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EXHIBIT 10.2
S&P MANAGED FUTURES INDEX FUND, LP
ESCROW AGREEMENT
This Agreement entered into as of this _____________ day of ______________,
2003, by and between S&P Managed Futures Index Fund, LP (the "Fund"), a Delaware
limited partnership, and Fifth Third Bank, Cincinnati, (the "Escrow Agent") and
RefcoFund Holdings, LLC, a Delaware limited liability company and provides as
follows:
WITNESSETH
WHEREAS, the Fund proposes to offer $100,000,000 of units of limited
partnership interests (referred to herein as the "Units") for subscription in
the S&P Managed Futures Index Fund, LP, at a price of $1,000 per Unit during the
initial offering period and at net asset value thereafter, in a public offering
of the Units;
WHEREAS, the initial offering of the Units shall terminate as of
______________, 20____ (subject to extension until on or prior to
_______________________, 20____ at the option of RefcoFund Holdings, LLC, the
general partner (the "General Partner") of the Fund, upon verbal notice promptly
confirmed in writing to the Escrow Agent, and to prior sale of all available
Units) (the "Initial Offering Period"), and the Units shall be sold to the
public as soon as practicable thereafter, provided that the minimum number of
Units required for the Partnership to commence operations is sold during the
Initial Offering Period.
WHEREAS, the minimum number of Units (the "Minimum Units") which may be
sold during the Initial Offering Period is ________________.
WHEREAS, in connection with the proposed offering of Units, the Fund has
entered into an agreement with Refco Securities, LLC and certain additional
selling agents, as selling agents (the "Selling Agent") for the Fund;
WHEREAS, the Selling Agent will retain all Subscription Agreement and Power
of Attorney signature pages submitted by persons subscribing to purchase Units
(the "Subscribers");
WHEREAS, the Fund proposes to establish an escrow account with the Escrow
Agent; and
WHEREAS, the Escrow Agent is willing to act as escrow agent for proceeds
received on subscription for the Units for the benefit of the Subscribers and
the Fund on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein, and other good and valuable consideration the adequacy and
receipt of which is hereby acknowledged, agree as follows:
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1. ESCROW DEPOSITS.
a. Until the termination of the escrow account (the "Escrow Account"),
the Selling Agent will deposit with the Escrow Agent, and the Escrow
Agent will receive and hold in escrow, on the terms and conditions set
forth herein, all payments received on behalf of the Fund from the
subscription of Units as confirmed to the Escrow Agent by the Fund.
b. Such subscriptions may be deposited in the Escrow Account established
under this Escrow Agreement either by certified or clearinghouse
check, or Federal Funds wire transfer, to be determined by the General
Partner, duly made out to the Escrow Agent in the following form:
"FIFTH THIRD BANK, CINCINNATI, AS ESCROW AGENT FOR S&P MANAGED FUTURES
INDEX FUND, LP, ESCROW ACCOUNT NO._______________."
2. INVESTMENT OF PROCEEDS.
a. If the deposit into the Escrow Account is made by certified check or
Federal Funds wire transfer, the Escrow Agent shall invest the funds
deposited on the same day as deposited, provided such deposit is
received by the Escrow Agent by 10:00 a.m. E.D.T. If the deposit into
the Escrow Account is made by certified check or Federal Funds wire
transfer and received by the Escrow Agent after 10:00 a.m. E.D.T., the
Escrow Agent shall invest the funds deposited on the next business
day. If the deposit into the Escrow Account is made by clearinghouse
check, the Escrow Agent shall invest the funds deposited on the next
business day following the receipt of the clearinghouse check.
b. The Escrow Agent shall invest all funds deposited in the Escrow
Account in Fifth Third US Treasury Fund Money Market Fund or such
other obligations as are considered prudent to safeguard principal,
earn reasonable interest and have funds available within a reasonable
time for distribution when required.
3. INITIAL CLOSING DATE AND ACTIONS AFTER THE INITIAL OFFERING PERIOD.
a. After the Initial Offering Period, Units may be sold as of each
month-end. The General Partner may limit, suspend or terminate the
offering at any time upon verbal notice promptly confirmed in writing
to the Escrow Agent. The date of the sale of the Units is hereinafter
referred to as the "Initial Closing Date" and each month-end
thereafter during which Units are sold is hereinafter referred to as
the "Subsequent Closing Date."
