EXHIBIT 10.04
FORM OF
AMENDED AND RESTATED ESCROW AGREEMENT
__________________ __, 2002
The Chase Manhattan Bank
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx Xxxxxxxx
Re: Xxxxxx Xxxxxxx Charter Series
Escrow Account
Gentlemen:
In accordance with arrangements made by Demeter Management
Corporation, a Delaware corporation (the "General Partner"), on behalf of Xxxxxx
Xxxxxxx Charter Xxxxxx X.X. ("Charter Xxxxxx"), Xxxxxx Xxxxxxx Charter Millburn
L.P. ("Charter Millburn"), Xxxxxx Xxxxxxx Charter Xxxxxx X.X. ("Charter
Xxxxxx"), Xxxxxx Xxxxxxx Charter MSFCM L.P. ("Charter MSFCM") and Xxxxxx Xxxxxxx
Charter Xxxxxxxx X.X. ("Charter Xxxxxxxx", together with Charter Xxxxxx, Charter
Millburn, Charter Xxxxxx and Charter MSFCM, the "Partnerships" and individually,
a "Partnership"), and Xxxxxx Xxxxxxx XX Inc., the selling agent for the
Partnerships (the "Depositor"; the Partnerships and the Depositor being herein
sometimes collectively referred to as the "Parties" and, individually, as a
"Party"), the Depositor shall: (i) deliver to you, as Escrow Agent, all
subscription funds (by the direct transfer of immediately available funds into a
non-interest-bearing escrow account established by you for the Partnerships, for
investment in your interest-bearing money market account) received by the
Depositor from each subscriber ("Subscriber" or, collectively, the
"Subscribers") during each Partnership's "Continuing Offering" (as described in
the Partnerships' Prospectus, as the same may be updated, supplemented, and
amended from time to time (the "Prospectus")), in connection with the offering
to the public of units of limited partnership interest of the Partnerships (the
"Units"); and (ii) promptly transmit to the General Partner a complete report of
all funds deposited with you during the Continuing Offering of each Partnership.
Except as otherwise determined herein, all capitalized terms used in this
Agreement are defined in the Prospectus. You, as Escrow Agent, shall hold such
subscription funds, together with any additions, substitutions, or other
financial instruments in which such funds may be invested or for which such
funds may be exchanged (collectively referred to herein as the "Fund"), IN
ESCROW upon the following terms:
1. (a) Following receipt by you of written notice from the
General Partner that the General Partner has rejected a Subscriber's
subscription, in whole or in part, during the Continuing Offering, you shall
transmit to the Depositor, as soon as practicable but in no event later than
three business days following receipt by you of such notice (i) the amount of
such Subscriber's subscription funds that shall have been deposited with you
hereunder and that the General Partner shall have notified you of as having been
rejected, and (ii) any interest earned on the Fund and allocated to the rejected
amount of such subscription in accordance with Section 2 hereof. You shall at
the same time give notice to the Depositor of the amount of aggregate
subscription funds and/or interest so returned.
(b) On the second business day before the scheduled day
of each closing, the General Partner shall notify you of the portion of the Fund
that represents subscriptions to be accepted by the General Partner for each
Partnership. Upon receipt by you of joint written notice from the General
Partner and the Depositor on the date of each such closing to the effect that
all of the terms and conditions with respect to the release of subscription
funds from escrow set forth in the Prospectus have been fulfilled, you shall
promptly pay and deliver to each of the Partnerships that portion of the Fund
specified for such Partnership in the General Partner's prior instructions
(excluding any interest earned on the Fund and funds relating to rejected
subscriptions).
(c) On the date of each closing, or as soon thereafter
as practicable, you shall transmit to the Depositor an amount representing: (i)
for each Subscriber whose subscription shall be accepted by the General Partner
in whole or in part, any interest earned on the Fund and allocated to the
accepted portion of such Subscriber's subscription in accordance with Section 2
hereof, and (ii) for each Subscriber whose subscription shall have been rejected
by the General Partner in whole or in part but whose subscription funds shall
not have been previously returned to the Depositor by you in accordance with
Section 1(a) hereof, such Subscriber's subscription funds that shall have been
deposited with you hereunder and that shall have been rejected by the General
Partner, and any interest earned on the Fund and allocated to the rejected
amount of such subscription in accordance with Section 2 hereof. You shall at
the same time give notice to the Depositor of the aggregate amount of
subscription funds and/or interest so returned.
