EXHIBIT 10.05
THE
BANK OF
NEW
YORK
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SUBSCRIPTION ESCROW AGREEMENT
between
DEMETER MANAGEMENT CORPORATION
and
THE BANK OF NEW YORK
Dated as of July 25, 2007
ACCOUNT NUMBER(S)____________________________
SHORT TITLE OF ACCOUNT_______________________________
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ESCROW AGREEMENT
Escrow Agreement (the "Agreement"), dated as of July 25, 2007, among
The Bank of New York, a New York banking corporation with its principal
corporate trust office at 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000 (the
"Escrow Agent"), Demeter Management Corporation, a Delaware corporation (the
"General Partner," on behalf of each of the limited partnerships listed on
Exhibit A attached hereto, as such Exhibit A may be amended from time to time
(each, a "Partnership" and collectively, the "Partnerships"), and Xxxxxx Xxxxxxx
& Co. Incorporated, as selling agent (the "Selling Agent"), for itself and for
and on behalf of its selected dealers (the "Selected Dealers"), the identity of
which will be disclosed to Escrow Agent as the same are selected by the Sales
Agent.
WHEREAS, the General Partner intends to offer for sale to the public (the
"Offering") units of limited partnership interest of each Partnership (the
"Units"), pursuant to each Partnership's prospectus, as updated, supplemented,
and amended from time to time;
WHEREAS, the Selling Agent and the Selected Dealers are expected to offer
the Units on behalf of the Partnerships;
WHEREAS, the General Partner and the Selling Agent propose to engage the
Escrow Agent for the purpose of receiving, depositing and holding in a
segregated non-interest-bearing account all funds for the General Partner on
behalf of the Partnerships ("Proceeds" shall mean all funds transferred into the
escrow account, all interest earned on such funds and funds presumed cleared
from check deposits) from subscribers for Units ("Subscribers") received in
connection with the sale of Units, until such time as such funds are to be
released to the General Partner or returned to the Subscribers; and
WHEREAS, the Escrow Agent has agreed to act as escrow agent in connection
with the proposed subscription for and sale of Units.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
Section 1. Establishment of Escrow Account; Deposits.
(a) The Escrow Agent shall promptly and, in any case, on or prior to
the commencement of the offering of the relevant Partnership, cause to be opened
a fully segregated non-interest-bearing escrow account, which escrow account
shall be entitled "_____[Name of Partnership]____ Escrow Account" (the "Escrow
Account"), for the purpose of holding in trust all Proceeds for the General
Partner on behalf of each Partnership and the Subscribers. The Selling Agent and
the Selected Dealers shall, as to each Subscriber in connection with all
Proceeds received under the Offering, cause the purchase price to be transferred
by wire to the Escrow Agent as promptly as possible. All such wire transfers
forwarded to the Escrow Agent shall be accompanied by information identifying
each Subscriber's, subscription, the Subscriber's social security or ID number
and address. Wire transfers to the Escrow Account shall be made in Federal Funds
transferred as follows:
Bk of NYC
ABA No. 000000000
GLA 111-565
Cust A/C #
A/C Name_
(b) On the terms and conditions of this Agreement, the Escrow Agent
shall deposit the Proceeds and any interest earned thereon in the Escrow
Account. The Proceeds shall be invested as promptly as practicable upon their
receipt by the Escrow Agent, in accordance with this Agreement. All amounts
deposited in the Escrow Account shall be invested and reinvested in the manner
provided in Section 2 hereof.
(c) Except as and to the extent provided herein, the Escrow Agent
shall not be obligated nor, without the consent of the General Partner and the
Selling Agent, is it authorized to accept instructions under this Agreement
directly from any Selected Dealer.
Section 2. Investment of Proceeds.
Proceeds (and any earnings thereon), and until such time as all Proceeds
and earnings thereon have been disbursed from the Escrow Account as provided in
Section 4 and Section 5, shall be invested and reinvested by the Escrow Agent
without unreasonable delay and only in the Bank of New York Cash Reserve deposit
account or, as may be designated in writing from time to time by the General
Partner, in obligations issued or guaranteed by the United States Government or
any agency thereof, commercial paper, or bank or trust company certificates of
deposit. The 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"). Temporarily uninvested funds held hereunder shall be
deposited in The Bank of New York Cash Reserve. The Escrow Agent shall not be
responsible for interest losses, taxes or other charges on investments. Interest
actually earned from the time the Proceeds are deposited into the Escrow Account
until the close of business on the date preceding the date the Proceeds are
disbursed by the Escrow Agent as provided herein shall be held in trust for the
Subscribers and, upon the occurrence of the conditions set forth in Section 4
and Section 5 hereof, shall be payable in accordance with the provisions set
forth in Section 5 hereof. If, at the time the Escrow Agent is required to make
a disbursement pursuant to Section 5, the Proceeds are invested as provided in
this Section 2, the Escrow Agent shall, in anticipation of such disbursement,
sell or otherwise liquidate such investments. Instructions from the General
Partner as to any such investments or the sale or other disposition thereof
shall be confirmed in writing (but no delay or failure by the General Partner to
confirm in writing an instruction given by telephone shall affect the validity
of such instruction or result in any liability to the Escrow Agent for acting on
such instruction).
