EXHIBIT 10.9
AMENDED AND RESTATED
ESCROW AGREEMENT
THIS AMENDED AND RESTATED ESCROW AGREEMENT is made and entered into as
of the ____day of September, 2001, by and among XXXXXX INTERNATIONAL RAW
MATERIALS FUND, L.P., an Illinois limited partnership (the "Company"),
DERIVATIVES PORTFOLIO MANAGEMENT, L.L.C., a Delaware Corporation (the
"Subscription Agent"), and MELLON BANK, N.A., a national banking association
(the "Escrow Agent").
RECITALS:
WHEREAS, the parties hereto entered into that certain Escrow Agreement
dated January 26, 2001;
WHEREAS, the parties desire to amend certain provisions of their Escrow
Agreement; and
WHEREAS, the parties desire to set forth their entire Agreement, as
emended, in one writing.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. The Company does hereby open this Escrow Account and Escrow Agent's
sole concern and duties shall be as specifically set forth herein:
(a) From time to time during the course of this Escrow
Agreement, in connection with the Company's offering (the "Offering")
of up to 2,000,000,000 units of Limited Partnership Interests on a
"best efforts" basis (the "Units"), the Escrow Agent will receive
deposits from subscribers (either directly via wire transfer from the
subscribers, or indirectly, from the Subscription Agent) to be held in
Escrow in accordance with the terms hereof and the Mellon Global Cash
Management Terms and Conditions. All such funds received by the Escrow
Agent shall be placed into an account entitled "Xxxxxx International
Raw Materials Fund, L.P.", account number 043-9355 (the "Escrow
Account").
(b) Upon the written authorization from the Company (which
authorization will not be given until a minimum of $5,000,000 has been
placed in the Escrow Account on or before December 15, 2001), the
Escrow Agent shall disburse to the Company all available funds,
provided such authorization is reasonable and in accordance with the
Escrow Agent's customary and then current procedures. Thereafter,
during the term of the Offering, the Escrow Agent shall continue to so
receive and hold in escrow any funds received from subscribers, which
funds shall be disbursed at such times as described in a written
authorization to the Escrow Agent from the Company, and without any
other
condition, provided such authorization is reasonable and in
accordance with the Escrow Agent's customary and then current
procedures.
(c) If the minimum of $5,000,000 is not sold by December 15,
2001 (or the offering of the Shares is otherwise terminated prior to
the initial closing), the Escrow Agent shall, upon receipt of written
instruction of the Company, promptly disburse the funds held in the
Escrow Account to the Company (or to the Subscription Agent if so
directed by the Company) for refund to the subscribers. The Escrow
Agent shall not have an obligation to verify any minimum amount or
date, if written instructions are received from the Company.
(d) With respect solely to funds received from subscribers and
deposited in the Escrow Account on or prior to September ___, 2001, the
Escrow Agent shall, upon receipt of written instruction of the Company,
promptly disburse such funds held in the Escrow Account to the Company
(or to the Subscription Agent if so directed by the Company) for refund
to the subscribers. The Company will authorize the disbursement for
refund of all funds received on or prior to September ___, 2001 from
subscribers who have not executed and delivered to the Company or the
Subscription Agent on or prior to September 30, 2001, written
confirmation of their intent to invest in the units. The Escrow Agent
shall not have any obligation to verify any date or the receipt of
proper confirmation from any subscriber, if written instructions are
received from the Company.
(e) Upon termination of the Offering, which in any event shall
occur not later than December 31, 2002, all amounts theretofore
undistributed shall be distributed to the Company upon the instructions
of the Company and this Escrow Account shall close as directed by the
Company and be consummated in its entirety.
2. The Company authorizes the Subscription Agent to deposit funds into
the Escrow Account on behalf of the Company, including by wire transfer. The
Company authorizes the Escrow Agent to provide any and all information
pertaining to the Escrow Account to the Subscription Agent provided such
information is reasonably requested and can be provided in accordance with
Escrow Agent's customary and then current procedures.
3. All parties understand and are aware that all funds received during
the course of the Escrow and deposited in the Escrow Account must be available
prior to the release of any funds.
4. Neither the Escrow Agent nor any of its officers, directors,
employees, representatives, agents or affiliates shall be (i) liable to the
Company or Subscription Agent for any action taken or omitted to be taken by the
Escrow Agent with respect to the Escrow Account at the direction of the
Subscription Agent (except for the Escrow Agent's own willful misconduct); or
(ii) responsible in any manner to the Company or Subscription Agent or any other
party for the compliance by the Subscription Agent with any representations,
warranties, undertakings or agreements made by the Subscription Agent through or
in connection with any agreement between the Subscription Agent or the Company,
or for any failure of the Subscription Agent or any of its officers to perform
its obligations in accordance therewith. The
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Escrow Agent shall be entitled to rely and shall have no liability for such
reliance, upon any writing, resolution, consent, certificate, letter, facsimile,
statement or other document or conversation with the Subscription Agent believed
by the Escrow Agent to be genuine and correct to have been signed, sent or made
by the proper person or persons selected by the Subscription Agent. The Company
hereby waives any claims it may have against the Escrow Agent or any of its
officers, directors, representatives, agents or affiliates and indemnifies and
agrees to hold the Escrow Agent and its officers, directors, employees,
representatives, agents or affiliates harmless from and against any and all
liabilities, costs, expenses, demands or claims of or by the Company or any
other person resulting from or arising out of or in connection with the Escrow
Agent's actions or refraining from acting in accordance with the request and
direction of the Subscription Agent.
