EXHIBIT 10.1
ESCROW AGREEMENT
Escrow Agreement entered into as of _________________,
1998, by and among World Monitor Trust (the "Trust"), a
business trust organized under Chapter 38 of Title 12 of the
Delaware Code (the "Delaware Act"), Prudential Securities
Futures Management Inc., a Delaware corporation (the "Managing
Owner"), The Bank of New York, a New York banking corporation
(the "Escrow Agent"), and Prudential Securities Incorporated,
a Delaware corporation (the "Placement Agent"). All
capitalized words will have the meaning ascribed to it in the
Registration Statement, unless otherwise defined herein.
W I T N E S S E T H :
WHEREAS, the Trust intends to offer limited interests
("Interests") in the various Series ("Series") of the Trust as
described in the Trust's Prospectus through Prudential
Securities Incorporated pursuant to an Underwriting Agreement
(the form of which is attached hereto); and
WHEREAS, the Escrow Agent has consented to act as escrow
agent for the Trust pursuant to the conditions and
requirements hereinafter set forth;
NOW, THEREFORE, in consideration of the provisions
hereinafter set forth, the parties agree as follows:
ARTICLE I. DEFINITIONS
Section 1.1. As used in this Agreement, the following
terms shall have the following meanings unless the context
otherwise requires:
"Interests" means the beneficial interest of each
interestholder in the profits, losses, distributions, capital
and assets of each separate Series in the Trust. Interests
need not be represented by certificates.
"Limited Owner" means any person or entity who becomes a
holder of Interests and who is listed as such on the books and
records of the Trust, and may include the Managing Owner with
respect to the Interests purchased by it.
"Prospectus" means the final prospectus and disclosure
document of the Trust, constituting a part of the Registration
Statement for each Series of Interests, as filed with the
Securities and Exchange Commission and declared effective
thereby, as the same may at any time and from time to time be
amended or supplemented after the effective date of the
Registration Statement.
"Registration Statement" means the registration statement
on Form S-1, as amended, filed by the Trust with the
Securities and Exchange Commission for each Series pursuant to
which the Trust registered the Interests for each Series, as
the same may at any time and from time to time be further
amended or supplemented.
"Series" means an identified group of Interests which has
a common investment objective, whose trading decisions are
made by a specified trading advisor and which share the same
assets, liabilities, profits and losses to the exclusion of
any other Interests.
"Continuous Offering Period" means the period immediately
following the Initial Offering Period for that Series and
continuing until the offering is terminated or all of the
Interests for that Series have been sold.
"Initial Offering Period" means the period commencing
with the initial effective date of the Registration Statement
for that Series and terminating no later than the one hundred
eightieth (180th) day following such date.
"Net Asset Value" means the total assets in the Trust
Estate for a Series, including, but not limited to, all cash
and cash equivalents of a Series (valued at cost plus accrued
interest and amortization of original issue discount) less the
total liabilities of that Series, each determined on the basis
of generally accepted accounting principals in the United
States consistently applied under the accrual method of
accounting ("GAAP").
"Trust Estate" means any cash, commodity futures, forward
and option contracts, all funds on deposit in the Trust's
accounts for a Series, and any other property held by a Series
of the Trust, and all proceeds therefrom, including any rights
of a Series of the Trust pursuant to any agreements to which
the Trust is a party.
ARTICLE II. APPOINTMENT OF ESCROW AGENT
Section 2.1. The parties hereby appoint the Escrow Agent
as escrow agent in accordance with the terms and conditions
set forth herein, and the Escrow Agent hereby accepts such
appointment.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
OF THE TRUST
Section 3.1. The Managing Owner, individually and on
behalf of the Trust, represents and warrants to the Escrow
Agent and agrees with the Escrow Agent for the benefit of the
Escrow Agent that the Trust is and will be on the Initial
Closing Date for each Series (as defined below in Section 5.1
and such date will be scheduled by the Managing Owner and the
Placement Agent) a business trust duly organized under the
laws of the State of Delaware, with the power and authority to
conduct its business. The Managing Owner hereby further
represents and warrants, individually and on behalf of the
Trust, that this Agreement has been duly authorized, executed
and delivered on its behalf and constitutes the legal, valid
and binding obligation of the Managing Owner and the Trust.
