Exhibit 99.2k(iv)
ESCROW AGREEMENT
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THIS AGREEMENT is made as of December __, 2003, by and among THE TOPIARY
BENEFIT PLAN INVESTOR FUND LLC, a Delaware limited liability company (the
"Fund") and PFPC, INC., a Massachusetts corporation ("PFPC" and, in its
capacity as escrow agent, the "Escrow Agent").
WITNESSETH
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WHEREAS, the Fund has retained PFPC to provide certain administration and
accounting services to the Fund pursuant to an Administration and Accounting
Services Agreement dated as of December __, 2003; and
WHEREAS, the Fund desire that the Escrow Agent also provide services as
escrow agent for the purpose of receiving payments from potential subscribing
members 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" means written instructions received by the
Escrow Agent and signed by the Fund or any other person duly
authorized by 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 certified copy
certified by the Fund of each resolution of the Fund 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 Fund 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
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way inconsistent with the provisions of the Fund's certificate of
formation (the "Certificate") or this Agreement or of any vote,
resolution or proceeding of the Fund, 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
any other party 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
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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
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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 Fund 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 Fund and
PFPC [and in the Investor Services Agreement between the Fund and PFPC].
4. Deposit of Escrow Fund. The Escrow Agent shall establish an account in
the name of The Topiary Benefit Plan Investor Fund LLC, Escrow Account
for the Benefit of Investors (the "Subscription Account") and an account
in the name of The Topiary Benefit Plan Investor 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.
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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
include in the subscription to the Fund payment of such credited amount
for each Potential Investor based upon his individual balance in the
Subscription Account. A letter confirming this transaction will be sent
to such Potential Investor. The Escrow
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Agent shall 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 Fund, 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 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
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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, 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
The Topiary Benefit Plan Investor Fund LLC
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c/o: 00 XxXxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
(b) If to the Escrow Agent
PFPC, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attn: _______________
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.
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IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
THE TOPIARY BENEFIT PLAN INVESTOR FUND LLC
By:
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Name:
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Title:
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PFPC, INC.
By:
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Name:
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Title:
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