ESCROW AGREEMENT
UMB Bank,
N.A.
0000
Xxxxx Xxxx., 0xx
Xxxxx
Mail
Stop: 1020409
Xxxxxx
Xxxx, XX 00000
Ladies
and Gentlemen:
ICON ECI
FUND FIFTEEN, L.P., a Delaware limited partnership (the “Company”), proposes
to offer and sell up to 400,000 limited partnership interests (“Interests”) in a
public offering (the “Offering”) of
Interests pursuant to a registration statement on Form S-1 (the “Registration
Statement”) filed by the Company with the Securities and Exchange
Commission (the “SEC”). ICON
Securities Corp., a Delaware corporation (the “Dealer Manager”),
will act as dealer manager for the offering of Interests. The Company is
entering into this agreement to set forth the terms on which UMB BANK, N.A. (the
“Escrow Agent”)
will, except as otherwise provided herein, hold and disburse the proceeds from
subscriptions for the purchase of Interests in the Offering until such time
as: (i) in the case of subscriptions received from
non-affiliates of the Company, the Company has received subscriptions for 1,200
Interests (the “Minimum Offering”)
and (ii) in the case of subscriptions received from residents of the
Commonwealth of Pennsylvania (“Pennsylvania
Subscribers”), the Company has received subscriptions for 20,000
Interests (the “Pennsylvania Minimum
Offering”).
The
Escrow Agent has engaged DST Systems, Inc., a Massachusetts corporation (the
“Processing
Agent”) to receive, examine for “good order” and facilitate subscriptions
deposited into the Escrow Account (defined below) as further described herein
and to act as record keeper, solely in the capacity of agent for the Escrow
Agent and not in any capacity on behalf of the Company or the Dealer Manager,
nor shall it have any interest other than that provided in this Agreement in
assets in the Processing Agent’s possession as the agent of the Escrow
Agent.
The
Company hereby appoints UMB Bank, N.A. as Escrow Agent for purposes of holding
the proceeds from the subscriptions for Interests, on the terms and conditions
hereinafter set forth:
1. (a)
Until such time as the Company has received subscriptions for Interests in an
amount equal to the Minimum Offering and such funds are disbursed from the
Escrow Account (as defined below) in accordance with paragraph 3(a) hereof,
persons subscribing to purchase Interests ( “Subscribers”) will be
instructed by the Dealer Manager or any soliciting dealers to remit the purchase
price in the form of checks, drafts, wires, Automated Clearing House
(ACH) or money orders (hereinafter “instruments of
payment”) payable to the order of “UMB Bank, N.A., Agent for ICON Fund
15” or a recognizable contraction or abbreviation thereof, including but not
limited to, “UMB Bank, N.A. f/b/o ICON 15.” After subscriptions for
Interests in an amount equal to the Minimum Offering are received and such funds
are disbursed from the Escrow Account in accordance with paragraph 3(a) hereof,
subscriptions shall continue to be so submitted unless otherwise instructed by
the Dealer Manager. Any checks, drafts or money orders received made
payable to a party other than the Escrow Agent (or after the Minimum Offering is
achieved, made payable to a party other than the party designated by the Dealer
Manager) shall be returned to the soliciting dealer that submitted the check,
draft or money order. Within one (1) business day after receipt
of instruments of payment from the Offering, the Dealer Manager, the Company or
their respective agents will (a) send to the Escrow Agent each Subscriber’s
name, address, number of Interests purchased, and purchase price remitted, and
(b) the Escrow Agent will deposit the instruments of payment from such
Subscribers into an interest-bearing deposit account entitled “Escrow Account
for the Benefit of Subscribers for Interests of ICON Fund 15” (the “Escrow Account”),
which deposit shall occur within one (1) business day after the Escrow
Agent’s receipt of the instrument of payment, until such Escrow Account has
closed pursuant to paragraph 3(a) hereof.