(d) Notwithstanding Section 1(a) hereof, upon receipt
by you of written notice from the General Partner that a Subscriber has been
rejected or has provided bad funds in the form of a bad check, draft, or
otherwise to the Depositor, you shall transmit to the Depositor, within three
business days following receipt by you of such notice, the amount of
subscription funds deposited with you hereunder relating to that amount (the
portion of such Subscriber's subscription for which good funds have not been
provided) together with any interest earned on the Fund and allocated to such
portion of such a subscription in accordance with Section 2 hereof to the date
of such return, and shall immediately notify the General Partner of the return
of such funds.
2. You shall hold the Fund (including any interest
earned thereon) for the account of the Partnerships pending delivery to either
the Partnerships or the Depositor, pursuant to Paragraphs 1 or 3 hereof, as the
case may be. On each day that subscription funds are transferred to you
hereunder in immediately available funds and receipt is confirmed before 2:00
P.M., New York City time, you shall immediately invest such subscription funds
solely in your interest-bearing money market account. If subscription funds are
transferred to you in immediately available funds and receipt is confirmed after
2:00 P.M., New York City time, you shall so invest such funds on the next day.
Interest earned on the Fund shall be allocated by the Depositor among the
Subscribers proportionately based on (A) the amount of their respective
subscriptions on deposit in the Fund, and (B) the period of time from the date
that their respective subscriptions shall have been deposited in the Fund to the
earlier of the delivery of the Fund to the Partnerships at a closing or the
Depositor in accordance with Sections 1 or 3 hereof, as the case may be.
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3. The Parties further agree with you as follows:
(a) Your duties and responsibilities shall be limited
solely to those expressly set forth in this Agreement and are ministerial in
nature. You shall neither be subject to nor obliged to recognize any other
agreement between, or other direction or instruction of, any or all of the
Parties or any Subscriber even though reference thereto may be made herein;
provided, however, that with your written consent, this Agreement may be amended
at any time or times by an instrument in writing signed by the Parties.
(b) You are authorized, in your sole discretion, to
disregard any and all notices or instructions given by any of the Parties 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. If the Fund or any part thereof is at any
time attached, garnished, or levied upon under any court order or in case the
payment, assignment, transfer, conveyance, or delivery of the Fund 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 the Fund or any part thereof,
then and in any such event you are authorized, in your sole discretion, to rely
upon and comply with any such order, writ, judgment, or decree that you are
advised by legal counsel of your own choosing is binding upon you, and if you
comply with any such order, writ, judgment, or decree you 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.
(c) You shall be fully protected in relying upon any
written notice, demand, certificate, document, or instrument believed by you in
good faith to be genuine and to have been signed or presented by the proper
person or persons or Party or Parties. The Parties shall provide you with a list
of officers and employees who shall be authorized to deliver instructions
hereunder. You shall not be liable for any action taken or omitted by you in
connection herewith in good faith and in the exercise of your own best judgment.
(d) Should any dispute arise with respect to the
delivery, ownership, right of possession, and/or disposition of the subscription
funds deposited with you hereunder, or should any claim be made upon any such
subscription funds by a third party, you, upon receipt of written notice of such
dispute by any of the Parties or by a third party, are authorized and directed
to retain in your possession all or any of such subscription funds until such
dispute shall have been settled either by mutual agreement of the parties
involved or by final order, decree, or judgment of any court in the United
States.
(e) If for any reason funds are deposited in the escrow
account other than by transfer of immediately available funds, you shall proceed
as soon as practicable to collect checks, drafts, and other collection items at
any time deposited with you hereunder. All such collections shall be subject to
the usual collection agreement regarding items received by your commercial
banking department for deposit or collection; provided, however, that if any
check, draft, or other collection item at any time deposited with you hereunder
is returned to you as being uncollectable (except by reason of an account
closing), you shall attempt a second time to collect such item before returning
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such item to the Depositor as uncollectable. Subject to the foregoing, you shall
promptly notify the Parties of any uncollectable check, draft, or other
collection item deposited with you hereunder and shall promptly return such
uncollectable item to the Depositor, in which case you shall not be liable to
pay any interest on the subscription funds represented by such uncollectable
item. In no event, however, shall you be required or have a duty to take any
legal action to enforce payment of any check or note deposited hereunder.
