EXHIBIT 10.1
SUBSCRIPTION ESCROW AGREEMENT
Subscription Escrow Agreement (this "Escrow Agreement") dated as of
the effective date (the "Effective Date") set forth on schedule 1 attached
hereto ("Schedule 1") by and among World Monitor Trust III, a Delaware
statutory trust (the "Issuer"), Preferred Investment Solutions Corp., a
Connecticut corporation (the "Sponsor"), and JPMorgan Chase Bank, as escrow
agent hereunder (the "Escrow Agent"). Capitalized terms used but not defined
in this Agreement have the meaning ascribed thereto in the prospectus of the
Issuer, including all exhibits thereto, as the same may be amended from time
to time (the "Prospectus").
WHEREAS, the Sponsor serves as the sole managing owner of the Issuer and has
complete management authority over the Issuer;
Whereas, the Issuer has filed a registration statement on Form S-1 under the
Securities Act of 1933, as amended, with the Securities and Exchange
Commission, File No. ____________ (the "Registration Statement"), relating to
the subscription for and sale of units of beneficial interest ("Units") in the
Issuer, at a price of $100 per Unit, in three separate and distinct Series
identified as Series A, Series B and Series C; and
WHEREAS, in compliance with Rule 15c2-4 under the Securities Exchange Act of
1934, as amended, the Issuer, the Sponsor and the Depositor propose to
establish three separate escrow funds corresponding to the three separate
Series of the Issuer, to be held by the Escrow Agent in respect of each Series
until the sale of Units of such Series terminates.
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Appointment. The Issuer and the Sponsor hereby appoint the Escrow
Agent as their escrow agent in respect of each Series of the Issuer for the
purposes set forth herein, and the Escrow Agent hereby accepts such
appointment under the terms and conditions set forth herein.
2. Escrow Fund. All funds received by the Issuer in connection with
the sale of Units of any Series shall be deposited with the Escrow Agent (with
respect to such Series, the "Escrow Deposit"). The Escrow Agent shall hold
each Escrow Deposit and, subject to the terms and conditions hereof, shall
invest and reinvest each Escrow Deposit and the proceeds thereof (with respect
to each Series, the "Escrow Fund") as directed in Section 3. The Sponsor shall
identify the Series in respect of which each deposit is being made or, if a
deposit relates to a subscription for Units of more than one Series, the
amount of such deposit to be credited to each such Series. The Escrow Agent
has provided the Sponsor with the instructions for making deposits set forth
on Schedule 1 attached hereto. Deposits shall be credited to the appropriate
account and sub-account by the Escrow Agent as promptly as practicable but in
no event more than three days after receipt by the Escrow Agent.
3. Investment of Escrow Fund. [Account details to be added.]
4. Disposition and Termination. The Sponsor agrees to notify the
Escrow Agent in writing of the closing date of the offering with respect to
any Series (the "Series Offering Closing Date") and whether or not the Issuer
received subscriptions in respect of any Series for fifteen million dollars
($15,000,000) (the "Series Minimum Subscription Amount"). Upon receipt of such
written notification the following procedure will take place.
(i) If, with respect to any Series, the Issuer has received subscriptions
for the Series Minimum Subscription Amount by the Series Offering
Closing Date, the Escrow Fund corresponding to such Series will be
promptly paid to or credited to the account of, or otherwise
transferred to the Issuer pursuant to written instructions from the
Sponsor on behalf of the Issuer.
(ii) If, with respect to any Series, the Issuer has not received
subscriptions for the Series Minimum Subscription Amount, the Escrow
Agent shall be provided with a list containing the amount received
from
each subscriber to Units of such Series whose funds have been
deposited with the Escrow Agent (with respect to each such subscriber
the "Subscriber Investment Amount") and the name, address and
Taxpayer Identification Number ("TIN") of each such subscriber. The
Escrow Agent must receive an originally executed W-9 or W-8 I.R.S.
form for each Subscriber who desposits funds into the Subscription
Escrow Account. In addition, the Issuer shall calculate the interest
earned on each such Subscriber Investment Amount as of the
applicable Series Offering Closing Date and provide such information
to the Escrow Agent. The aggregate of all Subscriber Investment
Amounts with respect to any Series and interest thereon shall be
equal to the amount of the Escrow Fund corresponding to such Series
on the applicable Series Offering Closing Date. The Escrow Agent
shall distribute to each such subscriber the appropriate Subscriber
Investment Amount and interest thereon pursuant to joint written
instructions of the Sponsor, on behalf of the Issuer, as promptly as
practicable but in no event more than 30 days after receipt of the
information described in this Section 4(ii).