Section 3. Acceptance or Rejection of Subscription.
As soon as practicable following receipt of each subscription, the General
Partner will determine whether or not the subscription is to be accepted or
rejected in whole or in part.
With respect to each subscription which is to be accepted, the General
Partner will notify the Escrow Agent of such acceptance. With respect to each
subscription which is to be rejected (in whole or in part), the General Partner
will notify the Escrow Agent of such rejection in writing, and upon receipt of
such notification, the Escrow Agent will promptly as practicable, but in no
event later than three Business Days following receipt by the Escrow Agent of
such notice or the date of the Closing for which such subscription was tendered,
whichever comes first, transfer to the Selling Agent the amount represented by
such subscription and any interest earned thereon. For purposes of this
Agreement, "Business Day" is each day in which the New York Stock Exchange is
open for business.
Section 4. Disbursements from the Proceeds.
On the second Business Day before the scheduled day of each month-end
closing (each, a "Closing"), the General Partner shall notify the Escrow Agent
of the amount that represents subscriptions to be accepted by the General
Partner for each Partnership. Upon receipt of joint written notice from the
General Partner and the Selling Agent 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 prospectuses have been
fulfilled, the Escrow Agent shall on the date of such closing, or as soon
thereafter as practicable, transmit to the Selling Agent an amount representing
all or the specified portion of the Proceeds held by the Escrow Agent (including
all accrued interest thereon) in the Escrow Account in the manner described in
Section 5(a).
Section 5. Procedure for Disbursement from the Escrow Account.
The Proceeds held in the Escrow Account and interest earned thereon shall
be subject to, and distributed in accordance with, the following provisions:
(a) On the date of each Closing, or as soon thereafter as
practicable, upon satisfaction of the applicable requirements of Section 4
hereof, the Escrow Agent shall (i) transfer by wire to an account designated by
the General Partner and/or the Selling Agent the Proceeds requested to be
transferred on such date in the notice jointly executed by the General Partner
and the Selling Agent, and (ii) transmit to the Selling Agent an amount
representing for each Subscriber whose subscription has been 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. At the time
of such transfer, the Escrow Agent shall confirm in writing to the General
Partner and the Selling Agent the aggregate amount of subscription funds, the
amount of interest earned for the account of each Subscriber and the date such
subscription was received.
(b) The Escrow Agent does not have any legal interest in the Fund
but is serving as escrow holder only and having only possession thereof.
Section 6. Termination of Escrow.
In the event of the release of all Proceeds and all accrued interest in
accordance with Section 4 and Section 5 of this Agreement, this Agreement shall
terminate and the Escrow Agent shall be relieved of all responsibilities in
connection with the escrow deposits provided for in this Agreement, except
claims which are occasioned by its gross negligence, bad faith, fraud or willful
misconduct.
Section 7. Compensation of Escrow Agent.
The Selling Agent shall pay the Escrow Agent $3,000 in advance for
each twelve month period for any and all services rendered by the Escrow Agent
hereunder (the "Annual Fee"). The first twelve month period shall commence from
the date of this Agreement (each twelve month period shall be called a "Fee
Period"). The Escrow Agent shall provide the Selling Agent written notice of at
least 10 Business Days prior to beginning of any new Fee Period that any Annual
Fee is due in accordance with the terms of this Section 7. The Escrow Agent
hereby acknowledges the receipt of the initial Annual Fee as of the date hereof
for the Initial Fee Period. If this Agreement shall be terminated for any
reason, the Escrow Agent shall refund to the Selling Agent the pro rata portion
of any previously paid Annual Fees for any portion of an uncompleted Fee Period
within 15 Business Days of such termination.
Section 8. Responsibilities of Escrow Agent; Reimbursement of Expenses;
Notices.
(a) The Escrow Agent shall be under no duty to enforce payment of
any subscription which is to be paid to and held by it.
