EXHIBIT k(3)
ESCROW AGREEMENT
THIS AGREEMENT is made as of October 11, 2000, by and among PW JUNIPER
CROSSOVER FUND, L.L.C., a Delaware limited liability company (the "Fund"), PW
JUNIPER 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, 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 October 11, 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 Juniper Crossover Fund, L.L.C., Escrow Account for the
Benefit of Investors (the "Subscription Account") and an account in
the name of PW Juniper Crossover 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 Juniper Crossover 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 1:00 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 Juniper Crossover 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 JUNIPER CROSSOVER FUND, L.L.C.
By: /S/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
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Title: Authorized Person
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PW JUNIPER MANAGEMENT, L.L.C.
By: /S/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
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Title: Authorized Person
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PFPC INC.
By:
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Name:
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Title:
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