Exhibit 10.02
JWH GLOBAL TRUST
AMENDED ESCROW AGREEMENT
This Amended Escrow Agreement is made and entered into as of _________,
1997 by and among The First National Bank of Chicago, a national banking
association, as escrow agent (the "Escrow Agent"), JWH Global Trust, a Delaware
business trust (the "Trust"), CIS Investments, Inc., a Delaware corporation
("CISI" or "Managing Owner"), the managing owner of the Trust, and Cargill
Investor Services, Inc., a Delaware corporation ("CIS" or "Lead Selling Agent").
RECITAL
The Trust offers for sale to investors through one or more registered
broker-dealers units of beneficial interest ("Units") in the Trust at the Net
Asset Value per Unit as of the last day of each calendar month (the "Ongoing
Offering Period");
In connection with the public offering of Units, the Trust and the Managing
Owner have entered into a selling agreement with the Lead Selling Agent and the
Lead Selling Agent may, with the consent of the Managing Owner, enter into
additional selling agent agreements with certain additional and correspondent
selling agents (the Lead Selling Agent and such additional and correspondent
selling agents are collectively referred to herein as "Selling Agents"), for the
offer and sale of Units on a "best efforts" basis.
The parties hereto entered into an Escrow Agreement dated as of April 3,
1997 to establish an escrow account in which proceeds received from subscribers
are deposited and for which the Escrow Agent serves as escrow agent. The
parties hereto now desire to amend the Escrow Agreement in accordance with the
terms and conditions set forth herein.
AGREEMENTS
In consideration of the foregoing and the mutual covenants contained
herein, the parties agree as follows:
1. Commencing upon the execution of this Agreement, the Escrow Agent
shall act as escrow agent and agrees to receive, hold, deal with and disburse
the proceeds from the sale ("Proceeds") of Units and any other property at any
time held by the Escrow Agent hereunder in accordance with this Agreement.
2. CIS shall deposit all Proceeds received from the Selling Agents
together with the name, address, federal tax identification number and amount of
the subscription of each subscriber. All Proceeds shall be denominated in
dollars and deposited in this escrow by check or wire transfer, duly made out to
the Escrow Agent in the following form: "FNBC, AS ESCROW AGENT FOR
JWH GLOBAL TRUST." The Escrow Agent shall promptly notify CIS of any
discrepancy between the amounts set forth on any statement delivered by CIS and
the sum or sums delivered therewith to the Escrow Agent. Any checks received
that are made payable to a party other than the Escrow Agent shall be returned
to CIS for prompt return to the appropriate subscribers. In the event that any
checks or other instruments deposited in the escrow prove uncollectible, the
Escrow Agent shall promptly notify CIS and forward such checks or other
instruments to CIS.
3. The Escrow Agent is required to separately record on its books the
name, address, federal tax identification number and amount of each subscription
as received, and shall keep documents necessary to evidence the name, address
and federal tax identification of each subscriber, the aggregate amount of his
subscriptions, and the date such subscription was received.
4. The Escrow Agent shall cause all Proceeds deposited with it pursuant
to Section 2 hereof to be maintained and invested no later than the second
business day following receipt of such Proceeds as the Managing Owner shall
direct from time to time by written instructions delivered to the Escrow Agent,
in (a) an interest bearing bank account; (b) bank money-market accounts; (c)
short-term certificates of deposit issued by a bank; or (d) short-term
securities issued or guaranteed by the United States Government, as permitted by
law (and in particular Rule 15c2-4 under the Securities Exchange Act of 1934),
which can be readily liquidated so that 100% of the Proceeds and interest
thereon can, if necessary, be returned to the subscribers in accordance with
this Agreement and that the interest on such securities shall not subject
foreign subscribers to the United States taxation or tax reporting requirements.
The Escrow Agent will incur no liability for any loss suffered so long as the
Escrow Agents follows such instructions, except for losses due to its lack of
good faith, negligence or willful misconduct.
Interest earned on funds attributable to accepted subscriptions while held
in this escrow shall be allocated among subscribers in proportion to the amounts
of their respective subscriptions and the lengths of time their subscriptions
were held in escrow.
5. (a) During the Ongoing Offering Period, the Escrow Agent shall
segregate Proceeds received according to the dates the Selling Agents receive
the funds. Proceeds shall be grouped in Monthly Groups. Proceeds received
after the fifth business day prior to the end of a calendar month (including the
last business day of the month) through and including the fifth business day
prior to the end of the next succeeding calendar month ("End Date") shall
comprise one Monthly Group. For each Monthly Group containing subscriptions
which have been accepted by the Managing Owner, the Escrow Agent shall pay to,
credit to the account of, or otherwise transfer to the Customer Account, or as
otherwise directed by the Managing Owner, Proceeds comprising the Monthly Group
pertaining to accepted subscriptions and interest earned on such Proceeds, on
the first business day of the calendar month following the applicable End Date.
