EXHIBIT (K)(3)
ESCROW AGREEMENT
THIS AGREEMENT is made as of______________, 1999, by and PW TECHNOLOGY
PARTNERS, L.P., a Delaware limited partnership (the "Partnership"), PW FUND
ADVISOR, L.L.C., a ________________ company (the "Manager"), and PFPC INC., a
Delaware corporation which is an indirect subsidiary of PNC Bank Corp. ("Escrow
Agent").
WITNESSETH
WHEREAS, the Partnership 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 Partnership has retained PFPC Inc. to provide certain
administration, accounting and investor services pursuant to an Administration,
Accounting and Investor Services Agreement dated as of ________________, 1999;
and
WHEREAS, the Partnership desires that PFPC Inc. also provide services as
escrow agent for the purpose of receiving payments from potential subscribing
limited partners in the Partnership (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" 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 directors of the Partnership, to
give such instructions on behalf of the Partnership. 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 Partnership shall file from time to time
with the Escrow Agent a certified copy certified by the Manager of
each resolution of the Manager or directors 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
way inconsistent with the provisions of the Partnership's amended and
restated limited partnership agreement (the "Limited Partnership
Agreement") or this Agreement or of any vote, resolution or proceeding
of the Partnership's general partner or directors, or of the
Partnership's limited partners, 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, 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 Partnership
or the Manager for any consequential, special or indirect losses or
damages which the Partnership 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 Partnership 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 Partnership 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 Partnership 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 Partnership 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 Partnership. 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 Technology Partners, L.P., Escrow Account for the Benefit of
Investors (the "Subscription Account") and an account in the name of PW
Technology Partners, L.P. 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 Technology Partners, L.P.
Potential Investors also may deposit monies in the Subscription Account by
wire transfer pursuant to instructions provided to them by the Partnership
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 Partnership.
5. STATEMENTS. During the term of this Agreement, the Escrow Agent shall
provide the Partnership 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 Partnership 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 Partnership 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 Partnership, the Escrow Agent will wire
principal balances on deposit in the Subscription Account to the account
designated by the Partnership. 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 Partnership, 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 Partnership from time to time may wire balances to the
Repurchase Account in connection with periodic repurchases of interests by
the Partnership from its partners. Upon Written Instructions, the Escrow
Agent shall issue promptly repurchase payments from the Repurchase Account
in check form to the repurchasing limited partner or to the Manager, as the
case may be. Upon Written Instructions, the Escrow Agent will withhold
specified amounts from repurchasing partners. Any interest earned thereon
will be credited to the accounts of the Partnership.
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
Partnership, Manager or Potential Investor, as applicable.
10. COMPENSATION. The fee of the Escrow Agent for its services hereunder shall
be paid by the Partnership as may be mutually agreed to in writing by the
Partnership and Escrow Agent. Notwithstanding the foregoing, standard
account transaction charges will be billed to the Partnership 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 Partnership 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 Partnership
PW Technology Partners, L.P.
c/o PaineWebber Incorporated
Attn: _______________
1285 Avenue of the Americas
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 TECHNOLOGY PARTNERS, L.P.
By: ________________________________
Name: _____________________________
Title: ______________________________
PFPC INC.
By: _______________________________
Name: _____________________________
Title: ______________________________