Exhibit 4.4
SUBSCRIPTION ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of February __, 1998 ("Escrow
Agreement"), is by and between ▇▇▇▇▇▇▇▇ CARIBBEAN CORPORATION, a U.S. Virgin
Islands corporation ("Issuer"); and THE CHASE MANHATTAN BANK, a New York State
chartered bank, as Escrow Agent hereunder ("Escrow Agent"), and ACS FINANCIAL &
SECURITIES SERVICES ("ACS").
BACKGROUND
A. In accordance with the Offering Document, subscribers to the Units
(the "Subscribers" and individually, a "Subscriber") will be required to submit
to ACS payment for their respective investments at the time they enter into
subscription agreements.
B. In accordance with the Offering Document, all payments shall be
promptly forwarded by ACS to Escrow Agent, and Escrow Agent has agreed to
accept, hold, and disburse such funds deposited with it and the earnings thereon
in accordance with the terms of this Escrow Agreement.
C. In order to establish the escrow of funds and to effect the
provisions of the Offering Document, the parties hereto have entered into this
Escrow Agreement.
STATEMENT OF AGREEMENT
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
for themselves, their successors and assigns, hereby agree as follows:
1. Definitions. The following terms shall have the following meanings
when used herein:
"Cash Investment" shall mean the number of Units to be purchased by any
Subscriber multiplied by the offering price per Share of $6.50 as set forth in
the Offering Document.
"Cash Investment Instrument" shall mean a check, money order [or wire
transfer], made payable to the "The Chase Manhattan Bank, Escrow Account," in
full payment for the Units to be purchased by any Subscriber.
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"Class A Common Stock" shall mean the Issuer's Class A Common Stock,
par value $.01 per share.
"Escrow Funds" shall mean the funds deposited with the Escrow Agent
pursuant to this Agreement, together with any interest and other income thereon.
"Minimum Offering" shall mean 1,153,846 Units.
"Minimum Offering Notice" shall mean a written notification, signed by
the Issuer, which shall specify that subscriptions for the Minimum Offering have
been received; that, to the best of Issuer's knowledge after due inquiry and
review of its records, Cash Investment Instruments in full payment for that
number of Units equal to or greater than the Minimum Offering have been
received, deposited with and collected by Escrow Agent; and that such
subscriptions have not been withdrawn, rejected or otherwise terminated.
"Pro Rata Basis," with respect to the allocation among Subscribers of
interest and other earnings held in the Escrow Funds, shall mean, for each
Subscriber, the Subscriber's Cash Investment multiplied by the number of days
the Cash Investment of such Subscriber was held in interest-bearing investments
pursuant to Section 6 hereof, multiplied by the average yield earned on the
Escrow Funds during such period of days.
"Subscriber" or "Subscribers" shall have the meaning set forth in the
section of this Escrow Agreement titled "Background".
"Subscription Accounting" shall mean an accounting by ACS of all
subscriptions for Units received and delivered to the Escrow Agent as of the
date of such accounting, indicating for each subscription the Subscriber's name,
social security number and address, the number and total purchase price of
subscribed Units, the date of receipt by Escrow Agent of the Cash Investment
Instrument, and notations of any nonpayment of the Cash Investment Instrument
submitted with such subscription, any withdrawal of such subscription by the
Subscriber, any rejection of such subscription by the Escrow Agent, or other
termination, for whatever reason, of such subscription.
"Units" shall mean a Unit, consisting of one share of Class A Common
Stock and a warrant to purchase one-tenth of one share of Class A Common Stock.
2. Appointment of and Acceptance by Escrow Agent. Issuer hereby
appoints Escrow Agent to serve as escrow agent hereunder, and Escrow Agent
hereby accepts such appointment in accordance with the terms of this Escrow
Agreement.
