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EXHIBIT 10.3
ESCROW AGREEMENT
TO: European American Bank
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Financial Institutions North America
The following property is to be deposited with you as Escrow
Agent in one or more Money Market Accounts which shall be entitled "Xxxxx
Xxxxxx Westport Futures Fund L. P." (Escrow Accounts):
All proceeds of subscriptions (the "Escrow Property") for
Units of Limited Partnership Interest ("Units") in XXXXX XXXXXX WESTPORT
FUTURES FUND L. P., a New York limited partnership (the "Partnership"),
received by Xxxxx Xxxxxx Inc. ("SB"), Selling Agent for the Partnership, or
additional selling agents appointed by SB. SB shall deliver to all such
prospective subscribers interim receipts for the amount of the funds deposited
in this escrow.
As Escrow Agent, you are hereby directed to hold, deal with
and dispose of the Escrow Property and any other property at any time held by
you hereunder subject to the terms and conditions hereinafter set forth:
1. During the Initial Offering Period (as defined in
Paragraph 6 below), all Escrow Property (up to the collected balances in the
account or accounts and as the balances become collected in the account or
accounts) deposited with the Escrow Agent and any interest earned thereon
(which shall also be part of the Escrow Property) shall be paid over and
delivered to the Partnership as directed by written notice by Xxxxx Xxxxxx
Futures Management Inc., general partner of the Partnership (the "General
Partner"), as soon as practicable after receipt by the Escrow Agent of such
written notice in accordance with Paragraph 2 below. In the event the General
Partner has directed you to operate two bank money market accounts for the
Partnership, such request shall specify the account from which the Escrow
Property should be paid over and delivered to the Partnership.
2. If subscriptions for Units in the aggregate value of
$20,000,000 have been received during the Initial Offering Period (as defined
in Paragraph 6 below), as evidenced by an affidavit of the General Partner
attesting to said fact, the Escrow Property shall be paid over and delivered to
the Partnership as soon as practicable after the receipt of the written request
of the General Partner. Any interest earned on the Escrow Property (which
shall also be part of the Escrow Property) shall be returned by the General
Partner directly to each subscriber in proportion to their respective
subscriptions and to the period their respective subscriptions were held in
escrow. During the Continuous Offering Period (as defined in Paragraph 6
below), all Escrow Property deposited with the Escrow
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Agent and any interest earned thereon (which shall also be part of the Escrow
Property) shall be paid over and delivered to the Partnership on the first day
of the month succeeding the request. Any such request shall be made
sufficiently in advance of the first day of a month to provide sufficient time
for the Escrow Agent to process the request for delivery to the Partnership on
the first day of the month. If subscriptions for Units in the aggregate value
of $20,000,000 have not been received during the Initial Offering Period, as
evidenced by an affidavit of the General Partner attesting to said fact, the
Escrow Property will be paid over and delivered by the Escrow Agent directly to
subscribers as soon as practicable after receipt of written directions from the
General Partner.
3. Prior to delivery of the Escrow Property to the
Partnership as described in Paragraph 2 above, the Partnership shall have no
title to or interest in the funds on deposit, and such funds shall under no
circumstances be subject to the payment or satisfaction of the liabilities or
indebtedness of the Partnership.
4. The Escrow Agent shall cause all funds deposited with it
pursuant to this Escrow Agreement to be maintained and invested as the General
Partner shall from time to time direct by written instructions delivered to the
Escrow Agent, in an interest-bearing money market account or accounts, which
can be readily liquidated on twenty-four hours' notice, in an amount equal to
the collected balances in the account or accounts, as permitted under the
Securities and Exchange Commission's Rule 240.15c2-4.
5. Within 15 days of receipt of a subscription agreement, the
General Partner may notify the Escrow Agent that a subscription agreement of a
subscriber has not been accepted, and the General Partner may direct the Escrow
Agent by written instruction to return any funds held in the escrow for the
benefit of such subscriber directly to such subscriber, together with such
subscriber's proportionate share of any interest earned on the Escrow Property
during the period such funds were held in the escrow.
6. The Initial Offering Period for the Units shall mean a
period of 90 days commencing on the date the Partnership's Registration
Statement is declared effective unless the General Partner terminates the
offering at an earlier date or extends the Initial Offering Period for up to an
additional 60 days in which case the Initial Offering Period shall mean such
period as so terminated or extended. The General Partner shall provide the
Escrow Agent with prompt written notice of any such termination or extension.
The Continuous Offering Period for the Units shall mean a period commencing on
the termination of the Initial Offering Period (if at least 20,000 Units are
sold during the Initial Offering Period) and ending upon the sale of 120,000
Units.
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7. Any of the persons whose names and signatures appear on
Schedule 1 annexed hereto are authorized by the General Partner to deliver any
instruction or notice to the Escrow Agent required or permitted by this Escrow
Agreement.
8. (a) As Escrow Agent hereunder, you shall have no duties or
responsibilities except those expressly set forth herein. The Escrow Agent
shall act hereunder merely as a depository and in a ministerial capacity. The
Escrow Agent shall not be deemed to be a trustee for any person. In the event
checks are received which represent proceeds of subscriptions, Escrow Agent
will deposit the checks for collection, but shall be under no duty to enforce
the collection of any check. The Escrow Agent shall not be responsible for the
form, terms, validity or negotiability of the checks, the validity of any
signature on any check, or the authority of any person to sign or issue any
check.
(b) The Escrow Agent may consult with counsel and shall be
fully protected with respect to any action taken or omitted by it in good faith
on advice of counsel and you shall have no liability hereunder except for your
bad faith or negligence. You shall have no responsibility as to the validity
or value of the Escrow Property and you may rely on any certificate, statement,
request, consent, agreement or other instrument which you believe to be genuine
and to have been signed or presented by a proper person or persons. You shall
not be bound by any modification of this Escrow Agreement unless in writing and
signed by all parties hereto and actually received by you and, if your duties
as Escrow Agent hereunder are affected, unless you shall have given prior
written consent thereto. In the event that you shall be uncertain as to your
duties or rights hereunder or shall receive instructions from any of the
undersigned with respect to the Escrow Property which, in your opinion, are in
conflict with any of the provisions of this Escrow Agreement, you shall be
entitled to refrain from taking any action other than to retain the Escrow
Property until you shall be directed otherwise in writing by the unanimous
consent of the parties hereto or by final order of a court of competent
jurisdiction.
(c) The Escrow Agent may, at its own discretion, refuse
to accept any deposits lacking the required documentation or containing
discrepancies.
(d) In any event when the Escrow Agent receives
disbursement instructions, it is expressly understood and agreed that the
Escrow Agent shall not be required to make any such disbursement until such
amount is, to the Escrow Agent's satisfaction, available in cleared funds.
Further, in no event shall the aggregate amount of payments made by the Escrow
Agent exceed the amount of Escrow Property.
9. Any notice which the Escrow Agent is required or desires
to give hereunder to any of the undersigned shall be in
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writing and shall be deemed to have been duly given on the date of service if
served personally on the party to whom notice is to be given, on the following
day if given by telegram, or on the third day after mailing if mailed to the
party to whom notice is to be given by first class mail, registered or
certified with return receipt requested, postage prepaid, and properly
addressed as follows:
To: Xxxxx Xxxxxx Westport Futures Fund L. P.
and Xxxxx Xxxxxx Futures Management Inc.
000 Xxxxxxxxx Xxxxxx - 1st floor
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
To: Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx - 1st floor
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Notices to the Escrow Agent shall be in writing and shall not be deemed to be
given until actually received by the Escrow Agent. Whenever under the terms
hereof the time for giving a notice or performing an act falls upon a Saturday,
Sunday or bank holiday, such time shall be extended to the Escrow Agent's next
business day.
10. If any property subject hereto is at any time attached,
garnished or levied upon, shall become or be the subject of any court order, or
in case the payment, assignment, transfer, conveyance or delivery of the Escrow
Property shall be 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 in any of such events 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 of its
own choosing, is binding upon it, and if it 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, firm, or corporation for any losses, claims, costs, payments
or expenses by reason of such compliance, even though such order, writ,
judgment or decree may be subsequently reversed, modified, annulled, set aside
or vacated.
11. The Escrow Agent may resign by giving ten (10) days'
written notice to the undersigned, and thereafter shall deliver the Escrow
Property to a successor escrow agent acceptable to all parties hereto, which
acceptance shall be evidenced by the joint written and signed order of the
undersigned. If no such order is received by the Escrow Agent by such
resignation date, the obligations of the Escrow Agent shall nevertheless cease
and terminate and the Escrow Agent is
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unconditionally and irrevocably authorized and empowered to send the Escrow
Property by registered or certified mail to the respective subscribers thereof.
12. SB shall reimburse the Escrow Agent for all out-of-pocket
expenses (including, without limitation, New York taxes and other governmental
charges) incurred by you in connection with your duties hereunder and shall
indemnify you against and save you harmless against any and all claims,
liabilities, costs, payments and expenses, including fees of counsel (who may
be selected by you), for anything done or omitted by you in the performance of
this Agreement, except as a result of your own negligence or bad faith, and you
shall have a lien on the Escrow Property for the amount thereof. All such fees
and expenses shall be paid by SB.
13. In addition, SB agrees to pay the Escrow Agent an Escrow
Agent fee of $2,500 per Escrow Account established. Additionally, SB agrees to
pay applicable fees as set forth in Schedules 2 and 3 annexed hereto.
14. In the event that any checks or other instruments
deposited in the account or accounts established to hold the Escrow Property
prove uncollectible after the funds represented thereby have been released
pursuant to the Agreement, SB shall promptly reimburse the Escrow Agent
therefor upon request, and the Escrow Agent shall deliver the returned checks
or other instruments to SB.
15. Nothing in this Agreement is intended to or shall confer
upon anyone other than the parties hereto any legal or equitable right, remedy
or claim. This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of New York, and may be modified only in
writing executed by all parties hereto.
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16. This Agreement may be executed in one or more
counterparts, but in such event each counterpart shall constitute an original
and all of such counterparts shall constitute one Agreement.
Dated as of , 1997
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Parties to the Escrow
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XXXXX XXXXXX WESTPORT
FUTURES FUND L.P.
By: Xxxxx Xxxxxx
Futures Management Inc.,
General Partner
By
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XXXXX XXXXXX FUTURES
MANAGEMENT INC.
By
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XXXXX XXXXXX INC.
By
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ACCEPTED:
EUROPEAN AMERICAN BANK
By
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SCHEDULE 1
Name Title Signature
---- ----- ---------
Xxxxx X. Xxxxx President and
Director
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Xxxxxx X. Xxxxxxxx, Xx. Vice-Chairman
and Director
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Xxxxxx X. Xxxxxxxx Treasurer
Director and Chief
Financial Officer
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