EXHIBIT 10.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (herein the "AGREEMENT") entered into on the 30th
day of July, 1997, by and between IDS MANAGED FUTURES, L.P.
(herein the "PARTNERSHIP"), AMERICAN EXPRESS FINANCIAL ADVISORS INC. (herein the
"SELLING AGENT"), and FIRST TRUST NATIONAL ASSOCIATION, a national banking
association (herein the "ESCROW AGENT"), all being duly authorized to execute
and deliver this Agreement.
WITNESSETH:
The duties and responsibilities of the Escrow Agent shall be limited to
those expressly set forth in this Agreement. No implied duties of the Escrow
Agent shall be read into this Agreement and the Escrow Agent shall not be
subject to, or obliged to recognize any other agreement between, or direction or
instruction of, any or all of the parties hereto even though reference thereto
may be made herein.
The Escrow Agent may consult with legal counsel of its own choosing and
shall be fully protected in acting or refraining from acting in good faith and
in accordance with the opinion of such counsel.
DUTIES AND RESPONSIBILITIES OF ESCROW AGENT
As Escrow Agent, you are hereby directed to hold, deal with and dispose of
the aforesaid property and any other property at any time held by you hereunder
in the following manner, subject, however, to the terms and conditions
hereinafter set forth:
1. Escrow Agent shall receive the proceeds of subscriptions to the
Partnership for the duration of the offering period. The Escrow Agent shall
segregate subscriptions received according to the dates Selling Agent receives
the subscriptions. Such subscriptions shall be grouped from and after the 11th
calendar day of the month through and including the 10th calendar day of the
next succeeding calendar month ("MONTHLY GROUPS"). If the 10th calendar day
falls on a holiday or weekend, the Monthly Group shall be extended to the next
business day, and the succeeding Monthly Group shall commence on the day after
the last day of the preceding Monthly Group. The Escrow Agent shall pay and
deliver to the Partnership on the last business day of each calendar month,
subscriptions received by the Selling Agent from the Subscribers comprising the
Monthly Group from which subscriptions were received prior to the 11th calendar
day of the month.
Escrow Agent shall pay to subscribers or, at their discretion, to Selling
Agent any interest earnings equal to or exceeding $10.00. Subscription checks
must be made payable to "First Trust National Association, St. ▇▇▇▇, Minnesota
as escrow agent for IDS Managed Futures, L.P."
2. Prior to delivery of the escrowed Proceeds to the Partnership as
described above, the Partnership shall have no title to nor interest in the
Proceeds on deposit in this escrow or in any interest earned thereon, and such
Proceeds and interest shall under no circumstances be subject to the liabilities
or indebtedness of the Partnership.
3. The Escrow Agent shall cause all Proceeds deposited with it pursuant
to this Agreement to be maintained and invested as the General Partners of the
Partnership shall from time to time direct, by certificate executed by an
officer of each General Partner and delivered to the Escrow Agent, in
certificates of deposit, savings accounts, direct United States Government
obligations, money market funds, or other interest-bearing instruments, which
can be readily liquidated so that 100% of the Proceeds so deposited and interest
thereon can if necessary, be returned to the subscribers in accordance with
paragraph 4 below. The Escrow Agent will incur no liability for any loss
suffered so long as the Escrow Agent follows such directions. In the event that
100% of the Proceeds so deposited is not realized upon such liquidation, the
General Partners shall pay the difference into this escrow for distribution to
the subscribers.
4. At any time prior to the termination of this escrow, for whatever
reason, the General Partners may notify the Escrow Agent that a subscription
agreement of a subscriber has not been accepted and such General Partners may
direct the Escrow Agent to return as soon thereafter as may be practicable any
such proceeds held in this escrow for the benefit of such subscriber directly to
such subscriber, without interest.
5. The offering period shall mean a period commencing _______________,
1997 and ending July 31, 1999 or such earlier date if the total amount
of Units registered are sold.
6. The Escrow Agent shall not be obligated to inquire as to the form,
manner of execution or validity of any documents herewith or hereafter deposited
pursuant to the provisions hereof, nor shall the Escrow Agent be obliged to
inquire as to the identity, authority or rights of the persons executing the
same. Said Escrow Agent shall be liable under this Agreement only for its
failure to exercise due care in the performance of its duties expressly set
forth in this Agreement. In case of conflicting demands upon it, said Escrow
Agent may withhold performance of this escrow 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.
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7. Any notice required or permitted to be given hereunder shall be
delivered by messenger, or dispatched by registered mail, cable or telex, to the
respective party at its address specified below, namely: if to First Trust
National Association, addressed to the attention of ▇▇▇ ▇▇▇▇▇▇▇▇, Corporate
Trust Administration 2nd Floor, ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
if to the Partnership or the General Partners, to them at CIS Investments, Inc.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and IDS Futures Corporation, IDS Tower 10, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; if to American Express Financial Advisors
Inc., to it at ▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇; or at such other address as such party may have furnished in writing to
each of the other parties hereto. Any notice so given shall be effective when
received.
8. Your fees as Escrow Agent shall be determined in accordance with, and
shall be payable as specified in, the Schedule of Fees for Escrow Services
attached hereto as Exhibit A and hereby made a part hereof. You shall also be
reimbursed by the Partnership for any reasonable expenses incurred in connection
with this Agreement, including but not limited to the reasonable cost of legal
services should you deem it necessary to retain counsel.