3. Deposits into Escrow. a. Upon receipt by ACS of any Cash Investment
Instrument for the purchase of Units and after processing a Subscriber's
subscription agreement,
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ACS shall forward to Escrow Agent, by 12:00 noon of the next business day, the
Cash Investment Instrument for deposit into the following escrow account:
The Chase Manhattan Bank
ABA # _________, AC #_______
ATTN: _____________________
for ▇▇▇▇▇▇▇▇ Caribbean Corporation Escrow Account
Notify (___) _____________
ALL FUNDS SO DEPOSITED SHALL REMAIN THE PROPERTY OF THE SUBSCRIBERS
ACCORDING TO THEIR RESPECTIVE INTERESTS AND SHALL NOT BE SUBJECT TO ANY LIEN OR
CHARGE BY ESCROW AGENT OR BY JUDGMENT OR CREDITORS' CLAIMS AGAINST ISSUER UNTIL
RELEASED TO ISSUER IN ACCORDANCE WITH SECTION 4(a) HEREOF.
b. Issuer understands and agrees that all checks and similar
instruments received by Escrow Agent hereunder are subject to collection
requirements of presentment and final payment, and that the funds represented
thereby cannot be drawn upon or disbursed until such time as final payment has
been made and is no longer subject to dishonor. Upon receipt, Escrow Agent shall
process each Cash Investment Instrument for collection, and the proceeds thereof
shall be held as part of the Escrow Funds until disbursed in accordance with
Section 4 hereof. If, upon presentment for payment, any Cash Investment
Instrument is dishonored, Escrow Agent's sole obligation shall be to notify
Issuer of such dishonor and to return such Cash Investment Instrument to the
Issuer to take whatever action it deems necessary. Notwithstanding the
foregoing, if for any reason any Cash Investment Instrument is uncollectible
after payment of the funds represented thereby has been made by Escrow Agent,
Issuer shall immediately reimburse Escrow Agent upon receipt from Escrow Agent
of written notice thereof.
Upon receipt of any Cash Investment Instrument that represents payment
less than or greater than the Cash Investment, ACS's sole obligation shall be to
notify the Issuer of such fact and to return such Cash Investment Instrument.
c. All Cash Investment Instruments shall be made payable to the order
of, or endorsed to the order of, "The Chase Manhattan Bank, Escrow Account," and
Escrow Agent shall not be obligated to accept, or present for payment, any Cash
Investment Instrument that is not payable or endorsed in that manner.
4. Disbursements of Escrow Funds.
a. Completion of Minimum Offering. Subject to the provisions of Section
10 hereof, Escrow Agent shall pay to Issuer the liquidated value of the Escrow
Funds, by check or by wire transfer, no later than fifteen (15) business days
following receipt of the following documents:
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(1) A Minimum Offering Notice;
(2) Subscription Accounting, substantiating the sale of the
Minimum Offering;
(3) The documents described on Exhibit A attached hereto and
incorporated herein by reference; and
(4) Such other certificates, notices or other documents as
Escrow Agent shall reasonably require.
Notwithstanding the foregoing, Escrow Agent shall not be obligated to
disburse the Escrow Funds to Issuer if Escrow Agent has grounds to believe that
(a) Cash Investment Instruments in full payment for that number of Units equal
to or greater than the Minimum Offering have not been received, deposited with
and collected by the Escrow Agent, or (b) any of the certifications and opinions
set forth in the documents described in Exhibit A attached hereto are incorrect
or incomplete.
After the initial disbursement of Escrow Funds to Issuer pursuant to
this Section 4(a), Escrow Agent shall pay to Issuer any additional funds
received with respect to the Units, by check or wire transfer, no later than
fifteen (15) business days after receipt.
b. Rejection of Any Subscription or Termination of the Offering. No
later than fifteen (15) business days after receipt by Escrow Agent of written
notice (i) from Issuer that Issuer intends to reject a Subscriber's
subscription, (ii) from Issuer that there will be no closing of the sale of
Units to Subscribers, or (iii) from the SEC or any other federal or state
regulatory authority that a stop order has been issued with respect to the
Offering Document and has remained in effect for at least twenty (20) days,
Escrow Agent shall deliver funds held to ACS who shall pay to the applicable
Subscriber(s), by check and by first class mail, the amount of the Cash
Investment paid by each Subscriber, and shall pay as soon as practicable to the
applicable Subscriber(s), by check and by first class mail, each Subscriber's
share of income earned on the Escrow Funds, each such share to be calculated on
a Pro Rata Basis by ACS.
