20151008Notice of Affiliate Transaction.pdf

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October 8,2015
VA OWRNIGHT DELIWRY
Idaho Public Utilities Commission
472West Washington
Boise,lD 83702-5983
Attention: Jean D. Jewell
Commission Secretary
Re: PacifiCorp Notice of Affiliate Transaction
Case No. PAC-E-05-8
Dear Ms. Jewell:
This letter will serve as written notice pursuant to Commitmentl l7(2), incorporated in
the Idaho Public Utilities Commission Order No. 29973 issued February 13, 2006, as
supplemented by Order No. 29998 March 14, 2006, in the above-referenced proceeding,
approving the acquisition of PacifiCorp by MidAmerican Energy Holdings Company (now
known as Berkshire Hathaway Energy Company or "BHE"), of the below-noted ordinary course
affiliated interest transactions to be entered from time to time with U.S. Bank National
Association ("U.S. Bank"), and specifically, the establishment of escrow accounts where U.S.
Bank serves as escrow agent.
PacifiCorp is a wholly-owned indirect subsidiary of BHE. BHE is a subsidiary of
Berkshire Hathaway Inc. ("Berkshire Hathaway") Warren E. Buffet (an individual who may be
deemed to control Berkshire Hathaway), Berkshire Hathaway, various subsidiaries of Berkshire
Hathaway, and various employee benefit plans of Berkshire Hathaway subsidiaries (collectively
the "Berkshire Hathaway Entities") together hold in excess of five percent of U.S. Bancorp
common stock. U.S. Bancorp is the parent company of U.S. Bank. The Berkshire Hathaway
Entities' ownership interest in U.S. Bancorp may create an affiliated interest between PacifiCorp
and U.S. Bank in some PacifiCorp jurisdictions.
U.S. Bank is a financial services company providing lending and depository services,
credit card, merchant, ATM processing, mortgage banking, insurance, trust and investment
management, brokerage, and leasing activities. U.S. Bank provides routine banking services to
PacifiCorp from time to time, including the provision of escrow services. PacifiCorp wishes to
engage U.S. Bank from time to time for the provision of escrow agent services in accordance
with the terms of a template escrow agreement (the "Agreement"). A copy of the Agreement is
included with this Notice as Attachment A. PacifiCorp requires escrow accounts from time to
time in connection with its commercial contracts with various counterparties, and occasionally in
connection with commercial contract dispute resolution.
R. Jeff Richords
Vice President and General Counsel
1107lY. North Temple
Salt Lake City, Utah 84116
801-220-4734 Oflice
801-2204058 Fax
j efJ, r i c h ail @1t a c iJi c o rp. c o m
Jean D. Jewell
Notice of Affiliate Transaction
October 8, 2015
The Agreement contains standard commercial terms and conditions to protect PacifiCorp.
Thus, the use of U.S. Bank as escrow agent under the Agreement will not harm the public
interest. The Agreement will serve as a form to be used for future, specific escrow
arangements. U.S. Bank will charge its customary escrow agent fees, currently in the
approximate amount of $2,000 per escrow.
Please do not hesitate to contact me if you have any questions.
Enclosures
Best Regards,@
R. JeffRichards
Vice President and General Counsel
PacifiCorp
Attachment A
U.S. Bank National Association
Escrow Agreement
ESCROW AGREEMENT
THISESCRowAGREEMENT,datedaSof-,20-(''EscrowA8reement''),
is by and among _) a _corporation ("Depositor"); _, d _
corporation ("BSei@!"); and U.S. Bank National Association, a national banking association,
as escrow agent hereunder ("Escrow Agent").
BACKGROUND
A. Depositor and Recipient have entered into a Agreement (as amended,
the "Underlying Agreement"), dated as of , 20-, pursuant to which [describe
nature of transactionl. The Underlying Agreement provides that Depositor shall deposit the
Escrow Funds (defined below) in a segregated escrow account to be held by Escrow Agent for
the purpose of [describe reason for escrow of funds].
B. Escrow Agent has agreed to accept, hold, and disburse the funds deposited with it and
the eamings thereon in accordance with the terms of this Escrow Agreement.
C. Depositor and Recipient have appointed the Representatives (as defined below) to
represent them for all purposes in connection with the funds to be deposited with Escrow Agent
and this Escrow Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, for themselves, their successors and
assigns, hereby agree as follows:
1. Definitions. The following terms shall have the following meanings when used
herein:
"Escrow Funds" shall mean the funds deposited with Escrow Agent pursuant to Section 3 of this
Agreement, together with any interest and other income thereon.
"Escrow Period" shall mean the period commencing on the date hereof and ending at the close of
Escrow Agent's business day on [insert ending date] unless earlier terminated pursuant to this
Escrow Agreement.
"Iudemnified_Party''shall have the meaning set forth in Section 11.