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(b) The Escrow Agent agrees to maintain the funds contributed by the
Pennsylvania Subscribers (“Pennsylvania
Subscriptions”) in a manner in which they may be separately accounted for
by the records of the Processing Agent so that the requirements of Sections 3 of
this Agreement can be met. The Escrow Account will be
established and maintained in such a way as to permit the interest income
calculations described in paragraph 7.
2. The
Escrow Agent agrees to promptly process for collection the instruments of
payment upon deposit into the Escrow Account. Deposits shall be held
in the Escrow Account until such funds are disbursed in accordance with
paragraph 3 hereof. If any of the instruments of payment are returned
to the Escrow Agent for nonpayment prior to achieving the Minimum Offering or,
in connection with Pennsylvania Subscriptions, the Pennsylvania Minimum
Offering, the Escrow Agent shall promptly notify the Dealer Manager and the
Company in writing via mail, email or facsimile of such nonpayment, and is
authorized to debit the Escrow Account, in the amount of such returned payment
as well as any interest earned on the amount of such payment. In the
event that instruments of payment are returned for nonpayment, the Escrow Agent
is authorized to debit the Escrow Account, in accordance with this paragraph
2.
3. (a)
(i) Subject to the provisions of subparagraphs 3(b)-3(e) below, once the
Minimum Offering has been achieved and upon receiving written instruction from
the Company, the Escrow Agent shall (A) disburse to the Company, by
check or wire transfer, the funds in the Escrow Account representing
the gross purchase price for the Interests purchased excluding Pennsylvania
Subscriptions, and (B) promptly disburse to the Company any interest
thereon excluding interest attributable to Pennsylvania
Subscriptions. After such time the Escrow Account shall remain open
and the Company shall continue to cause subscriptions for the purchase of
Interests to be deposited in the Escrow Account, and thereafter any subscription
documents and instruments of payment received by the Escrow Agent from
Subscribers other than Pennsylvania Subscribers shall be forwarded directly to
the Company or its agent, as so instructed. For purposes of this
Agreement, the term “collected funds” shall mean all funds received by the
Escrow Agent that have cleared normal banking channels and are in the form of
cash or cash equivalent. After the satisfaction of the foregoing
provisions of this paragraph 3(a)(i), in the event the Company receives
subscriptions made payable to the Escrow Agent (other than Pennsylvania
Subscriptions), subscription proceeds may continue to be received in this
account generally, but to the extent such proceeds shall not be subject to
escrow due to the satisfaction of the aforementioned provisions of this
paragraph 3(a)(i), such proceeds are not subject to this Escrow Agreement and at
the instruction of the Company or its agent to the Escrow Agent shall be
transferred from the Escrow Account or deposited directly into, as the case may
be, a commercial deposit account in the name of the Company with the Escrow
Agent (the “Deposit
Account”) that has been previously established by the Company, unless
otherwise directed by the Company. The Company hereby covenants and
agrees that it shall take commercially reasonable efforts to establish the
Deposit Account. No provisions of this Escrow Agreement shall apply
to the Deposit Account.
(ii) regardless
of any release of funds from the Escrow Account, the Company, the Dealer Manager
and soliciting dealers shall continue to forward instruments of payment received
from Pennsylvania Subscribers for deposit into the Escrow Account to the Escrow
Agent until such time as the Company notifies the Escrow Agent in writing that
the Pennsylvania Minimum Offering has been achieved. Within five days after
receipt by the Escrow Agent of such notice, the Escrow Agent shall
(A) disburse to the Company, by check or wire transfer, the funds then in
the Escrow Account representing the gross purchase price for the Pennsylvania
Minimum Offering, and (B) promptly disburse to the Company any interest
thereon. Following such disbursements, any instruments of payment
received by the Escrow Agent from Pennsylvania Subscribers shall not be subject
to this Escrow Agreement and shall be deposited directly into the Escrow Account
or the Deposit Account, as instructed in writing by the Company pursuant to
subparagraph 3(a)(i) above.