9. You shall not be liable for any action taken or omitted by you in good
faith in accordance with the advice of your counsel and in no event shall you be
liable or responsible except for your own negligence or willful misconduct. You
shall not be responsible for any loss to the Proceeds resulting from the
investment hereof in accordance with the terms of this Agreement.
10. The Partnership and the General Partners warrant to and agree with you
that, unless otherwise expressly set forth in this Agreement: there is no
security interest in the Proceeds or any part thereof; no financing statement
under the Uniform Commercial Code is on file in any jurisdiction claiming a
security interest in or describing (whether specifically or generally) the
Proceeds or any part thereof; and you shall have no responsibility at any time
to ascertain whether or not any security interest exists in the Proceeds or any
part thereof or to file any financing statement under the Uniform Commercial
Code with respect to the Proceeds or any part thereof.
11. The Escrow Agent's duties and responsibilities shall be limited to
those expressly set forth in this Agreement, and the Escrow Agent shall not be
subject to, nor obliged to recognize, any other agreement between, or direction
or instruction of, any or all of the parties hereto; PROVIDED, HOWEVER, with the
Escrow Agent's written consent, this Agreement may be amended at any time or
times by an instrument in writing signed by all the undersigned.
12. If any property subject hereto is at any time attached, subject to
garnishment 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 such events, the Escrow Agent is authorized 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 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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13. This Agreement shall be construed, enforced, and administered in
accordance with the laws of the State of Minnesota applicable to contracts.
14. The Escrow Agent may resign by giving thirty days written notice by
registered or first class mail sent to the undersigned at their respective
addresses herein set forth; and thereafter shall deliver all remaining deposits
in said escrow 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 within thirty
days after mailing such notice, it is unconditionally and irrevocably authorized
and empowered to send any and all items deposited hereunder by registered mail
to the respective depositors thereof.
15. The Escrow Agent is not required to separately record on its books the
name, address and amount of each subscription as received, but shall keep
documents necessary to evidence the name and address of each subscriber, the
aggregate amount of his or her subscription, and the date such subscription was
received.
16. The Partnership may terminate this Agreement for any reason upon
thirty days written notice to the Escrow Agent.
INDEMNIFICATION
1. In conjunction with the solicitation of subscriptions, Selling Agent
obtains a W-9 Certification from each subscriber including the Internal
Revenue Service ("IRS") Tax I.D. Number ("TIN") satisfactory to the IRS and
forwards this information on the subscription form to Escrow Agent for its
requirements to the IRS. Selling Agent makes its best effort to report to
Escrow Agent the correct TIN for each subscriber as reported on the W-9
Certification.
2. The original W-9 Certification is to be retained by the Selling Agent
and no copy of the W-9 Certification will be provided to the Escrow Agent.
3. Escrow Agent relies upon the veracity of the TIN numbers as reported
by the Selling Agent in making its annual income tax reports to the IRS as
required by law.
NOW, THEREFORE, the undersigned jointly represent, state and agree as
follows:
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1. Selling Agent certifies to Escrow Agent that it has a W-9
Certification for each subscriber it has reported to Escrow Agent in accordance
with the Escrow Agreement.
2. Selling Agent represents that the subscriber TIN which it certifies to
Escrow Agent is the true and accurate number reported to it on the W-9
Certificate in its custody.
3. Selling Agent agrees to indemnify and hold Escrow Agent harmless from
any and all liabilities, expense or penalty Escrow Agent may incur arising from
Escrow Agent's use of the TIN numbers provided by Selling Agent to Escrow Agent
which are different from those certified to Selling Agent.
4. Selling Agent does not indemnify Escrow Agent for use of a TIN
incorrectly reported by an investor on the form W-9 certification or in
connection with any usage of any TIN by Escrow Agent which is not in compliance
with state or federal regulations.
This Agreement shall not become effective (and you shall have no
responsibility hereunder except to return the property deposited in escrow to
the subscribers) until you shall have received the following and shall have
advised each of the Partnership and the General Partners in writing that the
same are in form and substance satisfactory to you: (1) a certified resolution
of the General Partners' boards of directors authorizing the making and
performance of this Agreement and (2) a certificate as to the names and specimen
signatures of its officers or representatives authorized to sign this Agreement
and notices, instructions and other communications hereunder.
This Agreement shall terminate upon completion of this offering or as
otherwise provided by written instruction from the General Partners to the
Escrow Agent.
Dated: July 30, 1997
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Parties to the Escrow
IDS MANAGED FUTURES, L.P.
By: CIS Investments, Inc.
General Partner
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Its Vice President
BY: IDS FUTURES CORPORATION
General Partner
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Its President
CIS INVESTMENTS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Its Vice President
IDS FUTURES CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Its President
AMERICAN EXPRESS FINANCIAL ADVISORS INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Its Vice President
Accepted:
FIRST TRUST NATIONAL ASSOCIATION
By /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
Its Vice President
EXHIBIT A
SCHEDULE OF FEES FOR ESCROW SERVICES
Acceptance Fee $500.00
Administrative Fee $10.00 per Subscription
CHARGES
Cash Management 25 Basis Points
(.0025 deducted from investment earnings)
Wires Disbursed $20.00 Each
Out-of-Pocket Expenses At Cost
SUBJECT TO CHANGE AFTER TWO (2) YEARS.