strategy 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 the Fund. Potential Investors also may deposit monies in the
Subscription Account by wire transfer pursuant to instructions provided
to them by the Fund. 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.
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 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 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.
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 Fund from time to time may wire balances to the
Repurchase Account in connection with periodic repurchases of interests
by the Fund from its Investors. Upon Written Instructions, the Escrow
Agent shall issue promptly repurchase payments from the Repurchase
Account in check form to the repurchasing Investor or to the Manager, as
the case may be. Upon Written Instructions, the Escrow Agent will
withhold specified amounts from repurchasing Investors. 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, Manager or 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.
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 Fund:
BACAP Alternative Multi-Strategy Fund, LLC
c/o: _____________________
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX, 00000
(b) If to the Escrow Agent:
Escrow Agent
Attn: _______________
(c) If to the Manager:
Banc of America Capital Management, Inc.
c/o: ____________________
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, 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.
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
BACAP ALTERNATIVE MULTI-STRATEGY FUND, LLC
By: __________________________________
Name: ________________________________
Title: _______________________________
BANC OF AMERICA CAPITAL MANAGEMENT, INC..
By: __________________________________
Name: ________________________________
Title: _______________________________
ESCROW AGENT
By: __________________________________
Name: ________________________________
Title: _______________________________
03564.0004 #379797