"Joint Written Direction" shall mean a written direction executed by the Representatives and
directing Escrow Agent to disburse all or a portion of the Escrow Funds or to take or refrain from
taking any other action pursuant to this Escrow Agreement
"Depositor Representative" shall mean the person(s) so designated on Schedule C hereto or any
other person designated in a writing signed by Depositor and delivered to Escrow Agent and the
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Recipient Representative in accordance with the notice provisions of this Escrow Agreement, to
act as its representative under this Escrow Agreement.
"Representatives" shall mean the Depositor Representative and the Recipient Representative.
"Recipient Representative" shall mean the person(s) so designated on Schedule C hereto or any
other person designated, in a writing signed by Recipient and delivered to Escrow Agent and the
Depositor Representative in accordance with the notice provisions of this Escrow Agreement, to
act as its representative under this Escrow Agreement.
2. Appointment of and Acceptance by Escrow Aeent. Depositor and Recipient
hereby appoint Escrow Agent to serve as escrow agent hereunder. Escrow Agent hereby accepts
such appointment and, upon receipt by wire transfer of the Escrow Funds in accordance with
Section 3 below, agrces to hold, invest and disburse the Escrow Funds in accordance with this
Escrow Agreement.
3. Deposit of Escrow Funds. Simultaneously with the execution and delivery of this
Escrow Agreement, Depositor, on behalf of the Recipient, will transfer the Escrow Funds in the
amount $by wire transfer of immediately available funds, to an account
designated by Escrow Agent.
4. Disbursements of Escrow Funds. Escrow Agent shall disburse Escrow Funds at
any time and from time to time, upon receipt oi and in accordance with, a Joint Written
Direction. Such Joint Written Direction shall contain complete payment instructions, including
wiring instructions or an address to which a check shall be sent. Upon the expiration of the
Escrow Period and receipt by Escrow Agent from Recipient of complete payment instructions in
writing, Escrow Agent shall distribute to Recipient, as promptly as practicable, any remaining
Escrow Funds. Prior to any disbursement, Escrow Agent shall have received reasonable
identifying information regarding the Recipient such that Escrow Agent may comply with its
regulatory obligations and reasonable business practices, including without limitation a
completed United States Intemal Revenue Service ("IRS") Form W-9 or original IRS Form W-8,
as applicable. All disbursements of funds from the Escrow Funds shall be subject to the fees and
claims of Escrow Agent and the lndemnified Parties pursuant to Section 1l and Section 12
below.
5. Suspension of Performance; Disbursement into Court. If, at any time, (i) there
shall exist any dispute between Depositor, Recipient or the Representatives with respect to the
holding or disposition of all or any portion of the Escrow Funds or any other obligations of
Escrow Agent hereunder, (ii) Escrow Agent is unable to determine, to Escrow Agent's sole
satisfaction, the proper disposition of all or any portion of the Escrow Funds or Escrow Agent's
proper actions with respect to its obligations hereunder, or (iii) Depositor and Recipient have not,
within l0 calendar days of the furnishing by Escrow Agent of a notice of resignation pursuant to
Section 8 hereof, appointed a successor Escrow Agent to act hereunder, then Escrow Agent may,
in its sole discretion, take either or both of the following actions:
a. suspend the performance of any of its obligations (including without
limitation any disbursement obligations) under this Escrow Agreement until such dispute
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or uncertainty shall be resolved to the sole satisfaction of Escrow Agent or until a
successor Escrow Agent shall have been appointed.
b. petition (by means of an interpleader action or any other appropriate
method) any court of competent jurisdiction, in any venue convenient to Escrow Agent,
for instructions with respect to such dispute or uncertainty, and to the extent required or
permitted by law, pay into such court, for holding and disposition in accordance with the
instructions of such court, all Escrow Funds, after deduction and payment to Escrow
Agent of all fees and expenses (including court costs and attorneys' fees) payable to,
incurred by, or expected to be incurred by Escrow Agent in connection with the
performance of its duties and the exercise of its rights hereunder.
Escrow Agent shall have no liability to Depositor, Recipient or the Representatives, their
respective owners, shareholders or members or any other person with respect to any such
suspension of performance or disbursement into court, specifically including any liability or
claimed liability that may arise, or be alleged to have arisen, out of or as a result of any delay in
the disbursement of the Escrow Funds or any delay in or with respect to any other action
required or requested of Escrow Agent.