5. Notwithstanding any provision contained herein to the contrary, the
Escrow Agent, including its officers, directors, employees, representatives,
agents or affiliates, shall:
(a) not be liable for any action taken or omitted under this
Agreement so long as it shall have acted in good faith and without
gross negligence or willful misconduct;
(b) have no responsibility to inquire into or determine the
genuineness, authenticity, or sufficiency of any securities, checks, or
other documents or instruments submitted to it in connection with its
duties hereunder;
(c) be entitled to deem the signatories of any documents or
instruments submitted to it hereunder as being those purported to be
authorized to sign such documents or instruments on behalf of the
parties hereto, and shall be entitled to rely upon the genuineness of
the signatures of such signatories without inquiry and without
requiring substantiating evidence of any kind;
(d) be entitled to refrain from taking any action contemplated by
this Agreement in the event that it becomes aware of any disagreement
between the parties hereto as to any facts or as to the happening of
any contemplated event precedent to such action;
(e) have no responsibility or liability for any diminution in value
of any assets held hereunder which may result from any investments or
reinvestment made in accordance with any provision which may be
contained herein;
(f) be entitled as compensation for its services hereunder,
reasonable fees that the Escrow Agent typically charges for services of
this nature, and for reimbursement of its reasonable out-of-pocket
expenses including, but not by way of limitation, the reasonable fees
and costs of attorneys or agents which it may find necessary to engage
in performance of its duties hereunder, all to be paid by the Company,
and the Escrow Agent shall have, and is hereby granted, a prior lien
upon any property, cash, or assets of the Escrow Account, with respect
to its unpaid fees and nonreimbursed expenses, superior to the
interests of any other persons or entities;
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(g) be entitled and is hereby granted the right to set off and
deduct any unpaid fees and/or nonreimbursed expenses from amounts on
deposit in the Escrow Account;
(h) be, and hereby is, jointly and severally indemnified and saved
harmless by the Company and Subscription Agent from all losses,
liabilities, costs and expenses, including attorney fees and expenses,
which may be incurred by it as a result of its acceptance of the Escrow
Account or arising from the performance of its duties hereunder, unless
such losses, liabilities, costs and expenses shall have been finally
adjudicated to having resulted from the bad faith, gross negligence or
willful misconduct of the Escrow Agent, and such indemnification shall
survive its resignation or removal, or the termination of this
Agreement;
(i) in the event that (i) any dispute shall arise between the
parties with respect to the disposition or disbursement of any of the
assets held hereunder or (ii) the Escrow Agent shall be uncertain as to
how to proceed in a situation not explicitly addressed by the terms of
this Agreement whether because of conflicting demands by the other
parties hereto or otherwise, be permitted to interplead all of the
assets held hereunder into a court of competent jurisdiction, and
thereafter be fully relieved from any and all liability or obligation
with respect to such interpleaded assets. The parties hereto other than
the Escrow Agent further agree to pursue any redress or recourse in
connection with such a dispute, without making the Escrow Agent a party
to same;
(j) have only those duties as are specifically provided herein,
which shall be deemed purely ministerial in nature, and shall under no
circumstance be deemed a fiduciary for any of the parties to this
Agreement. The Escrow Agent shall neither be responsible for, nor
chargeable with, knowledge of the terms and conditions of any other
agreement, instrument or document between the other parties hereto, in
connection herewith. This Agreement sets forth all matters pertinent to
the Escrow Account contemplated hereunder, and no additional
obligations of the Escrow Agent shall be inferred from the terms of
this Agreement or any other agreement. IN NO EVENT SHALL THE ESCROW
AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (i) DAMAGES OR
EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN
DAMAGES WHICH RESULT FROM THE ESCROW AGENT'S FAILURE TO ACT IN
ACCORDANCE WITH THE STANDARDS SET FORTH IN THIS AGREEMENT, OR (ii)
SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR
ATTORNEYS' FEES EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES;
(k) have the right, but not the obligation, to consult with counsel
of choice and shall not be liable for action taken or omitted to be
taken by Escrow Agent either in accordance with the advice of such
counsel or in accordance with any opinion of counsel to the Company
addressed and delivered to the Escrow Agent;
(l) have the right to perform any of its duties hereunder through
agents, attorneys, custodians or nominees; and
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(m) Escrow Agent shall accept the assignment as Escrow Agent
solely to perform the functions required by this Agreement.
Any banking association or corporation into which the Escrow Agent may
be merged, converted or with which the Escrow Agent may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Escrow Agent shall be a party, or any banking association or corporation to
which all or substantially all of the banking business of the Escrow Agent shall
be transferred, shall succeed to all the Escrow Agent's rights, obligations and
immunities hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
6. The funds deposited herein shall be invested in the Automatic
Investment Service per the instructions of the Company.
