Exhibit 99.2(k)(iv)
ESCROW AGREEMENT
THIS AGREEMENT is made as of December 1, 2003, by and among ASA DEBT
ARBITRAGE FUND LLC, an Illinois limited liability company (the "Company"),
ASPEN STRATEGIC ALLIANCE LLC, an Illinois limited liability company (the
"Manager"), and PFPC INC., a Massachusetts corporation ("Escrow Agent").
WITNESSETH
WHEREAS, the Company has retained PFPC Inc. to provide certain
sub-administration, accounting and investor services pursuant to a
Sub-Administration, Accounting and Investor Services Agreement dated as of
December 1, 2003; and
WHEREAS, the Company desires that PFPC Inc. also provide services as
escrow agent for the purpose of receiving payments from potential subscribing
members in the Company (the "Potential Investors") 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" means written instructions received by the
Escrow Agent and signed by the Manager or any other person duly
authorized by the Manager, or by the members of the Company, to give
such instructions on behalf of the Company. 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 Company shall file from time to time with the
Escrow Agent a certified copy certified by the Manager of each
resolution of the Manager or members 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
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way inconsistent with the provisions of the Company's operating
agreement (the "Operating Agreement") or this Agreement or of any
vote, resolution or proceeding 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, 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 Company
or the Manager 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 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
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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 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 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 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 Company 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 Company.
These indemnities shall survive the resignation of the
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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
Sub-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
the name of ASA Debt Arbitrage Fund LLC, Escrow Account for the Benefit
of Investors (the "Subscription Account") and an account in the name of
ASA Debt Arbitrage 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 Company. Potential
Investors also may deposit monies in the Subscription Account by wire
transfer pursuant to instructions provided to them by the Company.
Balances on deposit in the
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Subscription Account will earn interest at prevailing market rates
pursuant to arrangements approved by the Company.
5. Statements. During the term of this Agreement, the Escrow Agent shall
provide the Company 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 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 Agent will wire
principal balances on deposit in the Subscription Account to the account
designated by the Company. 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 Company, 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, the Escrow Agent shall promptly transfer any
interest earned on monies held during the period to the
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Fund's main custody account. Such interest will accrue for the benefit of
all investors in the Fund. The Escrow Agent will prepare and send
notifications on Form 1099 for each calendar year.
8. Repurchases. The Company from time to time may wire balances to the
Repurchase Account in connection with periodic repurchases of interests
by the Company 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 Company.
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, Manager or Potential Investor, as applicable.
10. Compensation. The fee of the Escrow Agent for its services hereunder
shall be paid by the Company as may be mutually agreed to in writing by
the Company and Escrow Agent. Notwithstanding the foregoing, standard
account transaction charges will be billed to the Company 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'
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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 Company 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
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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 Company
ASA Debt Arbitrage Fund LLC
The Biltmore
000 Xxxx Xxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxx, XX 00000
(b) If to the Escrow Agent
PFPC Inc.
Attn: Xxxx Xxxxxxx
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
(c) If to the Manager
Aspen Strategic Alliance LLC
The Biltmore
000 Xxxx Xxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxx, 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
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documents their agreement, if any, with respect to delegated duties and
instructions.
18. Customer Identification Program Notice. To help the U.S. government fight
the funding of terrorism and money laundering activities, U.S. Federal
law requires each financial institution to obtain, verify, and record
certain information that identifies each person who initially opens an
account with that financial institution on or after October 1, 2003.
Certain of PFPC Inc.'s affiliates are financial institutions, and PFPC
Inc. may, as a matter of policy, request (or may have already requested)
the Company's name, address and taxpayer identification number or other
government-issued identification number, and, if such party is a natural
person, that party's date of birth. PFPC Inc. may also ask (and may have
already asked) for additional identifying information, and PFPC Inc. may
take steps (and may have already taken steps) to verify the authenticity
and accuracy of these data elements.
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IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
ASA DEBT ARBITRAGE FUND LLC
By: ________________________________
Name: ______________________________
Title: _____________________________
ASPEN STRATEGIC ALLIANCE LLC (as "Manager")
By: ________________________________
Name: ______________________________
Title: _____________________________
PFPC INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