ARTICLE IV. TRANSMITTAL AND COLLECTION
Section 4.1. The Placement Agent shall deposit all the
proceeds of subscriptions from the sale of each Series (the
"Proceeds") during the Initial Offering Period for that Series
into the Escrow Account described in Section 6.1 for that
Series. The Proceeds shall be transferred to the Escrow
Account by direct transfer of immediately available funds from
each Subscriber's account with the Placement Agent, which
Proceeds must be in the Subscriber's account at the time of
subscription. The Placement Agent will provide the Escrow
Agent with a memorandum of transmittal showing the name,
address and social security or tax identification number of
each Subscriber, along with the number of Interests in that
Series purchased, and the amount of payment being made to the
Escrow Agent. The Placement Agent will also advise the Escrow
Agent that the Placement Agent has on file a certification
from each Subscriber in compliance with the Interest and
Dividend Tax Compliance Act of 1983.
ARTICLE V. PROCEDURE FOR DISPOSITION OF PROCEEDS
Section 5.1. (a) On the fifth business day before the
closing date with respect to the initial offering of a Series
("Initial Closing Date"), the Managing Owner shall notify the
Escrow Agent of that portion of the Proceeds in such Series'
Account which represents subscriptions to be accepted by the
Managing Owner for that Series.
(b) If subscriptions for at least the minimum amount
specified on Schedule 2 for a Series (without taking into
account the Managing Owner's contribution for General
Interests) have been accepted during the Initial Offering
Period for that Series and there are at least 150 Subscribers
for each Series, the Escrow Agent shall as soon as practicable
deliver all Proceeds for such Series deposited in its Escrow
Account (including all interest earned on the Proceeds for
such Series) to the Trust for that Series upon written
notification by the Managing Owner that subscriptions
aggregating the requisite amount(s) have been received and
accepted for that Series. Such notification shall include
appropriate information with respect to the bank account
referenced in Subparagraph (d) of this Section 5.1.
(c) Any interest earned on the escrowed Proceeds for
such Series will be contributed to such Series for each
Subscriber in proportion to their respective subscriptions
(taking into account both the amount and date of deposit).
Accordingly, if the escrowed Proceeds are delivered to a
Series, the interest earned on the Proceeds will be
contributed to the Series along with the escrowed Proceeds and
not individually delivered to the Subscribers.
(d) If the notification described above in
Subparagraph (b) of this Section 5.1 has not been received
during the Initial Offering Period for a Series, the Escrow
Agent shall remit, within ten (10) business days following the
conclusion of the Initial Offering Period for that Series, or
as soon thereafter as may be practicable in the event payment
cannot be made within that ten (10) day period, the escrowed
Proceeds, excluding any interest earned thereon, to the
Subscribers by payment to the Placement Agent for credit to
the Subscribers' respective accounts with the Placement Agent
(in amounts shown on the memorandum of transmittal described
in Section 4.1), and without deductions of any kind or
character. In addition, the Escrow Agent shall pay any
interest earned on the Proceeds to the Subscribers by
delivering a check in the amount equal to the interest
allocable to each Subscriber (taking into account both the
amount and date of deposit), it being understood that payment
of interest usually is made by the Escrow Agent on the first
or second business day of each month, and the Escrow Agent
shall provide to the Placement Agent an itemized list of all
such sums due and owing to each Subscriber, except that in the
case of Individual Retirement Accounts, the Escrow Agent shall
deliver the check for interest to the Placement Agent for
deposit into the Subscriber's securities account at the
Placement Agent.
(e) The delivery of such Proceeds in accordance with
Subparagraph (b) of this Section 5.1 shall be accomplished by
depositing such Proceeds in a separate bank account for each
Series maintained by the Managing Owner on behalf of the
Trust.
