SUBSCRIPTION ESCROW AGREEMENT
Subscription Escrow Agreement (the "Escrow Agreement") dated as of the
effective date (the "Effective Date") set forth on schedule 1 attached hereto
("Schedule 1") by and among the limited partnership identified on Schedule 1
(the "Issuer"), the corporation identified on Schedule 1 (the "Depositor") and
J.P.Morgan Trust Company, National Association, as escrow agent hereunder (the
"Escrow Agent").
WHEREAS, the Issuer has filed a registration statement on Form S-1 under the
Securities Act of 1933, as amended, with the Securities and Exchange Commission,
File No. ____________ (the "Registration Statement"), relating to the
subscription for and sale of limited partnership units ("Units") in the Issuer,
with a minimum investment required of ____ Units (the "Minimum Subscription
Amount"), at a price of $ ____ per Unit;
WHEREAS, the Depositor has been named as the underwriter in connection with the
proposed offering of the Units in accordance with the terms of the underwriting
agreement dated as of __________ among the Issuer, its general partner and the
Depositor (the "Underwriting Agreement"); and
WHEREAS, in compliance with Rule 15c2-4 under the Securities Exchange Act of
1934, as amended ("Rule 15c2-4"), the Issuer and the Depositor propose to
establish an escrow fund to be held by the Escrow Agent until the sale of Units
terminates;
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Appointment. The Issuer and Depositor hereby appoint the Escrow Agent
as their escrow agent for the purposes set forth herein, and the Escrow Agent
hereby accepts such appointment under the terms and conditions set forth herein.
2. Escrow Fund. All funds received by the Depositor and the Issuer in
connection with the sale of Units shall be deposited with the Escrow Agent (the
"Escrow Deposit"). The Escrow Agent shall hold the Escrow Deposit and, subject
to the terms and conditions hereof, shall invest and reinvest the Escrow Deposit
and the proceeds thereof (the "Escrow Fund") as directed in Section 3.
3. Investment of Escrow Fund. During the term of this Escrow Agreement,
the Escrow Fund shall be invested and reinvested by the Escrow Agent in the
investment indicated on Schedule 1 or such other investments as shall be
directed in writing by the Issuer and the Depositor, are permissible investments
under Rule 15c2-4 and as shall be acceptable to the Escrow Agent. All investment
orders involving U.S. Treasury obligations, commercial paper and other direct
investments will be executed through JPMorgan Fleming Asset Management (JPMFAM),
in the investment management division of JPMorgan Chase. Subject to principles
of best execution, transactions are effected on behalf of the Escrow Fund
through broker-dealers selected by JPMFAM. In this regard, JPMFAM seeks to
attain the best overall result for the Escrow Fund, taking into consideration
quality of service and reliability. An agency fee will be assessed in connection
with each transaction. Periodic statements will be provided to Issuer and
Depositor reflecting transactions executed on behalf of the Escrow Fund. The
Issuer and Depositor, upon written request, will receive a statement of
transaction details upon completion of any securities transaction in the Escrow
Fund without any additional cost. The Escrow Agent shall have the right to
liquidate any investments held in order to provide funds necessary to make
required payments under this Escrow Agreement. The Escrow Agent shall have no
liability for any loss sustained as a result of any investment in an investment
indicated on Schedule 1 or any investment made pursuant to the instructions of
the parties hereto or as a result of any liquidation of any investment prior to
its maturity or for the failure of the parties to give the Escrow Agent
instructions to invest or reinvest the Escrow Fund.
4. Disposition and Termination. The Depositor and the Issuer agree to
notify the Escrow Agent in writing of the closing date of the offering (the
"Offering Closing Date") and whether or not the Issuer received subscriptions
for the Minimum Subscription Amount. Upon receipt of such written notification
the following procedure will take place.
(i) If the Issuer has received subscriptions for the Minimum Subscription
Amount by the Offering Closing Date, the Escrow Fund will be promptly
paid to or credited to the account of, or otherwise transferred to the
Issuer pursuant to instructions from the Issuer.
(ii) If the Issuer has not received subscriptions for the Minimum
Subscription Amount, the Escrow Agent shall be provided with a list
containing the amount received from each subscriber whose funds have
been deposited with the Escrow Agent (with respect to each subscriber
the "Subscriber Investment Amount") and the name, address and Taxpayer
Identification Number ("TIN") of each subscriber. In addition, the
Issuer or Depositor shall calculate the interest earned on each
Subscriber Investment Amount as of the Offering Closing Date and
provide such information to the Escrow Agent. The aggregate of all
Subscriber Investment Amounts and interest thereon shall be equal to
the amount of the Escrow Fund on the Offering Closing Date. The Escrow
Agent shall distribute to each subscriber the appropriate Subscriber
Investment Amount and interest thereon pursuant to joint written
instructions of the Issuer and Depositor within 45 days of receipt of
the information described in this Section 4(ii).
Upon delivery of the Escrow Fund to the Issuer or the subscribers as the case
may be, by the Escrow Agent, this Escrow Agreement shall terminate, subject to
the provisions of Section 8.
5. Escrow Agent. The Escrow Agent undertakes to perform only such duties
as are expressly set forth herein and no duties shall be implied. 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. The Escrow Agent may rely
upon and shall not be liable for acting or refraining from acting upon any
written notice, instruction or request furnished to it hereunder and believed by
it to be genuine and to have been signed or presented by the proper party or
parties. The Escrow Agent shall be under no duty to inquire into or investigate
the validity, accuracy or content of any such document. The Escrow Agent shall
have no duty to solicit any payments which may be due it or the Escrow Fund. 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 primary
cause of any loss to the Issuer or Depositor. The Escrow Agent may execute any
of its powers and perform any of its duties hereunder directly or through agents
or attorneys (and shall be liable only for the careful selection of any such
agent or attorney) and may consult with counsel, accountants and other skilled
persons to be selected and retained by it. The Escrow Agent shall not be liable
for anything done, suffered or omitted in good faith by it in accordance with
the advice or opinion of any such counsel, accountants or other skilled persons.
In the event that the Escrow Agent shall be uncertain as to its duties or rights
hereunder or shall receive instructions, claims or demands from any party hereto
which, in its opinion, conflict with any of the provisions of this Escrow
Agreement, it shall be entitled to refrain from taking any action and its sole
obligation shall be to keep safely all property held in escrow until it shall be
directed otherwise in writing by all of the other parties hereto or by a final
order or judgment of a court of competent jurisdiction. Anything in this Escrow
Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be
liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Escrow Agent
has been advised of the likelihood of such loss or damage and regardless of the
form of action.
6. Succession. The Escrow Agent may resign and be discharged from its
duties or obligations hereunder by giving 10 days advance notice in writing of
such resignation to the other parties hereto specifying a date when such
resignation shall take effect. The Escrow Agent shall have the right to withhold
an amount equal to any amount due and owing to the Escrow Agent, plus any costs
and expenses the Escrow Agent shall reasonably believe may be incurred by the
Escrow Agent in connection with the termination of the Escrow Agreement. Any
corporation or association into which the Escrow Agent may be merged or
converted or with which it may be consolidated, or any corporation or
association to which all or substantially all the escrow business of the Escrow
Agent's corporate trust line of business may be transferred, shall be the Escrow
Agent under this Escrow Agreement without further act.
7. Fees. The Issuer and Depositor agree jointly and severally to (i) pay
the Escrow Agent upon execution of this Agreement and from time to time
thereafter reasonable compensation for the services to be rendered hereunder,
which unless otherwise agreed in writing shall be as described in Schedule 1
attached hereto, and (ii) pay or reimburse the Escrow Agent upon request for all
expenses, disbursements and advances, including reasonable attorney's fees and
expenses, incurred or made by it in connection with the preparation, execution,
performance, delivery modification and termination of this Agreement.
8. Indemnity. The Issuer and the Depositor shall jointly and severally
indemnify, defend and save harmless the Escrow Agent and its directors,
officers, agents and employees (the "indemnitees") from all loss, liability or
expense (including the fees and expenses of in house or outside counsel) arising
out of or in connection with (i) the Escrow Agent's execution and performance of
this Escrow Agreement, except in the case of any indemnitee to the extent that
such loss, liability or expense is due to the gross negligence or willful
misconduct of such indemnitee, or (ii) its following any instructions or other
directions from the Issuer or the Depositor, except to the extent that its
following any such instruction or direction is expressly forbidden by the terms
hereof. The parties hereto acknowledge that the foregoing indemnities shall
survive the resignation or removal of the Escrow Agent or the termination of
this Escrow Agreement. The parties hereby grant the Escrow Agent a lien on,
right of set-off against and security interest in the Escrow Fund for the
payment of any claim for indemnification, compensation, expenses and amounts due
hereunder.
9. TINs. The Purchaser and the Seller each represent that its correct
Taxpayer Identification Number ("TIN") assigned by the Internal Revenue Service
("IRS")or any other taxing authority is set forth on the signature page hereof.
Upon execution of this Agreement, the Issuer and Depositor shall provide the
Escrow Agent with a fully executed W-8 or W-9 ITS form, which shall include the
Issuer's and the Depositor's TIN. All interest or other income earned under the
Escrow Agreement shall be allocated and/or paid as directed in a joint written
direction of the Issuer and the Depositor and reported by the recipient to the
Internal Revenue Service or any other taxing authority. Notwithstanding such
written directions, Escrow Agent shall report and, as required withhold any
taxes as it determines may be required by any law or regulation in effect at the
time of the distribution. In the absence of timely direction, all proceeds of
the Escrow Fund shall be retained in the Escrow Fund and reinvested from time to
time by the Escrow Agent as provided in Section 3. In the event that any
earnings remain undistributed at the end of any calendar year, Escrow Agent
shall report to the Internal Revenue Service or such other authority such
earnings as it deems appropriate or as required by any applicable law or
regulation or, to the extent consistent therewith, as directed in writing by the
Issuer and the Depositor. In addition, Escrow Agent shall withhold any taxes it
deems appropriate and shall remit such taxes to the appropriate authorities.
10. Notices. All communications hereunder shall be in writing and shall be
deemed to be duly given and received:
(i) upon delivery if delivered personally or upon confirmed
transmittal if by facsimile;
(ii) on the next Business Day (as hereinafter defined) if sent by
overnight courier; or
(iii) four (4) Business Days after mailing if mailed by prepaid
registered mail, return receipt requested, to the appropriate notice
address set forth on Schedule 1 or at such other address as any party
hereto may have furnished to the other parties in writing by registered
mail, return receipt requested.
Notwithstanding the above, in the case of communications delivered to the Escrow
Agent pursuant to (ii) and (iii) of this Section 10, such communications shall
be deemed to have been given on the date received by the Escrow Agent. In the
event that the Escrow Agent, in its sole discretion, shall determine that an
emergency exists, the Escrow Agent may use such other means of communication as
the Escrow Agent deems appropriate. "Business Day" shall mean any day other than
a Saturday, Sunday or any other day on which the Escrow Agent located at the
notice address set forth on Schedule 1 is authorized or required by law or
executive order to remain closed.
11. Security Procedures. In the event funds transfer instructions are given
(other than in writing at the time of execution of this Escrow Agreement, as
indicated in Schedule 1 attached hereto), whether in writing, by telecopier or
otherwise, the Escrow Agent is authorized to seek confirmation of such
instructions by telephone call-back to the person or persons designated on
schedule 2 hereto ("Schedule 2"), 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 a writing
actually received and acknowledged by the Escrow Agent. If the Escrow Agent is
unable to contact any of the authorized representatives identified in Schedule
2, the Escrow Agent is hereby authorized to seek confirmation of such
instructions by telephone call-back to any one or more of your executive
officers, ("Executive Officers"), which shall include the titles
of______________________, 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. The Escrow Agent and the beneficiary's bank
in any funds transfer may rely solely upon any account numbers or similar
identifying numbers provided by the Purchaser or the Seller to identify (i) the
beneficiary, (ii) the beneficiary's bank,
or (iii) an intermediary bank. The Escrow Agent may apply any of the escrowed
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. The parties to this Escrow Agreement acknowledge
that these security procedures are commercially reasonable.
12. Miscellaneous. The provisions of this Escrow Agreement may be waived,
altered, amended or supplemented, in whole or in part, only by a writing signed
by all of the parties hereto. Neither this Escrow Agreement nor any right or
interest hereunder may be assigned in whole or in part by any party, except as
provided in Section 6, without the prior consent of the other parties. This
Escrow Agreement shall be governed by and construed under the laws of the State
of New York. Each party hereto irrevocably waives any objection on the grounds
of venue, forum non-conveniens or any similar grounds and irrevocably consents
to service of process by mail or in any other manner permitted by applicable law
and consents to the jurisdiction of the courts located in the State of New York.
The parties further hereby waive any right to a trial by jury with respect to
any lawsuit or judicial proceeding arising or relating to this Escrow Agreement.
No party to this Escrow Agreement is liable to any other party for losses due
to, or if it is unable to perform its obligations under the terms of this Escrow
Agreement because of, acts of God, fire, floods, strikes, equipment or
transmission failure, or other causes reasonably beyond its control. This Escrow
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of
the date set forth in Schedule 1.