b. On the Initial Closing Date and each Subsequent Closing Date the
Escrow Agent shall, upon (i) written instructions from the Selling
Agent, the General Partner and the Fund, (ii) receipt of an affidavit
signed by the General Partner to the effect that acceptable
subscriptions for at least the Minimum Units have been received (other
than from the General Partner or any of its principals or affiliates),
and (iii) possession in the Escrow Account of at least the
subscription price for the Minimum Units in cleared funds in payment
of such subscriptions, release all
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funds then held in such Escrow Account, except as otherwise provided
herein, to the Fund's bank account (pursuant to instructions from the
General Partner). No selling commissions or organizational or offering
charges are payable from any amounts held in escrow. The General
Partner shall give the Escrow Agent verbal notice (promptly confirmed
in writing ) of the Initial Closing Date and each Subsequent Closing
Date at least [three] [(3)] business days prior thereto.
c. In the event that the Initial Offering Period of the Units terminates
(which it shall do either upon termination by the General Partner or
upon the close of business 60 calendar days after the date of the
prospectus subject to earlier termination or an extension for an
additional 60 calendar days) without the General Partner having
submitted to the Escrow Agent an affidavit certifying that acceptable
subscriptions for at least the Minimum Units have been received (other
than from the General Partner or any of its principals or affiliates),
and receipt of cleared funds in payment of such subscriptions as
aforesaid, the Escrow Agent shall, as promptly as practicable, and in
no event later than five (5) business days thereafter, transmit to the
relevant subscribers a check or checks in the amount of the
subscriptions received plus the interest actually earned thereon while
held in escrow. The General Partner shall immediately notify the
Escrow Agent of either (i) termination of the Initial Offering Period
prior to 60 calendar days after the date of the prospectus or (ii)
extension of the Initial Offering Period.
4. DISPOSITION OF PROCEEDS. The Escrow Agent shall pay the principal amount of
and any interest earned on the funds held in escrow (a) to the Fund upon
receipt by the Escrow Agent of $___________ for the sale of _____________
Units; or (b) if earlier, to the subscribers in the manner set forth in
SECTION 5 below, upon receipt of written instructions from the General
Partner due to the termination of the Offering of Units.
5. RETURN OF FUNDS TO SUBSCRIBERS.
a. At any time prior to the release of a Subscriber's funds from the
Escrow Account, the General Partner is authorized to notify the Escrow
Agent that such subscription has not been accepted (irrespective of
how long such subscription has been held in the Escrow Account and of
whether the General Partner had previously indicated its willingness
to accept such subscription), and the General Partner is further
authorized to direct the Escrow Agent to return any funds held in the
Escrow Account during the Initial Offering Period to the subscriber
(including any interest attributable to such funds while held in the
Escrow Account). In the event a subscription has not been accepted,
the General Partner shall provide the Escrow Agent with the name of
the subscriber, the number of Units subscribed for each such
subscriber, the amount of principal initially deposited. Such refund
of subscriptions, plus interest, shall be made in the case of each
rejected subscription in the same manner described above in the event
that the offering is terminated without Units being sold.
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b. Interest earned on funds while held in the Escrow Account shall be
allocated among Subscribers in proportion to the amounts of their
respective subscriptions and the lengths of time their subscriptions
were held in escrow.
c. Prior to delivery as described above, the Fund shall have neither
title to nor interest in the funds on deposit in the Escrow Account,
and such funds shall under no circumstances be subject to the
liabilities or indebtedness of the Fund.
6. ESCROW AGENT'S FEE. As compensation for its services hereunder, the Escrow
Agent shall be entitled to receive its normal Escrow Fee in accordance with
the attached Schedule 1. The escrow fees shall be paid by the Fund in the
event the Fund breaks escrow, otherwise, fees will be paid directly by the
General Partner. The Escrow Agent shall be reimbursed by the Fund for any
costs, expenses, or services hereunder arising from any dispute,
controversy or litigation in connection herewith. The Escrow Agent will
send invoices on a monthly basis to the Fund and payment shall be due
within ten (10) days of receipt of such invoices.
7. INDEMNIFICATION. The General Partner shall indemnify and hold the Escrow
Agent harmless from losses, costs, and expenses (including reasonable
attorneys' fees) incurred by the Escrow Agent in any suit or claim arising
out of or in connection with this Escrow Agreement except claims which are
occasioned by the Escrow Agent's negligence, bad faith, or willful
misconduct. This indemnity shall survive the termination of this Escrow
Agreement.
8. LIMITATIONS AND LIABILITY OF THE ESCROW AGENT.
a. The duties and responsibilities of the Escrow Agent will be limited to
those expressly set forth herein, to hold such escrowed items and to
deliver them to such recipient and under such conditions as herein set
forth. The Escrow Agent shall not be liable for any act taken or
omitted in good faith and shall be fully protected when relying on any
written notice, demand, certificate or document which it believes to
be genuine. The Escrow Agent may execute any of the duties or
responsibilities hereunder either directly or through agents or
attorneys.
b. If any property in the Escrow Account is at any time attached,
garnished or levied upon, under any court order, or in case the
payment, assignment, transfer, conveyance or delivery of any such
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 the Escrow Agent is advised by legal counsel of its own choosing
is binding upon the Escrow Agent, and if the Escrow Agent complies
with any such order, writ, judgment or decree, the Escrow Agent shall
not be liable to any of the parties hereto 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.