(f) Upon distribution of all the Proceeds, including
all interest thereon, the Escrow Agent shall be discharged
from all obligations under this Agreement and shall have no
further duties or responsibilities in connection herewith.
Section 5.2. (a) Prior to the termination of the Escrow
Account, the Managing Owner may notify the Escrow Agent in
writing of a subscription for Interests of a Subscriber that
has been rejected in whole or in part by the Managing Owner
for whatever reason, or has been rescinded by the Subscriber
and may direct the Escrow Agent to return by wire transfer any
Proceeds held in escrow, excluding any interest thereon, to
the Placement Agent for credit to the Subscriber's respective
account, and the Escrow Agent will forward any interest on the
Proceeds to the Subscriber in the manner described in Section
5.1, in each case, as soon thereafter as may be practicable.
(b) If the Trust determines that the Proceeds
includes an amount greater than the amount representing
payment in respect of Interests sold to accepted Subscribers,
the Trust will instruct the Escrow Agent in writing as to the
disposition of said excess Proceeds.
Section 5.3. Prior to the delivery of the escrowed
Proceeds to the Trust as described above in Section 5.1, the
Trust shall have no title to the Proceeds on deposit in the
Escrow Account, and such Proceeds shall under no circumstances
be subject to the liabilities or indebtedness of the Trust.
ARTICLE VI. ESCROW ACCOUNT
Section 6.1. The Escrow Agent shall cause to be opened
a separate escrow account for the Proceeds of each separate
Series (each, an "Escrow Account"). The Escrow Agent shall
cause Proceeds received from the Placement Agent pursuant to
Section 4.1 to be deposited in the Escrow Account at the
Escrow Agent's Corporate Trust and Agency Group, or any agent
designated by the Escrow Agent. Proceeds deposited in the
Escrow Account shall be invested by the Escrow Agent in
accordance with the specific written directions furnished by
the Managing Owner. The Managing Owner intends to instruct
the Escrow Agent to invest the Proceeds in U.S. Treasury
Obligations or any other investment specified by the Managing
Owner which is consistent with the provisions of NASD Notice
to Members 84-7 (January 30, 1984) and the provisions of Rule
15c2-4 of the Securities Exchange Act of 1934, as amended. In
the absence of specific written directions from the Managing
Owner, the Escrow Agent is authorized to deposit the Proceeds
in The Bank of New York Deposit Reserve. The Escrow Agent
shall present for redemption any obligation so purchased or
sell any such obligation, in every case upon the written
direction of the Managing Owner. Obligations so purchased as
an investment of monies in the Escrow Account shall be deemed
at all times to be a part of such Escrow Account, and the
interest accruing thereon shall be credited to such Escrow
Account.
Section 6.2. Interest earned by the Escrow Account for
the period commencing on the date on which Proceeds are
received by the Escrow Agent until the conclusion of the
Initial Offering Period for each Series (as defined in Section
1.1 above), shall be held by the Escrow Agent in trust for the
Subscribers and distributed to the Subscribers in accordance
with ARTICLE V hereof.
ARTICLE VII. MAINTENANCE OF RECORDS
Section 7.1. The Escrow Agent shall maintain accurate
records of all transactions hereunder. As soon as practicable
after the termination of the Escrow Account, or as may
reasonably be requested by the Trust before such termination,
but no more frequently than monthly, the Escrow Agent shall
provide the Trust with a complete copy of such records,
certified by the Escrow Agent to be a complete and accurate
account of all such transactions. The authorized
representatives of the Trust shall also have access to such
books and records at all reasonable times during normal
business hours upon reasonable notice to the Escrow Agent.
The Escrow Agent is authorized and instructed to complete Form
1099 in respect of interest payable to any Subscribers who
receive escrow interest payments pursuant to Section 5.1 and
to the Placement Agent for credits received pursuant to
Section 5.1 in compliance with the applicable sections of the
Internal Revenue Code.
