Exhibit 10.04
AMENDED AND RESTATED ESCROW AGREEMENT
August 31, 2002
JPMorgan Chase Bank
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx Xxxxxxxx
Re: Xxxxxx Xxxxxxx Charter Series
Escrow Account
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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 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.
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(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 and Chairman
if to the Depositor:
Xxxxxx Xxxxxxx XX Inc.
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Executive Director
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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:
JPMorgan Chase 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 multiplied by 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 LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. IF
ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY A PARTY TO THIS AGREEMENT TO
ENFORCE ANY RIGHT OR REMEDY UNDER THIS AGREEMENT, EACH PARTY HERETO HEREBY
CONSENTS AND WILL SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK OR ANY FEDERAL COURT SITTING IN THE COUNTY, CITY AND STATE OF NEW YORK. ANY
ACTION OR PROCEEDING BROUGHT BY ANY PARTY TO THIS AGREEMENT TO ENFORCE ANY
RIGHT, ASSERT ANY CLAIM OR OBTAIN ANY RELIEF WHATSOEVER IN CONNECTION WITH THIS
AGREEMENT SHALL BE BROUGHT BY SUCH PARTY EXCLUSIVELY IN THE COURTS OF THE STATE
OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE COUNTY, CITY AND STATE 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: /s/ Xxxxxx X Xxxxxx
Xxxxxx X. Xxxxxx
President and Chairman
XXXXXX XXXXXXX CHARTER MILLBURN L.P.
By: Demeter Management Corporation
By: /s/ Xxxxxx X Xxxxxx
Xxxxxx X. Xxxxxx
President and Chairman
XXXXXX XXXXXXX CHARTER XXXXXX X.X.
By: Demeter Management Corporation
By: /s/ Xxxxxx X Xxxxxx
Xxxxxx X. Xxxxxx
President and Chairman
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XXXXXX XXXXXXX CHARTER MSFCM L.P.
By: Demeter Management Corporation
By: /s/ Xxxxxx X Xxxxxx
Xxxxxx X. Xxxxxx
President and Chairman
XXXXXX XXXXXXX CHARTER XXXXXXX X.X.
By: Demeter Management Corporation
By /s/ Xxxxxx X Xxxxxx
Xxxxxx X. Xxxxxx
President and Chairman
XXXXXX XXXXXXX XX INC.
By: /s/ Xxxxxx X Xxxxxx
Xxxxxx X. Xxxxxx
Executive Director
Accepted:
JPMORGAN CHASE BANK
By:/s/ Xxxx Xxxxxxxx
Name: Xx. Xxxx Xxxxxxxx
Title:
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