EXHIBIT 10.1
AMENDED AND RESTATED
ESCROW AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT (this "Agreement") is entered into as
of this 7th day of January, 2005, by and among The
Frontier Fund, a Delaware statutory trust (the "Trust"), Equinox Fund
Management, LLC, a limited liability company formed under the laws of the state
of Delaware ("Equinox" and together with the Trust, the "Company"), Bornhoft
Group Securities Corporation, a corporation affiliated with the Managing Owner
("BGSC"), and U.S. Bank National Association, a national banking association
("Escrow Agent"). All capitalized terms used herein and not defined shall have
the meanings set forth in the prospectus of the Trust, including all the
appendices and exhibits thereto, as the same may be amended and updated from
time to time (the "Prospectus").
RECITALS
A. Equinox serves as the managing owner of the Trust and has complete
management authority over the Trust.
B. The Trust is conducting a private offering of units of beneficial
interest (the "Units") in six separate and distinct Series - Balanced Series,
Graham Series, Beach Series, Campbell/Graham Series, C-View Currency Series and
Dunn Series - under applicable state and Federal laws and regulations (the
"Offering"). The Graham Series and Campbell/Graham Series are being offered at
an initial price of $100.00 per Unit. The Balanced Series, Beach Series, C-
View Currency Series and Dunn Series have reached their Threshold Amounts (as
defined below) and the Subscribers' monies attributable to such Units have been
released to the Company. Therefore, such Units are no longer subject to this
Agreement.
C. The Company wishes to assure those who subscribe for any of the
Units (the "Subscriber") that the Subscribers' monies will be released to the
Company only if and when not less than the following amounts as determined in
accordance with the methods below (the "Threshold Amount") in subscriptions
from such number of investors for each Series as set forth in the Prospectus
(which number shall be provided in writing to the Escrow Agent by the Company)
are accepted by the Company from the sale of Units and upon the direction of
the Company, it being understood that release of monies may be for each Series
separately:
Name of Series Threshold Amount
Campbell/Graham Series$ 1,000
D. The Company desires to provide for the safekeeping of the proceeds
of the Offering until such time as subscriptions for the Units in any Series
totaling the Threshold Amount (or such greater amount as the Company may
direct in writing) have been received and upon the direction of the Company, or
until such time as the Escrow Agent is required to pay and return such proceeds
to the payors upon the terms hereinafter provided.
AGREEMENT
1. Deposit and Disbursement.
a. The Escrow Agent hereby agrees to receive and disburse the proceeds
from the Offering and any interest earned thereon in accordance with the terms
of this Agreement.
b. The Company or its authorized placement agents, on behalf of the
Subscribers, shall from time to time cause to be wired or deposited with the
Escrow Agent all proceeds received from the sales of Units by 12:00 p.m., New
York City time, the next business day following the receipt of such proceeds by
the Company or its authorized placement agents. Such proceeds shall be placed
in a special interest-bearing escrow account, in the appropriate sub-account at
the Escrow Agent designated for each Series (the "Escrow Account") until the
Threshold Amounts for each Series (or such greater amount as the Company may
direct in writing) have been deposited in said account. The Company shall
direct Subscribers to identify the Series for which such deposits are being
made, and direct subscribers to make payments to the Escrow Agent using the
instructions identified on Exhibit C attached hereto and incorporated herein.
All proceeds are to be deposited in the Escrow Account within three (3)
business days after receipt by Escrow Agent.
c. As deposits are made in the Escrow Account and at least every 3rd
business day, the Company shall cause to be delivered to the Escrow Agent with
each such deposit a list showing the name, address, and tax identification
number of each Subscriber as well as the name and address of each payor, by
Series, which list shall not be cumulative but shall identify only new
deposits. The Escrow Agent shall keep a current list by Series of the persons
who have subscribed for the Units and deposited money, showing name, date,
address and amount of each subscription. All funds so deposited shall remain
the property of the Subscribers, subject to the provisions of Section 5 herein.