c. Expiration of Offering Period. Notwithstanding anything to the
contrary contained herein, if Escrow Agent shall not have received a Minimum
Offering Notice on or before February __, 1999, Escrow Agent shall, within
fifteen (15) business days after such date and without any further instruction
or direction Issuer, deliver funds on deposit to ACS who shall return to each
Subscriber, by check and by first class mail, the Cash Investment made by such
Subscriber, and shall pay as soon as practicable to the applicable
Subscriber(s), by check and by first class mail, each Subscriber's share of
income earned on the Escrow Funds, each such share to be calculated on a Pro
Rata Basis by ACS.
5. Suspension of Performance or Disbursement Into Court. If, at any
time, there shall exist any dispute between Issuer, Escrow Agent, any Subscriber
or any other person with respect to the holding or disposition of any portion of
the Escrow Funds or any other
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obligations of Escrow Agent hereunder, or if at any time Escrow Agent is unable
to determine, to Escrow Agent's sole satisfaction, the proper disposition of any
portion of the Escrow Funds or Escrow Agent's proper actions with respect to its
obligations hereunder, or if Issuer has not within 30 days of the furnishing by
Escrow Agent of a notice of resignation pursuant to Section 7 hereof appointed a
successor Escrow Agent to act hereunder, then Escrow Agent may, in its sole
discretion, take either or both of the following actions:
a. suspend the performance of any of its obligations under this Escrow
Agreement until such dispute or uncertainty shall be resolved to the reasonable
satisfaction of Escrow Agent or until a successor Escrow Agent shall have been
appointed (as the case may be); provided, however, that Escrow Agent shall
continue to invest the Escrow Funds in accordance with Section 6 hereof; and/or
b. petition (by means of an interpleader action or any other
appropriate method) any court of competent jurisdiction in New York, New York,
for instructions with respect to such dispute or uncertainty, and pay into such
court all funds held by it in the Escrow Funds for holding and disposition in
accordance with the instructions of such court.
Escrow Agent shall have no liability to Issuer, any Subscriber or any other
person with respect to any such suspension of performance or disbursement into
court, specifically including any liability or claimed liability that may arise,
or be alleged to have arisen, out of or as a result of any reasonable delay in
the disbursement of funds held in the Escrow Funds or any reasonable delay in or
with respect to any other action required or requested of Escrow Agent.
6. Investment of Funds. Escrow Agent shall invest and reinvest the
Escrow Funds in The Chase Manhattan Bank 100% all Treasury Mutual Fund known as
the Vista Funds. The foregoing investment shall be made in the name of Escrow
Agent in its stated capacity as escrow agent. Notwithstanding anything to the
contrary contained herein, Escrow Agent may, without notice to Issuer, sell or
liquidate any of the foregoing investments at any time if the proceeds thereof
are required for any release of funds permitted or required hereunder, and
Escrow Agent shall not be liable or responsible for any loss, cost or penalty
resulting from any such sale or liquidation. With respect to any funds received
by Escrow Agent for deposit after eleven o'clock, a.m., New York City time,
Escrow Agent shall not be required to invest such funds or to effect such
investment instruction until the next day upon which banks in New York City, are
open for business.
7. Resignation and Removal of Escrow Agent. Escrow Agent may resign
from the performance of its duties hereunder at any time by giving ten (10)
days' prior written notice to the Issuer or may be removed, with or without
cause, by the Issuer at any time by the giving of ten (10) days' prior written
notice to Escrow Agent. Such resignation or removal shall take effect upon the
appointment of a successor Escrow Agent as provided hereinbelow. Upon any such
notice of resignation or removal, the Issuer shall appoint a successor Escrow
Agent hereunder, which shall be a commercial bank, trust company or other
financial institution with a combined capital and surplus in excess of
$10,000,000. Upon the acceptance in writing of any
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appointment as Escrow Agent hereunder by a successor Escrow Agent, such
successor Escrow Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Escrow Agent, and the
retiring Escrow Agent shall be discharged from its duties and obligations under
this Escrow Agreement, provided that all Escrow Funds held by the retiring
Escrow Agent are first paid to the successor Escrow Agent, and such retiring
Escrow Agent shall not be discharged from any liability for actions taken as
escrow agent hereunder prior to such succession. After any retiring Escrow
Agent's resignation or removal, the provisions of this Escrow Agreement shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Escrow Agent under this Escrow Agreement.