ARTICLE VIII. EXCULPATION AND INDEMNIFICATION
Section 8.1. (a) Notwithstanding anything to the
contrary contained in this Agreement, the Escrow Agent shall
not be liable for any of the following, except in the event of
gross negligence or willful misconduct on the part of the
Escrow Agent or in the absence of its good faith: (i) the
failure of any of the conditions of this Agreement or damage
caused by the exercise of its discretion in any particular
manner, or for any reason (including, without limitation, the
liquidation of investments of the Proceeds), for any mistake
of fact or law, for any error of judgment, or for any action
taken or omitted by it, or any action suffered by it to be
taken or omitted, or (ii) the failure to ascertain the terms
or conditions, or to comply with any of the provisions, of any
agreement, contract or other document delivered to the Escrow
Agent hereunder, or for forgeries or false impersonation.
(b) If any controversy arises among the parties
hereto or with any third party with respect to the subject
matter of this Agreement, its terms or conditions, the Escrow
Agent shall not be required to determine the same or take any
action in the premises, but the Escrow Agent may await the
settlement of any such controversy by final appropriate legal
proceedings, mutual agreement or otherwise as the Escrow Agent
may require, notwithstanding anything in this Agreement to the
contrary, and in such event the Escrow Agent shall not be
liable for interest or damages prior to such settlement.
(c) The Escrow Agent's duties hereunder shall be
only such as are herein specifically provided, being purely
ministerial in nature, and the Escrow Agent shall incur no
liability except for willful misconduct or gross negligence so
long as the Escrow Agent has acted in good faith.
Specifically and without limiting the foregoing, the Escrow
Agent shall in no event have any liability in connection with
its investment, reinvestment or liquidation, in good faith and
in accordance with the terms hereof, of any Proceeds held by
it hereunder, including without limitation any liability for
any delay not resulting from gross negligence or willful
misconduct in such investment, reinvestment or liquidation, or
for any loss of income incident to any such delay. The Escrow
Agent is not a party to, and is not bound by, any agreement or
other document out of which this Agreement may arise or any
other agreement or other document in connection with the
Trust. Except as may be provided by law, the Escrow Agent
shall not be deemed to owe any fiduciary duty to the other
parties hereto or to the Subscribers.
(d) The Escrow Agent shall not be required to
institute legal proceedings of any kind or to defend any
lawsuit brought in connection with the escrowed funds;
provided that the Escrow Agent shall cooperate with the Trust
with respect to the institution or defense of any such legal
proceeding brought by or against the Trust, as the case may
be. In the event of its participation in any such legal
proceeding, the Escrow Agent shall be reasonably compensated
for its services and expenses as provided in Section 9.1(b).
The Escrow Agent shall have no responsibility for the
genuineness or validity of any document or other items
deposited with it, and the Escrow Agent shall be fully
protected in acting in accordance with any written instruction
given to it hereunder and believed by it to have been signed
or given by the proper parties. The Managing Owner and
Placement Agent shall provide the Escrow Agent with a list of
officers and employees who shall be authorized to deliver
instructions hereunder. The Escrow Agent shall not be liable
for any action taken or omitted by the Escrow Agent pursuant
to the instructions contained or expressly provided herein,
provided that such omission was in good faith.
(e) The Escrow Agent may consult with its legal
counsel in the event of any dispute or question as to the
construction of the terms of this Agreement, and the Escrow
Agent shall incur no liability and shall be fully protected in
acting in good faith in accordance with the opinion and
instructions of such counsel. The Managing Owner shall
reimburse the Escrow Agent for reasonable legal expenses
actually paid by the Escrow Agent as a result of any such
consultation with counsel.
(f) In the absence of willful misconduct or gross
negligence on the part of the Escrow Agent, the Escrow Agent
may rely conclusively and shall be protected in acting upon
any order, notice, demand, certificate, statement, instrument,
report or other document (not only as to its due execution and
the validity and effectiveness of its provisions, but also as
to the truth, completeness and acceptability of any
information therein contained) which is reasonably believed by
the Escrow Agent to be genuine and to be signed or presented
by the proper person or persons.