(iii) The Sponsor, on behalf of the Issuer, may reject any subscription for
any reason or for no reason. Subscribers may, under certain
circumstances, rescind their subscriptions. If the Sponsor rejects
any subscription for which the Escrow Agent has already collected
funds, or in the event that a subscriber rescinds its subscription in
conformity with the requirements of the North American Securities
Administrators Association Inc. Guidelines for Registration of
Commodity Pool Programs, which rescission has been approved by the
Sponsor and the Sponsor has notified the Escrow Agent thereof, the
Escrow Agent shall promptly issue a refund check or wire transfer (if
the Sponsor provides the Escrow Agent with directions and wire
instructions) to the subscriber, excluding any interest thereon, in
the amount of the original subscription amount.
Upon delivery of each Escrow Fund to the Issuer or the applicable subscribers,
as the case may be, by the Escrow Agent, this Escrow Agreement shall terminate
with respect to such Escrow Fund and such Series, subject to the provisions of
Section 8.
5. Escrow Agent. The Escrow Agent undertakes to perform only such duties
as are expressly set forth herein and no duties shall be implied. The Escrow
Agent shall have no liability under and no duty to inquire as to the
provisions of any agreement other than this Escrow Agreement. The Escrow Agent
may rely upon and shall not be liable for acting or refraining from acting
upon any written notice, instruction or request furnished to it hereunder and
reasonably believed by it to be genuine and to have been signed or presented
by the proper party or parties. The Escrow Agent shall be under no duty to
inquire into or investigate the validity, accuracy or content of any such
document. The Escrow Agent shall have no duty to solicit any payments which
may be due it or the Escrow Fund. The Escrow Agent shall not be liable for any
action taken or omitted by it in good faith and without gross negligence or
willful misconduct. The Escrow Agent may execute any of its powers and perform
any of its duties hereunder directly or through agents or attorneys (and shall
be liable only for the careful selection of any such agent or attorney) and
may consult with counsel, accountants and other skilled persons carefully
selected and retained by it. The Escrow Agent shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the advice or
opinion of any such counsel, accountants or other skilled persons. In the
event that the Escrow Agent shall be uncertain as to its duties or rights
hereunder or shall receive instructions, claims or demands from any party
hereto which, in its opinion, conflict with any of the provisions of this
Escrow Agreement, it shall be entitled to refrain from taking any action and
its sole obligation shall be to keep safely all property held in escrow until
it shall be directed otherwise in writing by all of the other parties hereto
or by a final order or judgment of a court of competent jurisdiction. Anything
in this Escrow Agreement to the contrary notwithstanding, in no event shall
the Escrow Agent be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but not limited to lost profits),
even if the Escrow Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action.
6. Succession. The Escrow Agent may resign and be discharged from its
duties or obligations hereunder by giving 30 days advance notice in writing of
such resignation to the other parties hereto specifying a date when such
resignation shall take effect. The Escrow Agent shall have the right to
withhold an amount equal to any amount due and owing to the Escrow Agent, plus
any costs and expenses the Escrow Agent shall reasonably believe may be
incurred by the Escrow Agent in connection with the termination of the Escrow
Agreement. Any corporation or association into which the Escrow Agent may be
merged or converted or with which it may be consolidated, or any corporation
or association to which all or substantially all the escrow business of the
Escrow Agent's corporate trust line of business may be transferred, shall be
the Escrow Agent under this Escrow Agreement without further act.
