Exhibit 10.6
SUBSCRIPTION ESCROW AGREEMENT
Subscription Escrow Agreement (the "Escrow Agreement") dated as of the
effective date (the "Effective Date") set forth on schedule 1 attached hereto
("Schedule 1") by and among the limited partnership identified on Schedule 1
(the "Issuer"), the corporation identified on Schedule 1 (the "Depositor") and
The Chase Manhattan Bank, as escrow agent hereunder (the "Escrow Agent").
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. 333-46550 (the "Registration Statement"), relating to the subscription
for and sale of limited partnership units ("Units") in the Issuer, with a
minimum investment required of 1,000 Units (the "Minimum Subscription Amount"),
at a price of $1,000 per Unit;
WHEREAS, the Depositor has been named as the underwriter in connection with the
proposed offering of the Units in accordance with the terms of the Selling Agent
Agreement dated as of __________ among the Issuer, its general partner and the
Depositor (the "Underwriting Agreement"); and
WHEREAS, in compliance with Rule 15c2-4 under the Securities Exchange Act of
1934, as amended, the Issuer and the Depositor propose to establish an escrow
fund to be held by the Escrow Agent until the sale of Units 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 Depositor hereby appoint the Escrow
Agent as their escrow agent 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 Depositor and the Issuer in
connection with the sale of Units shall be deposited with the Escrow Agent (the
"Escrow Deposit"). The Escrow Agent shall hold the Escrow Deposit and, subject
to the terms and conditions hereof, shall invest and reinvest the Escrow Deposit
and the proceeds thereof (the "Escrow Fund") as directed in Section 3.
3. Investment of Escrow Fund. During the term of this Escrow Agreement,
the Escrow Fund shall be invested and reinvested by the Escrow Agent in the
investment indicated on Schedule 1. The Issuer and Depositor, upon written
request, will receive a statement of transaction details upon completion of any
securities transaction in the Escrow Fund without any additional cost. The
Escrow Agent shall have the right to liquidate any investments held in order to
provide funds necessary to make required payments under this Escrow Agreement.
The Escrow Agent shall have no liability for any loss sustained as a result of
any investment in an investment indicated on Schedule 1 or any investment made
pursuant to the instructions of the parties hereto or as a result of any
liquidation of any investment prior to its maturity or for the failure of the
parties to give the Escrow Agent instructions to invest or reinvest the Escrow
Fund.
4. Disposition and Termination. The Depositor and the Issuer agree to
notify the Escrow Agent in writing of the closing date of the offering (the
"Offering Closing Date") and whether or not the Issuer received subscriptions
for the Minimum Subscription Amount. Upon receipt of such written notification
the following procedure will take place.
(i) If the Issuer has received subscriptions for the Minimum Subscription
Amount by the Offering Closing Date, the Escrow Fund will be promptly
paid to or credited to the account of, or otherwise transferred to the
Issuer pursuant to instructions from the Issuer.
(ii) If the Issuer has not received subscriptions for the Minimum
Subscription Amount, the Escrow Agent shall be provided with a list
containing the amount received from each subscriber whose funds have
been deposited with the Escrow Agent (with respect to each subscriber
the "Subscriber Investment Amount") and the name, address and Taxpayer
Identification Number ("TIN") of each subscriber. In addition, the
Issuer or Depositor shall calculate the interest earned on each
Subscriber Investment Amount as of the Offering Closing Date and
provide such information to the Escrow Agent. The aggregate of all
Subscriber Investment Amounts and interest thereon shall be equal to
the amount of the Escrow Fund on the Offering Closing Date. The Escrow
Agent shall distribute to each subscriber the appropriate Subscriber
Investment Amount and interest thereon pursuant to joint written
instructions of the Issuer and Depositor within 45 days of receipt of
the information described in this Section 4(ii).