(g) At any time the Escrow Agent may request in
writing an instruction in writing from the Managing Owner, and
may at its own option include in such request the course of
action it proposes to take and the date on which it proposes
to act, regarding any matter arising in connection with its
duties and obligations hereunder. The Escrow Agent shall not
be liable for acting without the Managing Owner's consent in
accordance with such a proposal on or after the date specified
therein, provided that the specified date shall be at least
two (2) business days after the Managing Agent receives the
Escrow Agent's request for instructions and its proposed
course of action, and provided further that, prior to so
acting, the Escrow Agent has not received the written
instructions requested.
(h) The Escrow Agent shall be indemnified and held
harmless by the Trust and the Managing Owner from and against
any expenses, including reasonable counsel fees and
disbursements, or loss suffered by the Escrow Agent in
connection with any action, suit or other proceeding involving
any claim or in connection with any claim or demand, which in
any way, directly or indirectly, arises out of or relates to
this Escrow Agreement, the services of the Escrow Agent
hereunder, the Proceeds held by the Escrow Agent hereunder or
any income earned from the investment of such Proceeds, except
for any such expenses or loss caused by the willful misconduct
or gross negligence of the Escrow Agent or in the absence of
its good faith.
(i) The Escrow Agent agrees and acknowledges that in
seeking to enforce its rights hereunder against a particular
Series, it will look solely to the assets of that Series and
the Managing Owner, and not to the assets of the Trust
generally or any other Series.
(j) The Escrow Agent agrees and consents (the
"Consent") to look solely to each Series for which brokerage
and clearing services are being performed (the "Contracting
Series") and assets (the "Contracting Series Assets") of the
Contracting Series and to the Managing Owner and its assets
for payment. The Contracting Series Assets include only those
funds and other assets that are paid, held or distributed to
the Trust on account of and for the benefit of the Contracting
Series, including, without limitation, funds delivered to the
Trust for the purchase of interests in a Series. In
furtherance of the Consent, the Escrow Agent agrees that (i)
any debts, liabilities, obligations, indebtedness, expenses
and claims of any nature and of all kinds and descriptions
(collectively, "Claims") incurred, contracted for or otherwise
existing arising from, related to or in connection with the
Trust and its assets and the Contracting Series and the
Contracting Series Assets, shall be subject to the following
limitations:
(1) Subordination of certain claims and rights.
(i) except as set forth below, the Claims, if any, of the
Escrow Agent (the "Subordinated Claims") shall be
expressly subordinate and junior in right of payment to
any and all other Claims against the Trust and any Series
thereof, and any of their respective assets, which may
arise as a matter of law or pursuant to any contract;
provided, however, that the Escrow Agent's Claims (if
any) against the Contracting Series shall not be
considered Subordinated Claims with respect to
enforcement against and distribution and repayment from
the Contracting Series, the Contracting Series Assets
and the Managing Owner and its assets; and provided
further that the Escrow Agent's valid Claims, if any,
against the Contracting Series shall be pari passu and
equal in right of repayment and distribution with all
other valid Claims against the Contracting Series and
(ii) the Escrow Agent will not take, demand or receive
from any Series or the Trust or any of their respective
assets (other than the Contracting Series, the
Contracting Series Assets and the Managing Owner and its
assets) any payment for the Subordinated Claims;
(2) the Claims of the Escrow Agent with respect
to the Contracting Series shall only be asserted and
enforceable against the Contracting Series, the
Contracting Series Assets and the Managing Owner and its
assets; and such Claims shall not be asserted or
enforceable for any reason whatsoever against any other
Series, the Trust generally or any of their respective
assets;
(3) if the Claims of the Escrow Agent against
the Contracting Series or the Trust are secured in whole
or in part, the Escrow Agent hereby waives (under section
1111(b) of the Bankruptcy Code (11 U.S.C. S 1111(b)) any
right to have any deficiency Claims (which deficiency
Claims may arise in the event such security is inadequate
to satisfy such Claims) treated as unsecured Claims
against the Trust or any Series (other than the
Contracting Series), as the case may be;
(4) in furtherance of the foregoing, if and to
the extent that the Escrow Agent receives monies in
connection with the Subordinated Claims from a Series or
the Trust (or their respective assets), other than the
Contracting Series, the Contracting Series Assets and the
Managing Owner and its assets, the Escrow Agent shall be
deemed to hold such monies in trust and shall promptly
remit such monies to the Series or the Trust that paid
such amounts for distribution by the Series or the Trust
in accordance with the terms hereof; and
(5) the foregoing Consent shall apply at all
times notwithstanding that the Claims are satisfied, and
notwithstanding that the agreements in respect of such
Claims are terminated, rescinded or canceled.
