FORM OF ESCROW AGREEMENT
EXHIBIT
10.1
FORM
OF
ESCROW AGREEMENT
ESCROW AGREEMENT
This
Escrow Agreement is dated and effective as of the ___ day of ___, 200_ and
is
made by and among ICON Securities Corp. (the “Dealer-Manager”), ICON Equipment
and Corporate Infrastructure Fund Fourteen, L.P., a Delaware limited partnership
(the “Partnership”), ICON GP 14, LLC, a Delaware limited liability company and
the general partner of the Partnership (the “General Partner”) and Deutsche Bank
Trust Company Americas, a New York Banking Corporation and a wholly-owned
subsidiary of Deutsche Bank AG (the “Escrow Agent”).
RECITALS
A. The
Partnership proposes to offer and sell up to 400,000 limited partnership
interests (the “Interests”) to investors at $1,000 per Interest pursuant to a
registration statement (the “Registration Statement”) filed with, and declared
effective by, the United States Securities and Exchange Commission (the “SEC”).
B. The
Partnership has agreed that the subscription price paid in cash by subscribers
will be refunded to subscribers if less than 1,200 Interests (the “Minimum
Offering”) have been sold and payment therefor received by the earlier to occur
of the date which is (1) the first anniversary of the date on which the
Offering Period (as defined in the Registration Statement) commenced or (2)
any
earlier date on which the General Partner may elect to terminate the Offering
(as defined in Partnership’s Prospectus) (such date shall be referred to herein
as the “Escrow Termination Date”).
C. The
Partnership desires to establish an escrow account (the “Escrow Account”) with
Escrow Agent for subscription payments pending receipt of aggregate
subscriptions for not less than One Thousand Two Hundred (1,200) Interests
($1,200,000 of subscriptions) (the time at which the escrow established by
this
Agreement as to subscriptions from residents of all States other than
Pennsylvania may be released) or Twenty Thousand (20,000) Interests ($20,000,000
of subscriptions) have been received (the time at which the escrow established
by this Agreement as to subscriptions from residents of all States, including
Pennsylvania may be released).
D. The
Escrow Agent is willing to serve as Escrow Agent upon the terms and conditions
hereinafter set forth.
NOW,
THEREFORE,
in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties, the
parties covenant and agree as follows:
1. Deposit
with Escrow Agent. The Escrow Agent agrees that it will, from time to time,
accept subscription payments for Interests (the “Escrow Deposit”) received by it
from the General Partner or the Dealer-Manager. Until such time as (1) at
least 1,200 Is have been sold, all checks for such subscription payments
received from all subscribers shall be made payable to “DBTCA
as
Escrow Agent for ICON Fund 14”
and
(2) at least 20,000 Interests have been sold, all checks for subscription
payments from residents of the Commonwealth of Pennsylvania shall be made
payable to “DBTCA as Escrow Agent for ICON Fund 14”. Subscription Agreements for
the Interests received by the General Partner shall be reviewed for accuracy
by
the General Partner and, immediately thereafter, the General Partner shall
deliver to Escrow Agent information describing the name, address and Federal
Tax
Identification Number of the subscriber.
2. Investment
of the Escrow Deposit.
2.1
The
Escrow Agent shall, upon receipt of the checks remitted to it, deposit all
of
the Escrow Deposit in the Escrow Account. The Escrow Account shall be invested
in (a) such obligations issued or guaranteed by the United States
Government or any agency thereof, (b) such bank accounts, (c) such
short-term certificates of deposit issued by a bank, or (d) such bank
money-market accounts, as shall be designated in writing from time to time
by
the Partnership, such writing to specify the particular investment. Periodic
statements will be provided to the Dealer-Manager and the Partnership reflecting
transactions executed on behalf of the Escrow Account. The Dealer-Manager and
the Partnership will receive a monthly statement of transaction details upon
completion of any securities transaction in the Escrow Account without any
additional cost.
