SUBSCRIPTION ESCROW AGREEMENT
EXHIBIT 10.02
ESCROW AGREEMENT, (the “Agreement”) dated as of April 1, 2008 (“Effective Date”), by and between
Superfund Gold, L.P., a Delaware limited partnership (the “Fund”) and HSBC Bank USA, National
Association, a national banking association as escrow agent (the “Escrow Agent”).
Whereas,
the Fund is offering its Series ___ units of limited partnership interest on a best
efforts, continuous offering basis to investors (the “Investors”) pursuant to a Prospectus.
Whereas, in accordance with the Fund’s prospectus, the Fund intends to publicly offer $100,000,000
of Series ___ units (the “Securities”), for which each subscriber will pay $1,000 per unit during
the initial offering period and an amount equal to the current net asset value per unit thereafter
during the continuous offering period; and
Whereas, the Prospectus provides for certain funds to be deposited into an escrow account to be
held and distributed in accordance with the terms of the Prospectus and the terms and conditions
set forth hereinafter.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by each of the parties hereto, the parties hereto, intending to be legally bound, do
hereby agree as follows:
Section 1. Appointment of Escrow Agent. The Fund hereby appoints HSBC Bank USA, National
Association as escrow agent in accordance with the terms and conditions set forth herein, and the
Escrow Agent hereby accepts such appointment.
Section 2. Proceeds to be Escrowed.
(a) A sample copy of the draft Prospectus, including any relevant Subscription Agreement(s),
is attached as Exhibit A. All funds received from Investors (“Investor Funds”) in payment for the
Securities will be delivered to the Escrow Agent within one (1) Business day following the day upon
which such proceeds are received by the Fund, and shall be retained in escrow by the Escrow Agent
pursuant to this Agreement. All Investor Funds shall be deposited into a non-interest bearing
account at the Escrow Agent entitled “HSBC as Escrow Agent for Superfund Gold, L.P.” (the Escrow
Account)
(b) The Investor Funds deposited in the Escrow Account are referred to as the “Escrow Funds”.
(c) In the event that any check deposited in the Escrow Account proves uncollectible after the
funds represented thereby have been released by the Escrow Agent, then the Fund shall promptly
reimburse the Escrow Agent for any and all costs incurred for such upon request, and the Escrow
Agent shall deliver the returned checks to the Fund.
(d) In the event that any check deposited in the Escrow Account proves uncollectible before
the funds represented thereby have been released by the Escrow Agent, then the Escrow Agent shall
give notice to the Fund of such event, the Fund shall promptly reimburse the Escrow Agent for any
and all costs incurred therewith, and the Escrow Agent shall deliver the returned check to the
Fund.
Section 3. Rejections by Escrow Agent. The Fund hereby acknowledges the Escrow Agent’s sole
right to reject for deposit into the Escrow Account, any Investor Funds based on the results of the
Escrow Agent’s internal due diligence policies and procedures. The Escrow Agent may reject
Investor Funds by giving written notice to the Fund, and returning the check to the Investor.
Section 4. Disbursement of Funds. For each payment from the Escrow Account, the Fund shall
deliver, by facsimile, to Escrow Agent a letter of direction (“a “Certificate”), which Certificate
shall specify (i) the dollar amount of the Funds to be paid to the recipient, (ii) the name and
address of the recipient, (ii) the date on which such payment or payments shall be made by the
Escrow Agent. Escrow Agent shall make any payment to the recipient by wire or other transfer to the
account of such recipient as directed by the Fund.
Section 5 Term of Escrow. The “Termination Date” shall be (i) the date the Escrow
Agent receives written notice from the Fund that it is abandoning the sale of the Securities. Upon
the termination of the Escrow Agreement any remaining Escrow Funds shall be refund to each Investor
at the address furnished to the Escrow Agent by the Fund in writing.
Section 6 Issuance of Certificates. Until the offering period has ended, the Fund
shall not issue any certificates or other evidence of Securities, except subscription agreements.
Section 7 Compensation of Escrow Agent. The Escrow Agent shall be entitled to payment
from the Fund for customary fees and expenses for all services rendered by it hereunder as set
forth in Exhibit D (as such fees may be adjusted from time to time). The Fund shall reimburse the
Escrow Agent on demand for all loss, liability, damage, disbursements, advances or expenses paid or
incurred by it in the administration of its duties hereunder, including, but not limited to, all
counsel, advisors’ and agents’ fees and disbursements and all taxes or other governmental charges.
