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EXHIBIT 10.3
ESCROW AGREEMENT
TO: European American Bank
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Financial Institutions North America
The following property is to be deposited with you as Escrow Agent in
one or more Money Market Accounts which shall be entitled "Xxxxxxx Xxxxx Xxxxxx
Global Diversified Futures Fund L. P." (Escrow Accounts):
All proceeds of subscriptions (the "Escrow Property") for Units of
Limited Partnership Interest ("Units") in XXXXXXX XXXXX BARNEY GLOBAL
DIVERSIFIED FUTURES FUND L. P., a New York limited partnership (the
"Partnership"), received by Xxxxx Xxxxxx Inc. ("SB"), Selling Agent for the
Partnership, or additional selling agents appointed by SB. SB shall deliver to
all such prospective subscribers interim receipts for the amount of the funds
deposited in this escrow.
As Escrow Agent, you are hereby directed to hold, deal with and dispose
of the Escrow Property and any other property at any time held by you hereunder
subject to the terms and conditions hereinafter set forth:
1. During the Initial Offering Period (as defined in Paragraph 6
below), all Escrow Property (up to the collected balances in the account or
accounts and as the balances become collected in the account or accounts)
deposited with the Escrow Agent and any interest earned thereon (which shall
also be part of the Escrow Property) shall be paid over and delivered to the
Partnership as directed by written notice by Xxxxx Xxxxxx Futures Management
Inc., general partner of the Partnership (the "General Partner"), as soon as
practicable after receipt by the Escrow Agent of such written notice in
accordance with Paragraph 2 below. In the event the General Partner has directed
you to operate two bank money market accounts for the Partnership, such request
shall specify the account from which the Escrow Property should be paid over and
delivered to the Partnership.
2. If subscriptions for Units in the aggregate value of $15,000,000
have been received during the Initial Offering Period (as defined in Paragraph 6
below), as evidenced by an affidavit of the General Partner attesting to said
fact, the Escrow Property shall be paid over and delivered to the Partnership as
soon as practicable after the receipt of the written request of the General
Partner. Any interest earned on the Escrow Property (which shall also be part of
the Escrow Property) shall be returned by the General Partner directly to each
subscriber in proportion to their respective subscriptions and to the period
their respective subscriptions were held in escrow. During the Continuous
Offering Period (as defined in Paragraph 6 below), all Escrow Property deposited
with the Escrow
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Agent and any interest earned thereon (which shall also be part of the Escrow
Property) shall be paid over and delivered to the Partnership on the first day
of the month succeeding the request. Any such request shall be made sufficiently
in advance of the first day of a month to provide sufficient time for the Escrow
Agent to process the request for delivery to the Partnership on the first day of
the month. If subscriptions for Units in the aggregate value of $15,000,000 have
not been received during the Initial Offering Period, as evidenced by an
affidavit of the General Partner attesting to said fact, the Escrow Property
will be paid over and delivered by the Escrow Agent directly to subscribers as
soon as practicable after receipt of written directions from the General
Partner.
3. Prior to delivery of the Escrow Property to the Partnership as
described in Paragraph 2 above, the Partnership shall have no title to or
interest in the funds on deposit, and such funds shall under no circumstances be
subject to the payment or satisfaction of the liabilities or indebtedness of the
Partnership.
4. The Escrow Agent shall cause all funds deposited with it pursuant to
this Escrow Agreement to be maintained and invested as the General Partner shall
from time to time direct by written instructions delivered to the Escrow Agent,
in an interest-bearing money market account or accounts, which can be readily
liquidated on twenty-four hours notice, in an amount equal to the collected
balances in the account or accounts, as permitted under the Securities and
Exchange Commission's Rule 240.15c2-4.
5. Within 15 days of receipt of a subscription agreement, the General
Partner may notify the Escrow Agent that a subscription agreement of a
subscriber has not been accepted, and the General Partner may direct the Escrow
Agent by written instruction to return any funds held in the escrow for the
benefit of such subscriber directly to such subscriber, together with such
subscriber's proportionate share of any interest earned on the Escrow Property
during the period such funds were held in the escrow.
6. The Initial Offering Period for the Units shall mean a period of 90
days commencing on the date the Partnership's Registration Statement is declared
effective unless the General Partner terminates the offering at an earlier date
or extends the Initial Offering Period for up to an additional 60 days in which
case the Initial Offering Period shall mean such period as so terminated or
extended. The General Partner shall provide the Escrow Agent with prompt written
notice of any such termination or extension. The Continuous Offering Period for
the Units shall mean a period commencing on the termination of the Initial
Offering Period (if at least 15,000 Units are sold during the Initial Offering
Period) and ending upon the sale of 100,000 Units.
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7. Any of the persons whose names and signatures appear on Schedule 1
annexed hereto are authorized by the General Partner to deliver any instruction
or notice to the Escrow Agent required or permitted by this Escrow Agreement.
8. (a) As Escrow Agent hereunder, you shall have no duties or
responsibilities except those expressly set forth herein. The Escrow Agent shall
act hereunder merely as a depository and in a ministerial capacity. The Escrow
Agent shall not be deemed to be a trustee for any person. In the event checks
are received which represent proceeds of subscriptions, Escrow Agent will
deposit the checks for collection, but shall be under no duty to enforce the
collection of any check. The Escrow Agent shall not be responsible for the form,
terms, validity or negotiability of the checks, the validity of any signature on
any check, or the authority of any person to sign or issue any check.
(b) The Escrow Agent may consult with counsel and shall be
fully protected with respect to any action taken or omitted by it in good faith
on advice of counsel and you shall have no liability hereunder except for your
bad faith or negligence. You shall have no responsibility as to the validity or
value of the Escrow Property and you may rely on any certificate, statement,
request, consent, agreement or other instrument which you believe to be genuine
and to have been signed or presented by a proper person or persons. You shall
not be bound by any modification of this Escrow Agreement unless in writing and
signed by all parties hereto and actually received by you and, if your duties as
Escrow Agent hereunder are affected, unless you shall have given prior written
consent thereto. In the event that you shall be uncertain as to your duties or
rights hereunder or shall receive instructions from any of the undersigned with
respect to the Escrow Property which, in your opinion, are in conflict with any
of the provisions of this Escrow Agreement, you shall be entitled to refrain
from taking any action other than to retain the Escrow Property until you shall
be directed otherwise in writing by the unanimous consent of the parties hereto
or by final order of a court of competent jurisdiction.
(c) The Escrow Agent may, at its own discretion, refuse to
accept any deposits lacking the required documentation or containing
discrepancies.
(d) In any event when the Escrow Agent receives disbursement
instructions, it is expressly understood and agreed that the Escrow Agent shall
not be required to make any such disbursement until such amount is, to the
Escrow Agent's satisfaction, available in cleared funds. Further, in no event
shall the aggregate amount of payments made by the Escrow Agent exceed the
amount of Escrow Property.
9. Any notice which the Escrow Agent is required or desires to give
hereunder to any of the undersigned shall be in
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writing and shall be deemed to have been duly given on the date of service if
served personally on the party to whom notice is to be given, on the following
day if given by telegram, or on the third day after mailing if mailed to the
party to whom notice is to be given by first class mail, registered or certified
with return receipt requested, postage prepaid, and properly addressed as
follows:
To: Xxxxxxx Xxxxx Xxxxxx Global Diversified Futures Fund L.P.
and Xxxxx Xxxxxx Futures Management Inc.
000 Xxxxxxxxx Xxxxxx - 1st floor
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
To: Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx - 1st floor
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
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.
10. If any property subject hereto is at any time attached, garnished
or levied upon, shall become or be the subject of any court order, or in case
the payment, assignment, transfer, conveyance or delivery of the Escrow Property
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 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 for any losses, claims, costs, payments or expenses by reason of
such compliance, even though such order, writ, judgment or decree may be
subsequently reversed, modified, annulled, set aside or vacated.
11. The Escrow Agent may resign by giving ten (10) days' written notice
to the undersigned, and thereafter shall deliver the Escrow Property to a
successor escrow agent acceptable to all parties hereto, which acceptance shall
be evidenced by the joint written and signed order of the undersigned. If no
such order is received by the Escrow Agent by such resignation date, the
obligations of the Escrow Agent shall nevertheless cease and terminate and the
Escrow Agent is
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unconditionally and irrevocably authorized and empowered to send the Escrow
Property by registered or certified mail to the respective subscribers thereof.
12. SB shall reimburse the Escrow Agent for all out-of-pocket expenses
(including, without limitation, New York taxes and other governmental charges)
incurred by you in connection with your duties hereunder and shall indemnify you
against and save you harmless against any and all claims, liabilities, costs,
payments and expenses, including fees of counsel (who may be selected by you),
for anything done or omitted by you in the performance of this Agreement, except
as a result of your own negligence or bad faith, and you shall have a lien on
the Escrow Property for the amount thereof. All such fees and expenses shall be
paid by SB.
13. In addition, SB agrees to pay the Escrow Agent an Escrow Agent fee
of $2,500 per Escrow Account established. Additionally, SB agrees to pay
applicable fees as set forth in Schedules 2 and 3 annexed hereto.
14. In the event that any checks or other instruments deposited in the
account or accounts established to hold the Escrow Property prove uncollectible
after the funds represented thereby have been released pursuant to the
Agreement, SB shall promptly reimburse the Escrow Agent therefor upon request,
and the Escrow Agent shall deliver the returned checks or other instruments to
SB.
15. Nothing in this Agreement is intended to or shall confer upon
anyone other than the parties hereto any legal or equitable right, remedy or
claim. This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of New York, and may be modified only in
writing executed by all parties hereto.
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16. This Agreement may be executed in one or more counterparts, but in
such event each counterpart shall constitute an original and all of such
counterparts shall constitute one Agreement.
Dated as of August __, 1998
Parties to the Escrow
XXXXXXX XXXXX XXXXXX GLOBAL
DIVERSIFIED FUTURES FUND L.P.
By: Xxxxx Xxxxxx
Futures Management Inc.,
General Partner
By___________________________________
XXXXX XXXXXX FUTURES
MANAGEMENT INC.
By___________________________________
XXXXX XXXXXX INC.
By___________________________________
ACCEPTED:
EUROPEAN AMERICAN BANK
By____________________
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SCHEDULE 1
Name Title Signature
Xxxxx X. Xxxxx President and
Director _______________
Xxxxxx X. XxXxxxxxx, Xx. Director _______________
Xxxxxx X. Xxxxxxxx Treasurer,
Director and Chief
Financial Officer _______________
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