2.2
The
Escrow Agent shall have no obligation to invest or reinvest the Escrow Deposit
if deposited with the Escrow Agent after noon (E.S.T./E.D.T.) on such day of
deposit. Instructions received after noon (E.S.T./E.D.T.) will be treated as
if
received on the following business day. The Escrow Agent shall have no
responsibility for any investment losses resulting for the investment,
reinvestment or liquidation of the Escrow Deposit. Any interest or other income
receive don such investment and reinvestment of the Escrow Deposit shall become
part of the aggregate Escrow Deposit and any losses incurred on such investment
and reinvestment of the Escrow Deposit shall be debited against the Escrow
Deposit. If a selection is not made and a written direction is not given to
the
Escrow Agent, the Escrow Deposit shall remain uninvested with no liability
for
interest thereon. It is agreed and understood that the entity serving as the
Escrow Agent may earn fees associated with the investments outlined above in
accordance with the terms of such investments. Notwithstanding the foregoing,
the Escrow Agent shall have the power to sell or liquidate the foregoing
investments whenever the Escrow Agent shall be required to release all or any
portion of the Escrow Deposit pursuant to Section 3 hereof. In no event shall
the Escrow Agent be deemed an investment manager or adviser in respect of any
selection of investments hereunder. It is understood and agreed that the Escrow
Agent or its affiliates are permitted to receive additional compensation that
could be deemed to be in the Escrow Agent’s economic self-interest for (i)
serving as investment adviser, administrator, shareholder servicing agent,
custodian or sub-custodian with respect to certain of the investments, (ii)
using affiliates to effect transactions in certain investments and (iii)
effecting transactions in investments.
3. Distribution
of the Escrow Deposit.
The
Escrow Agent shall distribute the Escrow Deposit as set forth in this
Section 3, and the Escrow Agent’s obligations (other than those of
Sections 3.3 and 5 hereof which, by their nature, must survive this
Agreement) shall terminate upon such distributions, and the Escrow Agent shall
be irrevocably released and discharged from any and all further responsibility
or liability with respect to this Agreement.
3.1(a)
At
any time following sale of at least 1,200 Interests (exclusive
of
subscriptions from residents of the Commonwealth of Pennsylvania), the General
Partner shall (1) certify (in the form of Schedule A attached hereto) that
the sale of such Interests has satisfied the Minimum Offering required for
the
Partnership to break escrow as to the subscription payments of residents of
states other than the Commonwealth of Pennsylvania and (2) stipulate the
date on which the Initial Closing Date and the release of the Escrow Deposit
with respect to such investors and all related earnings thereon to
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the
Partnership shall occur. Upon collection by the Escrow Agent of good funds
for
such subscription payments, the Escrow Agent shall make such distributions
on
the Initial Closing Date. Certification by an officer of the General Partner
as
provided in Schedule D hereto shall constitute sufficient evidence for the
purposes of this Section 3.1(a) that such events have occurred.
(b) At
any time following sale of at least 20,000 Interests (inclusive of subscriptions
by residents of all States including
subscriptions from residents of the Commonwealth of Pennsylvania), the General
Partner shall (a) certify (in the form of Schedule B attached hereto) that
the sale of such Interests has satisfied the Minimum Offering required for
the
Partnership to break escrow as to all subscription payments (including those
from residents of the Commonwealth of Pennsylvania) and (b) stipulate the
date on which the next Closing Date of the Partnership and the release of the
Escrow Deposit then being held on behalf of all investors and all related
earnings thereon (including, without limitation, residents of the Commonwealth
of Pennsylvania) to the Partnership shall occur. Certification by an officer
of
the General Partner as provided in Schedule D hereto shall constitute sufficient
evidence for the purposes of this Section 3.1 that such events have
occurred.
3.2
After
satisfaction of the conditions of Section 3.1(a) above as to residents of
all states other than residents of the Commonwealth of Pennsylvania, all checks
received that are made payable to the Escrow Agent, shall, upon receipt by
Escrow Agent, be endorsed (without recourse to Escrow Agent) for deposit into
such accounts as directed by the Partnership. The Escrow Agent shall have no
duty to solicit any payments which may be due it hereunder. After satisfaction
of the conditions of Section 3.1(b) above as to residents of all states
including residents of the Commonwealth of Pennsylvania, all checks received
that are made payable to the Escrow Agent, shall, upon receipt by Escrow Agent,
be endorsed (without recourse to Escrow Agent) for deposit into such accounts
as
directed by the Partnership.