6. [reserved]
7. lnvestment of Funds. Based upon Depositor's and Recipient's prior review of
investment alternatives, in the absence of further specific written direction to the contrary, the
Escrow Agent is directed to initially invest and reinvest the Escrow Funds in the investment
indicated on Schedule B hereto. Recipient may provide written instructions changing the
investment of the Escrow Funds to the Escrow Agent; provided, however, that no investment or
reinvestment may be made except in the following: (a) direct obligations of the United States of
America or obligations the principal of and the interest on which are unconditionally guaranteed
by the United State of America; (b) U.S. dollar denominated deposit accounts and certificates of
deposits issued by any bank, bank and trust company, or national banking association (including
Escrow Agent and its affiliates), which such deposits are either (i) insured by the Federal Deposit
Insurance Corporation or a similar governmental agency, or (ii) with domestic commercial banks
which have a rating on their short- term certificates of deposit on the date of purchase of "A-1"
or "A-1+" by S&P or "P-1" by Moody's and maturing no more than 360 days after the date of
purchase (ratings on holding companies are not considered as the rating of the bank); (c)
repurchase agreements with any bank, trust company, or national banking association (including
Escrow Agent and its affiliates); or (d) institutional money market funds, including funds
managed by Escrow Agent or any of its affiliates; provided that the Escrow Agent will not be
directed to invest in investments that the Escrow Agent in its sole discretion determines are not
consistent with the Escrow Agent's policy or practices. Depositor and Recipient acknowledge
that the Escrow Agent does not have a duty nor will it undertake any duty to provide investment
advice.
If Escrow Agent has not received a written instruction from Recipient at any time that an
investment decision must be made, Escrow Agent is directed to invest the Escrow Funds, or such
portion thereof as to which no written investment instruction has been received, in the
investment indicated on Schedule B hereto. All investments shall be made in the name of
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Escrow Agent. Notwithstanding anything to the contrary contained herein, Escrow Agent may,
without notice to Depositor and Recipient, sell or liquidate any of the foregoing investments at
any time for any disbursement of Escrow Funds permitted or required hereunder. All investment
eamings shall become part of the Escrow Funds and investment losses shall be charged against
the Escrow Funds. Escrow Agent shall not be liable or responsible for loss in the value of any
investment made pursuant to this Escrow Agreement, or for any loss, cost or penalty resulting
from any sale or liquidation of the Escrow Funds. With respect to any F,scrow Funds received by
Escrow Agent after ten o'clock Pacific Standard Time, Escrow Agent shall not be required to
invest such funds or to effect any investment instruction until the next day upon which banks in
St. Paul, Minnesota and the New York Stock Exchange are open for business.
8. Resignation of Escrow Agent. Escrow Agent may resign and be discharged from
the performance of its duties hereunder at any time by giving ten (10) days prior written notice to
the Depositor and Recipient specifying a date when such resignation shall take effect. Upon any
such notice of resignation, Depositor and Recipient jointly shall appoint a successor Escrow
Agent hereunder prior to the effective date of such rbsignation. If the Depositor and Recipient
fail to appoint a successor Escrow Agent within such time, the Escrow Agent shall have the right
to petition a court of competent jurisdiction to appoint a successor Escrow Agent, and all costs
and expenses (including without limitation attorneys' fees) related to such petition shall be paid
jointly and severally by Depositor and Recipient. The retiring Escrow Agent shall transmit all
records pertaining to the Escrow Funds and shall pay all Escrow Funds to the successor Escrow
Agent, after making copies of such records as the retiring Escrow Agent deems advisable and
after deduction and payment to the retiring Escrow Agent of all fees and expenses (including
court costs and attorneys' fees) payable to, incurred by, or expected to be incurred by the retiring
Escrow Agent in connection with the performance of its duties and the exercise of its rights
hereunder. After any retiring Escrow Agent's resignation, the provisions of this Escrow
Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it
was Escrow Agent under this Escrow Agreement.
9. Binding Effect: Successors. This Escrow Agreement shall be binding upon the
respective parties hereto and their heirs, executors, successors or assigns. If the Escrow Agent
consolidates, merges or converts into, or transfers all or substantially all of its corporate trust
business (including the escrow contemplated by this Escrow Agreement) to another corporation,
the successor or transferee corporation without any further act shall be the successor Escrow
Agent.
10. Liability of Escrow Aeent. The Escrow Agent undertakes to perform only such
duties as are expressly set forth herein and no duties shall be implied. The Escrow Agent has no
fiduciary or discretionary duties of any kind. The Escrow Agent shall have no liability under and
no duty to inquire as to the provisions of any agreement other than this Escrow Agreement,
including without limitation any other agreement between any or all of the parties hereto or any
other persons even though reference thereto may be made herein. The Escrow Agent shall not be
liable for any action taken or omitted by it in good faith except to the extent that a court of
competent jurisdiction determines that the Escrow Agent's gross negligence or willful
misconduct was the sole cause of any loss to the Depositor or Recipient. Escrow Agent's sole
responsibility shall be for the safekeeping and disbursement of the Escrow Funds in accordance
with the terms of this Escrow Agreement. Escrow Agent shall not be charged with knowledge or
1.27.20t4
notice of any fact or circumstance not specifically set forth herein. Escrow Agent may rely upon
any notice, instruction, request or other instrument, not only as to its due execution, validity and
effectiveness, but also as to the truth and accuracy of any information contained therein, which
Escrow Agent shall believe to be genuine and to have been signed or presented by the person or
parties purporting to sign the same. In no event shall Escrow Agent be liable for incidental,
indirect, special, consequential or punitive damages or penalties (including, but not limited to
lost profits), even if the Escrow Agent has been advised of the likelihood of such damages or
penalty and regardless of the form of action. Escrow Agent shall not be responsible for delays or
failures in performance resulting from acts beyond its control, including without limitation acts
of God, strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire,
communication line failures, computer viruses, power failures, earthquakes or other disasters.
Escrow Agent shall not be obligated to take any legal action or commence any proceeding in
connection with the Escrow Funds, any account in which Escrow Funds are deposited, this
Escrow Agreement or the Underlying Agreement, or to appear in, prosecute or defend any such
legal action or proceeding. Escrow Agent may consult legal counsel selected by it in the event of
any dispute or question as to the construction of any of the provisions hereof or of any other
agreement or of its duties hereunder, or relating to any dispute involving any party hereto, and
shall incur no liability and shall be fully indemnified from any liability whatsoever in acting in
accordance with the advice of such counsel. Depositor and Recipient, jointly and severally, shall
promptlypay, upon demand, the reasonable fees and expenses of any such counsel. Depositor
and Recipient agree to perform or procure the performance of all further acts and things, and
execute and deliver such further documents, as may be required by law or as Escrow Agent may
reasonably request in connection with its duties hereunder.
The Escrow Agent is authorized, in its sole discretion, to comply with final orders issued or
process entered by any court with respect to the Escrow Funds, without determination by the
Escrow Agent of such court's jurisdiction in the matter. If any portion of the Escrow Funds is at
any time attached, garnished or levied upon under any court order, or in case the payment,
assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by
any court order, or in case any order, judgment or decree shall be made or entered by any court
affecting such property or any part thereof, then and in any such event, the Escrow Agent is
authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or
decree which it is advised by legal counsel selected by it is binding upon it without the need for
appeal or other action; and if the Escrow Agent complies with any such order, writ, judgment or
decree, it shall not be liable to any of the parties hereto or to any other person or entity by reason
of such compliance even though such order, writ, judgment or decree may be subsequently
reversed, modified, annulled, set aside or vacated.
11. lndemnification of Escrow Agent. From and at all times after the date of this
Escrow Agreement, Depositor and Recipient, jointly and severally, shall, to the fullest extent
permitted by law, indemniff and hold harmless Escrow Agent and each director, officer,
employee, attomey, agent and affiliate of Escrow Agent (collectively, the "lndemnified Parties")
against any and all actions, claims (whether or not valid), losses, damages, liabilities, penalties,
costs and expenses of any kind or nature (including without limitation reasonable attorneys' fees,
costs and expenses) incurred by or asserted against any of the lndemnified Parties, whether
direct, indirect or consequential, as a result of or arising from or in any way relating to any claim,
demand, suit, action or proceeding (including any inquiry or investigation) by any person,
1.27.2014
including without limitation Depositor, Recipient and the Representatives, whether threatened or
initiated, asserting a claim for any legal or equitable remedy against any person under any statute
or regulation, including, but not limited to, any federal or state securities laws, or under any
common law or equitable cause or otherwise, arising from or in connection with the negotiation,
preparation, execution, performance or failure of performance in connection with this Escrow
Agreement or any transactions contemplated herein, whether or not any such Indemnified Party
is a party to any such action, proceeding, suit or the target of any such inquiry or investigation;
provided, however, that no Indemnified Party shall have the right to be indemnified hereunder
for any liability finally determined by a court of competent jurisdiction, subject to no further
appeal, to have resulted solely from the gross negligence or willful misconduct of such
Indemnified Party. Depositor and Recipient further agree,jointly and severally, to indemnify
each Indemnified Party for all costs, including without limitation reasonable attorney's fees,
incurred by such Indemnified Party in connection with the enforcement of Depositor's and
Recipient's indemnification obligations hereunder. Each Indemnified Party shall, in its sole
discretion, have the right to select and employ separate counsel with respect to any action or
claim brought or asserted against it, and the reasonable fees ofsuch counsel shall be paid upon
demand by the Depositor and Recipient jointly and severally. The obligations of Depositor and
Recipient under this Section 11 shall survive any termination of this Escrow Agreement and the
resignation or removal of Escrow Agent.
The parties agree that neither the payment by Depositor or Recipient of any claim by Escrow
Agent for indemnification hereunder nor the disbursement of any amounts to Escrow Agent from
the Escrow Funds in respect of a claim by Escrow Agent for indemnification shall impair, limit,
modiff, or affect, as between Depositor and Recipient, the respective rights and obligations of
Depositor and Recipient under the Underlying Agreement.
12. Compensation of Escrow Asent
(a) Fees and Expenses. Depositor and Recipient agree, jointly and severally, to
compensate Escrow Agent on demand for its services hereunder in accordance with Schedule A
attached hereto. (Note: opfional language could be inserted here covering other pavment
arrangements. for erample: "Without lirniting the joint and several nature of their obligations
to Escrow Agent, the Depositor and Recipient agree that, as betrveen thernselves only feach rvill
be responsible for one-half of Escrow Agent's compensation] [Depositor will be wholly
responsible for Escrow Agent's compensation]" etc.) The obligations of Depositor and Recipient
under this Section l2 shall survive any termination of this Escrow Agreement and the resignation
or removal of Escrow Agent.
O) Disbursements from Escrow Funds to Pay Escrow Asent. Escrow Agent is
authorized to, and may disburse to itself from the Escrow Funds, from time to time, the amount
of any compensation and reimbursement of out-of-pocket expenses due and payable hereunder
(including any amount to which Escrow Agent or any lndemnified Party is entitled to seek
indemnification hereunder). Escrow Agent shall notify Depositor and Recipient of any
disbursement from the Escrow Funds to itself or any Indemnified Party in respect of any
compensation or reimbursement hereunder and shall furnish Depositor and Recipient copies of
related invoices and other statements.
6
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(c) Security and Offset. Recipient, Depositor and the Representatives hereby grant to
Escrow Agent and the lndemnified Parties a security interest in, lien upon and right of offset
against the Escrow Funds with respect to any compensation or reimbursement due any of them
hereunder (including any claim for indemnification hereunder). If for any reason the Escrow
Funds are insufficient to cover such compensation and reimbursement, Depositor and Recipient
shall promptly pay such amounts to Escrow Agent or any Indemnified Party upon receipt of an
itemized invoice.
13. Representations and Warranties. Depositor and Recipient each respectively make
the following representations and warranties to Escrow Agent:
(a) it has full power and authority to execute and deliver this Escrow Agreement and
to perform its obligations hereunder; and this Escrow Agreement has been duly approved by all
necessary action and constitutes its valid and binding agreement enforceable in accordance with
its terms; and
(b) each ofthe applicable persons designated on Schedule C attached hereto have
been duly appointed to act as authorized representatives hereunder and individually have fulI
power and authority to execute and deliver any Joint Written Direction, to amend, modify or
waive any provision of this Escrow Agreement and to take any and all other actions as
authorized representatives under this Escrow Agreement, all without further consent or direction
from, or notice to, it or any other party, provided that any change in designation of such
authorized representatives shall be provided by written notice delivered to each party to this
Escrow Agreement.
14. Identifying Information. To help the government fight the funding of terrorism
and money laundering activities, Federal law requires all financial institutions to obtain, veri$r,
and record information that identifies each person who opens an account. For a non-individual
person such as a business entity, a chaity, a trust, or other legal entity, the Escrow Agent
requires documentation to verify its formation and existence as a legal entity. The Escrow Agent
may ask to see financial statements, licenses, identification and authorization documents from
individuals claiming authority to represent the entity or other relevant documentation. The
parties acknowledge that a portion of the identifying information set forth herein is being
requested by the Escrow Agent in connection with the USA Patriot Act, Pub.L.107-56 (the
"Act"), and each agrees to provide any additional information requested by the Escrow Agent in
connection with the Act or any other legislation or regulation to which Escrow Agent is subject,
in a timely manner.
15. Consent to lurisaictio . In the event that any party hereto commences
a lawsuit or other proceeding relating to or arising from this Escrow Agreement, the parties
hereto agree to the personal jurisdiction by and venue in the state and federal courts in the State
of [ ] and waive any objection to such jurisdiction or venue. The parties hereto consent to and
agree to submit to the jurisdiction of any of the courts specified herein and agree to accept
service ofprocess to vest personal jurisdiction over them in any ofthese courts.
16. Notices. All notices, approvals, consents, requests, and other communications
hereunder shall be in writing and shall be delivered (i) by personal delivery, or (ii) by national
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overnight courier service, or (iii) by certified or registered mail, retum receipt requested, or (iv)
via facsimile transmission, with confirmed receipt or (v) via email by way of a PDF attachment
thereto of a manually executed document. Notice shall be effective upon receipt except for
notice via email, which shall be effective only when the recipient, by return email or notice
delivered by other method provided for in this Section 16, acknowledges having received that
email (with an automatic "read receipt" or similar notice not constituting an acknowledgement of
an email receipt for purposes of this Section 16.) Such notices shall be sent to the applicable
party or parties at the address specified below:
If to Depositor or Depositor Representative at:
Telephone:
Facsimile:
E-mail:
If to Recipient or Recipient Representative at:
If to the Escrow Agent at:
Telephone:
Facsimile:
E-mail:
U.S. Bank National Association, as Escrow Agent
ATTN: Global Corporate Trust Services
Telephone:
Facsimile:
E-mail:
and to:
U.S. Bank National Association
Telephone:
Facsimile:
E-mail:
or to such other address as each party may designate for itself by like notice and unless otherwise
provided herein shall be deemed to have been given on the date received.