(k) The Escrow Agent is authorized, in its sole
discretion, to disregard any and all notices or instructions
given by any of the parties hereto or by any other person,
firm, or corporation, except only such notices or instructions
as are hereunder provided for and orders or process of any
court entered or issued with or without jurisdiction. Upon
the receipt of any such notice, the Escrow Agent will
immediately cause a copy of such notice to be sent by
facsimile transmission to Xxxxx Xxxxxxxxx, Esq. (or his
successor) at (000) 000-0000 or at such other number as is
provided in writing to the Escrow Agent in the future. If the
Proceeds are, or any part thereof is, at any time attached,
garnished, or levied upon under any court order, or if
payment, assignment, transfer, conveyance, or delivery of the
Proceeds is stayed or enjoined by any court order, or in case
any order, judgment, or decree is made or entered by any court
affecting the Proceeds or any part thereof, then, and in any
such event, the Escrow Agent is authorized, in its sole
discretion, to rely upon and comply with any such order, writ,
judgment, or decree that the Escrow Agent is advised is
binding upon it, by its legal counsel, and if the Escrow Agent
complies with any such order, writ, judgment, or decree it
shall not be liable to any of the Parties or to 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.
(l) The Escrow Agent makes no representation as to
the validity, value, genuineness or collectability of any
security or other document or instrument held by or delivered
to it.
(m) The Escrow Agent shall not be called upon to
advise any party as to selling or retaining, or taking or
refraining from taking any action with respect to, any
securities or other property deposited hereunder.
(n) No provision of this Agreement shall require the
Escrow Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its
duties hereunder.
(o) The provisions of Articles VIII and IX shall
survive termination of this Agreement and/or the resignation
or removal of the Escrow Agent.
ARTICLE IX. FEES
Section 9.1. (a) The Escrow Agent shall receive fees as
described in the attached Schedule 1.
(b) It is understood that the fees and usual charges
agreed upon for the Escrow Agent's services hereunder shall be
considered compensation for its ordinary services as
contemplated by this Agreement and in the event the conditions
of this Agreement are not promptly fulfilled or that the
Escrow Agent renders any service not provided for in this
Agreement, or that there is any modification hereof, or that
any controversy with any third party arises hereunder or that
the Escrow Agent is made a party to, or intervenes in, any
litigation with a third party pertaining to this Agreement or
the subject matter hereof, the Escrow Agent and its legal
counsel shall, provided that prior notification is given to
the Trust and the Managing Owner, be reasonably compensated
for such extraordinary services and reimbursed for all costs
and expenses occasioned by such default, delay, controversy or
litigation. The Managing Owner hereby promises to pay the
foregoing sums upon demand.