Upon delivery of the Escrow Fund to the Issuer or the subscribers as the case
may be, by the Escrow Agent, this Escrow Agreement shall terminate, 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 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 except to the extent that a court of competent jurisdiction determines
that the Escrow Agent's negligence or willful misconduct was the primary cause
of any loss to the Issuer or Depositor. 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
to be selected and retained by it. The Escrow Agent shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
advice or opinion of any such counsel, accountants or other skilled persons. 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
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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 10 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.
7. Fees. The Issuer and Depositor agree jointly and severally to (i) pay
the Escrow Agent upon execution of this Escrow 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
expenses, disbursements and advances, including reasonable attorney's fees and
expenses, incurred or made by it in connection with the modification and
termination of this Escrow Agreement after the Effective Date.
8. Indemnity. The Issuer and the Depositor 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 the fees and expenses of in house or outside counsel) 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 negligence or willful misconduct
of such indemnitee, or (ii) its following any instructions or other directions
from the Issuer or the Depositor, except to the extent that its 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.
9. TINs. The Issuer and the Depositor each represent that its correct TIN
assigned by the Internal Revenue Service or any other taxing authority is set
forth in Schedule 1. All interest or other income earned under the Escrow
Agreement shall be allocated and/or paid as directed in a joint written
direction of the Issuer and the Depositor and reported by the recipient to the
Internal
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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 and the Depositor. In
addition, Escrow Agent shall withhold any taxes it deems appropriate and shall
remit such taxes to the appropriate authorities in accordance with this Section
9.
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.
Notwithstanding the above, in the case of communications delivered to the Escrow
Agent pursuant to (ii) and (iii) of this Section 10, such communications shall
be deemed to have been given on the date received by the Escrow Agent. 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),
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 in a writing actually received and acknowledged by the Escrow Agent. 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 Issuer
or the Depositor 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 provided, however, such transaction is done in
compliance with this Section 11. The parties to this Escrow Agreement
acknowledge that these security procedures are commercially reasonable.
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of
the date set forth in Schedule 1.
THE CHASE MANHATTAN BANK
as Escrow Agent
By: ------------------------------------------------
ISSUER
By: ------------------------------------------------
DEPOSITOR
By: ------------------------------------------------
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Schedule 1
Effective Date: [______], 2001
Name of Issuer: Xxxxxxx Diversified Fund, LP
Issuer Notice Address: 000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Issuer TIN: [_________]
Name of Depositor: Xxxxxxx Xxxxxx & Company Financial Services, Inc.
Depositor Notice Address: X.X. Xxx 00000
Xxxxx Xxxxxx, XX 00000
Depositor TIN: [___________]
Escrow Deposit: $[_________]
Investment: [specify]
[ ] A trust account with The Chase Manhattan Bank;
[ ] A money market mutual fund, including without limitation the
Chase Vista Money Market Funds or any other mutual fund for
which the Escrow Agent or any affiliate of the Escrow Agent
serves as investment manager, administrator, shareholder
servicing agent and/or custodian or subcustodian,
notwithstanding that (i) the Escrow Agent or an affiliate of
the Escrow Agent receives fees from such funds for services
rendered, (ii) the Escrow Agent charges and collects fees for
services rendered pursuant to this Escrow Agreement, which
fees are separate from the fees received from such funds, and
(iii) services performed for such funds and pursuant to this
Escrow Agreement may at times duplicate those provided to such
funds by the Escrow Agent or its affiliates.
Fund
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Escrow Agent notice address: The Chase
Manhattan Bank Capital Markets
Fiduciary Services (street address)
(City, state [country], zip [postal
code]) Attention:
Fax No.:
Escrow Agent's compensation: $7,500
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Schedule 2
Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions
If to Issuer:
Name Telephone Number
1. ______________________ _______________________
2. ______________________ _______________________
3. ______________________ _______________________
If to Depositor:
Name Telephone Number
1. ______________________ _______________________
2. ______________________ _______________________
3. ______________________ _______________________
Telephone call-backs shall be made to each Issuer and Depositor if joint
instructions are required pursuant to this Escrow Agreement.
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