EXHIBIT (k)(3)
ESCROW AGREEMENT
THIS AGREEMENT is made as of September 8, 1999, by and between PW ASPEN
FUND, L.L.C., a Delaware limited liability company (the "Fund"), PW ASPEN
MANAGEMENT, L.L.C. (the "Manager"), and PFPC INC., a Delaware corporation which
is an indirect subsidiary of PNC Bank Corp. (the "Escrow Agent").
WITNESSETH
WHEREAS, the Fund is registered as a closed-end, non-diversified management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, the Fund has retained PFPC Inc. to provide certain administration,
accounting and investor services pursuant to an Administration, Accounting and
Investor Services Agreement dated as of September 8, 1999; and
WHEREAS, the Fund desires that PFPC Inc. also provide services as escrow
agent, as described herein, 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" 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 Fund's Board (as defined under
the Fund's limited liability company agreement (the "Limited Liability
Company Agreement"), 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 certified copy certified by the
Manager of each resolution of its Board 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 or the Board 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 or this Agreement or of any vote, resolution or proceeding
of the Board, or of the Fund'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 of its failure to perform its duties under
this Agreement to the extent such damages arise out of its willful
misfeasance, 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 among the
parties.
4. DEPOSIT OF ESCROW FUND. The Escrow Agent shall establish an account in the
name of PW Aspen Fund, L.L.C., Escrow Account for the Benefit of Investors
(the "Subscription Account") and an account in the name of PW Aspen Fund,
L.L.C. 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 PW Aspen Fund, L.L.C. Potential Investors also may
deposit monies in the Subscription Account by wire transfer pursuant to
instructions provided to them by the Fund or by amounts wire transferred
from brokerage accounts at PaineWebber Incorporated. 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 or by wire transfer to
the brokerage account of the Potential Investor at PaineWebber
Incorporated.
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 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 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 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:
PW Aspen Fund, L.L.C.
c/o PaineWebber Incorporated
Attn: Xxxx X. Xxxxxxxxx, Esq.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) If to the Escrow Agent:
PFPC Inc.
Attn: Xxxx Xxxxxxx
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, 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.
PW ASPEN FUND, L.L.C.
By: ________________________________
Name: _____________________________
Title: ______________________________
PW ASPEN MANAGEMENT, L.L.C.
By: ________________________________
Name: _____________________________
Title: ______________________________
PFPC INC.
By: _______________________________
Name: _____________________________
Title: ______________________________