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(b) Within
four business days of the close of business on the date that is one year
following commencement of the Offering (the “Expiration Date”),
the Company shall promptly notify the Escrow Agent if the Minimum Offering has
not been achieved. Within five (5) calendar days following the date
of such notice, the Escrow Agent shall, unless otherwise directed in writing by
the Company, promptly return directly to each Subscriber the collected funds
deposited in the Escrow Account on behalf of such Subscriber (unless
earlier disbursed in accordance with paragraph 3(c)), or shall return the
instruments of payment delivered, but not yet processed for collection prior to
such time, in either case, together with interest income (which interest shall
be paid within five (5) business days after the first business day of the
succeeding month) in the amounts calculated pursuant to paragraph 7 for each
Subscriber at the address provided by the Dealer Manager or the Company to the
Escrow Agent, which the Escrow Agent shall be entitled to rely
upon. Notwithstanding the above, in the event that the Escrow Agent
has not received an executed IRS Form W-9 at such time for each Subscriber, the
Escrow Agent shall remit an amount to the Subscribers in accordance with the
provisions hereof, withholding the applicable percentage for backup withholding
required by the Internal Revenue Code, as then in effect, from any interest
income on subscription proceeds (determined in accordance with paragraph 7)
attributable to each Subscriber for whom the Escrow Agent does not possess an
executed IRS Form W-9. However, the Escrow Agent shall not be
required to remit any payments until the Escrow Agent has collected funds
represented by such payments.
(c) Notwithstanding
subparagraphs 3(a) and 3(b) above, the Company shall notify the Escrow Agent in
writing if the Pennsylvania Minimum Offering has not been achieved on or before
the close of business on such date that is 120 days after commencement of the
Offering (the Company will notify the Escrow Agent of the commencement date of
the Offering) (the “Initial Escrow
Period”). Thereafter, the Company shall send to each
Pennsylvania Subscriber by certified mail within two (2) business days
after the end of the Initial Escrow Period a notification in the form of Exhibit A. If,
pursuant to such notification, a Pennsylvania Subscriber requests the return of
his or her subscription funds within five (5) calendar days after receipt of the
notification (the “Request Period”), the
Escrow Agent shall promptly refund directly to each Pennsylvania Subscriber the
collected funds deposited in the Escrow Account on behalf of such Pennsylvania
Subscriber or shall return the instruments of payment delivered, but not yet
processed for collection prior to such time, to the address provided by the
Dealer Manager or the Company or their respective agents to the Escrow Agent,
which the Escrow Agent shall be entitled to rely upon, together with interest
income (which interest shall be paid within five business days after the first
business day of the succeeding month) in the amounts calculated pursuant to
paragraph 7. Notwithstanding the above, if the Escrow Agent has
not received an executed IRS Form W-9 is for such Pennsylvania Subscriber, the
Escrow Agent shall thereupon remit an amount to such Pennsylvania Subscriber in
accordance with the provisions hereof, withholding the applicable percentage for
backup withholding required by the Internal Revenue Code, as then in effect,
from any interest income earned on subscription proceeds (determined in
accordance with paragraph 7) attributable to such Pennsylvania
Subscriber. However, the Escrow Agent shall not be required to remit
such payments until the Escrow Agent has collected funds represented by such
payments.
(d) The
subscription funds of Pennsylvania Subscribers who do not request the return of
their subscription funds within the Request Period shall remain in the Escrow
Account for successive 120-day escrow periods (a “Successive Escrow
Period”), each commencing automatically upon the termination of the prior
Successive Escrow Period, and the Company and Escrow Agent shall follow the
notification and payment procedure set forth in subparagraph 3(c) above with
respect to the Initial Escrow Period for each Successive Escrow Period until the
occurrence of the earliest of (i) the Expiration Date, (ii) the
Pennsylvania Minimum Offering being achieved, or (iii) all funds held in
the Escrow Account having been returned to the Pennsylvania Subscribers in
accordance with the provisions hereof.
(e) If
the Company rejects any subscription for which the Escrow Agent has collected
funds, the Escrow Agent shall, upon the written request of the Company, promptly
issue a refund to the rejected Subscriber at the address provided by the Dealer
Manager or the Company, which the Escrow Agent shall be entitled to rely
upon. If the Company rejects any subscription for which the Escrow
Agent has not yet collected funds, but has submitted the Subscriber’s check for
collection, the Escrow Agent shall promptly return the funds in the amount of
the Subscriber’s check to the rejected Subscriber, at the address provided by
the Dealer Manager or the Company or their respective agents, which the Escrow
Agent shall be entitled to rely upon, after such funds have been
collected. If the Escrow Agent has not yet submitted a rejected
Subscriber’s check for collection, the Escrow Agent shall promptly remit the
Subscriber’s check directly to the Subscriber.
4. The
Escrow Agent shall provide to the Company monthly statements (or more frequently
as reasonably requested by the Company) on the account balance in the Escrow
Account and the activity in such account since the last report. The Escrow Agent
will provide access to its Web
Exchange program to allow the Company to view account balances for the Escrow
Account at any time.
3
5. Prior
to the disbursement of funds deposited in the Escrow Account in accordance with
the provisions of paragraph 3 hereof, the Escrow Agent shall invest all of the
funds deposited as well as earnings and interest derived therefrom in the Escrow
Account, as applicable, in the “Short-Term Investments” specified below at the
written direction of the Company, unless the costs to the Company for the making
of such investment are reasonably expected to exceed the anticipated interest
earnings from such investment in which case the funds and interest thereon shall
remain in the respective escrow account until the balance in the respective
escrow account reaches the minimum amount necessary for the anticipated interest
earnings from such investment to exceed the costs to the Company for the making
of such investment, as determined by the Company based upon applicable interest
rates.
“Short-Term
Investments” include obligations of, or obligations guaranteed by, the United
States government or bank money-market accounts or certificates of deposit of
national or state banks that have deposits insured by the Federal Deposit
Insurance Corporation (including certificates of deposit of any bank acting as a
depository or custodian for any such funds) which mature on or before the
Expiration Date, unless such instrument cannot be readily sold or otherwise
disposed of for cash by the Expiration Date without any dissipation of the
offering proceeds invested. Without limiting the generality of the foregoing,
Exhibit B
hereto sets forth specific Short-Term Investments that shall be deemed
permissible investments hereunder.
The
following securities are not permissible investments:
(a)
money market funds;
(b)
corporate equity or debt securities;
(c)
repurchase agreements;
(d) bankers’
acceptances;
(e) commercial
paper; and
(f) municipal
securities.
It is
hereby expressly agreed and stipulated by the parties hereto that the Escrow
Agent shall not be required to exercise any investment discretion hereunder and
shall have no investment or management responsibility and, accordingly, shall
have no duty to, or liability for its failure to, provide investment
recommendations or investment advice to the parties hereto. It is the intention
of the parties hereto that, except as otherwise provided in paragraph 9, the
Escrow Agent shall never be required to use, advance or risk its own funds or
otherwise incur financial liability in the performance of any of its duties or
the exercise of any of its rights and powers hereunder.
6. The
Escrow Agent is entitled to rely upon written instructions received from the
Company or the Dealer Manager or their respective agents, unless the Escrow
Agent has actual knowledge that such instructions are not valid or genuine;
provided that, if in the Escrow Agent’s opinion, any instructions from the
Company or the Dealer Manager or their respective agents are unclear, the Escrow
Agent may request clarification from the Company or the Dealer Manager or their
respective agents, as applicable, prior to taking any action, and if such
instructions continue to be unclear, the Escrow Agent may rely upon written
instructions from the Company’s legal counsel in distributing or continuing to
hold any funds. However, the Escrow Agent shall not be required to
disburse any funds attributable to instruments of payment that have not been
processed for collection, until such funds are collected and then shall disburse
such funds in compliance with the disbursement instructions from the Company or
the Dealer Manager or their respective agents.