(b) The Escrow Agent shall be under no duty to accept funds, checks,
drafts or instruments for the payment of money from anyone other than the
General Partner, the Selling Agent or any Selected Dealers or to give any
receipt therefor except to the General Partner.
(c) The Escrow Agent shall be obligated to perform only such duties
as are expressly set forth in this Agreement. No implied covenants or
obligations shall be inferred from this Agreement against the Escrow Agent, nor
shall the Escrow Agent be bound by the provisions of any agreement among the
General Partner or Selling Agent beyond the specific terms hereof.
(d) The Escrow Agent shall not be liable hereunder except for its
own gross negligence, bad faith, fraud or willful misconduct and the General
Partner agrees to indemnify the Escrow Agent for and hold it harmless as to any
loss, liability, or expense, including attorneys' fees and expenses, incurred
without gross negligence, bad faith, fraud or willful misconduct on the part of
the Escrow Agent and arising out of or in connection with the Escrow Agent's
duties under this Agreement. Specifically and without limiting the foregoing,
the Escrow Agent shall in no event have any liability in connection with its
investment, reinvestment or liquidation, in good faith and in accordance with
the terms hereof, of the Fund, including without limitation any liability for
any delay not resulting from the Escrow Agent's gross negligence, bad faith,
fraud or willful misconduct in such investment, reinvestment or liquidation, or
for any loss of income incident to any such delay. Subject to the General
Partner's prior written approval for expenditures in excess of $500, the Escrow
Agent shall be reimbursed upon request for all expenses, disbursements, and
advances incurred or made by the Escrow Agent in implementing any of the
provisions of this Agreement, including attorneys' fees, except any such
expense, disbursement, or advance as may arise from its gross negligence, bad
faith, fraud or willful misconduct.
The General Partner shall pay or reimburse the Escrow Agent
upon request for any transfer taxes or other taxes relating to the Fund incurred
in connection herewith and shall indemnify and hold harmless the Escrow Agent
for any amounts that it is obligated to pay in the way of such taxes. Any
payments of income from this Escrow Account shall be subject to withholding
regulations then in force with respect to United States taxes. The parties
hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D.,
number certifications, or W-8 forms for non-resident alien certifications. It is
understood that the Escrow Agent shall be responsible for income reporting only
with respect to income earned on investment of funds which are a part of the
Fund and is not responsible for any other reporting.
(e) Subject to Section 8(d) hereof, the Escrow Agent shall be
entitled to reasonably rely upon any order, judgment, certification,
instruction, notice, opinion or other writing delivered to it in compliance with
the provisions of this Agreement without being required to determine the
authenticity or the correctness of any fact stated therein or the propriety or
validity of service thereof. The Escrow Agent may act in reliance upon any
instrument comporting with the provisions of this Agreement or signature
reasonably believed by it in good faith to be genuine and may assume that any
person purporting to give notice or receipt or advice or make any statement or
execute any document in connection with the provisions hereof has been duly
authorized to do so.
At any time the Escrow Agent may request in writing an
instruction in writing from the General Partner, and may at its own option
include in such request the course of action it proposes to take and the date on
which it proposes to act, regarding any matter arising in connection with its
duties and obligations hereunder. The Escrow Agent shall not be liable for
acting without the General Partner's consent in accordance with such a proposal
on or after the date specified therein, provided that the specified date shall
be at least two (2) Business Days after the General Partner receives the Escrow
Agent's request for instructions and its proposed course of action, and provided
that, prior to so acting, the Escrow Agent has not received the written
instructions requested.
(f) The Escrow Agent may consult with its own counsel (at its own
expense) with respect to any matter arising in connection with its duties
hereunder, and the Escrow Agent shall not be liable or accountable for any
commercially reasonable action taken or omitted by it in good faith in
accordance with such instruction, or with the opinion of such counsel.
(g) The Escrow Agent makes no representation as to the validity,
value, genuineness or collectibility of any security or other document or
instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as
to selling or retaining, or taking or refraining from taking any action with
respect to, any securities or other property deposited hereunder.
(i) No provision of this Agreement shall require the Escrow Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder.
(j) The Escrow Agent shall be deemed conclusively to have given and
delivered any notice required to be given or delivered if it is in writing,
signed by any one of its authorized officers and mailed, by facsimile, express,
registered or certified mail addressed to:
A Partnership, the Partnerships, the General Partner or
the Selling Agent at:
Demeter Management Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxx Xxxxx, President
Telephone: 000-000-0000
Facsimile: 000-000-0000
In any case with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
(k) The Escrow Agent shall be deemed conclusively to have received
any notice required to be given or delivered to the Escrow Agent if it is in
writing, signed by any one of the authorized officers of the Selling Agent or
the General Partner, mailed, by facsimile, express, registered or certified mail
addressed to and actually received by:
The Escrow Agent at:
The Bank of New York
000 Xxxxxxx Xx, 0X
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/75
Section 9. Resignation of Escrow Agent; Successor.
Notwithstanding anything to the contrary herein, the Escrow Agent may
resign at any time by giving at least 60 days' prior written notice thereof. The
General Partner may remove the Escrow Agent at any time (with or without cause)
by giving at least 60 days' prior written notice thereof. Within 45 days after
receiving such notice, the General Partner and the Selling Agent shall jointly
agree on and appoint a successor escrow agent, at which time the Escrow Agent
shall either distribute the funds held in the Escrow Account, less its fees,
costs and expenses or other obligations owed to the Escrow Agent as directed by
the instructions of the General Partner and the Selling Agent or hold such
funds, pending distribution, until such fees, costs and expenses or other
obligations are paid. If a successor escrow agent has not been appointed or has
not accepted such appointment by the end of the 60 day period, the Escrow Agent
may apply to a court of competent jurisdiction for the appointment of a
successor escrow agent, or for other appropriate relief and the costs, expenses
and reasonable attorneys' fees which the Escrow Agent incurs in connection with
such a proceeding shall be paid by the General Partner.
Section 10. Dispute Resolution.
In the event of any dispute between or conflicting claims by or among the
General Partner or the Selling Agent and/or any other person or entity with
respect to any Proceeds held in the Escrow Account, the Escrow Agent shall be
entitled, at its sole discretion, to refuse to comply with any and all claims,
demands or instructions with respect to such Proceeds so long as such dispute or
conflict shall continue, and the Escrow Agent shall not be or become liable in
any way to the General Partner, the Selling Agent or the Selected Dealers for
the Escrow Agent's failure or refusal to comply with such conflicting claims,
demands or instructions, except to the extent under the circumstances such
failure would constitute gross negligence, bad faith, fraud or willful
misconduct on the part of the Escrow Agent. The Escrow Agent shall be entitled
to refuse to act until, at its sole discretion, either such conflicting or
adverse claims or demands shall have been finally determined in a court of
competent jurisdiction or settled by agreement between the conflicting parties
as evidenced in writing, satisfactory to the Escrow Agent, or the Escrow Agent
shall have received security or an indemnity satisfactory to the Escrow Agent
sufficient to save the Escrow Agent harmless from and against any and all loss,
liability or expense which the Escrow Agent may incur by reason of the Escrow
Agent's acting. The Escrow Agent may in addition elect at its sole discretion to
commence an interpleader action or seek other judicial relief or orders as the
Escrow Agent may deem necessary.
Section 11. Extraordinary Expense.
It is understood that the Annual Fee shall be considered compensation for
its services as contemplated by this Agreement, and if the Escrow Agent renders
any service not provided for in this Agreement that is approved in writing by
the General Partner and Selling Agent, the Escrow Agent shall be reasonably
compensated for those extraordinary services and reimbursed for all reasonable
costs and expenses occasioned by such services.
Section 12. Governing Law; Legal Proceedings.
This agreement shall be governed and construed in accordance with the laws
of the State of New York without reference to the principles thereof respecting
conflicts of laws. Each of the parties hereby waives the right to trial by jury
and to assert counterclaims in any such proceedings. To the extent that in any
jurisdiction any party may be entitled to claim, for itself or its assets,
immunity from suit, execution, attachment (whether before or after judgment) or
other legal process, each hereby irrevocably agrees not to claim, and hereby
waives, such immunity. Each party waives personal service of process and
consents to service of process by certified or registered mail, return receipt
requested, directed to it at the address last specified for notices hereunder,
and such service shall be deemed completed ten (10) calendar days after the same
is so mailed. The parties hereby consent to the exclusive jurisdiction of, and
venue in, any federal or state court of competent jurisdiction located in the
Borough of Manhattan, New York City for the purposes of adjudicating any matter
arising from or in connection with this Agreement.
Section 13. Maintenance of Records.
(a) During the term of this Agreement the Escrow Agent shall maintain
accurate records of all transactions hereunder. Upon the General Partner's or
Selling Agent's request, the Escrow Agent shall promptly provide the General
Partner or Selling Agent with a copy of records, certified by the Escrow Agent
to be a complete and accurate account of all transactions hereunder. The
authorized representatives of the General Partner and the Selling Agent shall
also have access to the Escrow Agent's books and records to the extent relating
to its duties hereunder, during normal business hours upon reasonable notice to
the Escrow Agent.