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9. CONFLICTING INSTRUCTIONS. In case of conflicting demands upon the Escrow
Agent, the Escrow Agent may withhold performance of this Escrow Agreement
until such time as said conflicting demands shall have been withdrawn or
the rights of the respective parties shall have been settled by court
adjudication, arbitration, joint order or otherwise.
10. BOOKS AND RECORDS. The Fund and the Escrow Agent shall keep accurate books
and records of all transactions hereunder, and each shall have access to
such books and records of the other at all reasonable times. The Escrow
Agent shall promptly provide the Fund with written confirmation of all
amounts received from Subscribers.
11. NOTICE. Any notice which the Escrow Agent is required or desires to give
hereunder to any of the undersigned shall be in writing and may be given by
mailing the same to the address of the undersigned indicated under their
respective signatures hereon (or to such other address as said undersigned
may substitute therefore by written notification to the Escrow Agent). For
all purposes hereof, any notice shall be effective only when actually
received. Notices to the Escrow Agent shall be in writing and shall not be
deemed effective until actually received by the Escrow Agent. Whenever
under the terms hereof the time for giving 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.
12. TERMINATION.
a. The Escrow Agent may resign by giving twenty (20) business days'
written notice to the General Partner. Upon resignation, the Escrow
Agent is unconditionally and irrevocably authorized and empowered to
send any and all property in the Escrow Account by registered mail to
the respective depositors thereof.
b. The General Partner may remove the Escrow Agent at any time (with or
without cause) by giving at least twenty (20) days written notice
thereof. Within ten (10) 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
redistribute the funds held in the Escrow Account, less its fees,
costs and expenses or other obligations owed to it as directed by the
joint instructions of the General Partner and the Selling Agent or
hold such funds, pending distribution, until all 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 ten (10) day period, the Escrow Agent may appeal 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.
13. AMENDMENTS. The Agreement may be amended at any time or times by an
instrument in writing signed by all of the parties.
14. GOVERNING LAW. This Agreement shall be construed, enforced, and
administered in accordance with the laws of the State of New York. The
parties hereto agree that any
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action or proceeding arising directly, indirectly, or otherwise in
connection with, out of, related to, or from this Agreement, any breach
hereof, or any transaction covered hereby, shall be resolved, whether by
arbitration or otherwise, within the City of New York, and State of New
York. Accordingly, the parties hereto consent and submit to the
jurisdiction of the federal and state courts and applicable arbitral body
located within the City of New York, and State of New York. The parties
further agree that any such action or proceeding brought by any party 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 federal or state courts, or if appropriate, before any applicable
arbitral body, located within the City of New York, and State of New York.
15. DISPUTES. 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 funds 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 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 General Partner or the Selling
Agent for its failure or refusal to comply with such conflicting claims,
demands or instructions, except to the extent under the circumstances such
failure would constitute negligence, bad faith or willful misconduct on the
Escrow Agent's part. The Escrow Agent shall be entitled to refuse to act
until, at is 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 a 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 it harmless from and against any and all
loss, liability or expense which it may incur by reason of its 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.
IN WITNESS WEREOF, the parties have executed this Escrow Agreement as of
the date first set forth above.
FIFTH THIRD BANK
Escrow Agent
Fifth Third Bank
251 North Illinois Street, Suite 310
Indianapolis, IN 46204
Attn: George Bawcum
By:
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[Name]
[Title]
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S&P MANAGED FUTURES INDEX FUND, LP
By: RefcoFund Holdings, LLC
550 W. Jackson
Suite 1300
Chicago Illinois 60661
By:
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[Name]
[Title]
REFCOFUND HOLDINGS, LLC
550 W. Jackson
Suite 1300
Chicago Illinois 60661
By:
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[Name]
[Title]
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SCHEDULE 1
SCHEDULE OF FEES FOR ESCROW AGENT
ACCEPTANCE FEE: $500.00
The Acceptance Fee includes our review and comments relating to the governing
documents, initial investment of escrow proceeds, and the set up of escrow
accounts.
ANNUAL ADMINISTRATIVE FEE: $1,000.00
The Annual Administrative Fee includes the routine administration of the escrow
document and the processing of payments coming in from Subscribers.
Additional Services include:
- Monthly Statements
- Investment in the Fifth Third US Treasury Money Market Fund
OTHER CHARGES
In the event that Escrow is not broke:
- Disbursements
- $10.00 per Subscriber
Additional fees may be charged for any unusual, special or extraordinary
services required. The charges will be based upon the extent of the services
performed and the responsibilities assumed by the Escrow Agent.
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