4
7. If the
Offering terminates prior to achieving the Minimum Offering or one or more
Pennsylvania Subscribers elects to have his or her subscription returned in
accordance with paragraph 3, interest income earned on subscription proceeds
deposited in the Escrow Account (the “Escrow Income”), ,
shall be remitted to Subscribers to the address provided by the Dealer Manager
or the Company to the Escrow Agent, which the Escrow Agent shall be entitled to
rely upon, or to the Company if the applicable Subscriber’s funds have been held
in escrow by the Escrow Agent for less than thirty five (35) calendar days,
in accordance with paragraph 3 and without any deductions for escrow
expenses. The Company shall reimburse the Escrow Agent for all
reasonable and documented escrow expenses. If the Escrow Agent remits
interest income pursuant to this Agreement, the Escrow Agent shall be
responsible for any necessary federal tax reporting associated with such income;
provided, however, that the Escrow Agent shall not be responsible for any other
tax reporting associated with this Agreement. The Escrow Agent shall remit all
such Escrow Income in accordance with paragraph 3. If the Company chooses to
leave the Escrow Account open after achieving the Minimum Offering then it shall
make regular acceptances of subscriptions therein, but no less frequently than
monthly, and the Escrow Income from the last such acceptance shall be calculated
and remitted to the Subscribers or the Company, as applicable, pursuant to the
provisions of paragraph 3.
8. The
Escrow Agent shall receive compensation from the Company as set forth in Exhibit C
attached hereto, which such Exhibit C is hereby incorporated by
reference.
9. In
performing any of its duties hereunder, the Escrow Agent shall not incur any
liability to anyone for any damages, losses, or expenses, except for willful
misconduct, breach of trust, or gross negligence. Accordingly, the Escrow Agent
shall not incur any such liability with respect to any action taken or omitted
(a) in good faith upon advice of the Escrow Agent’s counsel given with
respect to any questions relating to the Escrow Agent duties and
responsibilities under this Agreement, or (b) in reliance upon any
instrument, including any written instrument or instruction provided for in this
Agreement, not only as to its due execution and validity and effectiveness of
its provisions but also as to the truth and accuracy of information contained
therein, which the Escrow Agent shall in good faith believe to be genuine, to
have been signed or presented by a proper person or persons and to conform to
the provisions of this Agreement.
10. The
Company hereby agrees to indemnify and hold the Escrow Agent harmless against
any and all losses, claims, damages, liabilities, and expenses, including
reasonable attorneys’ fees and disbursements, that may be imposed on or incurred
by the Escrow Agent in connection with acceptance of appointment as the Escrow
Agent hereunder, or the performance of the duties hereunder, including any
litigation arising from this Agreement or involving the subject matter hereof,
except where such losses, claims, damages, liabilities, and expenses result from
willful misconduct, breach of trust, or gross negligence.
11. The
Escrow Agent, or any successor to it hereafter appointed, may at any time resign
and be discharged from the duties and obligations under this Agreement by giving
at least thirty (30) days prior written notice to the Company and accounting in
full for all sums delivered to, and held by, it and all earnings thereon while
acting as the Escrow Agent hereunder. The Escrow Agent may be removed
at any time upon sixty (60) days prior written notice by any instrument
purportedly signed by an authorized representative of the
Company. Any successor Escrow Agent shall deliver to the Escrow
Agent, the Company and the Dealer Manager a written instrument accepting such
appointment hereunder and shall accept delivery of the Escrow Account to hold
and distribute same in accordance with the terms of this
Agreement. If no successor Escrow Agent shall have been appointed
within thirty (30) days after the Company receives notice of the Escrow Agent’s
intention to resign or within sixty (60) days of the Escrow Agent’s receipt of
notice of its removal, the Escrow Agent shall deliver all amounts deposited with
it in the Escrow Account and all earnings thereon to a national bank with a net
worth of not less than $100,000,000 that is designated by the Escrow Agent and
has agreed in writing to accept such monies and to act as substitute Escrow
Agent in compliance with the terms of this Agreement. Upon such
delivery and acceptance, the Escrow Agent shall be discharged from any future
obligations under this Agreement.