ARTICLE X. RESIGNATION AND DISCHARGE
Section 10.1. Notwithstanding anything to the contrary
contained in this Agreement, the Escrow Agent (i) may resign
from its duties under this Agreement by giving 30 days' prior
written notice of such resignation to the other parties hereto
and (ii) may be discharged from its duties under this
Agreement upon receipt from the other parties hereto of 30
days' prior written notice of such discharge. Upon the
effective date of such resignation or discharge of the Escrow
Agent, and upon payment to the Escrow Agent of all amounts
owed to it hereunder, the Proceeds held by the Escrow Agent
shall be returned to the Trust or paid over to a substitute
Escrow Agent that the Trust shall retain to perform the
functions theretofore performed by the Escrow Agent under this
Agreement, as the Trust shall direct the Escrow Agent in
writing or in accordance with the directions of a final order
or judgment or a court of competent jurisdiction, and the pro
rata portion of the Escrow Agent's fee up to the effective
date of resignation or discharge shall be paid by the
Placement Agent. If a successor Escrow Agent has not been
appointed or has not accepted such appointment within 30 days
of notice of resignation or removal, the Escrow Agent may
apply 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 attorney's fees and
expenses which the Escrow Agent incurs in connection with such
a proceeding shall be paid by the Managing Owner. In the
absence of such directions, the Escrow Agent may return the
Proceeds to the Trust.
ARTICLE XI. MISCELLANEOUS
Section 11.1. The Trust may assign, and grant a security
interest in, all sums payable to the Trust pursuant to this
Agreement, and the Escrow Agent agrees to accept and
acknowledge the instructions for the payment of the funds
within the Escrow Account in accordance with the provisions of
ARTICLE V hereof designating the disposition of Proceeds.
Once such instructions are given in accordance with this
Section 11.1, and subject to all of the rights of the Trust to
receive the Proceeds as set forth herein, such instructions
will be deemed to be final and attributable to all future
distributions of Proceeds as contemplated hereunder. It is
understood that in order for the parties hereto to amend this
Agreement to change such instructions, any party who has been
assigned or granted a security interest in such Proceeds shall
join in the execution of such amendment or shall otherwise
give its written consent to such amendment. All reasonable
expenses incurred by the Escrow Agent as a result of the
assignment or the granting of a security interest in the
Proceeds shall be paid by the Trust.
Section 11.2. Except as provided in Section 8.1(j), all
notices, communications and instructions required or desired
to be given under this Agreement shall be in writing and shall
be deemed to be duly given if hand delivered or sent by
express delivery service or by registered or certified mail,
return receipt requested, to the following addresses or to
such other address as may be furnished to the other parties as
herein provided:
To the Escrow Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Sharia Xxxxx-Xxx
Corporate Trust Trustee Administration/
Specialized Agency
To the Trust:
World Monitor Trust
c/o Prudential Securities Futures
Management Inc.
Xxx Xxx Xxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
To the Managing Owner:
Prudential Securities Futures Management Inc.
Xxx Xxx Xxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
In the case of the Trust and the Managing Owner, with a
copy to:
Prudential Securities Incorporated
One Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxx, Esq.
and
Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
To the Placement Agent:
Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxxxx
Section 11.3. (a) This Agreement shall not be
amended, modified or rescinded, except upon receipt by the
Escrow Agent of a written instrument signed by all the parties
including the Escrow Agent.
(b) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
Section 11.4. This Agreement, the rights and
obligations of the parties hereunder and all performance
hereunder shall be governed by and construed in accordance
with the laws of the State of New York without giving effect
to the choice of law provisions thereof.
Section 11.5. (a) The Escrow Agent agrees that it will
not take any of the following action against the Trust: (i)
seek a decree or order by a court having jurisdiction in the
premises (A) for relief in respect of the Trust in an
involuntary case or proceeding under the Federal Bankruptcy
Code or any other federal or state bankruptcy, insolvency,
reorganization, rehabilitation, liquidation or similar law or
(B) adjudging the Trust a bankrupt or insolvent, or seeking
reorganization, rehabilitation, liquidation, arrangement,
adjustment or composition of or in respect of the Trust under
the Federal Bankruptcy Code or any other applicable federal or
state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of
the Trust or of any substantial part of any of its properties,
or ordering the winding up or liquidation of any of its
affairs, or (ii) seek a petition for relief, reorganization or
to take advantage of any law referred to in the preceding
clause or (iii) file an involuntary petition for bankruptcy
(collectively "Bankruptcy or Insolvency Action").