2
7. Fees. The Sponsor and the Issuer agree jointly and severally to (i)
pay the Escrow Agent upon execution of this Agreement and from time to time
thereafter reasonable compensation for the services to be rendered hereunder,
which unless otherwise agreed in writing shall be as described in Schedule 1
attached hereto, and (ii) pay or reimburse the Escrow Agent upon request for
all reasonable and appropriately evidenced expenses, disbursements and
advances, including reasonable attorney's fees and expenses, incurred or made
by it in connection with the preparation, execution, performance, delivery,
modification and termination of this Agreement.
8. Indemnity. The Sponsor and the Issuer shall jointly and severally
indemnify, defend and save harmless the Escrow Agent and its directors,
officers, agents and employees (the "indemnitees") from all loss, liability or
expense (including reasonable attorney's fees and expenses) arising out of or
in connection with (i) the Escrow Agent's execution and performance of this
Escrow Agreement, except in the case of any indemnitee, to the extent that
such loss, liability or expense is due to the gross negligence or willful
misconduct of such indemnitee, or (ii) such indemnitee's following any
instructions or other directions reasonably believed by such indemnitee to be
from the Sponsor or the Issuer, except to the extent that the Escrow Agent's
following any such instruction or direction is expressly forbidden by the
terms hereof. The parties hereto acknowledge that the foregoing indemnities
shall survive the resignation or removal of the Escrow Agent or the
termination of this Escrow Agreement. The parties hereby grant the Escrow
Agent a lien on, right of set-off against and security interest in each Escrow
Fund for the payment of any claim for indemnification, compensation, expenses
and amounts due hereunder.
9. TINs. The Sponsor and the Issuer each represent (severally and not
jointly) that its correct TIN assigned by the Internal Revenue Service ("IRS")
any other taxing authority is set forth in Schedule 1. Upon execution of this
Agreement, the Sponsor and the Issuer shall provide the Escrow Agent with a
fully executed W-8 or W-9 ITS form, which shall include the Sponsor's and the
Issuer's TIN. In the case of payments of interest or income to Subscribers
directly, as mentioned in Section 4(ii), Subscribers must also remit their
respective W-9 forms (or W-8 if foreign), to the Escrow Agent to prevent any
backup withholding tax. All interest or other income earned under the Escrow
Agreement shall be allocated and/or paid as directed in a written direction of
the Sponsor and the Issuer and reported by the recipient to the Internal
Revenue Service or any other taxing authority. Notwithstanding such written
directions, Escrow Agent shall report and, as required withhold any taxes as
it determines may be required by any law or regulation in effect at the time
of the distribution. In the absence of timely direction, all proceeds of the
Escrow Fund shall be retained in the Escrow Fund and reinvested from time to
time by the Escrow Agent as provided in Section 3. In the event that any
earnings remain undistributed at the end of any calendar year, Escrow Agent
shall report to the Internal Revenue Service or such other authority such
earnings as it deems appropriate or as required by any applicable law or
regulation or, to the extent consistent therewith, as directed in writing by
the Issuer. In addition, Escrow Agent shall withhold any taxes it deems
appropriate and shall remit such taxes to the appropriate authorities.
10. Notices. All communications hereunder shall be in writing and shall be
deemed to be duly given and received:
(i) upon delivery if delivered personally or upon confirmed transmittal
if by facsimile;
(ii) on the next Business Day (as hereinafter defined) if sent by
overnight courier; or
(iii) four (4) Business Days after mailing if mailed by prepaid registered
mail, return receipt requested, to the appropriate notice address set
forth on Schedule 1 or at such other address as any party hereto may have
furnished to the other parties in writing by registered mail, return
receipt requested.
In the event that the Escrow Agent, in its sole discretion, shall determine
that an emergency exists, the Escrow Agent may use such other means of
communication as the Escrow Agent deems appropriate. "Business Day" shall mean
any day other than a Saturday, Sunday or any other day on which the Escrow
Agent located at the notice address set forth on Schedule 1 is authorized or
required by law or executive order to remain closed.
11. Security Procedures. In the event funds transfer instructions are given
(other than in writing at the time of execution of this Escrow Agreement, as
indicated in Schedule 1 attached hereto), whether in writing, by telecopier or
otherwise, the Escrow Agent is authorized to seek confirmation of such
instructions by telephone call-back to the person or persons designated on
schedule 2 hereto ("Schedule 2"), and the Escrow Agent may rely upon the
confirmation of anyone purporting to be the person or persons so designated.