3.3
If
any Escrow Deposit does not become deliverable to the Partnership pursuant
to
Section 3.1 above on or prior to the Escrow Termination Date, the Escrow
Agent shall return such Escrow Deposit to the applicable subscribers in an
amount equal to the subscription amount theretofore paid by each of them
together with interest earned thereon. In the event that (a) rescission of
an individual subscription is required to be offered to a subscriber under
provisions of applicable state law or (b) a subscription for a resident of
a state may only be held in escrow for a shorter period of time than provided
in
the preceding sentence under provisions of applicable state law, then the Escrow
Agent shall promptly, following receipt of such subscriber’s duly executed
request for rescission (in the case of rescission) or the General Partner’s
direction to release such subscription (in the case of expiration of an
applicable state statutory maximum escrow period), return such subscriber’s
Escrow Deposit to him in an amount equal to the subscription amount theretofore
paid by him together with interest earned thereon. For purposes of the preceding
sentence, rescission must be offered to each Pennsylvania subscriber for whom
an
Escrow Deposit is held by the Escrow Agent at the end of the 120-day period
which began with the Escrow Agent’s receipt of his or her subscription payment.
If such rescission offer is not accepted, such Escrow Deposit may continue
to be
held for one or more successive 120-day periods at the end of each of which
rescission must again be offered to each such subscriber.
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In
no
event shall any Escrow Deposit be held in escrow for more than one year before
either being (a) released to the Partnership (upon a closing pursuant to
Section 3.1 and 3.2) or (b) returned to the applicable subscriber (in
the event such Escrow Deposit shall be returned to the applicable subscriber
for
whom it is being held pursuant to Section 3.3). The Escrow Agent will not
be required to communicate with any subscriber(s). All inquiries on behalf
of
the subscriber(s) shall be coordinated through the Partnership.
4. Distribution
of Interest.
If the
Escrow Deposit become deliverable to the Partnership pursuant to
Section 3.1 or to the subscribers pursuant to Section 3.3 above, the
General Partner shall compute the pro rata share of the investment earnings
of
each Escrow Deposit for the distribution in accordance with such computations.
Each subscriber’s pro rata share of investment earnings shall be computed as
follows:
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Investment
Earnings multiplied by
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(individual
subscription amount multiplied by the number of days held)
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(total
subscription amount multiplied by the number of days
held)
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Such
pro
rata share of investment earnings shall be distributed to each subscriber by
the
Partnership upon admission of the subscriber as a member of the Partnership
or
upon return of his/her subscription amounts.
5. Duties
and Liability of Escrow Agent.
5.1
The
General Partner and the Partnership each represent that its correct Taxpayer
Identification Number (“TIN”) assigned by the Internal Revenue Service or any
other taxing authority is set forth in Schedule C. Upon execution of this
Agreement, each party shall provide the Escrow Agent with a fully executed
Internal Revenue Service Form W-8 or W-9. Any interest or other income earned
under the Escrow Account shall be allocated and paid as provided herein and
reported by the recipient to the Internal Revenue Service as having been so
allocated and paid. Notwithstanding such written directions, the Escrow Agent
shall report and, if 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 Account shall be
retained in the Escrow Account 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 General Partner and the
Partnership. In addition, Escrow Agent shall withhold any taxes it deems
appropriate and shall remit such taxes to the appropriate authorities.
5.2
The
Escrow Agent shall have the right to liquidate any investments held in the
Escrow Account in order to provide funds necessary to make required payments
under this Agreement. The Escrow Agent, in its capacity as escrow agent
hereunder, shall not have any liability for any loss sustained as a result
of
any investment made pursuant to the Instructions of the parties hereto or as
a
result of any liquidation of any investment
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prior
to
its maturity or for the failure of the parties to give the Escrow Agent
instructions to invest or reinvest the Escrow Account or any earnings thereon.
Any such investment of the Escrow Account shall be made in compliance with
Rule
15c2-4 of the Securities Exchange Act of 1934, as amended.
5.3
Any
corporation into which the Escrow Agent in its individual capacity may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Escrow Agent in its
individual capacity shall be a party, or any corporation to which substantially
all the corporate trust business of the Escrow Agent in its individual capacity
may be transferred, shall be the Escrow Agent under this Agreement without
further act of the parties hereto.
5.4
Notwithstanding anything in this Agreement to the contrary, in no event shall
the Escrow Agent be liable for special, indirect or consequential losses or
damages of any kind whatsoever (including, but not limited to, lost
profits),except for any losses or damages caused by the gross negligence or
willful misconduct of the Escrow Agent.
5.5
The
duties and obligations of the Escrow Agent shall be determined solely by the
express provisions of this Agreement and shall be limited to the performance
of
such duties and obligations as are specifically set forth herein.