7. Any notices which are required or desired to be given hereunder to
the parties hereto shall be in writing and may be given by mailing the same to
the address indicated below (or to such other address as either of the parties
may have theretofore substituted therefor by written notification to the other
party hereto), by registered or certified United States mail, postage prepaid.
For all purposes hereof, any notice so mailed by the Escrow Agent shall be
treated as though served upon the party to whom it was mailed at the time it is
deposited in the United States mail by the Escrow Agent whether or not such
party thereafter actually receives such notice. 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.
8. The Escrow Agent, when acting as the Escrow Agent undertakes to
perform only such duties as are expressly set forth herein and the Escrow Agent
shall not be subject to, nor obliged to recognize, any other agreement between,
or direction or instruction of, the Company even though reference thereto may be
made herein. This Agreement may be amended at any time or times by an instrument
in writing signed by the Company, the Subscription Agent and Escrow Agent.
9. If any property subject hereto 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 stayed or
enjoined by any court order, or in any 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 by reason of such compliance, even though such order, writ, judgment
or decree may be subsequently reversed, modified, annulled, set aside or
vacated.
10. This Agreement shall be construed, enforced and administered in
accordance with the internal laws, as opposed to the conflicts of laws
provisions, of the Commonwealth of Pennsylvania.
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11. Escrow Agent may terminate this Agreement: (i) immediately for
cause, or (ii) upon thirty (30) days' prior written notice to the Company and
the Subscription Agent without cause. The Company or the Subscription Agent may
terminate this Agreement (i) immediately for cause, or (ii) upon thirty (30)
days' prior written notice to Escrow Agent. The Company's and Subscription
Agent's obligations under this Agreement to indemnify, hold harmless and pay
amounts owed shall survive termination of this Agreement.
12. Any notice required to be given hereunder by any of the parties
hereto shall be addressed as follows:
If to the Company:
Xxxxxx International Raw Materials Fund, LP
0000 Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Fax: 000-000-0000
If to the Subscription Agent:
Derivatives Portfolio Management, LLC
Xxx Xxxxxx Xxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Fax:
If to Escrow Agent:
Mellon Client Service Center
000 Xxxx Xxxxxx
Xxxx 0000
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
13. Notwithstanding any other provision of this Agreement, Escrow Agent
shall not be liable for any failure, inability to perform, or delay in
performance hereunder, if such failure, inability, or delay is due to acts of
God, war, civil commotion, governmental action, fire, explosion, strikes, other
industrial disturbances, equipment malfunction, action, non-action or delayed
action on the part of the Company or Subscription Agent or any other entity or
any other causes that are beyond Escrow Agent's reasonable control.
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14. All expenses for the maintenance and provision of services in
conjunction with the Account, held in the name of XXXXXX INTERNATIONAL RAW
MATERIALS FUND, LP. are the responsibility of Company and Subscription Agent,
jointly and severally. In the event that Company and Subscription Agent do not
pay all service fees due to Escrow Agent within thirty (30) days after the due
date, Escrow Agent is authorized to charge any Account in the amount of such
fees. In the event Escrow Agent is unable to obtain sufficient funds from such
charges to cover such fees, Company and Subscription Agent, jointly and
severally, shall indemnify Escrow Agent for all then-due fees on the Account
that have not been paid.
Company and Subscription Agent agree that Escrow Agent may debit the
Accounts for any items (including, but not limited to, checks, drafts, Automatic
Clearinghouse (ACH) credits or wire transfers or other electronic transfers or
credits) deposited or credited to any Account which may be returned or otherwise
not collected and for all charges, fees, commissions and expenses incurred by
Escrow Agent in providing services or otherwise in connection herewith; Escrow
Agent may charge any Account as permitted herein at such times as are in
accordance with Escrow Agent's customary practices for the chargeback of
returned items and expenses. In the event Escrow Agent is unable to obtain
sufficient funds from such charges to cover returned items, or reversed or
returned credits, or any other items not collected and any other charges,
expenses, or commissions incurred by Escrow Agent in providing the services
(referred to as a "cost" or "costs"), Company and Subscription Agent, jointly
and severally, shall indemnify Escrow Agent for all amounts related to the above
described costs incurred by Escrow Agent.
15. The terms and conditions of the account service, attached as
Exhibit A, is made part of this Agreement with respect to matters not explicitly
covered in this Agreement. To the extent there is a conflict between this
Agreement and the terms and conditions of the services, this Agreement shall
take precedence.
16. The recitals set forth at the outset of this Amended and Restated
Escrow Agreement are hereby incorporated as an integral part of this agreement
and not as mere introductory material.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXX INTERNATIONAL RAW MATERIALS
FUND, L.P.
By:________________________________
Title:_____________________________
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DERIVATIVES PORTFOLIO MANAGEMENT, L.L.C.
By:_________________________________
Title:______________________________
MELLON BANK, N.A.
By:___________________________________
Title:________________________________
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