Section 8 Resignation of Escrow Agent. The Escrow Agent may resign and be discharged
from its duties hereunder at any time by giving thirty (30) calendar days’ prior written notice of
such resignation to the Fund, or immediately upon written notice to comply with any law or
regulation with which the Escrow Agent must comply. The Fund may remove the Escrow Agent at any
time by giving thirty (30) calendar days’ prior written notice to the Escrow Agent. Upon such
notice, a successor escrow agent shall be appointed by the Fund who shall provide written notice of
such to the resigning Escrow Agent. Such successor escrow agent shall become the escrow agent
hereunder upon the resignation or removal date specified in such notice. If the Fund is unable to
appoint a successor escrow agent within thirty (30) days after a notice of resignation or removal,
the Escrow Agent may, in its sole discretion, transfer the Escrow Funds to the Fund at the account
provided for in Schedule 1, or may apply to a court of
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competent jurisdiction for the appointment
of a successor escrow agent or for other appropriate relief. The costs and expenses (including its
attorneys’ fees and expenses) incurred by the Escrow Agent in connection with such proceeding shall
be paid by the Fund. Upon receipt of the identity of the successor escrow agent, the Escrow Agent
shall deliver the Escrow Funds then held hereunder to the successor Escrow Agent, less the Escrow
Agent’s fees, costs and expenses or other obligations owed to the Escrow Agent. Upon its
resignation and delivery of the Escrow Funds as set forth in this Section 8, the Escrow Agent shall
be discharged of and from any and all further obligations arising in connection with the Escrow
Funds or this Agreement, provided however, the Escrow Agent shall be entitled to the retain the
rights set forth in Sections 7, 9 and 10 of this Agreement.
Section 9 Indemnification of Escrow Agent. The Fund or Superfund Capital Management,
Inc. shall indemnify, defend and hold harmless the Escrow Agent and its officers, directors,
employees, representatives and agents, from and against and reimburse the Escrow Agent on demand
for any and all claims, expenses, obligations, liabilities, losses, damages, injuries (to person,
property, or natural resources), penalties, stamp or other similar taxes, actions, suits,
judgments, reasonable costs and expenses (including reasonable attorney’s fees and expenses) of
whatever kind or nature regardless of their merit, demanded, asserted or claimed against the Escrow
Agent directly or indirectly relating to, or arising from, claims against the Escrow Agent by
reason of its participation in the transactions contemplated hereby, including without limitation
all reasonable costs required to be associated with claims for damages to persons or property, and
reasonable attorneys’ and consultants’ fees and expenses and court costs except to the extent
caused by the Escrow Agent’s gross negligence or willful misconduct. The provisions of this
Section 9 shall survive the termination of this Agreement or the earlier resignation or removal of
the Escrow Agent.
Section 10 The Escrow Agent.
(a) The duties, responsibilities and obligations of Escrow Agent shall be limited to those
expressly set forth herein and no duties, responsibilities or obligations shall be inferred to or
implied against the Escrow Agent. The Escrow Agent shall not be subject to, nor required to comply
with, any other agreement to which the Fund is a party, even though reference thereto may be made
herein, or to comply with any direction or instruction (other than those contained herein or
delivered in accordance with this Escrow Agreement) from the Fund or any entity acting on the
Fund’s behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or
otherwise incur any liability, financial or otherwise, in the performance of any of its duties
hereunder.
(b) If at any time the Escrow Agent is served with any judicial or administrative order,
judgment, decree, writ or other form of judicial or administrative process which in any way affects
the Escrow Funds (including but not limited to orders of attachment or garnishment or other forms
of levies or injunctions or stays relating to the transfer of the Escrow Funds), the Escrow Agent
is authorized to comply therewith in any manner it or legal counsel of its own choosing deems
appropriate; and if the Escrow Agent complies with any such judicial or administrative order,
judgment, decree, writ or other form of judicial or administrative process, Escrow Agent shall not
be liable to any of the parties hereto or to any other person or entity even
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though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined
to have been without legal force or effect.
(c) The Escrow Agent shall not be liable for any action taken or omitted or for any loss or
injury resulting from its actions or its performance or lack of performance of its duties hereunder
in the absence of gross negligence or willful misconduct on its part, as such is proved in a court
or tribunal of competent jurisdiction. In no event shall the Escrow Agent be liable (i) for acting
in accordance with or conclusively relying upon any instruction, notice, demand, certificate or
document from the Fund or any entity acting on behalf of the Fund, (ii) for any indirect,
cumulative, consequential, punitive or special damages, regardless of the form of action and
whether or not any such damages were foreseeable or contemplated unless such damages arise from the
gross negligence, intentional acts, or willful misconduct of the Escrow Agent, or (iii) for the
acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians,
unless the Escrow Agent’s selection of such nominees, correspondents, designees, agents, subagents
or subcustodians of the Escrow Agent involves gross negligence or willful misconduct on part of
the Escrow Agent.
(d) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent
or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself
therefor from the Escrow Funds and may sell, liquidate, convey or otherwise dispose of any
investment in respect of the Escrow Funds for such purpose. The Escrow Agent may in its sole
discretion withhold from any distribution of any interest earned in respect of the Escrow Funds an
amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to
which the Escrow Agent is entitled to hereunder.
(e) The Escrow Agent may consult with legal counsel of its own choosing as to any matter
relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in
good faith in accordance with any advice from such counsel.
(f) The Escrow Agent shall not incur any liability for not performing any act or fulfilling
any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of
the Escrow Agent (including but not limited to any act or provision of any present or future law or
regulation or governmental authority, any act of God or war, civil unrest, local or national
disturbance or disaster, any act of terrorism or the unavailability of the Federal Reserve Bank
wire or facsimile or other wire or communication facility).
(g) The Escrow Agent shall be entitled to conclusively rely upon any order, judgment,
certification, demand, notice, instrument or other writing delivered to it hereunder without being
required to determine the authenticity or the correctness of any fact stated therein or the
propriety or validity or the service thereof. The Escrow Agent may act in conclusive reliance upon
any instrument or signature believed by it to be genuine and may assume that any person purporting
to give receipt or advice to make any statement or execute any document in connection with the
provisions hereof has been duly authorized to do so.
(h) The Escrow Agent shall not be responsible in any respect for the form, execution,
validity, value or genuineness of documents or securities deposited hereunder, or for any
description therein, or for the identity, authority or rights of persons executing or delivering or
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purporting to execute or deliver any such document, security or endorsement. The Escrow Agent shall
not be called upon to advise any party as to the wisdom in selling or retaining or taking or
refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder
any greater degree of care than it gives its own similar property and shall not be required to
invest any funds held hereunder. Uninvested funds held hereunder shall not earn or accrue
interest.
(j) At any time the Escrow Agent may request an instruction in writing, in English from the
Fund 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 in accordance
with such a proposal on or after the date specified therein, provided that the specified date shall
be at least three (3) Business Days after the Escrow Agent sends such request for instructions and
its proposed course of action to Fund by fax or electronic mail (receipt confirmed) or by overnight
courier, and provided further that, prior to so acting, the Escrow Agent has not received the
written instructions from the Fund to refrain from taking the proposed action.
(k) When the Escrow Agent acts on any information, instructions, communications, (including,
but not limited to, communications with respect to the delivery of securities or the wire transfer
of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the
Escrow Agent, absent gross negligence as proved in a court or tribunal of competent jurisdiction,
shall not be responsible or liable in the event such communication is not an authorized or
authentic communication of the Fund or is not in the form the Fund sent or intended to send
(whether due to fraud, distortion or otherwise). The Fund shall indemnify the Escrow Agent against
any loss, liability, claim or expense (including legal fees and expenses) it may incur with its
acting in accordance with any such communication.
(l) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or
other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole
discretion, refrain from taking any action other than to retain possession of the Escrow Funds.
The Escrow Agent may, but is not obligated to, inform the Fund in writing of the ambiguity. If the
Fund provides the Escrow Agent with written instructions which eliminates such ambiguity or
uncertainty, the Escrow Agent shall comply with such written instructions.
(m) In the event of any dispute between or conflicting claims among the Fund and any other
person or entity with respect to any Escrow Funds, the Escrow Agent shall be entitled, in its sole
discretion, to refuse to comply with any and all claims, demands or instructions with respect to
such Escrow Funds so long as such dispute or conflict shall continue, and the Escrow Agent shall
not be or become liable in any way to the Fund or any other person for failure or refusal to comply
with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to
refuse to act until, in its sole discretion, either (i) such conflicting or adverse claims or
demands shall have been determined by a final order, judgment or decree of a court of
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competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement
between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii)
the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold
it harmless from and against any and all losses which it may incur by reason of so acting. Any
court order, judgment or decree shall be accompanied by a legal opinion by counsel for the
presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or
decree represents a final adjudication of the rights of the parties by a court of competent
jurisdiction, and that the time for appeal from such order, judgment or decree has expired without
an appeal having been filed with such court. The Escrow Agent shall act on such court order and
legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole
discretion, to commence an interpleader action or seek other judicial relief or orders as it may
deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’
fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be
deemed an obligation of, the Fund.
(n) The Escrow Agent shall have no responsibility for the contents of any writing of the
arbitrators or any third party contemplated herein as a means to resolve disputes and may
conclusively rely without any liability upon the contents thereof.
(o) The Escrow Agent does not have any interest in the Escrow Funds deposited hereunder but is
serving as escrow holder only and having only possession thereof. The Fund shall pay or reimburse
the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Funds
incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from 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 Fund will provide the Escrow Agent with appropriate W-9 forms for tax
identification number certifications, or W-8 forms for non-resident alien certifications. This
paragraph shall survive notwithstanding any termination of this Escrow Agreement or the resignation
or removal of the Escrow Agent.
(p) The Escrow Agent shall provide to the Fund monthly statements identifying transactions,
transfers or holdings of Escrow Funds and each such statement shall be deemed to be correct and
final upon receipt thereof by the Fund unless the Escrow Agent is notified in writing, by the Fund,
to the contrary within thirty (30) business days of the date of such statement.
(q) The Fund shall deliver to the Escrow Agent a list of authorized signatories, as set forth
in the attached Schedule 2 hereto, with respect to any notice, certificate, instrument, demand,
request, direction, instruction, waiver, receipt, consent or other document or communication
required or permitted to be furnished to the Escrow Agent hereunder, and the Escrow Agent shall be
entitled to rely on such list with respect to any party until a new list is furnished by such party
to the Escrow Agent. Furthermore, in the event funds transfer instructions are given (other than
in writing at the time of execution of this Agreement), whether in writing, by fax 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 3 hereto, and the Escrow Agent may rely upon the
confirmations of anyone purporting to be the person or
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persons so designated. The persons and telephone numbers designated for such call-backs may be changed only in a writing actually received
by the Escrow Agent.
Section 11.Miscellaneous.
(a) This Agreement embodies the entire agreement and understanding among the parties relating
to the subject matter hereof.
(b) This Agreement shall be governed by and construed in accordance with the laws of the State
of New York without reference to the principles of conflict of laws.
(c) Each of the parties hereto hereby irrevocably consents to the jurisdiction of the courts
of the State of New York and of any Federal Court located in the Borough of Manhattan in such State
in connection with any action, suit or other proceeding arising out of or relating to this
Agreement or any action taken or omitted hereunder, and waives any claim of forum non conveniens
and any objections as to laying of venue. Each party further waives personal service of any
summons, complaint or other process and agrees that service thereof may be made by certified or
registered mail directed to such person at such person’s address for purposes of notices hereunder.
(d) Unless otherwise provided herein, all notices and other communications under this
Agreement shall be in writing in English and shall be deemed given when delivered personally, on
the next Business Day after delivery to a recognized overnight courier or upon receipt when mailed
first class (postage prepaid)or when sent by facsimile to the parties (which facsimile copy shall
be followed, in the case of notices or other communications sent to the Escrow Agent, by delivery
of the original) at the following addresses (or to such other address as a party may have specified
by notice given to the other parties pursuant to this provision):
If to the Fund, to:
Quadriga Superfund, L.P.
c/o Superfund Capital Management, Inc.
Xxxxx Xxxxxxxx
X.X. Xxx 0000
Xxxxx Xxxx
Xx. Xxxxxx’s, Grenada
West Indies
Facsimile: (000) 000-0000
c/o Superfund Capital Management, Inc.
Xxxxx Xxxxxxxx
X.X. Xxx 0000
Xxxxx Xxxx
Xx. Xxxxxx’s, Grenada
West Indies
Facsimile: (000) 000-0000
with a copy to:
Superfund Asset Management, Inc.
000 Xxxxx Xxxxxx
000 Xxxxx Xxxxxx
0
Xxx Xxxx, XX 00000
ATTN: Fund Administration
Fascsimile: (000) 000-0000
ATTN: Fund Administration
Fascsimile: (000) 000-0000
If to the Escrow Agent, to:
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust and Loan Agency
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust and Loan Agency
(e) The headings of the Sections of this Agreement have been inserted for convenience and
shall not modify, define, limit or expand the express provisions of this Agreement.
(f) This Agreement and the rights and obligations hereunder of parties hereto may not be
assigned except with the prior written consent of the other parties hereto. This Agreement shall
be binding upon and inure to the benefit of each party’s respective successors and permitted
assigns. Except as expressly provided herein, no other person shall acquire or have any rights
under or by virtue of this Agreement. This Agreement is intended to be for the sole benefit of the
parties hereto, and (subject to the provisions of this Section 11(f)) their respective successors
and assigns, and none of the provisions of this Agreement are intended to be, nor shall they be
construed to be, for the benefit of any third person.
(g) This Agreement may not be amended, supplemented or otherwise modified without the prior
written consent of the parties hereto.
(h) The Escrow Agent makes no representation as to the validity, value, genuineness or the
collectability of any security or other document or instrument held by or delivered to it.
(i) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling
or retaining or taking or refraining from any action with respect to any securities or other
property deposited hereunder.
(j) This Agreement may be executed in two or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the same instrument.
(k) The rights and remedies conferred upon the parties hereto shall be cumulative, and the
exercise or waiver of any such right or remedy shall not preclude or inhibit the exercise of any
additional rights or remedies. The waiver of any right or remedy hereunder shall not preclude the
subsequent exercise of such right or remedy.
(l) The Fund hereby represents and warrants (i) that this Escrow Agreement has been duly
authorized, executed and delivered on its behalf and constitutes its legal, valid
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and binding
obligation and (ii) that the execution, delivery and performance of this Escrow Agreement by the
Fund does not and will not violate any applicable law or regulation.
(m) The invalidity, illegality or unenforceability of any provision of this Escrow Agreement
shall in no way affect the validity, legality or enforceability of any other provision; and if any
provision is held to be unenforceable as a matter of law, the other provisions shall not be
affected thereby and shall remain in full force and effect.
(n) No printed or other material in any language, including prospectuses, notices, reports,
and promotional material which mentions “HSBC Bank USA, National Association” or any affiliates by
name or the rights, powers, or duties of the Escrow Agent under this Escrow Agreement shall be
issued by any other parties hereto, or on such party’s behalf, without the prior written consent of
the Escrow Agent. The Escrow Agent hereby consents to mention of HSBC Bank USA, National
Association” in the Fund’s prospectus.
(o) For purposes of this Agreement, “Business Day” shall mean any day that is not a Saturday
or Sunday or a day on which banks are required or permitted by law or executive order to be closed
in the City of New York.
(p) For purposes of sending and receiving instructions or directions hereunder, all such
instructions or directions shall be, and the Escrow Agent may conclusively rely upon such
instructions or directions, delivered, and executed by representatives of the Fund designated on
Schedule 2 attached hereto and made a part hereof (each such representative, an “Authorized
Person”) which such designation shall include specimen signatures of such representatives, as such
Schedule I may be updated from time to time.
(q) The provisions of Sections 8, 10 and 11 shall survive the termination of this Escrow
Agreement or the earlier resignation or removal of the Escrow Agent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| By: | ||||||
| Title: Vice President, Superfund Capital | ||||||
| Management, Inc., General Partner of Superfund | ||||||
| Gold, L.P. | ||||||
| (Superfund Gold, L.P.) | ||||||
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| By: | ||||||
| Title: Vice President | ||||||
| (Superfund Capital Management, Inc.) | ||||||
| By: | ||||||
| Title: | ||||||
| (HSBC Bank USA, National Association) | ||||||
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Schedule 1
Bank Name:
ABA#:
Account#
Account name:
ABA#:
Account#
Account name:
11
Schedule 2
Authorized Representatives
| Name | Title | Specimen Signature | ||
Roman Gregorig
|
Vice President & Director | |||
| Superfund Capital Management | ||||
| General Partner of the Fund |
EXHIBIT A
Schedule 3
|
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 |
Payment Order Authorization Form
Account Name:
|
||||
Account Number(s): |
||||
By signing this form, the Customer authorizes the Authorized Contacts listed below to issue, amend
and cancel payment orders on behalf of the Customer, unless Call Back Only authorization is
indicated.
By: |
|||||||
Title:
|
Date: | ||||||
Authorized Contacts
| Call Back Only | ||||||
| Name | Signature | Phone Number | (Check if Yes) | |||
| o | ||||||
| o | ||||||
| o | ||||||
| o |
Exhibit A
Subscription Agreement
Exhibit B
Escrow Agent Fees
