Exhibit 1.18
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is entered into as of the 8th day of
November, 2001, by and between The Price Fund I, L.P., a Delaware limited
partnership, with its principal office in Chicago, Illinois (the "Fund"), and
LaSalle Bank National Association, a national banking association duly organized
under the laws of the United States of America, with its principal office in
Chicago, Illinois (the "Escrow Agent").
RECITALS
A. The Fund is a Delaware limited partnership whose general partner is
Price Asset Management, Inc., an Illinois corporation (the "General Partner").
B. The Fund proposes a public offering of 50,000 units of limited
partnership interest in the Fund.
C. The Fund desires that the Escrow Agent hold subscription payments in
escrow during the Initial Subscription Period, and the Escrow Agent is willing
to do so, upon the terms and conditions set forth in this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties agree as follows:
1. Definition of Terms. Capitalized terms used but not otherwise defined
herein shall have the meanings set forth in the Prospectus (defined below).
Whenever used herein, the following terms shall have the meanings ascribed
below:
(a) "Agreement" means this Escrow Agreement, as it may be amended from
time to time.
(b) "Escrow" means the escrow account, #62-8795-40-3, into which
Subscription Payments will be deposited in accordance with this Agreement.
(c) "General Partner" means Price Asset Management, Inc., in its
capacity as the general partner of the Fund.
(d) "Initial Closing Date" means the General Partner notifies the
Escrow Agent that Subscriptions Agreements for a total of at least 1,000
Units have been accepted.
(e) "Initial Offering Period" means the initial period for the
offering of the Units, which is scheduled to commence on the effective date
of the Registration Statement and will continue until the earlier to occur
of December 31, 2002 or the Initial Closing Date.
(f) "Person" means any natural person, partnership, corporation,
association or other legal entity.
(g) "Prospectus" means the prospectus contained in the Registration
Statement.
(h) "Registration Statement" means the registration statement on Form
S-1 filed by the Fund with the Securities Exchange Commission pursuant to
which the Fund will offer the Units for sale, as such registration
statement may be amended from time to time.
(i) "Subscriber" means any person who subscribes for Units.
(j) "Subscription Agreement" means (i) the Subscription Agreement and
Power of Attorney pursuant to which a Subscriber initially subscribes for
Units during the Initial Offering Period.
(k) "Subscription Payment" means the $1,000 payment made by a
Subscriber during the Initial Offering Period for each of his Units.
(l) "Unit" means each unit of limited partnership interest being
offered in the Fund. (Subject to approval by the General Partner, a Limited
Partner may subscribe for fractional Units.)
2. Escrow.
(a) During the Initial Offering Period, the Escrow Agent shall
promptly deposit into Escrow all Subscription Payments that it receives.
Escrow Agent will accept Subscription Payments by check or wire transfer.
(b) The Escrow Agent shall maintain current records identifying (i)
the name of each Subscriber from whom it receives a Subscription Payment,
(ii) the amount of such Subscription Payment, and (iii) the date of receipt
of such Subscription Payment.
(c) During the period held in Escrow, all Subscription Payments shall
remain the property of the Subscribers and shall not be subject to any lien
or charges by the Escrow Agent or creditors' claims against the Fund.
(d) The Escrow Agent agrees to (i) provide the Fund with monthly
statements showing all activity in the Escrow, including deposits into and
disbursements from the Escrow, (ii) prepare for each Subscriber and send to
each Subscriber and to the Internal Revenue Service (the "IRS"), by the
applicable deadline imposed by the federal income tax laws, the IRS Form
1099 relating to any income earned by each Subscriber on his
-2-
Subscription Proceeds during the time such proceeds are held in Escrow, and
(iii) furnish promptly copies of records pertaining to the Escrow to the
Fund, as applicable, upon request. Payment of any interest earned on the
funds invested in the Escrow may be subject to backup withholding penalties
unless a properly completed IRS Form W8 or W9 certification is submitted to
the Escrow Agent.
3. Investment of Subscription Proceeds. The Escrow Agent shall invest
Subscription Payments in a LaSalle Bank Time Deposit, Open Account. Any interest
earned from such investments shall accrue to the benefit of the Subscribers, and
shall be distributed by the Escrow Agent only in accordance with the terms of
this Agreement.
4. Distributions from Escrow. The Escrow Agent shall distribute funds held
in Escrow as follows:
(a) During both the Initial Offering Period, the General Partner shall
promptly notify in writing the Escrow Agent of the rejection or proper
revocation of any Subscriber's Subscription Agreement. Upon receipt of such
notice, the Escrow Agent shall promptly return to the Subscriber his
Subscription Payment and any interest earned thereon.
(b) The General Partner shall notify in writing the Escrow Agent when
Subscription Agreements for at least 1,000 Units have been accepted (the
"Initial Closing Date"). Upon receipt of such notice, the Escrow Agent
shall promptly pay and deliver to the Fund the Subscription Payments with
respect to such accepted Subscription Agreements, and pay any interest
earned thereon to the Subscribers.