8. Liability of Escrow Agent.
a. Escrow Agent shall have no liability or obligation with respect to
the Escrow Funds except for Escrow Agent's gross negligence or willful
misconduct. Escrow Agent's sole responsibility shall be for the safekeeping,
investment, and disbursement of the Escrow Funds in accordance with the terms of
this Escrow Agreement. Escrow Agent shall have no implied duties or obligations
and shall not be charged with knowledge or notice of any fact or circumstance
not specifically set forth herein. Escrow Agent may rely upon any instrument,
not only as to its due execution, validity and effectiveness, but also as to the
truth and accuracy of any information contained therein which Escrow Agent shall
in good faith believe to be genuine, to have been signed or presented by the
person or parties purporting to sign the same and to conform to the provisions
of this Escrow Agreement. In no event shall Escrow Agent be liable for
incidental, indirect, special, consequential or punitive damages. Escrow Agent
shall not be obligated to take any legal action or commence any proceeding in
connection with the Escrow Funds or any account in which Escrow Funds are
deposited or this Escrow Agreement, or to appear in, prosecute or defend any
such legal action or proceeding. Without limiting the generality of the
foregoing, Escrow Agent shall not be responsible for or required to enforce any
of the terms or conditions of any subscription agreement with any Subscriber or
any other agreement between Issuer, ACS and/or any Subscriber. Escrow Agent
shall not be responsible or liable in any manner for the performance by Issuer,
ACS or any Subscriber of their respective obligations under any subscription
agreement nor shall Escrow Agent be responsible or liable in any manner for the
failure of Issuer or any third party (including any Subscriber) to honor any of
the provisions of this Escrow Agreement. Escrow Agent may consult legal counsel
selected by it in the event of any dispute or question as to the construction of
any of the provisions hereof or of its duties hereunder, and shall incur no
liability and shall be fully indemnified from any liability whatsoever in acting
in accordance with the opinion or instruction of such counsel. Issuer shall
promptly pay, upon demand, the reasonable fees and expenses of any such counsel.
b. The Escrow Agent is authorized, in its sole discretion, to comply
with orders issued or process entered by any court with respect to the Escrow
Funds, without determination by the Escrow Agent of such court's jurisdiction in
the matter. If any portion of the Escrow Funds is at any time attached,
garnished or levied upon under any court order, or in case the payment,
assignment, transfer, conveyance or delivery of any such property shall be
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stayed or enjoined by any court order, or in case any order, judgment or decree
shall be made or entered by any court affecting such property or any part
thereof, then 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 which it is advised by legal counsel selected by it is binding upon it
without the need for appeal or other action; and if the Escrow Agent complies
with any such order, writ, judgment or decree, it shall not be liable to any of
the parties hereto or to any other person or entity by reason of such compliance
even though such order, writ, judgment or decree may be subsequently reversed,
modified, annulled, set aside or vacated.
c. In the event funds transfer instructions are given (other than in
writing at the time of execution of this Escrow Agreement), whether in writing,
by telecopier or otherwise, the Escrow Agent is authorized to seek confirmation
of such instructions by telephone call-back to the person or persons designated
on Exhibit C hereto, and the Escrow Agent may rely upon the confirmations of
anyone purporting to be the person or persons so designated. The persons and
telephone numbers for call-backs may be changed only in a writing actually
received and acknowledged by the Escrow Agent. The parties to this Agreement
acknowledge that such security procedure is commercially reasonable.
d. It is understood that the Escrow Agent and the beneficiary's bank in
any fund transfer may rely solely upon any account numbers or similar
identifying number provided by either of the other parties hereto 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 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.
e. 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.
f. The Escrow Agent shall not incur any liability for following the
instructions herein contained or expressly provided for, or written instructions
given by the parties hereto.