J.P.MORGAN TRUST COMPANY, NATIONAL ASSOCIATION
as Escrow Agent
By:__________________________________
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Tax Certification: Taxpayer ID#:
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Customer is a (check one):
___ Corporation ___ Municipality ___ Partnership ___ Non-profit or Charitable Org
___ Individual ___ REMIC ___ Trust ___ Other _________________
Under the penalties of perjury, the undersigned certifies that:
(1) the entity is organized under the laws of the United States
(2) the number shown above is its correct Taxpayer Identification Number (or it is waiting for a number to be issued to it); and
(3) it is not subject to backup withholding because: (a) it is exempt from backup withholding or (b) it has not been notified by
the Internal Revenue Service (IRS) that it is subject to backup withholding as a result of failure to report all interest or
dividends, or (c) the IRS has notified it that it is no longer subject to backup withholding.
(If the entity is subject to backup withholding, cross out the words after the (3) above.)
Investors who do not supply a tax identification number will be subject to backup withholding in accordance with IRS regulations.
Note: The IRS does not require your consent to any provision of this document other than the certifications required to avoid
backup withholding.
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ISSUER
Signature: ________________________________
Printed Name:______________________________
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Tax Certification: Taxpayer ID#:
--------------------------------------
Customer is a (check one):
___ Corporation ___ Municipality ___ Partnership ___ Non-profit or Charitable Org
___ Individual ___ REMIC ___ Trust ___ Other _________________
Under the penalties of perjury, the undersigned certifies that:
(4) the entity is organized under the laws of the United States
(5) the number shown above is its correct Taxpayer Identification Number (or it is waiting for a number to be issued to it); and
(6) it is not subject to backup withholding because: (a) it is exempt from backup withholding or (b) it has not been notified by
the Internal Revenue Service (IRS) that it is subject to backup withholding as a result of failure to report all interest or
dividends, or (c) the IRS has notified it that it is no longer subject to backup withholding.
(If the entity is subject to backup withholding, cross out the words after the (3) above.)
Investors who do not supply a tax identification number will be subject to backup withholding in accordance with IRS regulations.
Note: The IRS does not require your consent to any provision of this document other than the certifications required to avoid
backup withholding.
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DEPOSITOR
Signature: _________________________________
Printed Name:_______________________________
Schedule 1
Effective Date:
Name of Issuer:
Issuer Notice Address:
Issuer TIN:
Wiring Instructions:
Name of Depositor:
Depositor Notice Address:
Depositor TIN:
Wiring Instructions:
Escrow Deposit: $
Investment: [specify]
[ ] J.P.Morgan Trust Company, National Association Money Market
Account;
[ ] A trust account with J.P.Morgan Trust Company, National
Association;
[XX] A money market mutual fund, including without limitation the
JPMorgan Funds or any other mutual fund for which the Escrow
Agent or any affiliate of the Escrow Agent serves as
investment manager, administrator, shareholder servicing
agent and/or custodian or subcustodian, notwithstanding that
(i) the Escrow Agent or an affiliate of the Escrow Agent
receives fees from such funds for services rendered, (ii)
the Escrow Agent charges and collects fees for services
rendered pursuant to this Escrow Agreement, which fees are
separate from the fees received from such funds, and (iii)
services performed for such funds and pursuant to this
Escrow Agreement may at times duplicate those provided to
such funds by the Escrow Agent or its affiliates. Fund: 100%
U.S.Treasury Securities Money Market Fund - Premier Shares
[ ] Such other investments as Issuer, Depositor and Escrow Agent
may from time to time mutually agree upon in a writing
executed and delivered by the Issuer and the Depositor and
accepted by the Escrow Agent.
Escrow Agent notice address: J.P.Morgan Trust Company, National Association
Jo Anne Osborn
One Oxford Centre, Suite 1100
301 Grant Street
Pittsburgh, PA 15219
Attn: Jo Anne Osborn
Fax: 412-456-5565
Check Deposit Address: JPMorgan Chase Bank
Attn: Sharon Chut-Khan
15th Floor
Four New York Plaza
New York, NY 10004
Escrow Agent's compensation: Annual Administration Fee: $3,000
Accouont Acceptance & Set-up $500 - One-Time Fee
Out-of-Pocket Expenses: 6% of the amount of the Annual Administration Fee (i.e. $180 )
Mutual Fund Transaction: 15 Basis Points (Calculated on the average Principal balance of
the Fund)
Schedule 2
Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions
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If to Issuer:
Name Telephone Number
---- ----------------
1. ______________________ _______________________
2. ______________________ _______________________
3. ______________________ _______________________
If to Depositor:
Name Telephone Number
---- ----------------
1. ______________________ _______________________
2. ______________________ _______________________
3. ______________________ _______________________
Telephone call-backs shall be made to each Issuer and Depositor if joint
instructions are required pursuant to this Escrow Agreement.