(c) If the Escrow Agent has not received written notice of the Initial
Closing Date by the close of business on December 31, 2002 (unless extended
by amendment of this Agreement), the Escrow Agent shall promptly return to
the Subscribers whose Subscription Payments are then being held in the
Escrow the amount of their Subscription Payments, together with any
interest earned thereon.
(d) Upon written notice and instructions from the General Partner that
the offering of Units has been terminated, the Escrow Agent shall promptly
refund to each subscriber his Subscription Proceeds held in Escrow together
with any interest income earned thereon during the period that the Escrow
Agent held such Subscription Proceeds. Payment of any interest earned on
the funds invested in the Escrow may be subject to backup withholding
penalties unless a properly completed IRS Form W8 or W9 certification is
submitted to the Escrow Agent.
(e) If the Escrow Agent has not received written notice from the
General Partner concerning the distribution of Subscription Proceeds held
in Escrow as provided above, the Escrow Agent may request instructions from
the General Partner by registered mail or overnight courier, return receipt
requested, sent to the address of the Fund set forth on the
-3-
signature page or to such other address as the General Partner may advise
the Escrow Agent in writing. If the General Partner does not deliver
written instructions to the Escrow Agent within ten (10) business days
after the date that the Escrow Agent delivers such request, the Escrow
Agent may return all Subscription Proceeds held in Escrow, together with
any interest income earned thereon, to the Subscribers.
5. Compensation. In consideration for its services as escrow agent, the
Escrow Agent shall be entitled to receive the compensation set forth in Exhibit
A hereto, as well as the reimbursement of all reasonable out-of-pocket costs and
expenses actually incurred by the Escrow Agent in the performance of its duties
hereunder. The Fund shall pay such compensation and expenses.
6. Exculpation and Indemnification.
(a) The obligations and duties of the Escrow Agent are confined to
those specifically set forth in this Agreement. In the event that any of
the terms and provisions of any other agreement between any of the parties
hereto conflict or are inconsistent with any of the terms and provisions of
this Agreement, the terms and provisions of this Agreement shall govern and
control in all respects. The Escrow Agent shall not be subject to, nor be
under any obligation to ascertain or construe the terms and conditions of
any other instrument, whether or not now or hereafter deposited with or
delivered to the Escrow Agent or referred to in this Agreement, nor shall
the Escrow Agent be obligated to inquire as to the form, execution,
sufficiency, or validity of any such instrument nor to inquire as to the
identity, authority, or rights of the person or persons executing or
delivering same.
(b) The Escrow Agent shall not be personally liable for any act which
it may do or omit to do hereunder in good faith and in the exercise of its
own best judgment. Any action taken or omitted by the Escrow Agent pursuant
to the advice of its attorneys shall be deemed conclusively to have been
performed or omitted in good faith by the Escrow Agent.
(c) In the event the Escrow Agent is notified of any dispute,
disagreement or legal action between the Fund and any third party relating
to or arising in connection with the escrow, the Escrow Fund, or the
performance of the Escrow Agent's duties under this Agreement, the Escrow
Agent will not be required to determine the controversy or to take any
action regarding it. The Escrow Agent may hold all documents and any funds
specifically involved in or which are the subject of any dispute,
disagreement or legal action, and may wait for settlement of any such
controversy by final appropriate legal proceedings. In such event, the
Escrow Agent will not be liable for interest or damage.
(d) The Fund hereby agrees to indemnify and hold the Escrow Agent
harmless from and against all costs, damages, judgments, attorney's fees
(whether such attorneys
-4-
shall be regularly retained or specifically employed), expenses,
obligations and liabilities of every kind and nature which the Escrow Agent
may incur, sustain, or be required to pay in connection with or arising out
of this Agreement, unless the aforementioned results from the Escrow
Agent's gross negligence or willful misconduct, and to pay the Escrow Agent
on demand the amount of all such costs, damages, judgments, attorney's
fees, expenses, obligations, and liabilities. The foregoing indemnities in
this paragraph shall survive the resignation or substitution of the Escrow
Agent or the termination of this Agreement.
7. Resignation. The Escrow Agent may resign at any time upon giving the
Fund hereto 10 days' prior written notice to that effect. In such event, the
successor shall be such person, firm or corporation as shall be selected by the
Fund. It is understood and agreed that such resignation shall not be effective
until a successor agrees to act hereunder. Escrow Agent shall be paid any
outstanding fees and expenses prior to transferring the Escrow to a successor
escrow agent.
8. Notices. Unless a specific form of delivery is required by other
provisions of this Agreement, notices, instructions or other communications
required or permitted to be given hereunder will be deemed properly given or
made when personally delivered or when sent by facsimile or by United States
mail, postage prepaid, to the addresses as set forth on the signature page or to
such other address as either party may advise the other in writing.
9. Captions; Number and Gender. The captions of this Agreement are solely
for convenience of reference and are not intended to be relied upon in
construing any provisions hereof. All defined terms in this Agreement shall
include both the singular and the plural, as the context may require, and all
pronouns shall be deemed to refer to the masculine, feminine or neuter, and the
singular or plural, as the identity of the Person referred to may require.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Illinois, without regard to
the provisions thereof respecting the conflict of laws.