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n. Optional Security Procedures. In the event funds transfer instructions, address
changes or change in contact information are given (other than in writing at the time of execution
of this Escrow Agreement), whether in writing, by facsimile or otherwise, the Escrow Agent is
authorized but shall be under no duty to seek confirmation of such instructions by telephone call-
back to the person or persons designated on Schedule C hereto, and the Escrow Agent may rely
upon the confirmation of anyone purporting to be the person or persons so designated. The
persons and telephone numbers for call-backs may be changed only in writing actually received
and acknowledged by Escrow Agent and shall be effective only after Escrow Agent has a
reasonable opportunity to act on such changes. If the Escrow Agent is unable to contact any of
the designated representatives identified in Schedule C, the Escrow Agent is hereby authorized
but shall be under no duty to seek confirmation of such instructions by telephone call-back to any
one or more of Depositor's or Recipient's executive officers ("Executive Officers"), as the case
may be, which shall include the titles of Chief Executive Officer, President and Vice President,
as the Escrow Agent may select. Such Executive Officer shall deliver to the Escrow Agent a
fully executed incumbency certificate, and the Escrow Agent may rely upon the confirmation of
anyone purporting to be any such officer. Depositor and Recipient agree that the Escrow Agent
may at its option record any telephone calls made pursuant to this Section. The Escrow Agent in
any funds transfer may rely solely upon any account numbers or similar identifying numbers
provided by Depositor or Recipient to identify (a) the beneficiary, @) the beneficiary's bank, or
(c) an intermediary bank. The Escrow Agent may apply any of the Escrow Funds for any
payment order it executes using any such identifying number, even when its use may result in a
person other than the beneficiary being paid, or the transfer of funds to a bank other than the
beneficiary's bank or an intermediary bank designated. Depositor and Recipient acknowledge
that these optional security procedures are corlmercially reasonable.
18. Amendment. Waiver and Assierrment. None of the terms or conditions of this
Escrow Agreement may be changed, waived, modified, discharged, terminated or varied in any
manner whatsoever unless in writing duly signed by each party to this Escrow Agreement. No
course of conduct shall constitute a waiver of any of the terms and conditions of this Escrow
Agreement, unless such waiver is specified in writing, and then only to the extent so specified.
A waiver of any of the terms and conditions of this Escrow Agreement on one occasion shall not
constitute a waiver of the other terms of this Escrow Agreement, or of such terms and conditions
on any other occasion. Except as provided in Section t hereof, this Escrow Agreement may not
be assigned by any party without the written consent of the other parties.
19. Severability. To the extent any provision of this Escrow Agreement is prohibited
by or invalid under applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Escrow Agreement.
20. Governine Law. This Escrow Agreement shall be construed and interpreted in
accordance with the internal laws of the State of
conflict of laws principles thereof.
without giving effect to the
21. Entire Asreement, No Third Party Beneficiaries. This Escrow Agreement
constitutes the entire agreement between the parties relating to the holding, investment and
disbursement of the Escrow Funds and sets forth in their entirety the obligations and duties of
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Escrow Agent with respect to the Escrow Funds. Nothing in this Escrow Agreement, express or
implied, is intended to or shall confer upon any other person any right, benefit or remedy of any
nature whatsoever under or by reason of this Escrow Agreement.
22. Execution in Counterparts. Facsimiles. This Escrow Agreement and any Joint
Written Direction may be executed in two or more counterparts, which when so executed shall
constitute one and the same agreement or direction. The delivery of copies of this Escrow
Agreement and any Joint Written Instruction and their respective signature pages by PDF or
facsimile transmission shall constitute effective execution and delivery as to the parties and may
be used in lieu of originals for all purposes.
23. Termination. This Escrow Agreement shall terminate upon the distribution of all
the Escrow Funds pursuant to any applicable provision of this Escrow Agreement, and Escrow
Agent shall thereafter have no further obligation or liability whatsoever with respect to this
Escrow Agreement or the Escrow Funds.
24. Dealings. The Escrow Agent and any stockholder, director, officer or employee
of the Escrow Agent may buy, sell, and deal in any of the securities of the Depositor or Recipient
and become pecuniarily interested in any transaction in which the Depositor or Recipient may be
interested, and contract and lend money to the Depositor or Recipient and otherwise act as fully
and freely as though it were not Escrow Agent under this Agreement. Nothing herein shall
preclude the Escrow Agent from acting in any other capacity for the Depositor or Recipient or
for any other entity.
25. Brokerage Confirmation Waiver. Depositor and Recipient acknowledge that to
the extent regulations of the Comptroller of the Currency or other applicable regulatory entity
grant either the right to receive brokerage confirmations for certain security transactions as they
occur, Depositor and Recipient specifically waive receipt of such confirmations to the extent
permitted by law. The Escrow Agent will fumish the Depositor and Recipient periodic cash
transaction statements that include detail for all investment transactions made bv the Escrow
Agent.
