EXHIBIT k(3)
ESCROW AGREEMENT
THIS
AGREEMENT is made as of January __, 2001, by and between PW EQUITY OPPORTUNITY FUND,
L.L.C., a Delaware limited liability company (the "Fund"), PW FUND ADVISOR,
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 May 10, 2000; 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 Equity Opportunity Fund, L.L.C., Escrow Account for
the Benefit of Investors (the "Subscription Account") and an account
in the name of PW Equity Opportunity 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 Equity Opportunity 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 Equity Opportunity 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 EQUITY OPPORTUNITY FUND, L.L.C.
By:
Name:
Title:
PW FUND ADVISOR, L.L.C.
By:
Name:
Title:
PFPC INC.
By:
Name:
Title:
