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Exhibit (j)(3)
ESCROW AGREEMENT
THIS AGREEMENT is made as of ____________________ , 2000, by and among
EXCELSIOR VENTURE PARTNERS III, LLC (the "Company") and PNC BANK, DELAWARE (the
"Escrow Agent") and PFPC INC. (the "Escrow Administrator").
WITNESSETH
WHEREAS, the Company has retained PFPC Inc. to provide certain
administration, accounting and investor services pursuant to an Administration,
Accounting and Investor Services Agreement dated as of ________, 2000.
WHEREAS, the Company desires that PNC Bank, Delaware, an affiliate of
PFPC Inc. to provide certain services as escrow agent, as described herein, and
PNC Bank, Delaware wishes to provide such services.
WHEREAS, PNC Bank, Delaware appoints PFPC Inc. as Escrow Administrator
to perform certain ministerial duties relative to the Escrow Account;
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,
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liabilities and immunities.
(a) The Escrow Agent shall act hereunder as a depository 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 (i) any
document furnished to the Escrow Agent or Escrow Administrator or (ii) any asset
deposited with it.
(b) "Written Instructions" mean written instructions received by
the Escrow Agent or Escrow Administrator and signed by any person named on the
attached Authorized Persons List ("Authorized Person"). 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 Escrow Agent may rely 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 Company's
limited liability company agreement or this Agreement or of any vote, resolution
or proceeding of the Company's Board of Managers or of the Company'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,
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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
Company 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 any 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 and its affiliates 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 and its affiliates 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 Company agrees to indemnify the Escrow Agent and its
affiliates 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
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indirectly from any action or omission to act which the Escrow Agent
or the Escrow Administrator 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 and its affiliates 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
Escrow Agent pursuant to this Agreement. These indemnities shall
survive the resignation of the Escrow Agent or the termination of this
Escrow Agreement. Notwithstanding anything in this Agreement to the
contrary, neither the Company nor its affiliates shall be liable for
any consequential, special or indirect losses or damages, whether or
not the likelihood of such losses or damages was known by the Company
or its affiliates.
(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 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.
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(i) The Escrow Agent shall promptly notify an Authorized Person of any
discrepancy between the amounts set forth on any remittance advice
received by Escrow Agent and the sums delivered to it therewith.
(j) The Escrow Administrator 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 on the part of the Escrow Administrator in the performance of its
duties and obligations under this Agreement.
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 Company
and PFPC Inc.
4. DEPOSIT OF ESCROW FUND. The Escrow Agent shall establish an
account in such of the following names as may be set forth in Written
Instructions or agreed to between the parties hereto in a separate writing:
"Potential Investors of Excelsior Venture Partners III, LLC" (hereinafter the
"Subscription Account"). A separate account, if necessary, may be established
titled "U.S. Trust Company" (hereinafter the "Adviser's Account")
(individually, an "Account" and, collectively, the "Accounts"). The Accounts
shall be established at Escrow Agent. Escrow Agent appoints Escrow
Administrator to act as signatory to the Accounts and to perform all
administrative and ministerial functions related to the Accounts. Assets of the
Accounts will earn interest at prevailing market rates pursuant to arrangements
approved by the Company and the Escrow Agent. The Company shall only approve
investments permissible under Rule 15c2-4 of
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the Securities Exchange Act of 1934, as amended. Any checks should be made
payable to PNC Bank, Delaware and must be transmitted by Selling Agents directly
to the Escrow Administrator by noon of the next business day after receipt. The
Escrow Administrator shall promptly deposit Subscription Account checks
remitted by persons subscribing to purchase interests in the Company ("Potential
Investors"). Potential Investors may also deposit monies in the Subscription
Account (if established) by wire transfer instructions provided to them by the
Company. The Escrow Agent may accept bulk wires at the direction of an
Authorized Person that represent an aggregate amount of money previously
deposited directly into the investors' brokerage accounts by such investors. The
Escrow Agent and the Escrow Administrator will maintain records related to each
of the Accounts in accordance with applicable regulatory requirements and the
Escrow Agent's and Escrow Administrator's record retention policies.
5. STATEMENTS. During the term of this Agreement, Escrow Agent
shall provide the Company with monthly statements containing the beginning
balance in each of the Accounts as well as all principal and income transactions
for the statement period and with a daily summary of amounts deposited and
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 interests in the Company, the Escrow
Administrator will wire principal balances on
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deposit in the Subscription Account to the Company's account at the Company's
custodian. Such Written Instructions shall be sent to the Escrow Administrator
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 Company, upon Written Instructions, the Escrow
Administrator shall promptly issue refunds to the Potential Investor in check
form in the amount of the principal balance with accrued interest.
7. INTEREST/EARNINGS. All interest earned on the escrow funds
deposited in the Subscription Account hereunder shall be added to and held in
the Accounts. Upon each closing, pursuant to Written Instructions, within 5
business days the Escrow Administrator shall issue interest payments in check
form to each Potential Investor based on his individual balance in the
Subscription Account along with a cover letter and to U.S. Trust Company based
upon its balance in the Adviser's Account along with a cover letter. The
Escrow Administrator will prepare and send notifications on Form 1099 for each
calendar year to all persons who have received distributions of earnings
reflecting their respective shares of such earnings.
8. RESERVED.
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 or Potential Investor, as applicable.
10. COMPENSATION. The fees and account related charges of the
Escrow Agent and Escrow Administrator for its services hereunder shall be paid
by the Company as may be mutually agreed to in writing by the Company and
Escrow Agent and Escrow Administrator.
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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. The Escrow Agreement shall continue until
terminated by either party on sixty (60) days' prior written notice. Upon the
termination of this Agreement and upon the delivery of the balance of the
Accounts by the Escrow Agent to a successor escrow agent or such other person
as may be designated by Written Instructions, the Escrow Agent and the Escrow
Administrator shall be relieved of any and all further obligations hereunder
and it shall be released and discharged from all further obligations
hereunder, other than such obligations arising under Section 2(e) above as may
then exist.
If no successor Escrow Agent or other person has been
designated pursuant to Written Instructions to receive the
balance of the Accounts at the expiration of the sixty (60)
day period, the Escrow Agent shall have no further obligation
hereunder except to hold the escrow funds as a depositary,
except as explicitly stated in the previous paragraph. Upon
Written Instructions of the appointment of the successor,
the Escrow Agent shall promptly deliver the balance of the
Accounts to such successor.
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
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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, facsimile or mailed by first class, registered mail,
return receipt requested, postage prepaid, and addressed as follows:
(a) If to the Company:
Excelsior Venture Partners III, LLC
x/x Xxxxxx Xxxxxx Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
(b) If to the Escrow Administrator:
PFPC Inc., Attn: Xxxxxx Xxx Xxxx
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
(c) If to the Escrow Agent:
PNC Bank, Delaware, Attn: Xxxxxxx Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 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.
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17. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding among the parties and supersedes all prior
agreements and understandings relating to the Accounts, 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.
EXCELSIOR VENTURE PARTNERS III, LLC
By: :
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Title: :
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PFPC INC.
By:
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Title:
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PNC BANK, DELAWARE
By:
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Title:
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