26. Tax Reporting. Escrow Agent shall have no responsibility for the tax
consequences of this Agreement and Depositor and Recipient shall consult with independent
counsel concerning any and all tax matters. Depositor and Recipient shall provide Escrow Agent
Form W-9 and an original Form W-8, as applicable, for each payee, together with any other
documentation and information requested by Escrow Agent in connection with Escrow Agent's
reporting obligations under applicable IRS regulations. If such tax documentation is not so
provided, Escrow Agent shall withhold taxes as required by the IRS. Recipient and Depositor
have determined that any interest or income on Escrow Funds shall be reported on an accrual
basis and deemed to be for the account of [DepositoriRecipient]. Depositor and Recipient shall
prepare and file all required tax filings with the IRS and any other applicable taxing authority;
provided that the parties further agree that:
(a) Escrow Aeent IRS Reporting. Depositor shall accurately provide the Escrow
Agent with all information requested by the Escrow Agent in connection with the preparation of
all applicable Form 1099 and Form 1042-3 documents with respect to all distributions as well as
t.27.2014
10
in the performance of Escrow Agent's reporting obligations under the Foreign Account Tax
Compliance Act and Foreign Investment in Real Property Tax Act or other applicable law or
regulation.
(b) Withholding Requests and lndemnification. Depositor and Recipient jointly and
severally agree to (i) assume all obligations imposed now or hereafter by any applicable tax law
or regulation with respect to payments or performance under this Agreement, (ii) request the
Escrow Agent in writing with respect to withholding and other taxes, assessments or other
governmental charges, and advise Escrow Agent in writing with respect to any certifications and
governmental reporting that may be required under any applicable laws or regulations, and (iii)
indemnify and hold the Escrow Agent harmless pursuant to Section 11 hereof from any liability
or obligation on account of taxes, assessments, additions for late payment, interest, penalties,
expenses and other govemmental charges that may be assessed or asserted against Escrow
Agent.
(c) Imputed Interest. To the extent that IRS imputed interest regulations apply,
Depositor and Recipient shall so inform Escrow Agent, provide Escrow Agent with all imputed
interest calculations and direct Escrow Agent to disburse imputed interest amounts as Depositor
and Recipient deem appropriate. Escrow Agent shall rely solely on such provided calculations
and information and shall have no responsibility for the accuracy or completeness of any such
calculations or information.
linclude tf applicable;
(d) Cost Basis Reportine. Depositor and Recipient shall affirm in writing to Escrow
Agent whether the securities being exchanged, redeemed, or sold pursuant to the Underlying
Agreement are classified as "Covered Securities" or "Non-Covered Securities" under IRS Cost
Basis Reporting regulations not later than thirty (30) days after a distribution hereunder. If such
securities are classified as "Covered Securities", then Depositor and Recipient are jointly
responsible for providing accurate and complete cost basis information to Escrow Agent for
purposes of Form 1099-8 preparation. The required information shall include date of acquisition
and cost basis of the applicable security, and any other information that Escrow Agent may
request to comply with IRS 1099-B reporting regulations. Depositor and Recipient shall provide
written direction to Escrow Agent on the allocation of the cost basis to each shareholder's
distribution.l
27. WATVER OF TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY WATVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY ON ANY
CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION (1)
ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR (2) IN ANY
WAY IN CONNECTION WITH OR PERTAINING OR RELATED TO OR INCIDENTAL TO
ANY DEALINGS OF THE PARTIES TO THIS AGREEMENT OR IN CONNECTION WITH
THIS AGREEMENT OR THE EXERCISE OF ANY SUCH PARTY'S RIGHTS AND
REMEDIES UNDER THIS AGREEMENT OR THE CONDUCT OR THE RELATIONSHIP
OF THE PARTIES TO THIS AGREEMENT, [N ALL OF THE FOREGOING CASES
WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN
CONTRACT, TORT OR OTHERWISE. EACH OF THE PARTIES HERETO HEREBY
1.27.2014
l1
FURTHER ACKNOWLEDGES AND AGREES THAT EACH HAS REVIEWED OR HAD
THE OPPORTUNITY TO REVIEW THIS WAIVER WITH ITS RESPECTIVE LEGAL
COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WATVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH SUCH LEGAL COUNSEL. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A CONSENT BY ALL
PARTIES TO A TRIAL BY THE COURT.
28. Publicity. No party will (a) use any other party's proprietary indicia, trademarks, service
marks, trade names, logos, symbols, or brand names, or (b) otherwise refer to or identi$ any
other party in advertising, publicity releases, or promotional or marketing publications, or
correspondence to third parties without, in each case, securing the prior written consent of such
other party.
IN WITNESS WIIEREOF, the parties hereto have caused this Escrow Agreement to be
executed under seal as of the date first above written.
IDepositor]
By:
Name:
Title:
IRecipientl
By:
Name:
Title:
U.S. BAI\K NATIONAL ASSOCIATION
as Escrow Agent
By:
Name:
Title:
t2
1.27.2014
SCHEDULE A
01010
Schedule of Fees for Services as Escrow Agent
Acceptance Fee (One Time Fee)
The acceptance fee includes the administrative review of documents, initial set-up of
the account, and other reasonably required services up to and including the closing.
This is a one-time fee, payable at closing.