The Escrow Agent shall promptly forward to the Company any subscription
agreements which it may receive directly from Subscribers.
d. If the Company rejects any subscriptions for which the Escrow Agent
has already collected funds, or in the event that the Subscriber rescinds its
subscription in conformity with the requirements of the North American
Securities Administrators Association Inc. Guidelines for Registration of
Commodity Pool Programs, which rescission has been approved by the Company and
the Company has notified the Escrow Agent thereof, the Escrow Agent shall
promptly issue a refund check to the payor, in the amount of the original
deposit collected from such payor via first class U.S. mail, with interest and
without deduction for expenses. If the Company rejects any subscription for
which the Escrow Agent has not yet collected funds but has submitted the
Subscriber's check for collection, the Escrow Agent shall promptly issue a
check in the amount of the rejected Subscriber's check upon actual collection.
The Escrow Agent shall promptly remit the Subscriber's check directly to the
Subscriber.
e. In the event that the Threshold Amount for any Series is not
deposited with Escrow Agent on or before the date for the closing of the
initial offering period as set forth in the Prospectus, which date shall be
provided to the Escrow Agent in writing by the Company (unless that date is
extended in accordance therewith, and the Company has notified the Escrow Agent
in writing of such extension), a copy of which is attached hereto as Exhibit A,
the Escrow Agent shall promptly return the funds which have been deposited in
the Escrow Account to the payors (in the same way described above in Section 1
(d)), in the amount and to the addresses as shown on its records, plus any
Interest Income earned on such subscription funds.
f. Upon receipt of (i) the Threshold Amount for each Series (or such
greater amount as the Company may direct in writing) and (ii) written
confirmation from the Company that funds may be released from escrow, the
Escrow Agent shall release the escrow funds, including all Interest Income to
the Trust. At the Company's option, it may continue to deposit proceeds from
the sale of additional Units (after receipt and/or distribution of the
Threshold Amount or any greater amount as directed in writing by the Company)
and to direct the disbursement from time to time of funds so deposited after
subscriptions for the Threshold Amount have been received but not to exceed 3
months from the date of this Agreement.
2. Responsibilities and Obligations of Escrow Agent.
a. The Escrow Agent assumes no responsibilities, obligations, or
liabilities except those expressly provided for in this Agreement as follows:
(1) The Escrow Agent shall have no responsibility, obligation or
liability to any person with respect to any action taken, suffered or omitted
to be taken by it in good faith under this Agreement and shall in no event be
liable hereunder except for its gross negligence or willful misconduct.
(2) Notwithstanding anything herein to the contrary, no reference
in this Agreement to any other agreement, including but not limited to Exhibit
A, shall be construed or deemed to enlarge the responsibilities, obligations,
or liabilities of the Escrow Agent as set forth in this Agreement, and the
Escrow Agent is not charged with knowledge of any other agreement.
b. The Escrow Agent shall be protected in relying upon the truth of any
statement contained in any requisition, notice, request, certificate, approval,
consent or other proper paper, and in acting on any such document, which on its
face and without inquiry as to any other facts, appears to be genuine and to be
signed by the proper party or parties, and is entitled to believe all
signatures are genuine and that any person signing any such paper who claims to
be duly authorized is in fact so authorized.
c. The Escrow Agent shall be entitled to act on any instruction given
to it in writing and signed by an authorized signatory of the Company and shall
be fully protected in doing so.
d. The Escrow Agent shall be entitled to act in accordance with any
court order or other final determination by any governmental authority with
jurisdiction of any matter arising hereunder.
e. The Escrow Agent shall have no responsibility for, and makes no
representation as to the value, validity or genuineness of any article, asset
or document deposited with Escrow Agent in the Escrow Account under this
Agreement, provided that it will give notice to the Company of any check for
money not credited and the reason stated therefore and of any discrepancy with
respect to the value, validity or genuineness of any article, asset or document
so deposited if and when it has actual knowledge thereof.
f. The Escrow Agent shall have no responsibility to make payments out
of the Escrow Account for any amount in excess of the amount of collected funds
deposited in the Escrow Account, together with interest earnings thereon, at
the time any payment is to be made.
g. If any controversy arises between the parties hereto or with any
third person relating to the Escrow Account, the Escrow Agent shall not be
required to resolve the same or to take any action to do so but may at its
discretion, institute such interpleader or other proceedings as it deems
proper. The Escrow Agent may rely on any joint written instructions as to the
disposition of funds, assets, documents or other assets held in escrow
hereunder.
h. The Escrow Agent may execute any of its powers or responsibilities
hereunder and exercise any of its rights hereunder either directly or by or
through its agents or attorneys. Nothing in this Agreement shall be deemed to
impose upon the Escrow Agent any duty to qualify to do business or to act as a
fiduciary or otherwise in any jurisdiction. The Escrow Agent shall not be
responsible for and shall not be under a duty to examine or pass upon the
validity, binding effect, execution or sufficiency of the Agreement or of any
agreement amendatory of supplemental hereto or of any other agreement.
3. Investment of Escrow Funds.
The Escrow Agent shall invest funds in an interest-bearing U.S. Bank Money
Market Savings Account. Equinox acknowledges that this is a FDIC insured U.S.
Bank Money Market Deposit Account designed to meet the needs of U.S. Bank
Corporate Trust Services Escrow Group and other Corporate Trust customers of
U.S. Bank National Association. This is a tiered account and the interest rate
paid on the account is based upon the daily balance maintained in your account.
U.S. Bank National Association uses the daily balance method to calculate
interest on these accounts. This method applies a daily periodic rate to the
principal balance in the account each day. Interest is accrued daily and
credited monthly to the account. The owner of the accounts is U.S. Bank as
Agent for its customers. At our discretion, we may change the interest rate for
the Money Market Deposit Accounts at any time. All account deposits and
withdrawals are performed by U.S. Bank National Association. Any and all
interest earned on the Proceeds after the deposit shall be added to the
Proceeds and shall become a part thereof. All entities entitled to receive
interest from the escrow account will provide Escrow Agent with a W-9 or W-8
IRS tax form prior to the disbursement of interest. A statement of citizenship
will be provided I requested by the Escrow Agent. The Escrow Agent shall have
no responsibility for preparing or filing any Federal or state tax returns in
connection therewith.
4. Compensation of Escrow Agent.
The Escrow Agent shall be paid reasonable compensation as set forth on
Exhibit B attached hereto and incorporate herein, for services hereunder and
shall be reimbursed for any actual out-of-pocket expenses incurred by the
Escrow Agent for performing its duties hereunder. Payment of all fees shall be
the responsibility of the Company and may, to the extent of unpaid fees and
expenses, be deducted from any property placed within the escrow with Escrow
Agent, which belongs to the Company.
In the event that the Escrow Agent is made a party to litigation with
respect to the property held hereunder, or brings an action in interpleader or
in the event that the conditions of this escrow are not promptly fulfilled, or
the Escrow Agent is required to render any service not provided for in this
Agreement, or there is any assignment of the interest of this escrow or any
modification hereof, the Escrow Agent shall be entitled to reasonable
compensation for such extraordinary services and reimbursement for all fees,
costs, liability and expenses, including reasonable attorneys' fees. The Escrow
Agent may amend its fee schedule from time to time on ninety (90) days prior
written notice to the Company, provided, however, that any fee increase shall
not exceed 10% of the amounts set forth on the existing fee schedule.