9. Indemnification of Escrow Agent. From and at all times after the
date of this Escrow Agreement, Issuer shall, to the fullest extent permitted by
law, indemnify and hold harmless the Escrow Agent and each director, officer,
employee, attorney, agent and affiliate of Escrow Agent solely when such person
is acting on behalf of the Escrow Agent in its capacity as Escrow Agent
(collectively, the "Indemnified Parties") against any and all actions, claims
(whether or not valid), losses, damages, liabilities, reasonable costs and
expenses of any kind or nature whatsoever (including without limitation
reasonable attorneys' fees, costs and expenses)
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incurred by or asserted against any of the Indemnified Parties from and after
the date hereof, whether direct, indirect or consequential, as a result of or
arising from or in any way relating to any claim, demand, suit, action or
proceeding (including any inquiry or investigation) by any person, including
without limitation the Issuer, whether threatened or initiated, asserting a
claim for any legal or equitable remedy against any person under any statute or
regulation, including, but not limited to, any federal or state securities laws,
or under any common law or equitable cause or otherwise, arising from or in
connection with the negotiation, preparation, execution, performance or failure
of performance of this Escrow Agreement or any transactions contemplated herein,
whether or not any such Indemnified Party is a party to any such action,
proceeding, suit or the target of any such inquiry or investigation; provided,
however, that no Indemnified Party shall have the right to be indemnified
hereunder for any liability finally determined by a court of competent
jurisdiction, subject to no further appeal, to have resulted solely from the
gross negligence or willful misconduct of such Indemnified Party. If any such
action or claim shall be brought or asserted against any Indemnified Party, such
Indemnified Party shall promptly notify Issuer in writing, and Issuer shall
assume the defense thereof, including the employment of counsel and the payment
of all expenses. Issuer shall be liable to pay fees and expenses of counsel
pursuant to the preceding sentence. All such fees and expenses payable by Issuer
pursuant to the foregoing sentence shall be paid from time to time as incurred,
both in advance of and after the final disposition of such action or claim. Any
Indemnified Party shall, in its sole discretion, have the right to employ
separate counsel (who may be selected by such Indemnified Party in its sole
discretion) in any such action and to participate in the defense thereof, and
the reasonable fees and expenses of such counsel shall be paid by Issuer. The
obligations of Issuer under this Section 9 shall survive any termination of this
Escrow Agreement and the resignation or removal of Escrow Agent.
10. Compensation to Escrow Agent.
a. Fees and Expenses. Issuer shall compensate Escrow Agent for its
services hereunder in accordance with Exhibit B attached hereto and, in
addition, shall reimburse Escrow Agent for all of its reasonable out-of-pocket
expenses, including attorneys' fees, travel expenses, telephone and facsimile
transmission costs, postage (including express mail and overnight delivery
charges), copying charges and the like. All of the foregoing compensation and
reimbursement obligations shall be payable by Issuer upon demand by Escrow
Agent. The obligations of Issuer under this Section 10 shall survive any
termination of this Escrow Agreement and the resignation or removal of Escrow
Agent.
b. Disbursements from Escrow Funds to Pay Escrow Agent. The Escrow
Agent is authorized to and may disburse from time to time, to itself or to any
Indemnified Party from the Escrow Funds (to the extent of Issuer's rights
thereto), the amount of any compensation and reimbursement of out-of-pocket
expenses due and payable hereunder (including any amount to which Escrow Agent
or any Indemnified Party is entitled to seek indemnification pursuant to Section
9 hereof). Escrow Agent shall notify Issuer of any disbursement from the Escrow
Funds to itself or to any Indemnified Party in respect of any compensation or
reimbursement hereunder and shall furnish to Issuer copies of all related
invoices and other statements.