5.6
In
performing any of its duties under this Agreement, or upon the claimed failure
to perform its duties hereunder, Escrow Agent shall not be liable to anyone
for
any damages, losses or expenses which it may incur as a result of the Escrow
Agent so acting, or failing to act; provided, however, that the Escrow Agent
shall be liable for damages arising out of its willful misconduct or gross
negligence under this Agreement, as determined by a court of competent
jurisdiction. Accordingly, Escrow Agent shall not incur any such liability
with
respect to (i) any action taken or omitted to be taken in good faith upon
advice of its counsel or counsel for the Partnership given with respect to
any
questions relating to the duties and responsibilities of the Escrow Agent
hereunder or (ii) any action taken or omitted to be taken in reliance upon
any document, including any written notice or instructions provided for in
this
Agreement, not only as to its due execution and to the validity and
effectiveness of its provisions but also as to the truth and accuracy of any
information contained therein, which the Escrow Agent shall in good faith
believe to be genuine, to have been signed or presented by proper person or
persons and to conform with the provision of this Agreement. 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 such 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.
5.7
Each
of the Partnership, the General Partner and Dealer-Manager hereby respectively
agree to indemnify and hold harmless the Escrow Agent, and its directors,
officers, agents and employees (the “indemnitees”), against any and all losses,
claims, damages, liabilities and expenses, including, without limitation,
reasonable costs of investigation and counsel fees and disbursement which may
be
incurred by it resulting from any act or omission of the Partnership, the
General Partner or the Dealer-Manager; except, that if Escrow Agent shall be
found guilty of willful misconduct or gross negligence under this Agreement
by
any court of competent jurisdiction, then, in that
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event,
Escrow Agent shall bear all such losses, claims, damages and expenses. The
indemnity provided by this Section 5.7 shall survive the termination of
this Agreement.
5.8
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 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.
5.9
All
fund transfer instructions must be given in writing, whether by facsimile,
PDF
or otherwise, and the Escrow Agent is authorized to seek confirmation of such
instruction by the person or persons whose specimen signature is designated
on
Schedule D hereto.
5.10
It
is understood that the Escrow Agent and the beneficiary’s bank in any funds
transfer may rely solely upon any account numbers or similar identifying number
provided by either of the parties hereto to identify (a) the beneficiary,
(b) the beneficiary’s bank, or (c) an intermediary bank. The Escrow
Agent may apply any Escrow Deposit for any payment order it executes using
any
such identifying number, even where 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.
6. Uncollectible
Checks.
If any
checks or other instruments deposited in the Escrow Account prove uncollectible,
the Partnership shall promptly reimburse the Escrow Agent therefor upon request
and the Escrow Agent shall deliver the returned checks or other instruments
to
the Partnership.
7. Notices.
All
notices, requests, demands and other communication or deliveries required or
permitted to be given hereunder shall be in writing and shall be deemed to
have
been duly given if delivered personally, deposited with a guaranteed overnight
delivery service such as Fedex or deposited for mailing, first class, postage
prepaid, registered or certified mail, as follows:
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If
to the subscribers for Interests:
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To
their respective addresses
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as
specified in their Subscription Agreements.
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If
to the Partnership or the General Partner:
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ICON
Equipment and Corporate Infrastructure Fund Fourteen,
L.P.,
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a
Delaware limited partnership
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c/o
ICON GP 14, LLC, its General Partner
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000
0xx
Xxxxxx
- 0xx Xxxxx
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Xxx
Xxxx, XX 00000
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Attention:
Chief Executive Officer
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If
to the Dealer-Manager:
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ICON
Securities Corp.
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000
0xx
Xxxxxx
- 0xx
Xxxxx
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Xxx
Xxxx, XX 00000
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Attention:
President
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If
to the Escrow Agent:
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Deutsche
Bank Trust Company Americas
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00
Xxxx Xxxxxx - 00xx
Xxxxx
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Xxx
Xxxx, XX 00000
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Attention:
Manager, Escrow Team
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8. Resignation
or Removal of Escrow Agent.
The
Escrow Agent, or any successor to it hereafter appointed, may at any time resign
and be discharged from the duties and obligations created by this Agreement
by
giving at least thirty (30) days prior written notice to the Partnership
and the General Partner and accounting in full for all sums delivered to, and
held by, it and all earnings thereon while Escrow Agent hereunder to the
Partnership, the General Partner and any successor Escrow Agent. 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
Partnership and the General Partner. Any successor Escrow Agent shall deliver
to
the Escrow Agent, the Partnership and the General Partner 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 Partnership and the General Partner receive 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 designated by
the
Escrow Agent which 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.