(b) The Escrow Agent shall preserve its records relating to this Agreement
for a period of five years from the date of the termination of this Agreement,
and in such form and manner as to be in full compliance with applicable law,
rules and regulations or until delivered to the General Partner and the Selling
Agent. Prior to the destruction or transfer of any administrative records
relating to this Agreement, the Escrow Agent shall provide the General Partner
and the Selling Agent 30 days' prior written notice.
(c) Upon receipt of all amounts owing to the Escrow Agent following
termination in accordance with the terms hereof, the Escrow Agent shall promptly
upon written request: (i) deliver to the General Partner and Selling Agent all
records relating to the General Partner and Selling Agent, (ii) return, or upon
the written consent of the General Partner and Selling Agent, destroy, any
physical Confidential Information (as defined below) (except to the extent and
for such time period that the Escrow Agent is required to retain one copy of
such materials for regulatory or legal reasons), and (iii) reasonably assist on
a timely basis a transition to another escrow agent in accordance with the terms
of Section 9 hereof. After the release of any records in the event any claim is
brought against the Escrow Agent in connection with this Agreement.
Section 14. Confidentiality.
The General Partner, the Selling Agent and the Selected Dealers (as one
party for purposes of this Section 14) and the Escrow Agent, on behalf of itself
and its managers, officers, directors, employees or agents, agree to treat
confidentially all records and other information relative to the other party
received by it in connection with this Agreement ("Confidential Information"),
and that it shall not use or disclose any such Confidential Information;
provided, however, that each party may disclose the Confidential Information of
the other (i) as required by law, (ii) as requested by a court, government
agency or regulatory body, if the Escrow Agent provides the General Partner, the
Selling Agent and the Selected Dealers with notice of such request and a
reasonable time to seek the rescission of the request by a court, governmental
agency or regulatory body, (iii) on a confidential basis to the party's
advisers, provided that such parties are informed about their obligations to
keep such information confidential, or (iv) upon prior written approval of the
other party. The term "Confidential Information" shall exclude information that
(i) is known to the receiving party prior to the time of receiving such
information; or (ii) becomes available to such party on a non-confidential basis
from a source other than a party hereto or any of their affiliates, provided
that such source is not known by such party to be prohibited from transmitting
the information by a confidentiality obligation to such party or any of their
affiliates.
Section 15. Miscellaneous.
(a) Nothing in this Agreement is intended or shall confer upon
anyone other than the parties any legal or equitable right, remedy or claim.
(b) The provisions of Sections 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14
shall survive termination of this Agreement and/or the resignation or removal of
the Escrow Agent.
(c) The invalidity of any portion of this Agreement shall not affect
the validity of the remainder hereof.
(d) This Agreement is the final integration of the agreement of the
parties with respect to the matters covered by it and supersedes any prior
understanding or agreement, oral or written, with respect thereto.
(e) The rights and obligations of each party hereto may not be
assigned or delegated to any other person without the written consent of the
other parties hereto. Subject to the foregoing, the terms and provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(f) No printed or other material in any language, including
prospectuses, notices, reports, and promotional material which mentions "The
Bank of New York" by name shall be issued by any other parties hereto, or on
such party's behalf, without the prior written consent of the Escrow Agent,
which consent shall not be unreasonably withheld.
(g) This Agreement may be executed in counterparts, each of which so
executed shall be deemed an original, and said counterparts together shall
constitute one and the same instrument.
DEMETER MANAGEMENT CORPORATION
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: President
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
THE BANK OF NEW YORK
as Escrow Agent
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Treasurer
EXHIBIT A
List of Partnerships
--------------------
(as of July 25, 2007)
Xxxxxx Xxxxxxx Charter Aspect X.X.
Xxxxxx Xxxxxxx Charter Xxxxxx X.X.
Xxxxxx Xxxxxxx Charter WCM X.X.
Xxxxxx Xxxxxxx Managed Futures HV, X.X.
Xxxxxx Xxxxxxx Managed Futures LV, X.X.
Xxxxxx Xxxxxxx Managed Futures MV, X.X.
Xxxxxx Xxxxxxx Spectrum Currency X.X.
Xxxxxx Xxxxxxx Spectrum Global Balanced X.X.
Xxxxxx Xxxxxxx Spectrum Select X.X.
Xxxxxx Xxxxxxx Spectrum Strategic X.X.
Xxxxxx Xxxxxxx Spectrum Technical L.P.