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c. Security and Offset. Issuer hereby grants to Escrow Agent and the
Indemnified Parties a security interest in and lien upon the Escrow Funds (to
the extent of Issuer's rights thereto) to secure all obligations hereunder, and
Escrow Agent and the Indemnified Parties shall have the right to offset the
amount of any compensation or reimbursement due any of them hereunder (including
any claim for indemnification pursuant to Section 9 hereof) against the Escrow
Funds (to the extent of Issuer's rights thereto.) If for any reason the Escrow
Funds available to Escrow Agent and the Indemnified Parties pursuant to such
security interest or right of offset are insufficient to cover such compensation
and reimbursement, Issuer shall promptly pay such amounts to Escrow Agent and
the Indemnified Parties upon receipt of an itemized invoice.
11. Representations and Warranties. Issuer makes the following
representations and warranties to Escrow Agent:
a. Issuer is a corporation duly organized, validly existing, and in
good standing under the laws of the U.S. Virgin Islands, and has full power and
authority to execute and deliver this Escrow Agreement and to perform its
obligations hereunder;
b. This Escrow Agreement has been duly approved by all necessary
corporate action of Issuer, including any necessary shareholder approval, has
been executed by duly authorized officers of Issuer, and constitutes a valid and
binding agreement of Issuer, enforceable in accordance with its terms.
c. The execution, delivery, and performance by Issuer of this Escrow
Agreement will not violate, conflict with, or cause a default under the articles
of incorporation or bylaws of Issuer, any applicable law or regulation, any
court order or administrative ruling or decree to which Issuer is a party or any
of its property is subject, or any agreement, contract, indenture, or other
binding arrangement to which Issuer is a party or any of its property is
subject. The execution, delivery and performance of this Agreement is consistent
with and accurately described in the Offering Document, and the allocation of
interest and other earnings to Subscribers, as set forth in Sections 4(b) and
4(c) hereof, has been properly described therein.
d. No party other than the parties hereto and the prospective
Subscribers have, or shall have, any lien, claim or security interest in the
Escrow Funds or any part thereof. No financing statement under the Uniform
Commercial Code is on file in any jurisdiction claiming a security interest in
or describing (whether specifically or generally) the Escrow Funds or any part
thereof.
e. Issuer hereby acknowledges that the status of Escrow Agent is that
of agent only for the limited purposes set forth herein, and hereby represents
and covenants that no representation or implication shall be made that the
Escrow Agent has investigated the desirability or advisability of investment in
the Units or has approved, endorsed or passed upon the merits of the investment
therein and that the name of the Escrow Agent has not and shall not be used in
any manner in connection with the offer or sale of the Units other than to state
that
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the Escrow Agent has agreed to serve as escrow agent for the limited purposes
set forth herein.
f. All of the representations and warranties of Issuer contained herein
are true and complete as of the date hereof and will be true and complete at the
time of any deposit to or disbursement from the Escrow Funds.
12. Consent to Jurisdiction and Venue. In the event that any party
hereto commences a lawsuit or other proceeding relating to or arising from this
Agreement, the parties hereto agree that the United States District Court for
the Southern District of New York shall have the sole and exclusive jurisdiction
over any such proceeding. If all such courts lack federal subject matter
jurisdiction, the parties agree that the __________________________________
shall have sole and exclusive jurisdiction. Any of these courts shall be proper
venue for any such lawsuit or judicial proceeding and the parties hereto waive
any objection to such venue. The parties hereto consent to and agree to submit
to the jurisdiction of any of the courts specified herein and agree to accept
service or process to vest personal jurisdiction over them in any of these
courts.
13. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed to have been validly served, given or delivered five
(5) days after deposit in the United States mails, by certified mail with return
receipt requested and postage prepaid, when delivered personally, one (1) day
after delivery to any overnight courier, or when transmitted by facsimile
transmission facilities, and addressed to the party to be notified as follows,
except with respect to the Escrow Agent as to which date shall be deemed to have
been given on the date received by the Escrow Agent:
If to Issuer at: ▇▇▇▇▇▇▇▇ Caribbean Corporation
▇.▇. ▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Escrow The Chase Manhattan Bank
Agent at: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTENTION: Escrow Administrator
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as each party may designate for itself by like notice.
The Issuer shall provide the Escrow Agent with its Tax Identification Number
(TIN) as assigned by the Internal Revenue Service. All interest or other income
earned under the Escrow Agreement 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.