(b) Other than as set forth in the second sentence of this Paragraph 5(b),
the Trust shall have neither title to nor interest in the funds on deposit, and
such funds shall under no circumstances be subject to the liabilities or
indebtedness of the Trust. However, Proceeds comprising each Monthly Group are
deemed released from escrow and become assets of the Trust as of the last
business day of the calendar month in which the applicable End Date occurs.
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(c) Interest earned on an accepted subscription will be paid to the
Trust's Customer Account, or as otherwise directed by CISI, and invested in the
Trust, and subscribers will be issued additional Units reflecting each
subscriber's attributable share of such interest. To enable CISI to determine
the number of additional Units issuable to each subscriber whose subscription
has been accepted, the Escrow Agent shall, within 3 business days before each
closing date, notify CISI the amount of interest that will be earned as of the
date Proceeds are transferred as described in (a) above on each subscriber's
subscription funds while held in the escrow account; provided that no interest
shall accrue with respect to funds included in the current Monthly Group
deposited on or after the second day following the applicable End Date.
6. At any time prior to the release of a subscriber's funds from this
escrow, the Managing Owner may notify the Escrow Agent that a subscription, or a
part thereof, has not been accepted and the Managing Owner may direct the Escrow
Agent to return as soon thereafter as may be practicable (in no event later than
5 business days) any such funds, or the appropriate portion thereof, held in
this escrow for the benefit of such subscriber, with interest, directly to such
subscriber.
If subscription funds (and interest earned thereon, if any) shall be
returned to subscribers, due to rejection of subscriptions or the non-occurrence
of the Initial Closing Date, the Escrow Agent shall do so in the same manner
through which (I.E., by check or wire) and to the same source from which (I.E.,
a subscriber or an applicable Selling Agent for credit to the account of a
subscriber) subscription funds were received.
7. The Escrow Agent shall not be liable for any action taken or omitted
in good faith in accordance with the advice of its counsel except for its own
negligence or willful misconduct. The Escrow Agent shall not be responsible for
any loss of subscriptions funds resulting from the investment thereof in
accordance with this Agreement.
8. CISI agrees to pay the Escrow Agent reasonable compensation for the
services to be rendered hereunder, as described in the Schedule I attached
hereto, and pay or reimburse the Escrow Agent upon request for reasonable
attorney's fees, incurred by it as a result of events not contemplated by this
Agreement but otherwise in connection with this Agreement. CISI hereby agrees
to indemnify and save harmless the Escrow Agent from all losses, costs and
expenses, including attorney fees which may be incurred by it as a result of its
acceptance of its appointment as Escrow Agent or arising from the performance of
its duties hereunder, unless the Escrow Agent shall have been adjudged to have
acted in bad faith or to have been negligent, and such indemnification shall
survive its resignation or removal, or the termination of this Agreement until
extinguished by any applicable statute of limitation.
9. The Managing Owner may remove the Escrow Agent at any time (with or
without cause) by giving at least 15 days written notice thereof. Within 10
days after receiving such notice, the Managing Owner shall appoint a successor
escrow agent at which time the Escrow Agent shall either distribute the funds
held in the Escrow Account, its fees, costs and expenses or other obligations
owed to the Escrow Agent having been paid by CISI, as directed by the
instructions of the Managing Owner or hold such funds, pending distribution,
until all such fees, costs and expenses or other obligations are paid by the
CISI. If a successor escrow agent has not been appointed or has
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not accepted such appointment by the end of the 10-day period, the Escrow Agent
may appeal to a court of competent jurisdiction for the appointment of a
successor escrow agent, or for other appropriate relief and the costs, expenses
and reasonable attorneys fees which the Escrow Agent incurs in connection with
such a proceeding shall be paid by the Trust.
10. The Trust and the Managing Owner warrant and agree to the Escrow Agent
that, unless otherwise expressly set forth in this Agreement: there is no
security interest in the subscription funds or any part thereof; no financing
statement under the Uniform Commercial Code is on file in any jurisdiction
claiming a security interest in or describing (whether specifically or
generally) the subscription funds or any part thereof; and you shall have no
responsibility at any time to ascertain whether or not any security interest
exists in the subscription funds or any part thereof or to file any financing
statement under the Uniform Commercial Code with respect to the subscription
funds or any part thereof.
11. The Escrow Agent's duties and responsibilities shall be limited to
those expressly set forth in this Agreement, and the Escrow Agent shall not be
subject to, nor obliged to recognize, any other agreement between, or direction
or instruction of, any and all of the parties hereto; provided, however, this
Agreement may be amended at any time by an instrument in writing signed by all
the parties.
12. If any property subject hereto is at any time attached, subject to
garnishment 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 in any of such events, the Escrow Agent is authorized to rely upon
and comply with any such order, writ, judgment or decree, which it is advised by
legal counsel of its own choosing is binding upon it, and if it complies with
any such order, writ, judgment or decree, it shall not be liable to any of the
parties hereto or any other person, firm, or corporation by reason of such
compliance, even though such order, writ, judgment or decree may be subsequently
reversed, modified, annulled, set aside or vacated.