9. General.
9.1
This
Escrow Agreement shall be governed by and be construed and enforced in
accordance with the laws of the State of New York, exclusive of conflicts of
laws provisions thereunder. The parties hereto consent to the jurisdiction
of
all courts of the State of New York and the venue of the courts located in
the
county in which the Escrow Agent is located to resolve all disputes pertaining
to this Agreement and any ancillary agreements entered into in furtherance
of
the purposes hereof and agree that such jurisdiction shall be exclusive. 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,
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floods,
strikes, equipment or transmission failure, or other causes reasonably beyond
its control.
9.2
The
section headings contained herein are for reference purposes only and shall
not
in any way affect the meaning or interpretation of this Agreement.
9.3
This
Agreement sets forth the entire agreement and understanding of the parties
in
respect to this Agreement and supersedes all prior agreements, arrangements
and
understandings relating to the subject matter hereof.
9.4
This
Agreement may be amended, modified, superseded or canceled, and any of the
terms
or conditions hereof may be waived, only by a written instrument executed by
each party hereto or, in the case of a waiver, by the party waiving compliance.
The failure of any party at any time or times to require performance of any
provision hereof shall in no manner affect the right at a later time to enforce
the same. No waiver of any party of any condition, or of the breach of any
term
contained in this Agreement, whether by conduct or otherwise, in any one or
more
instances shall be deemed to be construed as a further or continuing waiver
of
any such condition or breach or a waiver of any other condition or of the breach
of any other terms of this Agreement.
9.5
This
Agreement may be executed simultaneously 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. All signatures of the parties to this Agreement
may
be transmitted by facsimile, and such facsimile will, for all purposes, be
deemed to be the original signature of such party whose signature it reproduces,
and will be binding upon such party.
9.6
This
Agreement shall inure to the benefit of the parties hereto and their respective
successors and assigns.
9.7
The
Escrow Agent shall have the right to withhold an amount equal to the 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 this Agreement.
9.8
For
purposes of sending and receiving instructions or directions hereunder, all
such
instructions or directions shall be, and the Escrow Agent may conclusively
rely
upon such instructions or directions, delivered and executed by representatives
of the Partnership and the General Partner designated on Schedule D attached
hereto and made a part hereof (each such representative, an “Authorized
Person”), which such designation shall include specimen signatures of such
representatives, as such Schedule D may be updated from time to
time.
9.9
The
Partnership, the General Partner, and the Dealer-Manager each hereby agree
and
acknowledge that in accordance with Section 326 of the USA Patriot Act the
Escrow Agent, like all financial institutions and in order to fight the funding
of terrorism and money laundering, is required to obtain, verify, and record
information that identifies each person or legal entity that establishes a
relationship or opens an account with the Escrow Agent. The Partnership, the
General Partner, and the Dealer-Manager each agrees that it will provide the
Escrow Agent with such information as it may request in order for the Escrow
Agent to satisfy the requirements of the USA Patriot Act.
10. Representation
of the Partnership.
The
Partnership hereby acknowledges that the status of the Escrow Agent with respect
to the offering of the Interests is that of agent only for the limited purposes
herein set forth, and hereby agrees it will not represent or
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imply
that Escrow Agent, by serving as Escrow Agent hereunder or otherwise, has
investigated the desirability or advisability of an investment in the Interests,
or has approved, endorsed or passed upon the merits of the Interests or the
Offering, nor shall the Partnership use the name of Escrow Agent in any manner
whatsoever in connection with the offer or sale of the Interests, other than
by
acknowledgment that it has agreed to serve as Escrow Agent for the limited
purposes herein set forth.
11. Fees.
Upon
execution of this Agreement, the Partnership will pay the Escrow Agent Fee’s
outlined in Schedule E attached hereto. This section shall survive any
termination of this Agreement.
[Signatures
on following page]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
ICON
EQUIPMENT AND CORPORATE INFRASTRUCTURE FUND FOURTEEN, L.P.
a Delaware limited partnership
By: ICON GP 14, LLC, its General Partner
a Delaware limited partnership
By: ICON GP 14, LLC, its General Partner
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ICON
GP 14, LLC, as General Partner
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By:
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Name:
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Title:
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ICON
SECURITIES CORP., as Dealer-Manager
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By:
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DEUTSCHE
BANK TRUST COMPANY AMERICAS, as Escrow Agent
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By:
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Name:
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Title:
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