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14. Amendment or Waiver. This Escrow Agreement may be changed, waived,
discharged or terminated only by a writing signed by the Issuer, ACS and Escrow
Agent. No delay or omission by any party in exercising any right with respect
hereto shall operate as a waiver. A waiver on any one occasion shall not be
construed as a bar to, or waiver of, any right or remedy on any future occasion.
15. Severability. To the extent any provision of this Escrow Agreement
is prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Escrow Agreement.
16. Governing Law. This Escrow Agreement shall be construed and
interpreted in accordance with the internal laws of the State of New York
without giving effect to the conflict of laws principles thereof.
17. Entire Agreement. This Escrow Agreement constitutes the entire
agreement between the parties relating to the acceptance, collection, holding,
investment and disbursement of the Escrow Funds and sets forth in their entirety
the obligations and duties of the Escrow Agent with respect to the Escrow Funds.
The duties and responsibilities of the Escrow Agent hereunder shall be
determined solely by the express provisions of this Escrow Agreement, and no
other or further duties or responsibilities shall be implied. The Escrow Agent
shall not have any liability under, nor duty to inquire into the terms and
provisions of any agreement or instructions, other than outlined in the
Agreement.
18. Binding Effect. All of the terms of this Escrow Agreement, as
amended from time to time, shall be binding upon, inure to the benefit of and be
enforceable by the respective successors and assigns of the Issuer and Escrow
Agent.
19. Execution in Counterparts. This Escrow Agreement may be executed in
two or more counterparts, which when so executed shall constitute one and the
same agreement.
20. Termination. Upon the first to occur of the disbursement of all
amounts in the Escrow Funds or deposit of all amounts in the Escrow Funds into
court pursuant to Section 5 hereof, this Escrow Agreement shall terminate and
Escrow Agent shall have no further obligation or liability whatsoever with
respect to this Escrow Agreement or the Escrow Funds.
21. Dealings. The Escrow Agent and any stockholder, director, officer
or employee of the Escrow Agent may buy, sell, and deal in any of the securities
of the Issuer and become pecuniarily interested in any transaction in which the
Issuer may be interested, and contract and lend money to the Issuer and
otherwise act as fully and freely as though it were not
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Escrow Agent under this Agreement. Nothing herein shall preclude the Escrow
Agent from acting in any other capacity for the Issuer or any other entity.
22. Successors. 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 Escrow Agreement without further act.
23. Assignment. Neither this Escrow Agreement nor any right or interest
hereunder may be assigned in whole or in part by any party without the prior
consent of the other parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed under seal as of the date first above written.
▇▇▇▇▇▇▇▇ CARIBBEAN CORPORATION
[CORPORATE SEAL]
ATTEST: By: ______________________________
Title: ______________________________
--------------------
Secretary
THE CHASE MANHATTAN BANK
as Escrow Agent
By: ______________________________
Title: ______________________________
ACS FINANCIAL & SECURITIES SERVICES
By: ______________________________
Title: ______________________________
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Exhibit A
Additional Documents Required
for Release of Escrow Funds
Pursuant to Section 4(a)
1. Certificate of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President and Chief Operating
Officer of Issuer, that (a) the Offering Document has been declared
effective under the Securities Act of 1933, and (b) no stop order has
been issued by the SEC in connection with the Offering Document or the
offering of Units pursuant thereto; and
2. An opinion of counsel that (a) the Offering Document has been declared
effective under the Securities Act of 1933, and (b) to the best of its
knowledge, no stop order has been issued by the SEC in connection with
the Offering Document or the offering of Units pursuant thereto.
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EXHIBIT B
o 12.5 basis points on the highest value of collateral held on deposit
subject to a minimum of $5,000 per annum, or any par thereof without
proration for partial years (includes investment in a Chase Manhattan
Bank Money Market Account or The Chase Manhattan Bank Mutual Fund known
as the Vista Fund). This fee also includes the initial legal review of
documentation.
o $75 per investment (excludes Money Market or Vista Fund investments).
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Exhibit C
Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions
If to Issuer:
Name Telephone Number
1._____________________________ ________________________________
2._____________________________ ________________________________
3._____________________________ ________________________________
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