5. Indemnification of Escrow Agent.
The Company hereby indemnifies and hold harmless the Escrow Agent against
any and all claims, losses, and damages it may suffer in connection with its
carrying out the terms of this Agreement, including, without limitation, the
Escrow Agent's unpaid fees and reimbursable expenses, but excluding any loss
the Escrow Agent may sustain as a result of its gross negligence or willful
misconduct. The Escrow Agent shall have a lien or right of setoff on all
Company funds, monies or other assets held hereunder to pay all of its fees and
reimbursable expenses permitted under this Agreement. The obligations of the
Company under this Section 5 shall survive termination for any reason of this
Agreement or resignation or removal of Escrow Agent.
6. Termination and Resignation.
a. This Agreement shall terminate when (i) the Escrow Agent or its
successor or assign receives written notification of termination from the
Company including final disposition instructions signed by the Company, and
(ii) there occurs the actual final disposition of the monies held in escrow
hereunder as provide in this Agreement. The rights and obligations of the
Escrow Agent shall survive the termination of this Agreement.
b. The Escrow Agent may resign at any time and be discharged from its
duties as Escrow Agent hereunder by giving the Company not fewer than thirty
(30) days prior written notice thereof. As soon as practicable after its
resignation, the Escrow Agent shall turn over to a successor escrow agent
appointed by the Company all monies held hereunder upon presentation of the
document from the Company appointing a successor escrow agent and its
acceptance of appointment. If no successor has been appointed by the Company,
the Escrow Agent may designate its successor by written notice to the Company
so long as any such successor is a bank or trust company. Upon the designation
of a successor escrow agent and the delivery to a resigning escrow agent of the
document appointing such successor escrow agent and its acceptance of
appointment, the resigning escrow agent shall be released from any and all
liabilities arising thereafter except as provided in Sections 2(a)(1) and (5)
of this Agreement.
If no successor escrow agent is appointed by the Company within the thirty
(30) day period following such notice of resignation, the Escrow Agent reserves
the right to forward the matter and all monies and other property held by the
Escrow Agent pursuant to this Agreement to a court of competent jurisdiction at
the expense of the Company.
c. The Company may discharge the Escrow Agent and appoint a successor
escrow agent hereunder at any time by giving the Escrow Agent no fewer than
thirty (30) days prior written notice thereof. As soon as practicable after its
discharge, the Escrow Agent shall turn over to the successor escrow agent
appointed by the Company all monies held hereunder upon presentation of the
document from the Company appointing such successor escrow agent and its
acceptance of appointment. Upon the designation of a successor escrow agent,
the delivery of the document appointing a successor escrow agent and the
delivery of all monies held hereunder to such successor escrow agent pursuant
to the immediately preceding sentence, the discharged escrow agent shall be
released from any and all liabilities arising thereafter except as provided in
Sections 2(a)(1) and 5 of this Agreement.
7. Notices.
All notices provided for herein shall be in writing, shall be delivered by
hand or by registered or certified mail and shall be deemed given when actually
received, and shall be addressed to the parties hereto at their respective
addresses, which may be changed by any party from time to time by written
notice to all other parties hereto as follows:
a. If to the Company:
Equinox Fund Management, LLC
1660 Lincoln Street, Suite 100
Denver, Colorado 80264
Attn: Brent Bales
(303) 572-1000 (tel.)
(303) 832-9354 (fax)
b. If to BGSC:
1660 Lincoln Street, Suite 100
Denver, Colorado 80264
Attn: Brent Bales
(303) 572-1000 (tel.)
(303) 832-9354 (fax)
c. If to the Escrow Agent:
U.S. Bank Corporate Trust Services
60 Livingston Avenue, EP-MN-WS3T
St. Paul, Minnesota 55107-2292
Attn: Chris Smith
(651) 495-3726 (tel.)
(651) 495-8087 (fax)
With a fax copy to:
Dawnita Ehl
(206) 344-4685 (tel.)
(206) 344-4630 (fax)
8. Disclosure.
The parties hereby agree not to use the name of U.S. Bank National
Association to imply an association with the Offering other than that of a
legal escrow agent.