(f) You shall not be responsible for the sufficiency or
accuracy of the form, execution, validity, or genuineness of documents now or
hereafter deposited with you hereunder, or for any lack of endorsement thereon
or for any description therein, nor shall you be responsible or liable in any
respect on account of the identity, authority, or rights of the persons
executing or delivering or purporting to execute or deliver any such document,
or endorsement or this Agreement. You shall not be liable for any loss sustained
as a result of any investment made pursuant to the instructions of the Parties
or as a result of any liquidation of an investment prior to its maturity, or the
failure of the Parties to give you any instructions to invest or reinvest the
Fund or any earnings thereon.
(g) All notices required or desired to be delivered
hereunder shall be in writing and shall be effective when delivered personally
on the day delivered, or when given by registered or certified mail, postage
prepaid, return receipt requested, on the day of receipt, addressed as follows
(or to such other address as the party entitled to notice shall hereafter
designate in accordance with the terms hereof):
if to a Partnership, the Partnerships or the General Partner:
Demeter Management Corporation
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
President
if to the Depositor:
Xxxxxx Xxxxxxx XX Inc.
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Senior Vice President
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in either case with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
if to you:
The Chase Manhattan Bank
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx Xxxxxxxx
Whenever, under the terms hereof, the time for giving a notice or performing an
act falls on a Saturday, Sunday, or legal holiday, such time shall be extended
to the next business day.
(h) The Depositor agrees to indemnify, defend, and hold
you harmless from and against, any and all loss, damage, tax, liability, and
expense that may be incurred by you arising out of or in connection with your
duties hereunder, except as caused by your gross negligence, bad faith, or
willful misconduct, including the legal costs and expenses of defending yourself
against any claim or liability in connection with your performance hereunder.
(i) You shall be paid by the Depositor for your
services a fee of $3,000 in advance for each twelve month period; the first
twelve month period beginning from the date of this Agreement (each twelve month
period shall be called a "Fee Period").
(j) It is understood that you may at any time resign
hereunder as Escrow Agent by giving written notice of your resignation to the
Parties at their address set forth above at least 20 days prior to the date
specified for such resignation to take effect, and upon the effective date of
such resignation, all property then held by you hereunder shall be delivered by
you to such person as may be designated jointly by the Parties in writing,
whereupon all your obligations hereunder shall cease and terminate. If you shall
resign prior to the conclusion of any Fee Period you shall pay to the Depositor
an amount equal to the product of $3,000 and a fraction, the numerator of which
shall be the number of days remaining in the Fee Period and the denominator of
which shall be 365. If no successor Escrow Agent has been appointed or has
accepted such appointment by such date, all your obligations hereunder shall
nevertheless cease and terminate. Your sole responsibility thereafter shall be
to keep safely all property then held by you and to deliver the same to a person
designated by the Parties hereto or in accordance with the directions of a final
order or judgment of a court of competent jurisdiction.
5. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK AND ANY ACTION BROUGHT
HEREUNDER SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK, SITTING IN
THE COUNTY OF NEW YORK.
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6. The undersigned Escrow Agent hereby acknowledges
and agrees to hold, deal with, and dispose of, the Fund (including any interest
earned thereon) and any other property at any time held by the Escrow Agent
hereunder in accordance with this Agreement.
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If the foregoing Agreement is satisfactory to you, please so
indicate by signing at the place provided below.
Sincerely,
XXXXXX XXXXXXX CHARTER XXXXXX X.X.
By: Demeter Management Corporation
By: _______________________________
Xxxxxx X. Xxxxxx
President
XXXXXX XXXXXXX CHARTER MILLBURN L.P.
By: Demeter Management Corporation
By: _______________________________
Xxxxxx X. Xxxxxx
President
XXXXXX XXXXXXX CHARTER XXXXXX X.X.
By: Demeter Management Corporation
By:
Xxxxxx X. Xxxxxx
President
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XXXXXX XXXXXXX CHARTER MSFCM L.P.
By: Demeter Management Corporation
By: _______________________________
Xxxxxx X. Xxxxxx
President
XXXXXX XXXXXXX CHARTER XXXXXXX X.X.
By: Demeter Management Corporation
By: _______________________________
Xxxxxx X. Xxxxxx
President
XXXXXX XXXXXXX XX INC.
By: _______________________________
Xxxxxx X. Xxxxxx
Senior Vice President
Accepted:
THE CHASE MANHATTAN BANK
By:___________________________
Name: Xx. Xxxx Xxxxxxxx
Title:
