EXHIBIT No. 10.03(b)
[HSBC LOGO] SERIES B
ESCROW AGREEMENT, dated as of September 30, 2002, by and between
Quadriga Superfund, L.P., a Delaware limited partnership ("Quadriga Superfund")
and HSBC BANK USA, a banking corporation and trust company organized and
existing under the laws of the State of New York, as escrow agent hereunder (the
"Escrow Agent").
WITNESSETH:
WHEREAS, Quadriga Superfund is offering its Series B units of limited
partnership interest on a best efforts basis to qualified investors (the "
Agreement") dated as of September 24, 2002;
WHEREAS, the Agreement provides for certain funds to be deposited in an
escrow account to be held and distributed in accordance with the terms and
conditions hereinafter set forth;
WHEREAS, Quadriga Superfund, desires to appoint HSBC Bank USA, as the
Escrow Agent and HSBC Bank USA is willing to act as Escrow Agent hereunder in
accordance with the terms and conditions hereof;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
Section 1. Definitions.
Unless otherwise defined herein, terms which are defined in
the Agreement, as in effect on the date hereof, and used
herein are so used as so defined.
Section 2. Establishment of Escrow Account.
Funds in the amount of up to Ten Million ($10,000,000) United
States Dollars (the "Escrow Amount") delivered from time to
time but no later than June 30, 2003 unless extended in
writing and accepted by the Escrow Agent, shall be accepted by
the Escrow Agent and placed into an account (the "Escrow
Account") to be held and administered in accordance with the
terms and conditions of this Agreement.
Section 3. Investments.
The Escrow Agent agrees to invest and reinvest the Escrow
Account, in (i) obligations issued or guaranteed by the United
States Government, its agencies or instrumentalities or (ii)
Certificates of Deposit issued by any bank, trust company or
national banking association (including. HSBC Bank USA)
authorized to do business in the State of New York, provided
the capital stock, surplus, and undivided profits of such
institution are not less than $500,000,000 which in each case
shall mature not later than the date amounts are to be paid
under this agreement or (iii) a money market account managed
by HSBC Bank USA or any of its subsidiaries or affiliates with
a stated investment objective of investing only in the
foregoing overnight deposits, as the Escrow Agent shall be
advised from time to time in writing by the Depositor and the
Beneficiary provided. The earnings realized from investments
and all interest, if any, accruing on monies held in Escrow
Account shall be added to the Escrow Account. Any loss
incurred from an
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investment, including all costs of investment or liquidation,
including without limitation all withholding and other taxes,
will be borne by the Escrow Account. The Depositor agrees to
furnish to the Escrow Agent upon execution of this Agreement
and as subsequently required all appropriate U.S. tax forms
and information in order for the Escrow Agent to comply with
U.S. tax regulations. The Escrow Agent shall not be
accountable or liable for any losses resulting from the sale
or depreciation in the market value of such investments
thereof.
Section 4. Payments from Escrow Account.
(a) For each payment from the Escrow Account, Quadriga
Superfund shall deliver, by facsimile, to Escrow Agent a
letter of direction (a "Certificate"), which Certificate shall
specify (i) the dollar amount of the funds in the Escrow
Account to be paid to the recipient, (ii) the name and address
of the recipient, and (iii) the date on which such payment or
payments shall be made by Escrow Agent. The Certificate must
be delivered to Escrow Agent at least five (5) calendar days
prior to the date on which any payment is to be made by Escrow
Agent.
(b) Escrow Agent shall make any payment to the recipient by
wire or other transfer to the account of such recipient as
directed by Quadriga Superfund.
Section 5. Termination of Escrow Account.
(a) Except as hereinafter provided, the Escrow Account shall
terminate without further action of parties upon the later of:
(i) the date on which the Escrow Agent completes paying out
all of the Escrow Account to the recipients, or (ii) nine (9)
months from the date hereof, at which time the balance of the
Escrow Account shall be distributed to the recipients.
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(b) In the event of any dispute or misunderstanding, Escrow
Agent shall have the option to pursue any legal remedies that
may be available to it, including the right to deposit the
subject matter hereof in interpleader in the U.S. District
Court having jurisdiction of the subject matter, and upon
doing so to be absolved from all further obligations or
liability hereunder. Quadriga Superfund agrees to pay to
Escrow Agent all costs and expenses, including reasonable
attorney's fees, incurred by Escrow Agent in any interpleader
action.
Section 6. Escrow Agent.
Quadriga Superfund agrees to pay the Escrow Agent its
agreed-upon compensation, as set forth in a separate
agreement, for its services as Escrow Agent hereunder promptly
upon request therefor, and to reimburse the Escrow Agent for
all expenses of or disbursements incurred by the Escrow Agent
in the performance of its duties hereunder, including
reasonable fees, expenses and disbursements of counsel to the
Escrow Agent.
The Escrow Agent shall have a lien upon the Escrow Account for
its costs, expenses and fees which may arise hereunder and may
retain that portion of the Escrow Account equal to such unpaid
amounts, until all such costs, expenses and fees have been
paid.
Section 7. Rights, Duties and Immunities of Escrow Agent.
Acceptance by the Escrow Agent of its duties under this Escrow
Agreement is subject to the following terms and conditions,
which all parties to this Escrow Agreement hereby agree shall
govern and control the rights, duties and immunities of the
Escrow Agent.
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(a) The duties and obligations of the Escrow Agent shall be
determined solely by the express provisions of this Escrow
Agreement and the Escrow Agent shall not be liable except for
the performance of such duties and obligations as are
specifically set out in this Escrow Agreement. This Escrow
Agreement shall not be deemed to create a fiduciary
relationship between the parties hereto under state or federal
law.
(b) The Escrow Agent shall not be responsible in any manner
for the validity or sufficiency of any property delivered
hereunder, or for the value or collectability of any note,
check or other instrument so delivered, or for any
representations made or obligations assumed by any party other
than the Escrow Agent. Nothing herein contained shall be
deemed to obligate the Escrow Agent to deliver any cash,
instruments, documents or any other property referred to
herein, unless the same shall have first been received by the
Escrow Agent pursuant to this Escrow Agreement.
(c) Quadriga Superfund will reimburse and indemnify the Escrow
Agent for, and hold it harmless against any loss, liability or
expense, including but not limited to counsel fees, incurred
without bad faith, gross negligence or willful misconduct on
the part of the Escrow Agent arising out of or in conjunction
with its acceptance of, or the performance of its duties and
obligations under this Escrow Agreement as well as the costs
and expenses of defending against any claim or liability
arising out of or relating to this Escrow Agreement.
(d) The Escrow Agent shall be fully protected in acting on and
relying upon any written notice direction, request, waiver,
consent, receipt or other paper or documents which the Escrow
Agent in good faith believes to have been
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signed and presented by the proper party or parties.
(e) The Escrow Agent shall not be liable for any error of
judgment, or for any act done or step taken or omitted by it
in good faith or for any mistake in act or law, or for
anything which it may do or refrain from doing in connection
herewith, except its own willful misconduct.
(f) The Escrow Agent may seek the advice of legal counsel in
the event of any dispute or question as to the construction of
any of the provisions of this Escrow Agreement or its duties
hereunder, and it shall incur no liability and shall be fully
protected in respect of any action taken, omitted or suffered
by it in good faith in accordance with the opinion of such
counsel.
The parties hereto agree that should any dispute arise with
respect to the payment, ownership or right of possession of
the Escrow Account, the Escrow Agent is authorized and
directed to retain in its possession, without liability to
anyone, except for its bad faith, willful misconduct or gross
negligence, all or any part of the Escrow Account until such
dispute shall have been settled either by mutual agreement by
the parties concerned or by the final order, decree or
judgment of a court or other tribunal of competent
jurisdiction in the United States of America, and a notice
executed by the parties to the dispute or their authorized
representatives shall have been delivered to the Escrow Agent
setting forth the resolution of the dispute. The Escrow Agent
shall be under no duty whatsoever to institute, defend or
partake in such proceedings.
(g) The agreements set forth in this Section 7 shall survive
the termination of this Escrow Agreement and the payment of
all amounts hereunder.
Section 8. Resignation of Escrow Agent.
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The Escrow Agent shall have the right to resign upon 30 days
written notice to Quadriga Superfund. In the event of such
resignation, Quadriga Superfund shall appoint a successor
escrow agent hereunder by delivering to the Escrow Agent a
written notice of such appointment. Upon receipt of such
notice, the Escrow Agent shall deliver to the designated
successor escrow agent all money and other property held
hereunder and shall thereupon be released and discharged from
any and all further responsibilities whatsoever under this
Escrow Agreement; provided, however, that the Escrow Agent
shall not be deprived of its compensation earned prior to such
time If no successor escrow agent shall have been designated
by the date specified in the Escrow Agent's notice, all
obligations of the Escrow Agent hereunder shall nevertheless
cease and terminate. Its sole responsibility thereafter shall
be to keep safely all property then held by it and to deliver
the same to a person designated by the other parties hereto or
in accordance with the direction of a final order or judgment
of a court of competent jurisdiction.
Section 9. Notices.
All claims, notices and other communications hereunder to be
effective shall be in writing and shall be deemed to have been
duly given when delivered by hand, or five days after being
deposited in the mail or sent by registered or certified first
class mail postage prepaid, or, in the case of facsimile
transmission, when received and telephonically confirmed, in
each case addressed to the parties at the addresses set forth
herein and to the Escrow Agent at the address set forth
opposite its name on the signature pages hereto (or to such
other person or address as the parties shall have notified
each other and the Escrow Agent in writing, provided that
notices of a
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change of address shall be effective only upon receipt
thereof.
Section 10. Binding Effect.
This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs,
executors, successors and assigns.
Section 11. Amendments.
This Escrow Agreement may be amended or modified at any time
or from time to time in writing executed by the parties to the
Escrow Agreement.
Section 12. Governing Law.
This Escrow Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York
applicable to contracts to be performed entirely within the
State of New York, without reference to or application of
rules or principles of conflicts of law.
Section 13. Interpretation.
The headings of the sections contained in this Escrow
Agreement are solely for convenience or reference and shall
not affect the meaning or interpretation of this Escrow
Agreement.
Section 14. Counterparts.
This Escrow Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
Section 15. Consent to Jurisdiction.
Each of the parties hereto hereby irrevocably agrees that any
action, suit or proceedings against any of them by any of the
other aforementioned parties with respect to this Agreement
shall be brought before the exclusive jurisdiction of the
federal or state courts located in the Borough of Manhattan
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in the State of New York, unless all the parties hereto agree
in writing to any other jurisdiction. Each of the parties
hereto hereby submits to such exclusive jurisdiction.
Section 16. Severability.
If any provisions of this Agreement shall be declared by any
court of competent jurisdiction illegal, void or
unenforceable, the other provisions shall not be affected, but
shall remain in full force and effect.
Section 17. Exhibits.
The terms and conditions of Exhibit A and Exhibit B attached
hereto are incorporated herein and form a part hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the date and the year first above written.
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Quadriga Superfund, L.P. Series A Quadriga Superfund, L.P.
Le Marquis Complex, Unit 5 By: Quadriga Capital
P.O. Box 1479 Management, Inc.
Grand Anse General Partner
St. George's, Grenada
West Indies
By:______________________
Christian Baha
Title President
HSBC Bank USA HSBC BANK USA,
Issuer Services AS ESCROW AGENT
10 East 40th Street, 14th Floor
New York, NY 10018-2706
By: Deirdra N. Ross
Title: Assistant Vice President
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HSBC BANK USA
QUADRIGA SUPERFUND, L.P.
ESCROW AGREEMENT dated as of September 30, 2002
EXHIBIT A
Section 1. For each payment from the Escrow Account, Quadriga Superfund shall
deliver, by facsimile to Escrow Agent, a letter of direction (a "Certificate"),
which Certificate shall specify (i), the dollar amount of the funds in the
Escrow Account to be paid to Series B of Quadriga Superfund and (ii) the date on
which such payment shall be made by Escrow Agent. The Certificate must be
delivered to Escrow Agent at least five (5) calendar days prior to the date on
which any payment is to be made by Escrow Agent.
Section 2. In the event Series B of Quadriga Superfund has not received an
aggregate of $1,000,000 in subscriptions on or before April 30, 2003, Quadriga
Superfund shall deliver, by facsimile to Escrow Agent, a Certificate stating
that all funds in the associated Escrow Account shall be returned to the persons
from whom such amounts were received, together with any interest earned thereon.
Section 3. Escrow Agent shall make any payment to the person or persons
designated in Section 1. or Section 2. above by wire or other transfer or as
otherwise directed by Quadriga Superfund.
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HSBC BANK USA
QUADRIGA SUPERFUND, L.P.
ESCROW AGREEMENT dated as of September 30, 2002
EXHIBIT B
Section 1. There is hereby created within each account maintained by Escrow
Agent pursuant to the Escrow Agreement a sub-account (a "Sub-Account") which
shall be designated "Quadriga Superfund, L.P. Pennsylvania Escrow Sub-Account."
Funds to be deposited into a Sub-Account shall be identified as such by Quadriga
Superfund and shall be invested and reinvested by the Escrow Agent in accordance
with the terms of the Escrow Agreement.
Section 2. For each payment from a Sub-Account, Quadriga Superfund shall
deliver, by facsimile to Escrow Agent, a letter of direction (a "Certificate"),
which Certificate shall specify (i), the dollar amount of the funds in the
Sub-Account to be paid to the respective series of Quadriga Superfund; and (ii)
the date on which such payment shall be made by Escrow Agent. The Certificate
must be delivered to Escrow Agent at least five (5) calendar days prior to the
date on which any payment is to be made by Escrow Agent.
Section 3. In the event Series B of Quadriga Superfund has not received an
aggregate of $10,000,000 in subscriptions on or before April 30, 2003, Quadriga
Superfund shall deliver, by facsimile to Escrow Agent, a Certificate stating
that all funds in the associated Sub-Account shall be returned to the persons
from whom such amounts were received, together with any interest earned thereon.
Section 4. Escrow Agent shall make any payment to the person or persons
designated in Section 2. or Section 3. above by wire or other transfer or as
otherwise directed by Quadriga Superfund.
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