(b) In addition, the Escrow Agent agrees that for
any obligations due and owing to it by a particular Series of
the Trust, the Escrow Agent will look solely and exclusively
to the assets of that Series or the Managing Owner, if it has
liability in its capacity as Managing Owner, to satisfy its
claims, and will not seek to attach or otherwise assert a
claim against the other assets of any other Series or the
Trust as a whole, whether there is a Bankruptcy or Insolvency
Action taken. The parties agree that this provision will
survive the termination of this Agreement, whether terminated
in a Bankruptcy or Insolvency Action or otherwise.
(c) This Escrow Agreement has been made and executed
by and on behalf of the Trust and the Managing Owner and the
obligations of the various Series of the Trust and/or the
Managing Owner set forth herein are not binding upon any of
the Limited Owners individually but are binding only upon the
assets and property identified above and no resort shall be
had to the assets of one Series for the obligations of another
Series, or the Limited Owners' personal property for the
satisfaction of any obligation or claim hereunder.
Section 11.6. Nothing in this Agreement, expressed
or implied, shall give or be construed to give any persons,
firm or corporation, other than the parties hereto and their
successors and assigns, any legal claim under any covenant,
condition or provision hereof, all the covenants, conditions
and provisions contained in this Agreement being for the sole
benefit of the parties hereto and their successors and
assigns. No party may assign any of its rights or obligations
under this Agreement without the written consent of all the
other parties, which consent may be withheld in the sole
discretion of the party whose consent is sought.
Section 11.7. No printed or other material in any
language, including notices, reports, and promotional material
which mentions any of the parties by name or the rights,
powers or duties of the Escrow Agent under this Agreement
shall be issued by any of the other parties hereto, or on such
party's behalf, without the prior written consent of such
party. The Managing Owner is given permission by the Escrow
Agent to mention The Bank of New York by name and the rights,
powers and duties of the Escrow Agent under this Agreement in
the Prospectus.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
WORLD MONITOR TRUST
By: Prudential Securities Futures
Management Inc., the Managing Owner
By:
---------------------------
Xxxxxxx X. Xxxxxx, Esq.
PRUDENTIAL SECURITIES FUTURES
MANAGEMENT INC., as Managing Owner
By:
---------------------------
Xxxxxxx X. Xxxxxx, Esq.
THE BANK OF NEW YORK, as Escrow Agent
By: _______________________________
PRUDENTIAL SECURITIES INCORPORATED, as
Placement Agent
By: _______________________________
SCHEDULE 1
Acceptance Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Waived
Annual Administration Fee . . . . . . . . . . . . . . . . . . . . . . $6,000.00
Each Subsequent Closing . . . . . . . . . . . . . . . . . . . . . . . $ 250.00
Preparation and Creation of Subscriber Accounts, each. . . . . . . . . $ 4.00
Creation of 1099's
Wire transfers, per wire . . . . . . . . . . . . . . . . . . . . . . . $ 15.00
Returned Checks, each. . . . . . . . . . . . . . . . . . . . . . . . . $ 25.00
Investments, each. . . . . . . . . . . . . . . . . . . . . . . . . . . $ 25.00
"Bust Out," each . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 25.00
Administration Fee:
Our Administration Fee covers a period of one year or any portion
thereof and is not subject to proration.
Out-Of-Pocket Expenses:
Fees quoted do not include out-of-pocket expenses such as, but not
limited to, stationery, postage, telephone, telex, wire transfers,
original issue delivery costs and retention of records which will be
billed to the account. In the event the transaction terminates before
closing, all out-of-pocket expenses incurred, including our counsel
fees, if applicable, will be billed to the account. These expenses
will not exceed $3,000.
External Counsel Fees:
Fees quoted do not include external counsel fees. A xxxx for the
counsel fees incurred up to closing will be presented for payment on
the closing date.
Miscellaneous Services:
The charges for performing services not contemplated at the time
of the execution of the Agreement or not specifically covered elsewhere
in this schedule will be determined by appraisal in amounts
commensurate with the service.
SCHEDULE 2
Minimum Amount of Interests
By Series Required
to be Sold
Series A $4,000,000
Series B $3,000,000
Series C $3,000,000