The persons and telephone numbers for call-backs may be changed only by notice
in accordance with Section 10. If the Escrow Agent is unable to contact any of
the authorized representatives identified in Schedule 2, the Escrow Agent is
hereby
3
authorized to seek confirmation of such instructions by telephone
call-back to any one or more of the executive officers of the Sponsor
("Executive Officers"), which shall include the titles of [President,
Executive Vice President or Chief Operations Officer], as the Escrow Agent may
select. Such "Executive Officer" shall deliver to the Escrow Agent a fully
executed Incumbency Certificate, and the Escrow Agent may rely upon the
confirmation of anyone purporting to be any such officer. The Escrow Agent and
the beneficiary's bank in any funds transfer may rely solely upon any account
numbers or similar identifying numbers provided by the Sponsor to identify (i)
the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank.
The Escrow Agent may apply any of the escrowed funds for any payment order it
executes using any such identifying number, even when its use may result in a
person other than the beneficiary being paid, or the transfer of funds to a
bank other than the beneficiary's bank or an intermediary bank designated. The
parties to this Escrow Agreement acknowledge that these security procedures
are commercially reasonable.
12. Miscellaneous. The provisions of this Escrow Agreement may be waived,
altered, amended or supplemented, in whole or in part, only by a writing
signed by all of the parties hereto. Neither this Escrow Agreement nor any
right or interest hereunder may be assigned in whole or in part by any party,
except as provided in Section 6, without the prior consent of the other
parties. This Escrow Agreement shall be governed by and construed under the
laws of the State of New York. Each party hereto irrevocably waives any
objection on the grounds of venue, forum non-conveniens or any similar grounds
and irrevocably consents to service of process by mail or in any other manner
permitted by applicable law and consents to the jurisdiction of the courts
located in the State of New York. The parties further hereby waive any right
to a trial by jury with respect to any lawsuit or judicial proceeding arising
or relating to this Escrow Agreement. No party to this Escrow Agreement is
liable to any other party for losses due to, or if it is unable to perform its
obligations under the terms of this Escrow Agreement because of, acts of God,
fire, floods, strikes, equipment or transmission failure, or other causes
reasonably beyond its control. This Escrow Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as
of the date set forth in Schedule 1.
JPMORGAN CHASE BANK,
as Escrow Agent
By:__________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
PREFERRED INVESTMENT SOLUTIONS CORP.,
as Sponsor
By:__________________________________
Name:
Title:
WORLD MONITOR TRUST III, as issuer,
on behalf of each of its Series
By: Preferred Investment Solutions Corp., its
sole managing owner
By:__________________________________
Name:
Title:
5
Schedule 1
Effective Date: __________, 2004
Name of Issuer: World Monitor Trust III
Issuer Notice Address: c/o Preferred Investment Solutions Corp.,
Two American Lane
Greenwich, Ct. 06830
Attn: Xxxxxx X. Xxxxxxx
Issuer TIN: [___________]
Wiring Instructions: [__________]
Name of Sponsor: Preferred Investment Solutions Corp.
Sponsor Notice Address: Two American Lane
Greenwich, Ct. 06830
Attn: Xxxxxx X. Xxxxxxx
Sponsor TIN: [___________]
Wiring Instructions: [___________]
Escrow Agent notice address: JPMorgan Chase Bank
Institutional Trust Services
0 Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Fax No.:
Deposit Instructions: XXXxxxxx Xxxxx Xxxx
X0X Routing No. 000000000
Account No. 000-00-0000,
Escrow Specialist Subscription A/C
For Further Credit to:
World Monitor Trust III Subscription
Attention: Xxxxxx Xxxxx
Phone: 000 000-0000
Escrow Agent's compensation:
6
Schedule 2
Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions
------------------------------------------------------------
If to the Sponsor:
Name Telephone Number
---- ----------------
1. ______________________ _______________________
2. ______________________ _______________________
3. ______________________ _______________________
7