U.S. Bank Corporate Trust Services reserves the right to refer any or all escrow
documents for legal review before execution. Legal fees (billed on an hourly basis)
and expenses for this service will be billed to, and paid by, the customer. lf
appropriate and upon request by the customer, U.S. Bank Corporate Trust Services
will provide advance estimates of these legal fees.
Escrow Agent (One Time Fee)
One time administration fee for performance of the routine duties of the escrow agent
associated with the management of the account. Administration fees are payable in
advance.
04460
Direct Out of Pocket Expenses
Reimbursement of expenses associated with the performance of our duties, including
but not limited to publications, legal counsel after the initial close, travel expenses
and filing fees.
Ertraordinary Services
Extraordinary services are duties or responsibilities of an unusual nature, including
termination, but not provided for in the governing documents or otherwise set forth in
this schedule. A reasonable charge will be assessed based on the nature of the
service and the responsibility involved. At our option, these charges will be billed at a
flat fee or at our hourly rate then in effect.
Account approval is subject to review and qualification. Fees are subject to change at our discretion and upon
written notice. Fees paid in advance will not be prorated. The fees set forth above and any subsequent
modifications thereof are part of your agreement. Finalization of the transaction constitutes agreement to the above
fee schedule, including agreement to any subsequent changes upon proper written notice. ln the event your
transaction is not finalized, any related out-of-pocket expenses will be billed to you directly. Absent your written
instructions to sweep or othenruise invest, all sums in your account will remain uninvested and no accrued interest
or other compensation will be credited to the account. Payment of fees constitutes acceptance of the terms and
conditions set forth.
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT:
To help the government fight the funding of terrorism and money laundering activities, Federal law requires all
financial institutions to obtain, verify and record information that identifies each person who opens an account.
For a non-individual person such as a business entity, a charity, a Trust or other legal entity we will ask for
documentation to verify its formation and existence as a legal entity. We may also ask to see financial statements,
licenses, identification and authorization documents from individuals claiming authority to represent the entity or
other relevant documentation.
Dated:
At Cost
SCHEDULE B
U.S. BANK NATIONAL ASSOCIATION
MONEY MARKET ACCOUNT AUTHORIZATION FORM
DESCRIPTION AND TERIVIS
The U.S. Bank Money Market account is a U.S. Bank National Association ("U.S. Bank") interest-
bearing money market deposit account designed to meet the needs of U.S. Bank's Corporate Trust
Services Escrow Group and other Corporate Trust customers of U.S. Bank. Selection of this investment
includes authorization to place funds on deposit and invest with U.S. Bank.
U.S. Bank uses the daily balance method to calculate interest on this account (actuaU365 or 366). This
method applies a daily periodic rate to the principal balance in the account each day. Interest is accrued
daily and credited monthly to the account. Interest rates are determined at U.S. Bank's discretion, and
may be tiered by customer deposit amount.
The owner of the account is U.S. Bank as Agent for its trust customers. U.S. Bank's trust department
performs all account deposits and withdrawals. Deposit accounts are FDIC Insured per depositor, as
determined under FDIC Regulations, up to applicable FDIC limits.
U.S. BANK, W}IEN ACTING AS AN INDENTURE TRUSTEE OR IN A SIMILAR CAPACITY, IS
NOT REQUIRED TO REGISTER AS A MUNICIPAL ADVISOR WITH TTM SECTIRITIES AND
EXCHANGE COMMISSION FOR PURPOSES OF COMPLYING WITH T}IE DODD-FRANK WALL
STREET REFORM & CONSUMER PROTECTION ACT. INVESTMENT ADVICE, IF NEEDED,
SHOULD BE OBTAINED FROM YOUR FINANCIAL ADVISOR.
AUTOMATIC AUTHORIZATION
In the absence of specific written direction to the contrary, U.S. Bank is hereby directed to invest and
reinvest proceeds and other available moneys in the U.S. Bank Money Market Account. The U.S. Bank
Money Market Account is a permitted investment under the operative documents and this authorization is
the permanent direction for investment of the moneys until notified in writing of alternate instructions.
SCHEDULE C
Each of the following person(s) is a Depositor Representative authorized to execute
documents and direct Escrow Agent as to all matters, including fund transfers, address changes
and contact information changes, on Depositor's behalf (only one signature required):
Name Specimen signature Telephone No.
Name Specimen signature Telephone No
Name Specimen signature Telephone No
(Note: tf only one person is identified above, please add thefollowing language:)
The following person not listed above is authorized for call-back confirmations:
tl
Name Telephone Number
Each of the following person(s) is a Recipient Representative authorized to execute
documents and direct Escrow Agent as to all matters, including fund transfers, address changes
and contact information changes, on Recipient's behalf (only one signature required):
Name Specimen signature Telephone No
Name Specimen signature Telephone No
Name Specimen signature Telephone No
Q'{ote: tf only one person is identified above, please add thefollowing language:)
The following person not listed above is authorized for call-back confirmations
tl
Name Telephone Number