12. All
communications and notices required or permitted by this Agreement shall be in
writing and shall be deemed to have been given when delivered personally or by
messenger or by overnight delivery service or when received via telecopy or
other electronic transmission, in all cases addressed to the person for whom it
is intended at such person’s address set forth below or to such other address as
a party shall have designated by notice in writing to the other party in the
manner provided by this paragraph:
(a)
if to the Company:
c/o
ICON GP 15, LLC
000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
Fax:
(000) 000-0000
Attention:
Chief Executive Officer
5
(b)
if to the Dealer Manager:
ICON
Securities Corp.
000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
Fax:
(000) 000-0000
Attention:
President
(c)
if to the Escrow Agent:
UMB
Bank, N.A.
Corporate
Trust & Escrow Services
0000
Xxxxx Xxxx., 0xx
Xxxxx
Mail
Stop: 1020409
Xxxxxx
Xxxx, XX 00000
Attention:
Xxxx Xxxxxxx
Each
party hereto may, from time to time, change the address to which notices to it
are to be delivered or mailed hereunder by notice in accordance herewith to the
other parties.
13. This
Agreement shall be governed by the laws of the State of New York as to both
interpretation and performance without regard to the conflict of laws rules
thereof.
14. The
provisions of this Agreement shall be binding upon the legal representatives,
successors, and assigns of the parties hereto.
15. The
Company and the Dealer Manager hereby acknowledge that UMB Bank, N.A. is serving
as Escrow Agent only for the limited purposes herein set forth, and hereby agree
that they will not represent or imply that, by serving as Escrow Agent hereunder
or otherwise, have investigated the desirability or advisability of investment
in the Company or have approved, endorsed, or passed upon the merits of the
Interests or the Company.
16. This
Agreement and any amendment hereto may be executed by the parties hereto in one
or more counterparts, each of which shall be deemed to be an
original.
17. The
Escrow Agent shall be bound only by the terms of this Escrow Agreement and shall
not be bound by or incur any liability with respect to any other agreements or
understanding between any other parties, whether or not the Escrow Agent has
knowledge of any such agreements or understandings.
18. The
liability and indemnification provisions set forth herein shall survive the
termination of this Agreement.
19. In
the event that any part of this Agreement is declared by any court or other
judicial or administrative body to be null, void, or unenforceable, said
provision shall survive to the extent it is not so declared, and all of the
other provisions of this Agreement shall remain in full force and
effect.
20.
Unless otherwise provided in this Agreement, final termination of this Escrow
Agreement shall occur on the date that all funds held in the Escrow Account are
distributed and the Company has informed the Escrow Agent in writing to close
the Escrow Account pursuant to paragraph 3 hereof.
21.
Neither the Escrow Agent, nor its agents, shall have responsibility for
accepting, rejecting, or approving subscriptions. The Escrow Agent or
its agent (including the Processing Agent) on its behalf shall complete an OFAC
search, in compliance with its policy and procedures, of each subscription and
shall inform the Company if a subscription fails the OFAC search. The
Dealer Manager shall provide a copy of each subscription agreement in order that
the Escrow Agent, or its agent, may perform such OFAC search.
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22. This
Agreement shall not be modified, revoked, released, or terminated unless reduced
to writing and signed by all parties hereto, subject to the following
paragraph.
23. The
Company shall provide to Escrow Agent any documentation and information
reasonably requested by the Escrow Agent for it to comply with the USA Patriot
Act of 2001, as amended from time to time.
[Signature
page follows]
7
Agreed to
as of the 7th day of December, 2010.
|
By:
ICON GP 15, LLC, its General Partner
|
|||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
||
|
Xxxxxxx
X. Xxxxxxx
|
|||
|
Co-Chief
Executive Officer and Co-President
|
|||
|
ICON
SECURITIES CORP.
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | ||
|
Xxxxxxx
X. Xxxxxxxx
|
|||
|
President
|
|||
The terms
and conditions contained above are hereby accepted and agreed to
by:
UMB Bank, N.A. as Escrow
Agent
|
By:
|
/s/ Xxxx X. Xxxxxxx | |
|
Name:
|
Xxxx X. Xxxxxxx | |
|
Title:
|
Vice President |
8