11. Successors and Assigns. This Agreement shall be binding upon and will
inure to the benefit of the parties hereto and their respect administrators,
successors and assigns.
12. Amendments. This Agreement may only be supplemented, altered, amended
or modified by writing signed by each of the Fund and the Escrow Agent.
[SIGNATURE PAGE TO FOLLOW]
-5-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE FUND:
Address For Notice: PRICE FUND I, L.P.
The Price Fund I, L.P.
c/o Price Asset Management By: Price Asset Management, Inc.
Suite 1340A General Partner
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: President By: /s/ Xxxxxx Xxxxxx Xxxxx, III
Telephone: (000) 000-0000 -------------------------------------
Facsimile: (000) 000-0000 Xxxxxx Xxxxxx Xxxxx, III
Address for Notice: ESCROW AGENT:
LaSalle Bank National Association LASALLE BANK NATIONAL ASSOCIATION
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000 By: X.X. Xxxxxxx
Facsimile (000) 000-0000 ----------------------------------
Name: X.X. Xxxxxxx
Title: First Vice President
EXHIBIT A
ESCROW AGENT
SCHEDULE OF FEES
Acceptance Fee: $ 500.00
Administration Fee: $2,500.00*
The Acceptance and Administration Fees are due upon execution of the Escrow
Agreement.
*Should the Escrow Account remain open after an initial twelve-month period, the
Administration Fee will be prorated on a six-month basis.
Any investment transaction not in a money market fund or a LaSalle Bank Time
Deposit, Open Account will incur a $100.00 per transaction fee. The parties to
the agreement understand and agree that LaSalle Bank may receive certain revenue
in the form of l2b-1 or shareholder servicing fees on certain mutual fund
investments. Such fees are disclosed in the prospectus for any such fund. These
fees are paid to LaSalle Bank directly from the mutual fund provider and are not
fees paid by the parties to the Agreement.
All out-of-pocket expenses will be billed at our cost. Out-of-pocket expenses
include, but are not limited to, professional services (e.g. legal or
accounting), travel expenses, telephone and facsimile transmission costs,
postage (including express mail and overnight delivery charges), and copying
charges.
AMENDMENT
THIS AMENDMENT (this "Amendment") to ESCROW AGREEMENT ("Current Agreement") is
entered into as of November 12, 2002, by and between The Price Fund I, L.P., a
Delaware limited partnership (the "Fund"), and LaSalle Bank National
Association, a national banking association duly organized under the laws of the
United States of America (the "Escrow Agent"). All capitalized terms used but
not defined in this Amendment shall have the meanings ascribed to them in the
Current Agreement.
RECITALS
A. The Fund and the Escrow Agent entered into the Current Agreement on
November 8, 2001.
B. The Fund and the Escrow Agent desire to amend the Current Agreement to
extend the Initial Offering Period to December 31, 2003.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties agree as follows:
1. Amendments.
(a) The Current Agreement is amended by replacing Section 1(e) with
the following:
"Initial Offering Period" means the initial period for the
offering of the Units, which is scheduled to commence on the effective
date of the Registration Statement and will continue until the earlier
to occur of December 31, 2003 or the Initial closing date.
(b) The Current Agreement is amended by replacing Section 4(c) with
the following:
"If the Escrow Agent has not received written notice of the
Initial Closing Date by the close of business on December 31, 2003
Unless extended by amendment of this Agreement), the Escrow Agent
shall promptly return to the Subscribers whose Subscription Payments
are then being held in the Escrow the amount of their Subscription
Payments, together with any interest earned thereon."
2. Current Agreement Remains in Effect. Except as amended and modified by
this Amendment, the Current Agreement remains in full force and effect and the
Fund hereby ratifies, adopts and confirms its representations, warranties,
agreements and covenants contained in, and obligations and liabilities under,
the Current Agreement.
3. Headings. Headings used in this Amendment are for convenience of
reference only, and shall not affect the construction of this Amendment.
4. Counterparts. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when executed and delivered, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same Amendment.
5. Governing Law. This Amendment shall be a contract made under and
governed by the internal laws of the State of Illinois. Wherever possible, each
provision of this Amendment shall be interpreted in such manner as to be
effective and valid under applicable laws, but if any provision of this
Amendment shall be prohibited by or invalid under such laws, such provisions
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Amendment.
6. Successors. This Amendment shall be binding upon and shall inure to the
benefit of the Fund and the Escrow Agent and their respective successors and
assigns.
[signature page attached]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
THE FUND:
THE PRICE FUND I, L.P.
By: Price Asset Management, Inc.
General Partner
By: /s/ Xxxxxx Xxxxxx Xxxxx, III
------------------------------
Xxxxxx Xxxxxx Xxxxx, III
ESCROW AGENT:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ X. X. Xxxxxxx
------------------------------
Name: X. X. Xxxxxxx
Title:First Vice President