9. Brokerage Confirmation.
The parties acknowledge that to the extent regulations of the Comptroller
of Currency or other applicable regulatory entity grant a right to receive
brokerage confirmations of security transactions of the escrow, the parties
waive receipt of such confirmations to the extent permitted by law. The Escrow
Agent shall furnish a statement of security transactions on its regular monthly
reports to the Company.
10. Parties Bound.
This Agreement shall extend to and be binding upon the respective
successors, representatives, and assigns of the Company and Escrow Agent.
11. Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof and cannot be modified, amended,
supplemented, or changed, nor can any provisions hereof be waived, except by
written instrument executed by the parties hereto.
12. Assignment.
Neither party may assign its rights or obligations under this Agreement
without the written consent of the other party hereto.
13. Applicable Law.
The Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Colorado.
14. Severability.
If at any time subsequent to the date hereof, any provision of this
Agreement shall be held by a court of competent jurisdiction to be illegal,
void, or unenforceable, such provision shall be of no force or effect, and
shall be limited or expanded in scope so as to carry out the intent of the
parties as expressed herein to the greatest extent possible. The illegality or
unenforceability of any such provision shall have no effect upon and shall not
impair the enforceability of any other provision of this Agreement.
15. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be one and the same instrument. The exchange of copies
of this Agreement and of signature pages by facsimile transmission shall
constitute effective execution and delivery of this Agreement as to the parties
and may be used in lieu of the original Agreement for all purposes. Signatures
of the parties transmitted by facsimile shall be deemed to be their original
signatures for all purposes.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE FRONTIER FUND
__________________________________________
Name: ____________________________________
Title:______________________________________
EQUINOX FUND MANAGEMENT, LLC
__________________________________________
Name: ____________________________________
Title:______________________________________
U.S. BANK NATIONAL ASSOCIATION
__________________________________________
Name: ____________________________________
Title:______________________________________
BORNHOFT GROUP SECURITIES CORPORATION
__________________________________________
Name: ____________________________________
Title:______________________________________
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Exhibit A
II-5
Exhibit B
Schedule of Fees for Services as Escrow Agent
(1) Initial Fees
Acceptance Fee - The acceptance fee includes the administrative review of
documents, initial se-up of the account, and other reasonably required services
up to and including the execution and closing of the escrow agreement. This is
a one-time non-refundable fee payable at closing. $500.00
(2) Administration Fees - Transaction Fees
Administration - Annual administration fee for the performance of the routine
duties associated with the management of the escrow account will be based on
the number of transaction receipts. Charge per receipt of funds via wire or
check for deposit from a Subscriber (Subscriber Deposit). This fee is payable
in arrears and billed monthly.
$8.00 per Subscriber Deposit received.
Disbursement Fee - Charge per wire or check to Subscribers for return of
deposited funds to Subscribers for a failed subscription.
$5 per check or wire disbursed to Subscriber at the written direction of the
Company.
(3) Direct Out of Pocket Expenses
Reimbursement of actual reasonable expenses associated with the performance of
our duties, including but not limited to publications, mailings, legal counsel
after the initial close, travel expenses, and filing fees. (none anticipated)
At Cost
(4) Extraordinary Services
Extraordinary services are duties or responsibilities of an unusual nature, but
not provided for in the governing documents or otherwise set forth in this
schedule. A reasonable charge will be assessed based on the nature of the
service and the responsibility involved. At our option, these charges will be
billed at a flat fee or at our hourly rate then in effect. Account approval is
subject to review and qualification. Fees paid in advance will not be prorated.
II-6
Exhibit C
Payment instructions:
If by check: If by wire:
U.S. Bank National Association U.S. Bank National Association
60 Livingston Avenue ABA #091000022
EP-MN-WS3T
Attn: Chris Smith
Ref: Frontier [Insert Fund Series Name]
II-1