13. This Agreement shall be construed, enforced, and administered in
accordance with the laws of the State of Illinois, without regard to the
principles of conflicts of laws thereof.
14. The Escrow Agent may resign by giving 30 days' prior written notice
delivered to the Managing Owner, and thereafter shall deliver all remaining
deposits in this escrow to a successor escrow agent acceptable to the Managing
Owner which acceptance shall be evidenced by their joint written and signed
order. If no such order is received by the Escrow Agent within 30 days after
delivery of such notice, it is unconditionally and irrevocably authorized and
empowered to send any and all funds deposited hereunder by registered mail to
the respective subscribers thereof.
15. In the event funds transfer instructions are given (other than in
writing at the time of execution of this Agreement), 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 II hereto, and the Escrow Agent may rely upon the confirmations of
anyone
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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. The parties acknowledge that such security
procedure is commercially reasonable.
16. Any notice which a party is required or desires to give hereunder
shall be in writing and may be given by mailing or delivering the same to the
address of the party to receive notice:
if the Escrow Agent, addressed to:
The First National Bank of Chicago
Escrow Services, Suite 0673
One First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxx
if to the Trust, addressed to:
c/o CIS Investments, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
if to CISI, addressed to:
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
if to CIS, addressed to:
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
or to such other address as said party may substitute therefor by written
notification to the other parties. For all purposes hereof, any notice shall be
effective only when actually received.
17. This Agreement shall terminate upon the termination of the offering of
Units or as otherwise provided by written instruction from the Managing Owner to
the Escrow Agent.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the day and year first above written.
THE FIRST NATIONAL BANK
OF CHICAGO, as Escrow Agent
By:__________________________________
Xxxx X. Xxxxxxxxxxx
Vice President
JWH GLOBAL TRUST
By: CIS Investments, Inc.,
Managing Owner
By:__________________________________
Xxxxxxx X. Xxxxxxxx
Vice President
CIS INVESTMENTS, INC.
By:_________________________________
Xxxxxxx X. Xxxxxxxx
Vice President
CARGILL INVESTOR SERVICE, INC.
By:_________________________________
Xxxxxxx X. Xxxxxxxx
Vice President
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SCHEDULE I
FEE SCHEDULE
ACCEPTANCE FEE: $1,750.00
Fee for services in connection with the initial set-up of the subscription
escrow account. This fee covers examination and execution of an escrow
agreement and all required documentation, and all initial account set-up
including the Escrow Agent's legal fees.
ANNUAL ADMINISTRATION FEE:
Per subscription participant account $6.40
Fee for ongoing administration of the subscription escrow account.
Participants are defined on a monthly basis with each monthly subscription
period being unique. An individual subscribing in more than one month will
be counted in each month. Should an individual add to a subscription
amount in a given month, there will be no additional charge.
This fee includes all investments specified in the Escrow Agreement,
required participant recordkeeping, remittance of checks, production of
1099s, and postage.
EXCEPTION PROCESSING: $8.50
Fee for processing deposits to be included in the current Monthly Group
made after the fifth business day prior to the end of a calendar month
(including the last business day of the month).
WIRE TRANSFERS: $20.00
Wire transfers to the fund participants will be charged additionally at
$20.00 each transfer. Wire transfers to the Trust, the Managing Owner or
Lead Selling Agent will be at no charge.
MESSENGER FEE: $6.00
Fee for same-day intrabank document transfers.
ADDITIONAL SERVICES AND EXPENSES:
Any out-of-pocket expenses incurred by the Escrow Agent (E.G., responding
to unusual audit request) will be assessed in amounts commensurate with the
services rendered, itemized and billed in addition to the foregoing fees.
No charge will be incurred for termination of account.
The fees above are subject to equitable adjustments as reasonably warranted
by changes in laws, procedures, or cost of doing business upon prior
written notice to the parties.
SCHEDULE II
TELEPHONE NUMBER(S) FOR CALL-BACKS AND
PERSON(S) DESIGNATED TO CONFIRM FUNDS TRANSFER INSTRUCTIONS
JWH GLOBAL TRUST:
CIS Investments, Inc. as Managing Owner
NAME TELEPHONE NUMBER
1. Xxxxxxxx Xxxxxxxx (000) 000-0000
2. Xxx Xxxxx (000) 000-0000
3. Xxxxxxx Xxxxxxxx (000) 000-0000
CARGILL INVESTOR SERVICES, INC.:
NAME TELEPHONE NUMBER
1. Xxxxxxxx Xxxxxxxx (000) 000-0000
2. Xxx Xxxxx (000) 000-0000
3. Xxxxxxx Xxxxxxxx (000) 000-0000
THE FIRST NATIONAL BANK OF CHICAGO, N.A.:
NAME TELEPHONE NUMBER
1. Xxxxx Xxxxx (000) 000-0000
2. Xxx Xxxxxx (000) 000-0000
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